Digital Music Distribution Via the Internet: Is It a Plantinum Idea Or a One Hit Wonder

Volume 104 Issue 1 Article 13 September 2001 Digital Music Distribution via the Internet: Is It a Plantinum Idea or a One Hit Wonder L. Kevin Levine West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr Part of the Entertainment, Arts, and Sports Law Commons, Intellectual Property Law Commons, and the Internet Law Commons Recommended Citation L. K. Levine, Digital Music Distribution via the Internet: Is It a Plantinum Idea or a One Hit Wonder, 104 W. Va. L. Rev. (2001). Available at: https://researchrepository.wvu.edu/wvlr/vol104/iss1/13 This Student Work is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact [email protected]. Levine: Digital Music Distribution via the Internet: Is It a Plantinum Id DIGITAL MUSIC DISTRIBUTION VIA THE INTERNET: IS IT A "PLATINUM" IDEA OR A "ONE HIT WONDER?" 1. INTRODUCTION ..................................................................................... 210 II. HOME MUSIC RECORDING AND ITS EFFECT ON THE DEVELOPMENT OF AMERICAN COPYRIGHT LAW .......................................................... 216 A. The Evolution of "Traditional" Home Music Recording and the Birth of The Audio Home Recording Act of 1992 ....... 216 B. The Internet ............................................................................. 221 III. NOTABLE LITIGATION .......................................................................... 223 A. RIAA v. Diamond Multimedia Systems, Inc ......................... 223 1. B ackground ................................................................ 223 2. Procedural H istory ...................................................... 225 3. Synopsis ......................................................................226 B. A & M Records, Inc. v. Napster, Inc ....................................... 228 1. B ackground ................................................................ 228 2. Procedural History ...................................................... 231 3. Synopsis ..................:.................................................. 233 IV. OBSERVATIONS AND GENERAL CONSIDERATIONS WITH REGARD TO INTERNET-BASED MUSIC DISTRIBUTION ............................................. 245 A. Opportunitiesfor Artists .......................................................... 248 B. Opportunitiesfor Record Companies...................................... 250 C. Opportunitiesfor Consumers .................................................. 252 D. Can There Be a "TraditionalBusiness Model"for Internet Music Distribution?.................. ............ 253 E. PracticalProblems That Must Be Overcome in Moving Toward a "TraditionalBusiness Model" ............................... 256 V . C ONCLUSION ........................................................................................ 257 Disseminated by The Research Repository @ WVU, 2001 1 West VirginiaWEST Law Review, VIRGINIA Vol. LAW 104, REVIEW Iss. 1 [2001], Art. 13 [Vol. 104 Roll over Beethoven and [email] Tchaikovsky the news. I. INTRODUCTION The Internet: some, if not most, hail it as the most important economic, technological, and social revolution of the late twentieth century. Both the direct and corollary effects of the Internet have infiltrated all homes in our society, and the more the Internet changes, the more everyone must adapt to deal with the ramifications. Congress and the judiciary are certainly not immune to the sweep- ing changes that the Internet has prompted. Indeed, from the early days of the 2 "user friendly" Internet, many individuals and public interest groups have called for federal regulation to ensure that the public is afforded ample protection from the many "evils" lurking "online." Seasoned Internet users remember the Electronic Frontier Foundation's 3 "blue ribbon" campaign and the subse- quent blackout campaign organized by The Coalition to Stop Net Censorship in 1996.4 These and similar actions were symbolic of widespread opposition to the Communications Decency Act of 1996 ("CDA"), which was designed to protect minors from indecent online material.5 In Reno v. ACLU,6 the United States Su- preme Court rejected the notion that certain portions of the CDA, which related to "indecent" communications, were unconstitutionally overbroad and vague, but ultimately found that the provisions effectively violated the First Amend- ment.7 The Internet is like any new technology. Often, lawmakers must clum- sily grapple with its initial effects until enough time has passed to reveal a clear picture of its ultimate uses. However, the Internet is arguably unlike any technological predecessor in the magnitude and speed of both its proliferation and ver- I CHUCK BERRY, Roll Over Beethoven (Chess Records 1956). 