Protecting copyright owners of digital music - No more free access to cyber tunes

Journal of the Copyright Society of the U.S.A.

Volumn 45, Issue 2, 1997, Pages 179-204

  Bloom, Nancy A ^a  

^a NONE

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EID: 0042731316     PISSN: 08863520     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (209)

1. See Chuck Melvin, Recording Industry Targeting Online Music Bootleggers, PLAIN DEALER, Feb. 14, 1998, at 10E; Music Pirates Pillage On Line, TENNESSEAN, Sept. 28, 1997, at 1E; Gary Chapman, Copyright Bill Would Infringe on the Internet's Real Promise, L.A. TIMES, May 20, 1996, at D7; Brett Atwood, Internet Audio Upgrades Generate Controversy, BILLBOARD, Aug. 24, 1996; Alice Lipowicz, On-Line Copyright Bill Not Right Stuff for City's Book, Music Publishers: New Bill Exempts On-Line Services From Responsibility, CRAIN'S N.Y. Bus., July 29, 1996, at 10.
2. See Chuck Melvin, Recording Industry Targeting Online Music Bootleggers, PLAIN DEALER, Feb. 14, 1998, at 10E; Music Pirates Pillage On Line, TENNESSEAN, Sept. 28, 1997, at 1E; Gary Chapman, Copyright Bill Would Infringe on the Internet's Real Promise, L.A. TIMES, May 20, 1996, at D7; Brett Atwood, Internet Audio Upgrades Generate Controversy, BILLBOARD, Aug. 24, 1996; Alice Lipowicz, On-Line Copyright Bill Not Right Stuff for City's Book, Music Publishers: New Bill Exempts On-Line Services From Responsibility, CRAIN'S N.Y. Bus., July 29, 1996, at 10.
3. See Chuck Melvin, Recording Industry Targeting Online Music Bootleggers, PLAIN DEALER, Feb. 14, 1998, at 10E; Music Pirates Pillage On Line, TENNESSEAN, Sept. 28, 1997, at 1E; Gary Chapman, Copyright Bill Would Infringe on the Internet's Real Promise, L.A. TIMES, May 20, 1996, at D7; Brett Atwood, Internet Audio Upgrades Generate Controversy, BILLBOARD, Aug. 24, 1996; Alice Lipowicz, On-Line Copyright Bill Not Right Stuff for City's Book, Music Publishers: New Bill Exempts On-Line Services From Responsibility, CRAIN'S N.Y. Bus., July 29, 1996, at 10.
4. See Chuck Melvin, Recording Industry Targeting Online Music Bootleggers, PLAIN DEALER, Feb. 14, 1998, at 10E; Music Pirates Pillage On Line, TENNESSEAN, Sept. 28, 1997, at 1E; Gary Chapman, Copyright Bill Would Infringe on the Internet's Real Promise, L.A. TIMES, May 20, 1996, at D7; Brett Atwood, Internet Audio Upgrades Generate Controversy, BILLBOARD, Aug. 24, 1996; Alice Lipowicz, On-Line Copyright Bill Not Right Stuff for City's Book, Music Publishers: New Bill Exempts On-Line Services From Responsibility, CRAIN'S N.Y. Bus., July 29, 1996, at 10.
5. See Chuck Melvin, Recording Industry Targeting Online Music Bootleggers, PLAIN DEALER, Feb. 14, 1998, at 10E; Music Pirates Pillage On Line, TENNESSEAN, Sept. 28, 1997, at 1E; Gary Chapman, Copyright Bill Would Infringe on the Internet's Real Promise, L.A. TIMES, May 20, 1996, at D7; Brett Atwood, Internet Audio Upgrades Generate Controversy, BILLBOARD, Aug. 24, 1996; Alice Lipowicz, On-Line Copyright Bill Not Right Stuff for City's Book, Music Publishers: New Bill Exempts On-Line Services From Responsibility, CRAIN'S N.Y. Bus., July 29, 1996, at 10.
6. ACLU v. Reno, 929 F. Supp. 824, 830 (E.D. Pa. 1996). The district court thoroughly explained the technology of the Internet in the first twenty pages of its opinion. The United States Supreme Court affirmed the lower court's decision holding the CDA unconstitutional in Reno v. ACLU, 117 S. Ct. 2329 (1997).
7. ACLU, 929 F. Supp. at 831.
8. Id. at 832.
9. Id. at 831. In 1996 there were over 9.4 million host computers. Id. By the year 1999, that number is expected to reach 200 million. Id.
10. Adam P. Segal, Dissemination of Digitized Music on the Internet: A Challenge to the Copyright Act, 12 COMPUTER & HIGH TECH. L. J. 97, 99 (Feb. 1996).
11. Id.
12. Ted Johnson, Net Throws New Curve Into Music Royalty Conundrum, DAILY VARIETY, July 16, 1996.
13. Thomas Pack, Music on the Web; World Wide Web Sites, LINK-UP, Nov. 21, 1996, at 11.
14. P.J. Huffstutter, Music Wants to be Free on the Cyberspace Frontier, SAN DIEGO UNION-TRIB., May 14, 1995, at E-1.
15. Pack, supra note 9. See http://www.iuma.com.
16. Segal, supra note 6, at 106.
17. Michael Krantz, Wired for Sound; Rock 'n' Roll is Exploding on the Internet, Changing How Fans Hear Music and What Music Gets Heard, TIME, Dec. 2, 1996, at 74.
18. David W. Bothner, Music Makes a Splash on the Internet, PITTSBURGH POST-GAZETTE, Nov. 26, 1995, at G9.
19. Segal, supra note 6, at 107.
20. Krantz, supra note 13.
21. Id.
22. Id.
23. Kenneth D. Suzan, COMMENT, Tapping to the Beat of a Digital Drummer: Fine Tuning U.S. Copyright Law for Music Distribution on the Internet, 59 ALB. L. REV. 789, 806 (1995).
