CORE Metadata, citation and similar papers at core.ac.uk Provided by Villanova University School of Law: Digital Repository Working Paper Series Villanova University Charles Widger School of Law Year 2003 Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property { Part I Michael W. Carroll Villanova University School of Law, [email protected] This paper is posted at Villanova University Charles Widger School of Law Digital Repository. http://digitalcommons.law.villanova.edu/wps/art2 WHOSE MUSIC IS IT ANYWAY?: HOW WE CAME TO VIEW MUSICAL EXPRESSION AS A FORM OF PROPERTY Michael W. Carroll* I. INTRODUCTION The year 2003 marked the end of the first decade of the “digital revolution.”1 Of the many changes wrought by developments in digital * Assistant Professor of Law, Villanova University School of Law. Thanks to Oren Bracha, Douglas Galbi, Jacqueline Lipton, Jessica Litman, and Michael Madison for insightful comments. I also received helpful comments on oral presentations of this Article at the Cyberlaw Retreat convened by Harvard Law School’s Berkman Center for Internet and Society and at the June 2003 Law and Society Annual Meeting. I thank the participants in both fora for their thoughts. The Villanova community has done much to support this project. For helpful and supportive comments, I thank my colleagues Michelle Anderson, Leslie Book, Ann Juliano, Greg Magarian, and Michele Pistone. For enthusiastic research assistance, I thank Christopher Nickels and Elizabeth Pulbratek; for unswerving administrative support, I thank Joan Delong; and for cheerful and efficient processing of numerous inter-library loan requests, I thank the reference librarians at the Villanova University School of Law. Finally, I gratefully acknowledge Villanova University School of Law’s financial support for this research. As ever, my family has been a source of inspiration and support, and I thank Kristy, Madeleine, and Vivian Carroll for that. 1. The technology underlying the explosive growth of the Internet certainly is far older than a decade. Digital technology dates back to the 1930s, computing technology dates back to the 1940s (unless one wants to count the abacus), and much of the research on packet-switched digital networks began in the early 1960s. See, e.g., JOHN NAUGHTON, A BRIEF HISTORY OF THE FUTURE: THE ORIGINS OF THE INTERNET 92, 118-19 (1999); see also LEONARD KLEINROCK, COMMUNICATION NETS: STOCHASTIC MESSAGE FLOW AND DELAY (1964). But 1993 approximates the time at which those outside the computing community began to get wind of the Internet and the future that it might portend. In September 1993, the Commerce Department released its “Agenda for Action” for the “National Information Infrastructure,” heralding the new technology in glowing terms. Administration Policy Statement, 58 Fed. Reg. 49,025 (Sept. 21, 1993); see also John Perry Barlow, A Declaration of Independence for Cyberspace, in CRYPTO ANARCHY, CYBERSTATES AND PIRATE UTOPIAS 27 (Peter Ludlow ed., 2001). In that same year, the first issue of Wired magazine, devoted to the brave new wired world, hit the newsstands. Since then, expansion of the physical infrastructure, supported by adoption of open technical standards, has indeed led to some substantial changes in how we communicate. Significant portions of business communication and the personal communications of the upper and middle classes in the United States are channeled across the packet-switched network as electronic mail or instant messages. See, e.g., Ariana Eunjung Cha, ‘Digital Divide’ Less Clear, As Internet Use Spreads, Policy Debated Anew, WASH. POST, June 29, 2002, at E1 (reporting on study showing that less than half of the residents of the United States with incomes between $15,000 and $25,000 have Internet access at home or at work, compared to the 90% of residents with incomes of more than $75,000). Two developments in particular threaten revolution. The first development has been the digitization of the sights and sounds (and smells?)—the texts—that make up our popular culture. See, e.g., Michael W. Carroll, Disruptive Technology and Common Law Lawmaking: A Brief Analysis of A&M Records, Inc. v. Napster, Inc., 9 VILL. SPORTS & ENT. L.J. 5 (2002) (describing process by which popular music has been digitized). The second has been the deployment of digital networks featuring an architecture that disperses control and power over communication largely to end users of the network. Exploiting these developments, manufacturers of so- called “peer-to-peer” software have enabled end users to form virtual private networks through which each end user’s machine is a “peer” with all other machines insofar as the machine is both a “client,” which requests data, and a “server,” which sends data. Users of these networks serve and receive digital renderings of sight and 1405 1406 UNIVERSITY OF CINCINNATI LAW REVIEW [Vol. 72 technology, one of the most hotly contested has been the legal and social status of music. In 2000, the stunning