2 Roughly beginning with the emergence of the World Wide Web in 1992. See discussion infra Part II.B. 3 The Electronic Frontier Foundation has been established to help civilize the electronic frontier; to make it truly useful and beneficial not just to a techni- cal elite, but to everyone; and to do this in a way which [sic] is in keeping with our society's highest traditions of the free and open flow of information and communication.... Electronic Frontier Foundation, Mission, at http://www.eff.org/EFFdocs/about-eff.html (last visited Sept. 21, 2001) (on file with the West Virginia Law Review). - 4 See ZDNet, Blue Ribbons and Blackouts: The Online Community Protests Cyber- Censorship, at http://www.zdnet.com/pcmag/special/reports/s960214b.htm (last visited Oct. 14, 2001) (on file with the West Virginia Law Review). 5 See Shamoil Shipchandler, The Wild Wild Web: Non-Regulation as the Answer to the Regulatory Question, 33 CORNELL INT'L L.J. 435, 443 & nn.68-69 (2000). 6 521 U.S. 844 (1997). 7 Id. at 864. https://researchrepository.wvu.edu/wvlr/vol104/iss1/13 2 20011 Levine: DIGITALDigital Music MUSIC Distribution DISTRIBUTION via the Internet: VIA THE Is ItINTERNET a Plantinum Id satility.8 An interesting fact to consider is that the Internet is not as new a phe- nomenon as many might believe. In fact, the Internet has a history dating back to 1958.9 Indeed, well before consumers took to the Internet in mass - around 199510 - the Internet was used by many members of the educational and scien- tific communities on a daily basis. Given this fact, one can only wonder how many of these pioneering Internet users could have predicted the dynamic future of the then primitive system. Interestingly, in a report published in September of 1995, the Informa- tion Infrastructure Task Force ("IITF")1I seemed to do just that.12 The IITF report stressed the importance of preserving a "framework for legitimate commerce" and ensuring "adequate protection for copyrighted works," stressing that unless actions were taken, "the vast communications network [would] not reach its full potential as a true, global marketplace."' 3 One can only wonder what past, pending, and future litigation could have been avoided, or at least expe- dited, had clearly defined anticipatory legislation been promulgated in those comparatively primitive days of the Internet. This proposition, of course, as- sumes that it is jurisdictionally possible and popularly desirable to create14 such legislation and establish effective policing practices to ensure compliance. s As of August of 2001, an estimated 513.41 million people, worldwide, used the Internet, of which, an estimated 180.68 million users were located in Canada and the United States. NUA, How Many Online?, at http://www.nua.ie/surveys/how-many-online/ (last visited Oct. 10, 2001) (on file with the West Virginia Law Review). 9 Shipchandler, supra note 5, at 437 (discussing the history of the Internet). 10 See Barry M. Leiner et al., A Brief History of the Internet, at http://www.isoc.org/intemet- history/brief.html (last revised Aug. 4, 2000) (on file with the West Virginia Law Review). In February 1993, President Clinton formed the Information Infrastructure Task Force (IITF) to articulate and implement the Administration's vision for the National Information Infrastructure (NIl). [At that time,] [t]he IITF [was] chaired by Secretary of Commerce Ronald H. Brown and consist[ed] of high-level representatives of the Federal agencies that play[ed] a role in advancing the development and application of information technologies. [T]he participating agencies [] [worked] with the private sector, public interest groups, Congress, and State and local governments to develop com- prehensive telecommunications and information policies and programs that [would] promote the development of the NII and best meet the country's needs. INFORMATION INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE 1 (1995). 12 See id. at 16. 13 Id. 14 There is popular sentiment, expressed in numerous articles, that the nations of the world should not attempt to regulate the Internet in its present, relatively unstable, format. See, e.g., Shipchandler, supra note 5 (discussing the various attempts to regulate the Internet and their shortcomings and ultimately advocating a "wait and see" approach). Disseminated by The Research Repository @ WVU, 2001 3 West Virginia Law Review, Vol. 104, Iss. 1 [2001], Art. 13 WEST VIRGINIA LAW REVIEW [Vol. 104 Broadly speaking, one aspect of the Internet that has been

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