24. Unsure About Buying CD? Sample Songs on the Internet, SACRAMENTO BEE, Nov. 20, 1996, at F2.
25. Id.
26. Tunes.com Launches Music Supersite on World Wide Web; Web Site Lets Internet User Discover, Sample and Purchase Music at Their Fingertips, Bus. WIRE, Nov. 12, 1996.
27. Id.
28. Art Kramer & Elizabeth Lee, Netwatch; The AJC's Daily Online Guide; Music Producer Makes Web Key to Label Success, ATLANTA J. & CONST., Nov. 19, 1996, at 3C.
29. Id. Mr. Ramone has received eight Grammy awards, and has produced records for artists such as Billy Joel, Paul McCartney, Paul Simon, and Barbra Streisand. Id.
30. Kramer & Lee, supra note 24, at 3C.
31. Id.
32. Krantz, supra note 13, at 74. N2K's Music Boulevard site (www.musicblvd.com), using an encoded delivery service called "E-mod," is enabling its visitors to download decent sounding singles for 99 cents each. Erika S. Koster and Jim Shatz-Akin, Set Phasers on Stun: Handling Internet Fan Sites, COMPUTER LAW., Jan. 1998, at 18. Users can listen to 4 minute songs by Chick Corea and Peter Noone within 12-15 minutes with a 28.8 modem. Edward C. Baig, Audio Sweet Sounds on the Web, Bus. WK., Feb. 16, 1998, at 121.
33. Krantz, supra note 13, at 74. N2K's Music Boulevard site (www.musicblvd.com), using an encoded delivery service called "E-mod," is enabling its visitors to download decent sounding singles for 99 cents each. Erika S. Koster and Jim Shatz-Akin, Set Phasers on Stun: Handling Internet Fan Sites, COMPUTER LAW., Jan. 1998, at 18. Users can listen to 4 minute songs by Chick Corea and Peter Noone within 12-15 minutes with a 28.8 modem. Edward C. Baig, Audio Sweet Sounds on the Web, Bus. WK., Feb. 16, 1998, at 121.
34. Suzan, supra note 19, at 799.
35. James Bell, Baraka Dorsey, Lynn Ginsburg & John Woram, Net Effects - Multimedia on the Web is Maturing Quickly-Treading on TV's Turf with Full-Motion Video and Sophisticated Audio, WINDOWS MAG., Jan. 1, 1998.
36. David Landis, Catching Some Entertainment, In Bits and Pieces, USA TODAY, Aug. 25, 1994, at 8D.
37. Progressive Networks' Products Allow for Faster, Better Audio, INFO. TODAY, Oct. 1996, at 32.
38. Mpeg-1 Layer 3, or MP3, is the latest in home copying technology that has the music industry very concerned about the spread of Internet piracy because of its ability to produce CD-quality sound at a rate substantially faster than its competitors. Don Jeffrey, Downloading Songs Subject of RIAA Suit Action Intended to Stem Flow Internet Piracy, BILLBOARD, June 21, 1997. MP3 songs are compressed files that take 1/12th the time of WAV files to download. Bruce Haring, Sound Advances Open Doors to Bootleggers Albums on Web Sites Proliferate, USA TODAY, May 27, 1997, at 8D. One minute of music per megabyte is the norm for MP3; 14 hours of MP3 music can be stored on a single CD. John C. Dvorak, Talk About Pop Music, PC MAG., Sept. 23, 1997, at 87. For a more comprehensive explanation about MP3's technology see Larry Lange, MP3 Compression Opens Recording Industry's Coffers to Hackers, ELECTRICAL ENGINEERING TIMES, July 21, 1997 and MP3 and the Pirates of the Undernet, INSIDE MULTIMEDIA, June 9, 1997. Using a search engine, such as Yahoo, users can access numerous sites that host MP3 songs. Or users can visit MP3's Web site located at www.mp3.com to get the technology's latest developments, as well as a tutorial. New Music Movement Transforms Every Computer Into a Musical Jukebox, PR NEWSWIRE, Dec. 4, 1997. MP3.com has collaborated with Nordic Entertainment to form www.nordicdms.com, an Internet music distributor. Id. Individual songs, rather than a complete CD, can be purchased for as little as 1/5th the retail price which can immediately be downloaded. Id. AT&T has also joined the ranks of producing CD-quality digital sound. AT&T, has formed a new company, A2B Music, which will sell and deliver CD-quality music over the Internet. Don Jeffrey, Cos. Make Strides in Net Music Delivery - Microsoft, AT&T Form Alliances to East Distribution, BILLBOARD, Nov. 15, 1997. However, AT&T has developed new technology that uses encryption to protect copyright owners. Id. As part of a promotion to kick off AT&T's new technology, RCA is allowing consumers to freely download the track "Reverend Man" from "Villains," a new CD released by its recording act the Verve Pipe, in addition to the opportunity to purchase the CD. Id.