growth of Napster’s network, which enabled users to “share” music files across the Internet with a few million of their closest friends, brought this still-unresolved controversy to prominence.2 Ever more promiscuous transmissions of music files across the Internet have drawn an enraged response from music publishers, recording companies, and some recording artists and composers, who collectively characterize the millions of Internet users who engage in the unauthorized exchange of prerecorded music across the Internet as “thieves.” This charge has been laid in lawsuits, news reports, advertising, and at the Grammy Awards. In April 2003, representatives of the Recording Industry of America Association (RIAA) sent the following instant message to thousands of users of the Kazaa peer-to-peer network: “When you break the law, you risk legal penalties. There is a simple way to avoid that risk: DON'T STEAL MUSIC.”3 Necessarily undergirding the charge of theft is the premise that music is a form of property—an odd kind of property that can be “stolen” by unauthorized reproduction and distribution. Among the millions of Internet users exchanging music files, some agree that they are in effect engaged in looting.4 Many, however, deny the charge. Some declare that “information wants to be free” and that music, like all other forms of digitized cultural expression, no longer can be or should be treated as sound in open disregard for traditional channels through which works of popular culture have been purveyed and in open disregard of copyright law, which has underwritten the traditional arrangements for selling pop culture. The size of peer-to-peer networks continues to grow. For example, Napster’s most popular successor, the Kazaa Media Desktop, reportedly now has become the most downloaded piece of software in Internet history. See Most Downloaded Program on the Web?, available at http://www.cnn.com/2003/TECH/internet/05/23/media.kazaa.reut/ (last visited Feb. 1, 2004). 2. See, e.g., A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) (holding Napster liable for users’ unauthorized transmissions of music files). For a detailed look inside the business side of Napster’s meteoric rise, see JOSEPH MENN, ALL THE RAVE: THE RISE AND FALL OF SHAWN FANNING’S NAPSTER (2003). For more on the technology and specific copyright issues raised by Napster, see generally Carroll, supra note 1 (describing process by which popular music has been digitized). 3. See Amy Harmon, Music Industry Sends a Message to PC Screens: Sharing Is Theft, N.Y. TIMES, Apr. 30, 2003, at C1 (quoting instant message sent by representatives of the Recording Industry of America Association to users of the Kazaa file-sharing network). Escalating this conflict, the RIAA recently has won the right to unmask the online identities of those who transfer music files across peer-to-peer computer networks. With that information, the RIAA has commenced a campaign against individuals alleged to have engaged in large-scale unauthorized transmissions of music files. See, e.g., Amy Harmon, 261 Lawsuits Filed on Music Sharing, N.Y. TIMES, Sept. 9, 2003, at A1 (describing lawsuits as the “first broad legal action aimed at ordinary users of file-sharing networks”). 4. To further bolster support for the view that unauthorized file swapping is theft per se, the RIAA has offered amnesty to those file traders willing to publicly confess to theft. See, e.g., Andy Sullivan, Repent Downloaders and Get Amnesty, Reuters, Sept. 5, 2003, available at http://www.reuters.com/newsArticle.jhtml;? storyID=3396175. 2004] WHOSE MUSIC 1407 proprietary information.5 Others accept the premise that music is a form of property but deny that their activities infringe the rights of property owners. A third view looks at music as a form of shared property. On this view, creators have some rights to control the initial sale and distribution of music, but buyers also have rights to use and “share” the music they have purchased.6 This conceptual conflict over music’s status has been brought into relief by changed material circumstances. Finding a resolution to this conflict and reflecting that resolution in law are fundamentally challenging issues for our society. As part of a larger project to address these issues, this Article proceeds from the premise that a better understanding of how and when proprietary concepts came to be applied to music will aid the effort to find a resolution to the current conflict over digital music. Most readers likely have an intuitive sense that people have produced music without copyright protection for a long period of time. That intuitive sense is correct, but a more detailed understanding of how and why those in the West came to treat musical expression as a form of property is necessary to evaluate whether those reasons remain persuasive.7 The bulk of what follows is a survey of the relevant historical literature to trace how and when in Western history music came to be the subject of proprietary 5.