I want my MP3! Creating a legal and practical scheme to combat copyright infringement on peer-to-peer Internet applications

Georgetown Law Journal, Jun 2002 by Jacover, Aric

INTRODUCTION

When Igor Stravinsky's The Rite of Spring premiered in 1913, the Russian composer could not have prepared for the reaction it would receive. After hearing only a few minutes of the jarring harmonies and irregular rhythms, the Parisian audience booed, hissed, and eventually stormed out of the concert hall in a riotous fervor. A paradigmatic change was occurring in music, and apparently, that audience wanted no part of it. Of course, The Rite of Spring has since become one of the most celebrated works of the twentieth century, and its contribution to contemporary classical composition is immeasurable.1

We are in the midst of a similar paradigmatic change in the area of technology and music copyright law. New Internet technologies, such as MP3,2 combined with faster connection speeds, have allowed distribution of digital music to millions of consumers at an unprecedented rate.3 The benefits of new Internet technologies are numerous. Most importantly, these technologies give consumers new ways to listen to and receive music in their homes, and they provide musicians with new distribution channels to reach more listeners.

quality.4 Once these copies become available on the Internet, however, it is very difficult to control how the copies are distributed. Consequently, such technologies have made it increasingly difficult for a copyright holder to control the rights of his or her creative works when those works are converted into manageable computer files and transmitted over the Internet.

One of the most controversial technologies available on the Internet is peer-to-peer networking. Peer-to-peer technology facilitates the distribution of music files over the Internet by establishing a direct connection between two or more computers and allowing those computers to share files.5 Napster, the immensely popular song-sharing service, is an example of peer-to-peer technology. There are, however, numerous manifestations of peer-to-peer technology, and each has a very different implication for the legal and practical aspects of the music industry.

This Note will discuss the effect that peer-to-peer technology has had, and will have, on copyright law.6 The Note argues that, despite technological changes in the distribution of music-especially due to the Internet and peer-to-- peer technologies-the time-honored copyright policy that ensures compensation for copyright holders must remain in place. This policy benefits not only record companies, but also artists, technology developers, and consumers. Certain aspects of peer-to-peer technology have made it difficult to ensure compensation to copyright holders. This Note will consider both the legal and practical difficulties in addressing this problem and offer some solutions that seek to guarantee continued compensation for copyright holders in the digital age.

V recommends strategies that copyright holders may employ to enforce their rights in the ever-changing world of online music distribution.

I. SOME PRELIMINARY ISSUES

Before delving into a description of peer-to-peer technology and its legal ramifications, it is important to address a few points regarding the nascent fusion of new technology, the Internet, and the music industry. First, contrary to some popular belief, it is not prudent to abandon-or even drastically limit-- intellectual property rights in the online world merely because such rights are enforced differently in its brick-and-mortar counterpart. Second, the major players in the industry should be identified to determine a viable solution for all those involved. Finally, proposing strong intellectual property rights is not necessarily an endorsement of the power structure that currently exists in the music industry.

A. ABANDONING INTELLECTUAL PROPERTY RIGHTS IS NOT THE SOLUTION

Some argue that recent technological developments on the Internet, especially peer-to-peer networking, have made the effective enforcement of copyright a virtual impossibility.7 Therefore, so the argument goes, artists and copyright holders should abandon any efforts to enforce the rights to their online music. Accordingly, artists should use their recordings merely to gain exposure and thus find other revenue streams to support themselves, such as playing live or licensing their music for various commercial purposes.

Although recent technological developments will have a substantial effect on the music industry, traditional policies of copyright law should be retained and applied to the Internet context. To generate the proper incentive to create, it is necessary to ensure compensation for a musician's recordings. To take away this revenue stream, one that artists have relied on since the dawn of recorded music, simply would rob musicians of what is rightfully theirs.

fundamental and substantial source of income for musicians.8

In addition, there is a significant artistic difference between live music and recorded music. If playing live is the only method of compensation, there is little incentive to create high quality recordings. Live music cannot replace the artistry of a recorded piece of music; it can only supplement it.9 While some musicians have successfully licensed their music for various commercial purposes, this merely should be an additional source of income, not a mandatory one, lest we commercialize music to an even greater extent than it already is.10