39. Mpeg-1 Layer 3, or MP3, is the latest in home copying technology that has the music industry very concerned about the spread of Internet piracy because of its ability to produce CD-quality sound at a rate substantially faster than its competitors. Don Jeffrey, Downloading Songs Subject of RIAA Suit Action Intended to Stem Flow Internet Piracy, BILLBOARD, June 21, 1997. MP3 songs are compressed files that take 1/12th the time of WAV files to download. Bruce Haring, Sound Advances Open Doors to Bootleggers Albums on Web Sites Proliferate, USA TODAY, May 27, 1997, at 8D. One minute of music per megabyte is the norm for MP3; 14 hours of MP3 music can be stored on a single CD. John C. Dvorak, Talk About Pop Music, PC MAG., Sept. 23, 1997, at 87. For a more comprehensive explanation about MP3's technology see Larry Lange, MP3 Compression Opens Recording Industry's Coffers to Hackers, ELECTRICAL ENGINEERING TIMES, July 21, 1997 and MP3 and the Pirates of the Undernet, INSIDE MULTIMEDIA, June 9, 1997. Using a search engine, such as Yahoo, users can access numerous sites that host MP3 songs. Or users can visit MP3's Web site located at www.mp3.com to get the technology's latest developments, as well as a tutorial. New Music Movement Transforms Every Computer Into a Musical Jukebox, PR NEWSWIRE, Dec. 4, 1997. MP3.com has collaborated with Nordic Entertainment to form www.nordicdms.com, an Internet music distributor. Id. Individual songs, rather than a complete CD, can be purchased for as little as 1/5th the retail price which can immediately be downloaded. Id. AT&T has also joined the ranks of producing CD-quality digital sound. AT&T, has formed a new company, A2B Music, which will sell and deliver CD-quality music over the Internet. Don Jeffrey, Cos. Make Strides in Net Music Delivery - Microsoft, AT&T Form Alliances to East Distribution, BILLBOARD, Nov. 15, 1997. However, AT&T has developed new technology that uses encryption to protect copyright owners. Id. As part of a promotion to kick off AT&T's new technology, RCA is allowing consumers to freely download the track "Reverend Man" from "Villains," a new CD released by its recording act the Verve Pipe, in addition to the opportunity to purchase the CD. Id.
40. Mpeg-1 Layer 3, or MP3, is the latest in home copying technology that has the music industry very concerned about the spread of Internet piracy because of its ability to produce CD-quality sound at a rate substantially faster than its competitors. Don Jeffrey, Downloading Songs Subject of RIAA Suit Action Intended to Stem Flow Internet Piracy, BILLBOARD, June 21, 1997. MP3 songs are compressed files that take 1/12th the time of WAV files to download. Bruce Haring, Sound Advances Open Doors to Bootleggers Albums on Web Sites Proliferate, USA TODAY, May 27, 1997, at 8D. One minute of music per megabyte is the norm for MP3; 14 hours of MP3 music can be stored on a single CD. John C. Dvorak, Talk About Pop Music, PC MAG., Sept. 23, 1997, at 87. For a more comprehensive explanation about MP3's technology see Larry Lange, MP3 Compression Opens Recording Industry's Coffers to Hackers, ELECTRICAL ENGINEERING TIMES, July 21, 1997 and MP3 and the Pirates of the Undernet, INSIDE MULTIMEDIA, June 9, 1997. Using a search engine, such as Yahoo, users can access numerous sites that host MP3 songs. Or users can visit MP3's Web site located at www.mp3.com to get the technology's latest developments, as well as a tutorial. New Music Movement Transforms Every Computer Into a Musical Jukebox, PR NEWSWIRE, Dec. 4, 1997. MP3.com has collaborated with Nordic Entertainment to form www.nordicdms.com, an Internet music distributor. Id. Individual songs, rather than a complete CD, can be purchased for as little as 1/5th the retail price which can immediately be downloaded. Id. AT&T has also joined the ranks of producing CD-quality digital sound. AT&T, has formed a new company, A2B Music, which will sell and deliver CD-quality music over the Internet. Don Jeffrey, Cos. Make Strides in Net Music Delivery - Microsoft, AT&T Form Alliances to East Distribution, BILLBOARD, Nov. 15, 1997. However, AT&T has developed new technology that uses encryption to protect copyright owners. Id. As part of a promotion to kick off AT&T's new technology, RCA is allowing consumers to freely download the track "Reverend Man" from "Villains," a new CD released by its recording act the Verve Pipe, in addition to the opportunity to purchase the CD. Id.
41. Mpeg-1 Layer 3, or MP3, is the latest in home copying technology that has the music industry very concerned about the spread of Internet piracy because of its ability to produce CD-quality sound at a rate substantially faster than its competitors. Don Jeffrey, Downloading Songs Subject of RIAA Suit Action Intended to Stem Flow Internet Piracy, BILLBOARD, June 21, 1997. MP3 songs are compressed files that take 1/12th the time of WAV files to download. Bruce Haring, Sound Advances Open Doors to Bootleggers Albums on Web Sites Proliferate, USA TODAY, May 27, 1997, at 8D. One minute of music per megabyte is the norm for MP3; 14 hours of MP3 music can be stored on a single CD. John C. Dvorak, Talk About Pop Music, PC MAG., Sept. 23, 1997, at 87. For a more comprehensive explanation about MP3's technology see Larry Lange, MP3 Compression Opens Recording Industry's Coffers to Hackers, ELECTRICAL ENGINEERING TIMES, July 21, 1997 and MP3 and the Pirates of the Undernet, INSIDE MULTIMEDIA, June 9, 1997. Using a search engine, such as Yahoo, users can access numerous sites that host MP3 songs. Or users can visit MP3's Web site located at www.mp3.com to get the technology's latest developments, as well as a tutorial. New Music Movement Transforms Every Computer Into a Musical Jukebox, PR NEWSWIRE, Dec. 4, 1997. MP3.com has collaborated with Nordic Entertainment to form www.nordicdms.com, an Internet music distributor. Id. Individual songs, rather than a complete CD, can be purchased for as little as 1/5th the retail price which can immediately be downloaded. Id. AT&T has also joined the ranks of producing CD-quality digital sound. AT&T, has formed a new company, A2B Music, which will sell and deliver CD-quality music over the Internet. Don Jeffrey, Cos. Make Strides in Net Music Delivery - Microsoft, AT&T Form Alliances to East Distribution, BILLBOARD, Nov. 15, 1997. However, AT&T has developed new technology that uses encryption to protect copyright owners. Id. As part of a promotion to kick off AT&T's new technology, RCA is allowing consumers to freely download the track "Reverend Man" from "Villains," a new CD released by its recording act the Verve Pipe, in addition to the opportunity to purchase the CD. Id.
