Don't Worry, Be Happy! Music Performance and Distribution on the Internet is Protected after the Digital Performance Rights in Sound Recordings Act 0f 1995

Masthead Logo DePaul Journal of Art, Technology & Intellectual Property Law Volume 7 Issue 1 Fall 1996 Article 3 Don't Worry, Be Happy! Music Performance and Distribution on the Internet is Protected after the Digital Performance Rights in Sound Recordings Act 0f 1995 Andrew Hartman Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Andrew Hartman, Don't Worry, Be Happy! Music Performance and Distribution on the Internet is Protected after the Digital Performance Rights in Sound Recordings Act 0f 1995, 7 DePaul J. Art, Tech. & Intell. Prop. L. 37 (1996) Available at: https://via.library.depaul.edu/jatip/vol7/iss1/3 This Lead Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact , . Hartman: Don't Worry, Be Happy! Music Performance and Distribution on the DON'T WORRY, BE HAPPY! MUSIC PERFORMANCE AND DISTRIBUTION ON THE INTERNET IS PROTECTED AFTER THE DIGITAL PERFORMANCE RIGHTS IN SOUND RECORDINGS ACT OF 1995 Andrew Hartman* INTRODUCTION ................................................. 38 41 A. The InformationSuperhighway ................................ 41 I. THE RELBVANr TECHNOLOGICAL ADVANCES .......................... B. DigitalTechnology .......................................... 45 C. Applications ofDigitalTechnology ............................ 46 D. MixingInteractiveNetworks with DigitalTechnology .............. 48 E. Legalv. llegalActivity ...................................... 50 II. THE CoPyRIrrr ACT MEETS THE DEMANDS OF CoPYRIGHT HOLDERS iN MUSICAL WORKS DESITE TECHNOLOGICAL CHANGE ................... 52 A. The Audio Home RecordingAct of1992 andFrankMusic: CopyrightProtectionExpands in the DigitalAge .................... 54 B. The DigitalPerformanceRights In SoundRecordingsAct of1995 ... 57 1. The Difference Between Musical Works andSoundRecordings .. 58 2. The SoundRecordingGets aPerformanceRight .............. 59 3. Creatinga Right to DistributeMusic by DigitalTransmission ... 61 C. The NationalInformationInfrastructureCopyrightProtectionAct of 1995 ........................................................ 63 66 A. Licensing Organizations ..................................... 66 IIL MARKET AND INDUSTRY SOLUTIONS ................................ B. TechnologicalSolutions ...................................... 69 1. Encoding Works ofAuthorship: The SerialCopyManagement System and CopyrightProtectionTechnology ................... 69 2. Technology Will Provide the Means ofPerformingandDistributing Music Over the Internet ..................................... 71 CONCLUSION ...................................................... 73 *. Practicing attorney with the law firm of Robertson & Walker, Atlanta, GA.; J.D. 1996, Valparaiso University School of Law, BA. 1992, Indiana University. I am very grateful to Dean Curt Cichowski for his editing and research assistance and to John Obermann for his computer assistance. Published by Via Sapientiae, 2016 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 7, Iss. 1 [2016], Art. 3 38 DEPAUL J. ART & ENT. LAW [Vol. VII:37 INTRODUCTION No one would consider Steve' to be a computer genius. Steve is like any other Internet2 junkie who surfs the Net every day looking for something new and useful. Point and click, point and click, Steve has another Pearl Jam album for free. A trip to Mega's Jukebox,3 a small stop on the Information SuperhighWay, will save Steve the record store hassles and those nasty price tags. His new recordings are all digital, free and illegal. Making personal copies of sound recordings may seem harmless to those familiar only with radio, given its traditionally analog sound and the inherent unpredictability of when a particular song will be played.5 It is also commonplace, 1. "Steve"is fictional. This scenario, however, is accurate and just as easy as it sounds, given the right equipment. To be certain that it could actually be done, an experiment was conducted with the help of John Obermann, Director of Computer Services at Valparaiso University School OfLaw. During this experiment, Mr. Obermann and I sought out music on the Internet (and discovered Mega's Jukebox), downloaded a Pearl Jam song, and listened to it in its entirety. We then made a copy of the song from the computer to a cassette tape. During the experiment we also uploaded a song onto the Valparaiso University School of Law web site, called the song up, listened to it, and made a copy of this song as well. This experiment was purely for educational purposes, of course, and all copies were immediately deleted. For a more detailed description of this process, see infra note 52 and accompanying text. 2. Short for "interactive network." The Internet is really a network of many separate computer networks, with each one constructed to allow complete accessibility by the others, thereby creating a "seamless" network of networks. These networks are interactive because users can send and receive data both to and from other network users. 3. Mega's Jukebox, (last modified Oct. 15, 1996) <http://www.sirius.com/-mega/meta/music.html>. (This site offers at least 39 songs, each in their entirety. The site offers two to four songs by each of the following artists: AC/DC, Alice In Chains, Deep Purple, Jimi Hendrix, Led Zeppelin, Megadeth, Nine Inch Nails, Pearl Jam, Ratt, The Red Hot Chili Peppers, Sepultura, Testament and Whitesnake. Each song is an (.au) file which enables the site "visitor" to hear any song by clicking on the name of the song. A computer equipped with sound equipment reads an .au file and automatically plays the song.) 4. "Information Superhighway" is another phrase coined to describe the Internet and other interactive services that will come. The origins of the various pet names for the Internet are unknown, but "Information Superhighway" closely resembles the "National Information Infrastructure" envisioned by the Clinton Administration. See infra note 24. 5. While radio listeners can easily copy a song off of the radio, the listener could not make a perfect copy of the original because, even if a radio station plays music from compact discs, traditional recording devices were not sophisticated enough to make digital copies of the broadcast. In addition, it is normally not possible to predict when a given song would be broadcast, thereby making compilation of an album of one particular artist time consuming and choppy. Despite radio broadcasts of musical works, most listeners would still need to purchase a work to enjoy the best quality available. With billions lost in record company revenues each year, public attitudes toward home taping have been the subject of many studies. See Recording Industry Association of America, Home Tapi (...truncated)