The Internet. Faster than a personal computer with the latest microprocessor. More powerful than a stack of guitar amplifiers. Able to leap the entire Silicon Valley in a single bound. Just in the past year, the Internet has evolved into a powerful tool for communication and commerce, especially as regards entertainment. Let's take a look at how U.S. copyright law, enacted at the turn of the last century, is doing its best to keep up with the technology and business practices of the new century.
BASIC TRAININGMusic is distributed on the Internet in three basic ways. The first is the virtual store that sells traditional "hard copy" music media (CD, cassette, and vinyl). In this incarnation, retail stores have shifted to an online form to distribute music, but they haven't changed the format of the music they sell. When you purchase music from a virtual store, you still receive the product in a familiar form-usually a CD-shipped to your home.
The second way music is distributed online is in downloadable files. Literally thousands of Web sites such as MP3.com and emusic.com are making whole catalogs of music available that you can download from the Internet onto your computer. With the correct software, you can listen to this downloaded music and even copy it from your computer to a free-standing audio device.
(One of the early legal battles over copyright on the Internet took place in 1998. The traditional record industry attempted to block the sale of Diamond Multimedia's MP3 player-a portable device approximately the size of a pack of cigarettes that enables users to digitally record downloads and listen to the recording away from their computers.)
The third method is streaming technology, in which packets of information are sent over the Web. The listener's computer decodes these information packets-again, with the proper software-on the fly. Internet sites such as broadcast.com are encouraging listeners to think of streaming as customized online listening sites, or as "online radio" that allows people to listen to anything from their favorite local radio stations to music from foreign countries.
A ROYALTY PAIN IN THE...As with any change in technology and commerce, the laws must try to keep up. One of the major problems in music distribution on the Web is determining which type of royalty applies to what kind of technology.
The online-store model is protected in a way we're all familiar with. If your song is included on a preexisting CD sold over the Internet, all the vendor must do is keep track of the sale and pay the label the appropriate price for the CD. The label pays royalties to the artist for the use of each song on the CD.
The other two forms of distribution are trickier. When the files are made available by digital download, should the traditional mechanical license and the appropriate royalty apply to everyone who wants to download the song onto a computer? Many companies selling downloaded music are adopting this interpretation of the law. By making consumers pay to download a song, each download is treated as a sale just as it would be if it were a CD-meaning the price takes into account the various royalties to be paid for the copyrighted works. Once the company collects the sale amount, it makes a royalty payment to the record company for use of the copyright-protected master, as well as a mechanical royalty payment to the publishing company that controls the song.
Because streaming audio resembles radio use, performance rights societies (in the United States these are ASCAP, BMI, and SESAC) have stepped up the pace to protect performance rights for copyright holders. One of the rights outlined in U.S. copyright law is the right to perform, which brings with it performance-right income. This means that every time a composition is played, be it on the radio, on television, or in a restaurant, the artist earns a performance royalty. Citing this portion of copyright law, the performance rights societies are seeking to issue licenses to Web sites that "broadcast" music. The rights organizations collect royalties for the use of songs and pay the appropriate amount to songwriters and publishers. If you would like to stay informed about the performance rights societies' efforts to protect your songs on the Internet, you can visit their Web sites (www.ascap.com, www .bmi.com, and www.sesac.com) and read the Frequently Asked Questions sections that cover the Internet and new technology. If you are planning to set up a Web site that broadcasts music, it is advisable for you to contact the performance rights societies and obtain a license.
Copyright law also protects other artwork associated with your music that could be used on the Web, such as your photographs, videos, and written material like bios and lyrics. Conversely, if someone wants to use your music in connection with a video to be broadcast online, you should consider issuing a sync license (see "Working Musician: From Song to Screen" in the January 1998 issue of EM) and notifying your performance rights society of the additional use.
Many musicians ask me about sampling material off the Web and reusing it. Copyright law still protects against making a derivative work of copyrighted material, regardless of where it was appropriated. So, whether you grab a sample off the Web or off a vinyl LP your dad bought in 1972, the "derivative work" provisions of the copyright law still apply.
PIRATES ON THE HORIZONProtecting against piracy of musical works-whether as streaming music recorded off a computer or the sale of digital downloads-is an extremely difficult task. Because the technology is so readily available to the public, we are seeing case after case of "leaked" prereleases of television shows, movie trailers, and independent and major-label artists uploaded by copyright pirates who allow others to download the work free of charge.
To protect creators of copyrighted works in cyberspace, the copyright law was retooled and updated as the Digital Millennium Copyright Act. It now includes the No Electronic Theft (NET) provisions, which allow for substantial penalties-including criminal-for copyright infringers. One of the showstoppers of this act was making the party providing pirated content responsible for any copyright infringement.
TANGLED WEBWatching the law change with technology can be a frustrating experience for the little guy. If major corporations can't prevent people from ripping them off, how can an independent musician possibly avoid it? If the history of the music business is any indication, a combination of key legal cases, the public's embrace of technology, and the music marketplace will determine how copyright law will be enforced in cyberspace. As I write this column, I'm also logging on to the Net to look at the various lawsuits and criminal actions being brought against copyright infringers to protect artists' rights. As with the uproars over home taping in the '70s, DAT technology in the '80s, and the Diamond Rio MP3 player in the late '90s, it will take some time for the legal process to adjust, but the industry and market for recorded music will adjust with it.
Some of the technological changes taking place include the use of "Web robots" that track music online for royalty purposes; encryption technology that prevents copying; watermark technology that helps track down repeated copying of downloaded works, and a variety of other new security products. The real key for the industry-starting with the independent artist-is self-policing. Ever since the inception of copyright law, it's been said that the music business is a business of pennies. Every pirated piece of sheet music, record, and download takes money out of creators' pockets. Everyone, from top-selling pop acts to self-produced home-studio prodigies, gets hurt by this. Think twice before making that "courtesy copy" for a friend or looking the other way when others do.
The business of music on the Internet is moving at lightning speed. Much like gear rolling off the assembly line, today's interpretation of the law in relation to the Internet may be obsolete in a matter of weeks. It's more important than ever for you to be aware of these legal issues and changes. Regardless of what technology is used to get an artist or song to the public, the connection of human spirit, emotion, and art is still necessary to create a demand for the music industry. Embrace the art, the technology, and the law when you rock the Web with your tunes.
Writer, instructor, and entertainment attorney Michael A. Aczon looks forward to enjoying the fresh air at the San Francisco Giants' new baseball park with his family.