42. Mpeg-1 Layer 3, or MP3, is the latest in home copying technology that has the music industry very concerned about the spread of Internet piracy because of its ability to produce CD-quality sound at a rate substantially faster than its competitors. Don Jeffrey, Downloading Songs Subject of RIAA Suit Action Intended to Stem Flow Internet Piracy, BILLBOARD, June 21, 1997. MP3 songs are compressed files that take 1/12th the time of WAV files to download. Bruce Haring, Sound Advances Open Doors to Bootleggers Albums on Web Sites Proliferate, USA TODAY, May 27, 1997, at 8D. One minute of music per megabyte is the norm for MP3; 14 hours of MP3 music can be stored on a single CD. John C. Dvorak, Talk About Pop Music, PC MAG., Sept. 23, 1997, at 87. For a more comprehensive explanation about MP3's technology see Larry Lange, MP3 Compression Opens Recording Industry's Coffers to Hackers, ELECTRICAL ENGINEERING TIMES, July 21, 1997 and MP3 and the Pirates of the Undernet, INSIDE MULTIMEDIA, June 9, 1997. Using a search engine, such as Yahoo, users can access numerous sites that host MP3 songs. Or users can visit MP3's Web site located at www.mp3.com to get the technology's latest developments, as well as a tutorial. New Music Movement Transforms Every Computer Into a Musical Jukebox, PR NEWSWIRE, Dec. 4, 1997. MP3.com has collaborated with Nordic Entertainment to form www.nordicdms.com, an Internet music distributor. Id. Individual songs, rather than a complete CD, can be purchased for as little as 1/5th the retail price which can immediately be downloaded. Id. AT&T has also joined the ranks of producing CD-quality digital sound. AT&T, has formed a new company, A2B Music, which will sell and deliver CD-quality music over the Internet. Don Jeffrey, Cos. Make Strides in Net Music Delivery - Microsoft, AT&T Form Alliances to East Distribution, BILLBOARD, Nov. 15, 1997. However, AT&T has developed new technology that uses encryption to protect copyright owners. Id. As part of a promotion to kick off AT&T's new technology, RCA is allowing consumers to freely download the track "Reverend Man" from "Villains," a new CD released by its recording act the Verve Pipe, in addition to the opportunity to purchase the CD. Id.
43. Mpeg-1 Layer 3, or MP3, is the latest in home copying technology that has the music industry very concerned about the spread of Internet piracy because of its ability to produce CD-quality sound at a rate substantially faster than its competitors. Don Jeffrey, Downloading Songs Subject of RIAA Suit Action Intended to Stem Flow Internet Piracy, BILLBOARD, June 21, 1997. MP3 songs are compressed files that take 1/12th the time of WAV files to download. Bruce Haring, Sound Advances Open Doors to Bootleggers Albums on Web Sites Proliferate, USA TODAY, May 27, 1997, at 8D. One minute of music per megabyte is the norm for MP3; 14 hours of MP3 music can be stored on a single CD. John C. Dvorak, Talk About Pop Music, PC MAG., Sept. 23, 1997, at 87. For a more comprehensive explanation about MP3's technology see Larry Lange, MP3 Compression Opens Recording Industry's Coffers to Hackers, ELECTRICAL ENGINEERING TIMES, July 21, 1997 and MP3 and the Pirates of the Undernet, INSIDE MULTIMEDIA, June 9, 1997. Using a search engine, such as Yahoo, users can access numerous sites that host MP3 songs. Or users can visit MP3's Web site located at www.mp3.com to get the technology's latest developments, as well as a tutorial. New Music Movement Transforms Every Computer Into a Musical Jukebox, PR NEWSWIRE, Dec. 4, 1997. MP3.com has collaborated with Nordic Entertainment to form www.nordicdms.com, an Internet music distributor. Id. Individual songs, rather than a complete CD, can be purchased for as little as 1/5th the retail price which can immediately be downloaded. Id. AT&T has also joined the ranks of producing CD-quality digital sound. AT&T, has formed a new company, A2B Music, which will sell and deliver CD-quality music over the Internet. Don Jeffrey, Cos. Make Strides in Net Music Delivery - Microsoft, AT&T Form Alliances to East Distribution, BILLBOARD, Nov. 15, 1997. However, AT&T has developed new technology that uses encryption to protect copyright owners. Id. As part of a promotion to kick off AT&T's new technology, RCA is allowing consumers to freely download the track "Reverend Man" from "Villains," a new CD released by its recording act the Verve Pipe, in addition to the opportunity to purchase the CD. Id.
44. Mpeg-1 Layer 3, or MP3, is the latest in home copying technology that has the music industry very concerned about the spread of Internet piracy because of its ability to produce CD-quality sound at a rate substantially faster than its competitors. Don Jeffrey, Downloading Songs Subject of RIAA Suit Action Intended to Stem Flow Internet Piracy, BILLBOARD, June 21, 1997. MP3 songs are compressed files that take 1/12th the time of WAV files to download. Bruce Haring, Sound Advances Open Doors to Bootleggers Albums on Web Sites Proliferate, USA TODAY, May 27, 1997, at 8D. One minute of music per megabyte is the norm for MP3; 14 hours of MP3 music can be stored on a single CD. John C. Dvorak, Talk About Pop Music, PC MAG., Sept. 23, 1997, at 87. For a more comprehensive explanation about MP3's technology see Larry Lange, MP3 Compression Opens Recording Industry's Coffers to Hackers, ELECTRICAL ENGINEERING TIMES, July 21, 1997 and MP3 and the Pirates of the Undernet, INSIDE MULTIMEDIA, June 9, 1997. Using a search engine, such as Yahoo, users can access numerous sites that host MP3 songs. Or users can visit MP3's Web site located at www.mp3.com to get the technology's latest developments, as well as a tutorial. New Music Movement Transforms Every Computer Into a Musical Jukebox, PR NEWSWIRE, Dec. 4, 1997. MP3.com has collaborated with Nordic Entertainment to form www.nordicdms.com, an Internet music distributor. Id. Individual songs, rather than a complete CD, can be purchased for as little as 1/5th the retail price which can immediately be downloaded. Id. AT&T has also joined the ranks of producing CD-quality digital sound. AT&T, has formed a new company, A2B Music, which will sell and deliver CD-quality music over the Internet. Don Jeffrey, Cos. Make Strides in Net Music Delivery - Microsoft, AT&T Form Alliances to East Distribution, BILLBOARD, Nov. 15, 1997. However, AT&T has developed new technology that uses encryption to protect copyright owners. Id. As part of a promotion to kick off AT&T's new technology, RCA is allowing consumers to freely download the track "Reverend Man" from "Villains," a new CD released by its recording act the Verve Pipe, in addition to the opportunity to purchase the CD. Id.
