ROCKING AND RIPPING ON THE WORLD WIDE WEB: THE COLLISION BETWEEN DIGITAL MUSIC AND COPYRIGHT LAW
| Date | 01 December 2001 |
| Published date | 01 December 2001 |
| Citation | (2001) 13 SAcLJ 323 |
| Author | MARY W. S. WONG |
As a new and global communications medium, the Internet has enabled the quick and effective dissemination of digitized content. For popular and technological reasons, the music industry has become the first major content industry to face the legal issues surrounding the rapid and widespread distribution of digital music. This article attempts to summarize the legal and business issues arising from the recent litigation in the United States between the American recording industry and several technology service providers (in particular, the Napster case); and offers a glimpse of the major players, commercial stakes and innovative solutions that have emerged as notable features and consequences of these cases.*
In 1988, the Moving Pictures Experts Group (“MPEG”) was established as a working group of the International Standards Organisation, to develop standards for the coding, storage and retrieval of digital audio and video.1 MPEG produced various work items, including MP3 (for “MPEG 1, audio layer 3”), which, simply put, is an algorithm that permits the compression of audio files, in such a way that formerly bulky music files can be stored on minimum disk space and downloaded and transmitted quickly, using little bandwidth in the process. With software programs known as digital audio extractors (or “rippers”), a computer user could take a particular track from a compact disc (“CD”), or any audio source, compress and encode it into a MP3 file, and store the file on his/her hard drive, or “write” it onto a recordable CD. In addition, the compressed file was of near-CD (or equivalent) sound quality and could be attached to an email, or otherwise uploaded and transmitted to other computer users relatively easily. MP3 technology therefore had a huge and immediate impact on the reproduction and distribution of music over the Internet.
At the same time, broadband connections (such as through cable modems or digital subscriber lines (“DSL”), which allowed for faster downloads and transmissions compared to the older, slower telephone dialup connection speeds) arrived and Internet connectivity increased. Internet websites offering free MP3 software downloads, instructions and server
space for the uploading of MP3 music files sprang up, and hardware/ equipment manufacturers started to develop and introduce portable MP3 players which allowed the user to listen to downloaded MP3 music files without having to sit in front of his/her computer.2 All this technological development and its rapid adoption by Internet and computer users, coupled with the general popularity of music, meant that the online exchange, trading, transmission and distribution of MP3 music files grew extremely quickly.3
However, the corresponding risk created by these great advances in technology, which render it so convenient and easy to make, copy, send and distribute high-quality music to large numbers of people using readily available and easily accessible means, clearly includes the increased risk of piracy of copyright-protected (“copyrighted”) works, materials and content. According to the Recording Industry Association of America (the “RIAA”),4 between 1999 and 2000, there has been a growth in the number of commercial websites illegally offering copyrighted music for downloading; for example, the first six months of 2000 saw over 200% more copyright notices being sent, pursuant to the Digital Millennium Copyright Act (or “DMCA”),5 as compared to the number of such notices that were issued during the whole of 1999.6
Anti-piracy efforts on the part of copyright owners have included enforcement efforts against: (1) manufacturers of the equipment used to playback MP3 music files,7 (2) operators of web sites that post copyrighted material without the requisite consents,8 and (3) service providers and other parties that facilitate and assist in the location and copying of MP3 music files online. This article will focus primarily on the enforcement efforts that the music and recording industries have employed in the United States, in the context of (3), although references will be made and certain similar issues analysed in relation to the other enforcement attempts listed in this paragraph. With respect to the industry’s enforcement efforts against parties who were thought to be providing software and/or services that aided and enabled Internet and computer users to share and exchange copyrighted music online and illegally, the most notable cases in the United States have been the decisions and litigation between the RIAA and MP3.com, Inc, and between the RIAA and Napster Inc. The upshot of these cases has so far been viewed generally as a victory for the copyright owners (as represented by the RIAA and its members). These cases also show the extent to which copyright law (including its various extensions and amendments, such as the DMCA) can be invoked to protect the rights and interests of copyright holders in works and content that started “life” in the form of traditional media (such as song lyrics and musical compositions, which were then turned into sound recordings). These works and content were then subsequently “converted” into digital form, made available online and thus fell within the technological abilities of the new MP3 technology. From these two cases, it therefore seems as though the balance — between protecting the interests of authors and inventors in the exploitation of their works and inventions, and protecting the competing interest of society and the public at large in having access to the free flow of
information and ideas — is currently tilted, at least in this arena, in favour of the copyright owners.9
In 1997, MP3.com, Inc (“MP3.com”) began offering downloads of digital music on its website, which operated as a kind of “combination digital jukebox and digital radio station”,10 allowing users to download for free (or purchase on CD) music uploaded by artists wishing to attract an audience for their work but while circumventing traditional record companies and distribution networks. For the first two years, MP3.com featured downloads of music from artists who were not represented by record companies or distribution labels. However, in January 2000, MP3.com introduced a service labeled “My MP3”, which worked either through the “Instant Listening Service” or the “Beam-It Service”, both of which were based on a user’s initial and legitimate ownership of a CD. The “Instant Listening Service” allowed users to store and listen to CDs that they first purchased from one of MP3.com’s electronic commerce partners, tracks from which CDs were then uploaded to the user/ purchaser’s online account for him/her to access and listen; while the “Beam-It Service” allowed a user to play a CD from his/her computer, which CD would then be identified by MP3.com, following which identification the user could “stream” the CD tracks from MP3.com’s servers to any Internet-connected computer.
In January 1999, a college student named Shawn Fanning developed a software application that would allow users to locate and exchange MP3 music files over the Internet. The main innovation with the program was that it utilised a “peer to peer” system that allowed a user to access another user’s computers directly, so as to access and download the files the first user wished to have. Napster Inc (named after Fanning’s childhood nickname) (“Napster”) was founded in May 1999, releasing the “beta” 2.0 version of its software soon after, and the company almost
immediately took the online world by storm,11 rapidly becoming the world’s largest online music file-sharing service. The Napster service works as follows. On its website,12 Napster provides users with free MusicShare software that the user downloads to his/her computer. The user selects a screen name and password in order to log on to Napster’s servers; once logged on, the user is effectively “networked” with other Napster users who are also logged on, as the MusicShare software and Napster’s server-side software would allow the user to conduct a text search for his/her requested file, scanning the file names and indexes then made available by those other users, which are listed on transient logon directories on the Napster servers. Once a search yields results, the searching user can click on the particular file he/she wishes to download, whereupon the Napster server will route the download request to the host user’s MusicShare browser, for it to respond to the request. A successful request and response will result in a direct connection being made between the searching user and the host user’s computers in order for the download to be performed, computer to computer, or, as the practice has become commonly known and referred to, as “peer to peer” (“P2P”).13
This is not to say that the MP3 format, or any file-sharing software or service, is utilised on the Internet only for the distribution of pirated music, or otherwise illegally. There are a number of website operators and service providers who enable the online distribution of non-copyrighted music or copyrighted music which the copyright owner wishes to provide freely to Internet users. For instance, the Internet Underground Music Archive offers a website that caters to independent musicians without lucrative recording deals, and provides them with a URL, webpage and other services (such as email, message boards and MP3 file postings).14 Equally, the technology can be, and is, used for both legitimate as well as illegal purposes, as has been recognized in the relevant case law, including the appellate court in the Napster litigation.15
The music industry’s response to the activities of MP3.com and Napster was similar: in both cases, the companies found themselves facing lawsuits relating to alleged copyright infringement. On January 21, 2000, the RIAA filed a...
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