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

Arguably, peer-to-peer technologies, such as Napster, have not taken revenues away from record sales and, if anything, have contributed to increased record sales because of the greater exposure facilitated by the peer-to-peer model.11 This exposure model will not be effective in the long run because increased exposure is only beneficial if one is able to use that exposure at some point to sell a product. If an artist's music can be acquired for free over the Internet, exposure will result merely in more people downloading that music for free. And, as the technology is made easier to use and greater bandwidth allows faster transmission of data, record sales are likely to decrease as a result of music trading on the Internet.12

Finally, allowing consumers to acquire high quality recordings for free sends a dangerous message to consumers-that they need not pay for entertainment. Millions of peer-to-peer users likely already have gotten the entertainment for free "bug," and the longer this is perpetuated, the more difficult it will be to ensure that artists are compensated rightfully for their efforts. Ultimately, the issue is control. Artists and copyright holders have the right to control the commercial exploitation of their creative works.13

B. THE MAJOR PLAYERS

consider the interests of all those involved. First, the major record companies14 own most of the copyrights to the sound recordings of popular music.15 The record companies currently control most of the distribution channels for music, principally by way of compact disc sales through record store chains. These companies are concerned about new technologies that facilitate piracy, offend the copyright laws, and most importantly, disrupt their stranglehold on music distribution.16

Second, technology developers such as Napster, Audiogalaxy, and MusicCity are creating new ways to listen to and receive music. Many of these developers are frustrated with the numerous royalty payments that must be paid to provide content for their services.17

Third, musicians themselves write and perform the music that is the subject of this debate. Musicians are on both sides of the issue. On the one hand, some want to protect their rights.18 On the other, some are frustrated with the unfair treatment they receive from the record companies and welcome technologies that potentially may change the status quo.19

C. PROMOTING STRONG INTELLECTUAL PROPERTY PROTECTION IS NOT AN

ENDORSEMENT OF THE CURRENT POWER STRUCTURE IN THE MUSIC INDUSTRY

In justifying the acquisition of free music, a peer-to-peer user may argue that under the current power structure in the record industry, the copyright holder is most often a record company and not the artist. Thus, it is not the artist who loses money when consumers trade free music, but the record company that owns the copyright.21 While a comprehensive discussion about the fairness of the music industry is beyond the scope of this Note, suffice it to say that it is a widely held opinion that record companies have taken advantage of artists for years by acquiring the rights to the artists' works through unequal bargaining positions and then using questionable accounting techniques to deprive artists of reasonable royalties.22 Many believe that if technological developments such as peer-to-peer file sharing can change the current power structure in the record industry, then such developments should be encouraged even at the risk of abandoning copyright principles.23