45. A popular software is Progressive Networks' RealAudio which delivers sound in "real time," like radio broadcasts, meaning that shortly after clicking a particular song's icon, you can begin listening to it. Bernie Yee, Sonic U.: Fast Forward's Interactive Music Lesson; Web Music: Screened and Not Heard, WASH. POST, April 24, 1996, at R18. This process is commonly called audio streaming. The user does not download the audio; rather, the audio "passes through the computer system's memory." Howard Siegal and David J. Stein, Music Performance Rights on the Net; Continuing Uncertainty Over 'Cybercasting,' N.Y. L. J., Nov. 3, 1997, at S4. The software is free and can be downloaded by visiting http://www.realaudio.com. The latest version, RealAudio Player Plus, is analogous to a car radio. Progressive Networks' Products Allow for Faster, Better Audio, INFO TODAY, Oct. 1996, at 32. It enables listeners to scan different desktop broadcasters (live radio stations) over the Internet without waiting for the download of each Web site's graphics before being able to listen to the "station's" audio. Id. Additionally, users can preset audio buttons to their favorite "stations." Id. Moreover, Player Plus permits recording of audioclips. Atwood, supra note 1. However, there is a blocking feature that allows the individual Netcaster to disable the recording feature. Id. Player Plus is selling for $29.95 in retail stores and over the Net. Id. A new high quality digital audio software with minimal downloading time is provided by Headspace Inc.'s "Beatnik." Top Web Tools Embrace the Sound of "Beatnik," PR NEWSWIRE, Jan. 13, 1998. "Beatnik is unlike familiar Internet streaming audio technologies (such as RealAudio) because rather than send rigid sound files, it plays arrays of tiny 'packets' of audio via a real-time software synthesizer. These sound packets can be located anywhere on the Net and then reconstituted on the client machine as the user browses a Web page, resulting in flowing, high-fidelity music that responds directly to the user's input." Id. Beatnik's RMF (Rich Music Format) music format is compatible with Java 1.2. Id. Like AT&T, Beatnik files also utilize encryption features that protect copyright owners. Id.
46. A popular software is Progressive Networks' RealAudio which delivers sound in "real time," like radio broadcasts, meaning that shortly after clicking a particular song's icon, you can begin listening to it. Bernie Yee, Sonic U.: Fast Forward's Interactive Music Lesson; Web Music: Screened and Not Heard, WASH. POST, April 24, 1996, at R18. This process is commonly called audio streaming. The user does not download the audio; rather, the audio "passes through the computer system's memory." Howard Siegal and David J. Stein, Music Performance Rights on the Net; Continuing Uncertainty Over 'Cybercasting,' N.Y. L. J., Nov. 3, 1997, at S4. The software is free and can be downloaded by visiting http://www.realaudio.com. The latest version, RealAudio Player Plus, is analogous to a car radio. Progressive Networks' Products Allow for Faster, Better Audio, INFO TODAY, Oct. 1996, at 32. It enables listeners to scan different desktop broadcasters (live radio stations) over the Internet without waiting for the download of each Web site's graphics before being able to listen to the "station's" audio. Id. Additionally, users can preset audio buttons to their favorite "stations." Id. Moreover, Player Plus permits recording of audioclips. Atwood, supra note 1. However, there is a blocking feature that allows the individual Netcaster to disable the recording feature. Id. Player Plus is selling for $29.95 in retail stores and over the Net. Id. A new high quality digital audio software with minimal downloading time is provided by Headspace Inc.'s "Beatnik." Top Web Tools Embrace the Sound of "Beatnik," PR NEWSWIRE, Jan. 13, 1998. "Beatnik is unlike familiar Internet streaming audio technologies (such as RealAudio) because rather than send rigid sound files, it plays arrays of tiny 'packets' of audio via a real-time software synthesizer. These sound packets can be located anywhere on the Net and then reconstituted on the client machine as the user browses a Web page, resulting in flowing, high-fidelity music that responds directly to the user's input." Id. Beatnik's RMF (Rich Music Format) music format is compatible with Java 1.2. Id. Like AT&T, Beatnik files also utilize encryption features that protect copyright owners. Id.
