The issue of music copyright has had a long and contentious history in the United States: from its origins in the Constitution (when the phonograph was the primary method for home listening) to its hot-button status during the current Internet Age (a time when music can be heard on vinyl, cassette tape, compact disc or in digital MP3 format).
Over the course of this 220-year period, music copyright laws have most often been updated in response to the emergence of technologies which offer new possibilities in terms of the way music can be distributed for personal use. Therefore, it is no surprise that the recent proliferation of digital innovations, such as P2P networks, online streaming and Internet radio – all of which offer people even more possibilities for disseminating music – has generated a wealth of problems concerning effective methods for enforcing copyrights.
At its theoretical core, a copyright is intended to encourage the production of new original works by granting an author the exclusive rights to profit from their ideas and its distribution – be it the lyrics to a song, the melody and rhythm, or the actual sound recording (Moser, 2002).
The basis for this practice is drawn from Article 1, Section 8 (the so-called “Copyright Clause”) of the U.S. Constitution, which granted Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” (as cited in Moser, 2002).
With regard to music, this compensation occurs in the form of royalties – payments made to the copyright holder whenever a work is sold or performed. In 1909, a new Copyright Act set this fee at two cents for every distributed version of a record which contained a copyrighted song (Moser, 2002). Today, these residuals often come in the form of a negotiated percentage of the listed selling price (Passman, 2006).
Of course, as it has become increasingly easier and more cost-effective for individuals to make copies of sound recordings and share them with others, the need for new sets of laws to govern the collection and distribution of copyright royalties has become the subject of intense and prolonged debate.
In the 1970s and 1980s, the introduction of the cassette tape, along with portable listening and recording devices (such as the Sony Walkman), prompted the practice of making personal mixtapes and precipitated several anti-piracy campaigns – including one sponsored by the British Phonographic Industry which declared: “Home Taping Is Killing Music” (Martin, 2003).
These crusades were – and still are – centered around the central argument that the ability to duplicate sound recordings at home and distribute these copies for personal use would lead to a decline in album sales (Martin, 2003).
Consequently, as the use of cassette tapes gradually began to fade out in favor of compact discs during the early 1990s, more legislation (such as the Audio Home Recording Act of 1992) was enacted to address the emergence of this new technology, which enabled people to make an endless number of perfect, digital copies of music recordings.
In order to quell fears among those within the music business concerning the effects this newfound capability would have, the law required manufacturers of digital recording devices to install a form of Serial Copy Management System on their products (a feature which would inhibit individuals from making more than one copy of a song) and forced them to pay royalties to record companies based on the sales of their products (Pareless, 2002).
Interestingly, the act also declared that the noncommercial duplication of analog and digital sound recordings was not copyright infringement (Weiss, 1992). This stipulation was overturned in 1997, when the No Electronic Theft Act made it a criminal offense to reproduce copyrighted material and exchange these copies on the Internet, even when this action did not produce personal financial gain (McCullagh, 2003).
The following year, the Digital Millennium Copyright Act sought to comprehensively address the music industry’s continued anxieties regarding the loss of sales due to copyright infractions in the digital age. As such, the law criminalized the act of circumventing DRM protection and mandated that digital broadcasters pay licensing fees to record companies (citation).
The first substantial test of these new provisions occurred in 1999, when Napster, a free online service for sharing music files, was introduced. Although the site was eventually closed in 2001 following extensive litigation, numerous other P2P networks appeared in its wake.
In response, the Recording Industry Association of America (RIAA) began filing lawsuits against people it claimed were engaged in the illegal practice of uploading and trading copyrighted music online. While most of these cases have resulted in unspecified out-of-court settlements, the first proceeding to go to trial resulted in a jury awarding $220,000 in damages be paid to the RIAA by Jammie Thomas, a woman and mother convicted of downloading 24 songs from the popular file-sharing network Kazaa (Bangeman, 2007a).
As well, to combat the uploading and sharing of copyrighted songs via these free services, several legal alternatives (e.g. iTunes, eMusic, Rhapsody, and even a revamped Napster) have materialized on the Internet – offering consumers digital audio downloads for a per-song fee or on a monthly subscription basis.
Moreover, record companies have tested the viability of Digital Rights Management (DRM) software, an array of technologies that make it more difficult (but not impossible) to copy music and/or transfer it to another digital device. However, consumer complaints have prompted most labels to abandon the use of DRM and instead offer unprotected files on CDs and for download via legal online stores (Holahan, 2008).
In addition, a number of recent disputes have centered on the payment of royalties by online radio stations and audio streams hosted on numerous blogs and other websites. In an effort to generate revenue from these digital outlets, SoundExchange, a non-profit organization, has formed with the express purpose of gathering and distributing money from webcasters and websites that stream or play copyrighted music (Barnes, 2000).
Finally, a new trend has started over the past year in which several bands, including Radiohead and Nine Inch Nails, have experimented with making their music available on the Internet for whatever price consumers are willing to contribute.
Although it remains unclear whether this will be the successful business model of the future, one thing is certain – thus far, no solution for controlling the illegal dissemination of copyrighted music via digital avenues has been proposed which has been deemed acceptable by all parties involved: consumers, musicians and record companies.
Bangeman, E. (2007, October 4). RIAA trail verdict is in: Jury finds Thomas liable for infringement. Retrieved April 19, 2008, from Ars Technica Web site: http://arstechnica.com/news.ars/post/20071004-verdict-is-in.html
Barnes, C. (2000, November 28). Music industry casts new net for streaming royalties. Retrieved April 19, 2008, from CNET Web site: http://www.news.com/2100-1023-249124.html
Holahan, C. (2008, January 4). Sony BMG plans to drop DRM. Retrieved April 19, 2008, from BusinessWeek website: http://www.businessweek.com/technology/content/jan2008/tc2008013_398775.htm
Martin, P. (2003, December 31). Forget the spin, taping is not killing music. Retrieved April 19, 2008, from Sydney Morning Herald Web site: http://www.smh.com.au/articles/2003/12/30/1072546532286.html
McCullagh, D. (2003, January 27). Perspective: The new jailbird jingle. Retrieved April 19, 2008, from CNET Web site: http://www.news.com/2010-1071-982121.html
Moser, D. J. (2002). Music copyright for the new millennium. Vallejo, CA: ProMusic Press.
Pareles, J. (1992, April 12). Grabbing for royalties in the digital age. Retrieved April 19, 2008, from New York Times Web site: http://www.nytimes.com
Passman, D. S. (2006). All you need to know about the music business. New York: Free Press.
Weiss, G. D. (1992, May 3). Home recording; all those in favor…. Retrieved April 19, 2008, from New York Times Web site: http://www.nytimes.com