On Monday, Representatives Richard Burr, (R-N.C.), Ray LaHood, (R-Ill), and Fred Upton, (R-Mich) joined Internet-caucus co-chairman Rick Boucher (D-Va) to introduce the “Music Owner’s Listening Rights Act of 2000.” With the 106th Congress nearly complete, the bill has little chance for passage. More important than its prospects for enactment, however, is the message it sends about the future of “intellectual property” law.
The bill is designed to harmonize copyright law with existing technology by expanding “fair use” to include copies from Compact Disks (CDs) to .mp3 (compressed music) files. This is to say that the technology offered by mp3.com, which allows users to copy music from CDs into .mp3 format for use anywhere, would be protected by statute.
The technology offered by mp3.com differs greatly from that of napster, and other file-sharing technologies. As Rep. Boucher explained in a statement on Monday, “a consumer who lawfully owns a work of music, such as a CD, will be able to store it on the Internet and then downstream it for personal use at a time and place of his choosing.” Because the bill is specifically designed to permit consumers to do as they wish with music that has already been purchased, it addresses whether consumers may, “travel from one place to another without needing to carry their record collection with them.”
The Audio Home Recoding Act, passed in 1992, allows consumers to legally copy their CDs to cassette tapes, and presumably, other CDs. By extension, this law would seem to protect mp3.com’s technology; but because all of the .mp3 files are stored on a centralized server, the issue becomes a bit more complex. In fact, as the legal arguments in the victorious suit against mp3.com demonstrate, the CDs are not, in fact, copied, but simply “beamed” to prove that the consumer has actually purchased the CD. In the interest of information storage space, the centralized mp3.com server stores all of the .mp3 files available in the system. Customers may then access only the files they have “beamed,” or purchased. This segmentation is accomplished through password protection.
Not surprisingly, the Recording Industry Association of America (RIAA), the Motion Picture Association of America, the National Music Publishers’ Association, the Songwriters Guild of America, and royalty distribution groups ASCAP and BMI sent a joint letter to Congress yesterday that castigated the legislation. “If MP3.com’s proposal were enacted,” the letter states, “it would set a precedent for other commercial enterprises to refuse to pay for the transmission and copying of any copyrighted material over the Internet including books, software, movies or video games.”
That may in fact be true, but is this really bad public policy, particularly when dealing with music that has been lawfully purchased? As James Madison noted in a letter to Thomas Jefferson in regard to the Constitution’s “intellectual property clause,” “Where the power is in the few it is natural for them to sacrifice the many to their own partialities and corruptions. Where the power, as with us, is in the many and not in the few, the danger can not be very great that the few will be thus favored.” The “Music Owner’s Listening Rights Act of 2000” reaffirms the notion that the many, consumers who lawfully paid for music, still have power over their personal effects. As a matter of public policy in a market economy, that is a very good thing.