Copyright and Internet Music Transmissions: Existing Law, Major Controversies, Possible Solutions

Abstract

Millions of people now use the Internet to obtain access to recorded music. Internet music transmissions are likely to reshape the ways in which music is both created and delivered to consumers, although there is little agreement on which new model or models will emerge as predominant in the music industry. Copyright law should facilitate the development of legitimate dissemination of music over the Internet because such dissemination promises to significantly increase public access to copyrighted music. Copyright law, which fundamentally strives to increase the accessibility of creative works, should help rather than hinder dissemination of music over the Internet because of its potential for increasing the availability of music to users. Part I of the Article explains current copyright law governing music transmissions over the Internet. This existing legal framework is a very complex patchwork of overlapping and interacting provisions that have been shaped by a century of legislation and business practices, most of which developed in an era of traditional, non-networked exploitation of music. Part II examines how applying copyright law to downloading and streaming audio, the two major types of Internet music transmissions today, makes it very difficult for Internet transmitters to make such transmissions legally, even if their activities come within a copyright exemption or compulsory license. Current copyright law poses two main types of problems for those who wish to legitimately disseminate music over the Internet. First, there are transactions cost and potential hold out problems. Because any single piece of recorded music usually embodies two separate copyrighted works, and because transmitting that music over the Internet may involve two separate rights in each of those works, and because each right in each work may be owned by a different entity, the transactions costs involved in obtaining permission to transmit any volume of recorded music over the Internet can be significant. Second, although Congress has crafted a number of copyright exemptions and compulsory licenses in order to encourage activities that it concluded should not be under the exclusive control of copyright owners, Internet transmissions - by simultaneously implicating more than one right of the copyright owners - may make it impossible to engage in such Congressionally sanctioned activities without obtaining additional permission from a copyright owner, thus reducing the usefulness of, or entirely nullifying, the licenses and exemptions Congress granted. Finally, Part III suggests and evaluates possible solutions to these problems that would continue to protect copyright owners' ability to exploit their works while making legitimate Internet music transmissions more feasible for users of those works. The article recommends, at the least, extending existing compulsory licenses and exemptions for digital performance transmissions of sound recordings to also cover all incidental RAM storage of any copyrighted work in the course of those transmissions.