47. A popular software is Progressive Networks' RealAudio which delivers sound in "real time," like radio broadcasts, meaning that shortly after clicking a particular song's icon, you can begin listening to it. Bernie Yee, Sonic U.: Fast Forward's Interactive Music Lesson; Web Music: Screened and Not Heard, WASH. POST, April 24, 1996, at R18. This process is commonly called audio streaming. The user does not download the audio; rather, the audio "passes through the computer system's memory." Howard Siegal and David J. Stein, Music Performance Rights on the Net; Continuing Uncertainty Over 'Cybercasting,' N.Y. L. J., Nov. 3, 1997, at S4. The software is free and can be downloaded by visiting http://www.realaudio.com. The latest version, RealAudio Player Plus, is analogous to a car radio. Progressive Networks' Products Allow for Faster, Better Audio, INFO TODAY, Oct. 1996, at 32. It enables listeners to scan different desktop broadcasters (live radio stations) over the Internet without waiting for the download of each Web site's graphics before being able to listen to the "station's" audio. Id. Additionally, users can preset audio buttons to their favorite "stations." Id. Moreover, Player Plus permits recording of audioclips. Atwood, supra note 1. However, there is a blocking feature that allows the individual Netcaster to disable the recording feature. Id. Player Plus is selling for $29.95 in retail stores and over the Net. Id. A new high quality digital audio software with minimal downloading time is provided by Headspace Inc.'s "Beatnik." Top Web Tools Embrace the Sound of "Beatnik," PR NEWSWIRE, Jan. 13, 1998. "Beatnik is unlike familiar Internet streaming audio technologies (such as RealAudio) because rather than send rigid sound files, it plays arrays of tiny 'packets' of audio via a real-time software synthesizer. These sound packets can be located anywhere on the Net and then reconstituted on the client machine as the user browses a Web page, resulting in flowing, high-fidelity music that responds directly to the user's input." Id. Beatnik's RMF (Rich Music Format) music format is compatible with Java 1.2. Id. Like AT&T, Beatnik files also utilize encryption features that protect copyright owners. Id.
48. A popular software is Progressive Networks' RealAudio which delivers sound in "real time," like radio broadcasts, meaning that shortly after clicking a particular song's icon, you can begin listening to it. Bernie Yee, Sonic U.: Fast Forward's Interactive Music Lesson; Web Music: Screened and Not Heard, WASH. POST, April 24, 1996, at R18. This process is commonly called audio streaming. The user does not download the audio; rather, the audio "passes through the computer system's memory." Howard Siegal and David J. Stein, Music Performance Rights on the Net; Continuing Uncertainty Over 'Cybercasting,' N.Y. L. J., Nov. 3, 1997, at S4. The software is free and can be downloaded by visiting http://www.realaudio.com. The latest version, RealAudio Player Plus, is analogous to a car radio. Progressive Networks' Products Allow for Faster, Better Audio, INFO TODAY, Oct. 1996, at 32. It enables listeners to scan different desktop broadcasters (live radio stations) over the Internet without waiting for the download of each Web site's graphics before being able to listen to the "station's" audio. Id. Additionally, users can preset audio buttons to their favorite "stations." Id. Moreover, Player Plus permits recording of audioclips. Atwood, supra note 1. However, there is a blocking feature that allows the individual Netcaster to disable the recording feature. Id. Player Plus is selling for $29.95 in retail stores and over the Net. Id. A new high quality digital audio software with minimal downloading time is provided by Headspace Inc.'s "Beatnik." Top Web Tools Embrace the Sound of "Beatnik," PR NEWSWIRE, Jan. 13, 1998. "Beatnik is unlike familiar Internet streaming audio technologies (such as RealAudio) because rather than send rigid sound files, it plays arrays of tiny 'packets' of audio via a real-time software synthesizer. These sound packets can be located anywhere on the Net and then reconstituted on the client machine as the user browses a Web page, resulting in flowing, high-fidelity music that responds directly to the user's input." Id. Beatnik's RMF (Rich Music Format) music format is compatible with Java 1.2. Id. Like AT&T, Beatnik files also utilize encryption features that protect copyright owners. Id.
49. U.S. CONST, art. I, § 8[8].
50. Information Infrastructure Task Force, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: A PRELIMINARY DRAFT OF THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS (July 1994).
51. Mazer v. Stein, 347 U.S. 201, 219 (1954).
52. 17 U.S.C. 106 states the following: Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
53. 17 U.S.C. 106(1) (1994).
54. 17 U.S.C. 101 (1994).
55. ONLINE LAW - THE SPA's LEGAL GUIDE TO DOING BUSINESS ON THE INTERNET 155 (Thomas J. Smedinghoff ed.)(1996)[hereinafter ONLINE LAW].
56. Robert W. Holleyman, To Protect the Future of the Internet, the WIPO Copyright Treaty Must Be Ratified Now, LEGAL TIMES, Oct. 6, 1997, at 25; FINAL REPORT OF THE NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS (1978), reprinted in ROBERT A. GORMAN & JANE C. GINSBURG, COPYRIGHT FOR THE NINETIES 693 (4th ed. 1993)("If a copy of the work is to be stored in a computer and subsequently made accessible to others, its creation would have to be properly authorized by the copyright proprietor. . .The introduction of a work into a computer memory would, consistent with the new law, be a reproduction of a work, one of the exclusive rights of the copyright proprietor."); See also, Jane C. Ginsburg, Putting Cars on the "Information Superhighway:" Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466, 1476 (Oct. 1995).
57. Robert W. Holleyman, To Protect the Future of the Internet, the WIPO Copyright Treaty Must Be Ratified Now, LEGAL TIMES, Oct. 6, 1997, at 25; FINAL REPORT OF THE NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS (1978), reprinted in ROBERT A. GORMAN & JANE C. GINSBURG, COPYRIGHT FOR THE NINETIES 693 (4th ed. 1993)("If a copy of the work is to be stored in a computer and subsequently made accessible to others, its creation would have to be properly authorized by the copyright proprietor. . .The introduction of a work into a computer memory would, consistent with the new law, be a reproduction of a work, one of the exclusive rights of the copyright proprietor."); See also, Jane C. Ginsburg, Putting Cars on the "Information Superhighway:" Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466, 1476 (Oct. 1995).
