music copyright infringement:
Facing the Music: When Digital Technology and the Law Collide
Dr Maria Chetcuti
Cauchi. All Rights Reserved.
The music industry has often claimed that the internet is “a web of piracy”
designed to rob it of its rightful revenues. In recent years, the basis of the
music industry has been challenged by new technologies and the question has
often been asked as to how traditional copyright law can protect music in this
digital day and age. This article addresses some of the major issues facing
music in the internet era.
The Crux of the Problem
Music is transmitted on the internet digitally. Unlike its analogue counterpart
(e.g., audio tapes), in each reproduction, the digital format preserves the
original high quality of sound. Internet music exists in two digital formats:
the compression format, such as WAV or MP3, which is typically downloaded in its
entirety before being played by a user, and the streaming format, whereby a host
transmits small “packets” of information to the user, which the user accesses in
In the last years, the foundations of the music industry have been threatened by
new technologies, most notably MP3’s. Even though the online transfer of
digital audio files was possible before, it was too cumbersome and
time-consuming. In the MP3 format, downloads of audio recordings are now much
faster and take up much less space on a hard drive. Now most listeners can use
this format to exchange music with one another. Feeling the pinch, the music
industry has been lobbying hard for the adoption of the US Digital Millennium
Copyright Act and the EU Directive on Copyright and E-commerce. Both pieces of
legislation bestow on copyright owners the entitlement to make use of “technical
measures” to protect retrieval and reproduction of works and make it a criminal
offence for anyone to devise means to circumvent those measures.
Two recent cases demonstrate how the courts have applied traditional copyright
law to music on the internet. In UMG Recordings, Inc. et al v. MP3.com, Inc.
(2000), MP3.com provided a service whereby users could access a digitised
version of a CD they already owned via internet. This is also known as
space-shifting. Ownership of the CD was verified by making the user insert the
CD into the CD-ROM drive of their computer, or by purchasing the CD online with
the MP3.com service. MP3.com claimed it was merely “storing its subscribers’
CD’s”. Engaging in a fair use analysis, the Court concluded that all the
elements weighed against a finding of fair use and concluded that the defendant
was liable for unauthorized copying. The Online Service Provider had made copies
which were undisputedly for a commercial purpose.
A&M Records v. Napster, Inc. (2000) concerned a service whereby
users could share MP3 files. Napster argued that it was exempt from liability
under the US Digital Millennium Copyright Act which provided a safe harbour for
the transmission of files through an Internet Service Provider in particular
circumstances. The court held that this exemption was inapplicable as the MP3
files were not actually transmitted through the Napster system as in the
case of ISPs. The court found that Napster users were engaged in direct
copyright infringement as the music file swapping between Napster users was
commercial in character and the use of the Napster programme reduced the sales
of CDs and raised the barriers for record companies’ entry into the online
market. This was the necessary prerequisite to establish contributory or
vicarious infringement in Napster. The defences of fair use and substantial
non-infringing use were rejected by the Court. Napster had knowledge of its
users’ infringing activity, had materially contributed to it and had a direct
Record Companies Launch First ‘Legal’ Music Online
The music industry did not move quickly enough to develop services of its own.
However, on 4th December 2001, the first internet music service,
backed up by leading record companies was launched, thus giving consumers the
chance to download music on to their computers in a ‘legal’ manner.
The problem is that the system offered by the music industry leaves much to be
desired and is constrained by a number of shortfalls. If a subscriber allows his
membership to lapse, he loses access to already downloaded music; there can be
no CD burning, no sharing, and no ownership of the songs and there is also a
restricted number of hits available. The challenge seems to lie in persuading
users to pay for restricted features rather than resorting to superior ‘free’
music offered by other distribution sites.
Nonetheless, there is still
comfort in the knowledge that this is just the music industry’s first step.
Hopefully, teething problems will be overcome and services will gradually
improve and become more competitive. It is also claimed that such ‘legal’ music
is higher in quality and free from viruses. The forthcoming months will show
whether such move by the music industry was the best move to resolve the problem
of online music copyright infringement.
Dr Maria Chetcuti
Cauchi. All Rights Reserved.