Archives For DMCA

Futurists and industry analysis agree we are on the verge of a revolution in the music business.  Gerd Leonhard posits in “the days of the lauded ‘Internet music revolution’ were just a mere testing ground, like the first kicks of a baby during pregnancy.”[1] Similarly, music business analyst Bob Lefsetz believes “[w]e could be on the verge of a renaissance…[t]he death of the traditional label model could eliminate looks-based music and formulaic radio…[e]verything you hated is essentially gone.” [2] This revolution in the music business has been predicted for well over a decade.
In “The Economy of Ideas” John Perry Barlow draws the poignant analogy of the music industry of the future being like “selling wine without bottles on the global net.”[3] He argues it was the ability to deliver wine (music) in a physical form that the rights of invention and authorship adhered thereto.  The value was in the conveyance of property, not the thought conveyed.  Throughout history “[p]roperty was the divine right of thugs.”[4] The record industry caused it to be “the bottle that was protected, not the wine.”[5] Music, being a non-physical idea, has been converted into property through industry.  Building upon Barlow’s concept, Leonhard argues music will no longer viewed as a product but rather a service.[6] Music only became viewed as a product because of the agenda of an industry that quickly learned “selling the bottle can make a lot more money than only selling the wine…[f]or the future, think of a “record label” as a ‘music utility company.’”[7] It appears the record industry is broken but the music industry has a future.  With the right concept and execution a revolution in the way consumers access music will continue to happen.  The business models of the future bear this in mind.  A growing number of artists refusing to deal with traditional record labels have experimented with the following alternatives:

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Litigation Against Technology

While record label’s efforts in the marketplace have largely failed, their aggressive litigation strategies have won some technology-crushing verdicts.  Ever since the landmark case Sony Corp. of Am. v Universal City Studios, Inc.[1] the content and technology industries have frequently engaged in courtroom battles.  Three of the most influential decisions of the last decade will be summarized here.

First, UMG Recordings, Inc., v MP3.com, Inc.[2] in 2000, was centered on a website, MP3.com, which permitted users to access a huge database of music over the Internet after demonstrating independent ownership of an original copy of that recording.  The district court found MP3.com directly liable for copyright infringement because it failing to obtain authorization from plaintiffs to copy and distribute their copyrighted works, a violation of plaintiffs’ exclusive rights under §106 of the Copyright Act.[3] The court also rejected MP3.com’s Fair Use defense.  The court found that the purpose and character of MP3.com’s use of the plaintiff’s work was commercial and non-transformative; the nature of the work used was core protected content; the work was copied and distributed in its entirety; and finally, MP3.com’s actions would have an adverse market affect on the plaintiff’s music.[4]

Second, A&M Records v Napster, Inc.[5] in 2001, brought Napster, the principal architect of the online file-sharing, to its knees under the theory of contributory liability.  Continue Reading…