58. Robert W. Holleyman, To Protect the Future of the Internet, the WIPO Copyright Treaty Must Be Ratified Now, LEGAL TIMES, Oct. 6, 1997, at 25; FINAL REPORT OF THE NATIONAL COMMISSION ON NEW TECHNOLOGICAL USES OF COPYRIGHTED WORKS (1978), reprinted in ROBERT A. GORMAN & JANE C. GINSBURG, COPYRIGHT FOR THE NINETIES 693 (4th ed. 1993)("If a copy of the work is to be stored in a computer and subsequently made accessible to others, its creation would have to be properly authorized by the copyright proprietor. . .The introduction of a work into a computer memory would, consistent with the new law, be a reproduction of a work, one of the exclusive rights of the copyright proprietor."); See also, Jane C. Ginsburg, Putting Cars on the "Information Superhighway:" Authors, Exploiters, and Copyright in Cyberspace, 95 COLUM. L. REV. 1466, 1476 (Oct. 1995).
59. Ginsburg, supra note 42, at 1476.
60. ONLINE LAW, supra note 41, at 156.
61. Segal, supra note 6, at 13.
62. 17 U.S.C. 106(3) (1994).
63. ONLINE LAW, supra note 41, at 158.
64. Id. at 158.
65. Id.
66. Ronald L. Plesser, Nora E. Garrote & James J. Halpert, Treaties Now Before the Senate Address the Rights of Copyright Owners in Cyberspace, LEGAL TIMES, April 7, 1997, at 6. Jeffrey P. Cunard, Bruce P. Keller & Albert G. Wells, WIPO Treaties Raise International Copyright Norms, N.Y. L. J., March 10, 1997, at S4.
67. Ronald L. Plesser, Nora E. Garrote & James J. Halpert, Treaties Now Before the Senate Address the Rights of Copyright Owners in Cyberspace, LEGAL TIMES, April 7, 1997, at 6. Jeffrey P. Cunard, Bruce P. Keller & Albert G. Wells, WIPO Treaties Raise International Copyright Norms, N.Y. L. J., March 10, 1997, at S4.
68. H.R. 2281 was introduced by Representative Howard Coble (R-NC) on July 29, 1997. S. 1121 was introduced by Senator Orrin Hatch (R-Utah) on July 31, 1997. Both pieces of legislation would prohibit circumvention of technological protection measures designed to prevent access to copyrighted works, as well as the manufacturing, importing or offering to the public of such technology. H.R. 2281, 105th Cong., 1st Sess. (1997); S. 1121, 105th Cong., 1st Sess. (1997). Neither bill addresses liability issues that concern Internet service providers. In the House, a companion bill, H.R. 2180, attempts to tackle this highly controversial subject matter. There are other bills in the House and Senate that would limit or eliminate liability for service providers, among other things. See S. 1146, 105th Cong., 1st Sess. (1997) and H.R. 3048, 105th Cong., 1st Sess. (1997) ("Digital Era Copyright Enhancement Act").
69. World Intellectual Property Organization: Performances and Phonograms Treaty, Dec. 20, 1997, art. 2(b), reprinted in 36 I.L.M. 76 (1997).
70. Id., Arts. 7 & 8. The Treaty also recognizes the following rights for performers: 1) a moral right to be "identified as the performer of his performances" (Art. 5); 2) the right to control the broadcasting and communication of their unfixed performances (Art. 6); 3) the right of rental (Art. 9); and 4) the right to make their works available to the public (Art. 10). Producers of phonograms are basically afforded the same rights as performers in Articles 11-14.
71. The Treaty drafters debated whether Article 7, which addresses the right of reproduction, would include temporary reproductions. Rebecca F. Martin, The WIPO Performances and Phonograms Treaty: Will the U.S. Whistle a New Tune?, 44 J. COPYRIGHT SOC'Y U.S.A. 157, 175 (Spring 1997) . Initially, the scope of the right of reproduction included temporary reproductions. Ultimately, however, the committee rejected such definition. Id. Instead, each Berne member country is left to interpret whether temporary copies are protected reproductions. Wendy L. Addiss & Ronald S. Katz, WIPO Treaties: Euphoria Should Wait, COMPUTER LAW., April 1997, at 1. But, as already noted, United States law favors extending protection to a copy fixed in RAM. See supra text accompanying notes 42-46.
72. The Treaty drafters debated whether Article 7, which addresses the right of reproduction, would include temporary reproductions. Rebecca F. Martin, The WIPO Performances and Phonograms Treaty: Will the U.S. Whistle a New Tune?, 44 J. COPYRIGHT SOC'Y U.S.A. 157, 175 (Spring 1997) . Initially, the scope of the right of reproduction included temporary reproductions. Ultimately, however, the committee rejected such definition. Id. Instead, each Berne member country is left to interpret whether temporary copies are protected reproductions. Wendy L. Addiss & Ronald S. Katz, WIPO Treaties: Euphoria Should Wait, COMPUTER LAW., April 1997, at 1. But, as already noted, United States law favors extending protection to a copy fixed in RAM. See supra text accompanying notes 42-46.
73. 464 U.S. 417 (1984).
74. Audio Home Recording Act of 1992, Pub. L. No. 102-563, 106 Stat. 4237 (1992)(codified at 17 U.S.C. 1001-1010).
75. Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 419 (1984).
76. Id. at 421.
77. Id. at 455.
78. 17 U.S.C. 107 states in pertinent part: In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
79. Sony, 464 U.S. at 448.
80. Id.
81. Id.
82. Id. at 451.
83. See infra text accompanying notes 153-155.
84. 17 U.S.C. 107 (1984).
85. Melvin, supra note 1, at 10E. To promote their music catalog, it is common for the music industry to make 30-second song samples available free of charge to the online community. Jeffrey D. Neuburger and Susan Israel, Music Industry Acts in Concert on Sound Samples, NAT'L L. J., Jan. 26, 1998, at C17. Representatives of songwriters, record companies and music publishers have come together to reach a compromise concerning the need of mechanical licenses for the downloading of samples. Id. Their agreement entitled "Joint Proposal Concerning 1997 Physical Phonorecord and Digital Phonorecord Delivery Royalty Rate Adjustments," which is currently pending before the Copyright Office, provides that the copyright holder of both the sound recording and the underlying musical composition will allow 30-second downloads of their respective works without requiring a mechanical license, providing such downloading promotes the sale of their works. Id.
86. Watching a video tape is different in nature than listening to a song. Most people watch a video one or two times. However, songs are substantially shorter in length in comparison to videos and are generally played over and over. Additionally, watching a video requires a person to focus their attention on the television; whereas music is a background sound that enhances other activities.
87. Huffstutter, supra note 10.
88. Sony, 464 U.S. at 449-50.
89. See Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 (1985)(The Nation published an unauthorized short piece based on President Ford's memoirs using quotes, paraphrases, and facts from the unpublished book which comprised about 13% or 300-400 words of the 2250 words in the article. The Supreme Court held that the 13% appropriated was substantial in relation the entire article, and that The Nation took what was essentially the heart of the book. These factors weighed against a finding of fair use).
90. Sony, 464 U.S. at 448.
91. See Atwood, supra note 1. See also Huffstutter, supra note 10.
92. 17 U.S.C. 1001-1010.
93. 137 CONG. REC. S 11807 (daily ed. Aug. 1, 1991) (statement of Sen. DeConcini).
94. GORMAN & GINSBURG, supra note 42, at 459. Legislative history shows that Congress, at the time of the Sony decision, did not support proposals for a "royalty regime for both video and audio works." H.R. Rep. No. 873, 102d Cong., 2d Sess. pt. 1, at 11 (1992), reprinted in 1992 U.S.C.C.A.N. 3578, 3582. However, coinciding with the Sony case was the development of the compact disc. Id. This digital audio technology did not pose a threat to the recording industry "because compact discs could not be recorded over." Id. It was not until 1987 that the DAT machine, which provided near perfect home copies, was developed that made Congress finally act. Id.
95. N. Jansen Calamita, Coming to Terms with the Celestial Jukebox: Keeping the Sound Recording Copyright Viable in the Digital Age, 74 B.U. L. REV. 505, 515 (May 1994). Analog recordings commonly "pop" and sound distorted because such recording is a "continuous representation of the original information read directly - usually physically - with a mechanical pickup in contact with the storage medium." Id. "In contrast, digital audio is the translation of information into mathematical bits. Sound is converted into a series of 1s and 0s, which digital equipment then reassembles into sound, with virtually no loss in quality from the original recording." Id.
96. GORMAN & GINSBURG, supra note 42, at 459.
97. 17 U.S.C. 1008 (1994).
98. 17 U.S.C. 1004 (1994). As a royalty, manufacturers and importers must pay 2% of the transfer price for each digital recording device and 3% of the transfer price for each digital recording medium. Id. However, royalty payments are limited to no less than $1 per unit and no more than $12 for an integrated unit that contains more than one digital audio device. Id.
99. 17 U.S.C. 1006 (1994).
100. 17 U.S.C. 1002 (1994).
101. GORMAN & GINSBURG, supra note 42, at 460.
102. 137 CONG. REC. S 11807 (daily ed. Aug. 1, 1991) (statement of Sen. DeConcini).
103. 17 U.S.C. 1001(1) (1994).
104. Suzan, supra note 19, at 816.
105. CompuServe Settles Suit Over Copying of Songs on its Database, ENT. LITIG. REP., Dec. 30, 1995.
106. Marilyn A. Gillen, CompuServe, Publishers Reach Deal Online Service to Have Music Activities Licensed, BILLBOARD, Nov. 18, 1995.
107. Settlement Reached in Music Publishers' Class Action, PR NEWSWIRE, Nov. 7, 1995.
108. Id.
109. CompuServe Settles Suit Over Copying of Songs on its Database, supra note 87.
110. Id.
111. Id.
112. Richard Raysman & Peter Brown, Internet Copyright Developments, N.Y. L. J., Jan. 9, 1996, at 3.
113. CompuServe Settles Suit Over Copying of Songs on its Database, supra note 87.
114. Gillen, supra note 88.
115. CompuServe Settles Suit Over Copying of Songs on its Database, supra note 87.
116. Id. 947 "class compositions" were identified. Id.
117. Settlement Reached in Music Publishers' Class Action, supra note 89.
118. Id.
119. Raysman & Brown, supra note 94.
120. Gillen, supra note 88.
121. Raysman & Brown, supra note 94.
122. Gillen, supra note 88. The statutory rate as of January 1, 1996 is the larger of "6.95 cents or 1.3 cents per minute of playing time (or a fraction thereof)." Lisa E. Davis & Rhonda Adams Medina, The Piper Must Be Paid; New Law Grant Performance Rights For Digital Age, N.Y. L. J., April 8, 1996, at S1.
123. NMPA Views Landmark CompuServe Settlement Agreement as Precedent for all On-line Computer Services (Nov. 7, 1995) http://www.nmpa.org/pr/compuserv.html (quoting Edward P. Murphy, President and CEO of the National Music Publisher's Assoc., Inc.); John B. Kennedy & Shoshana R. Dweck, Publishers, Authors Battle Over Electronic Rights, NAT'L L. J., Oct. 28, 1996, at C17; Raysman & Brown, supra note 94.
124. NMPA Views Landmark CompuServe Settlement Agreement as Precedent for all On-line Computer Services (Nov. 7, 1995) http://www.nmpa.org/pr/compuserv.html (quoting Edward P. Murphy, President and CEO of the National Music Publisher's Assoc., Inc.); John B. Kennedy & Shoshana R. Dweck, Publishers, Authors Battle Over Electronic Rights, NAT'L L. J., Oct. 28, 1996, at C17; Raysman & Brown, supra note 94.
125. 17 U.S.C. 106(4) (1994).
126. H.R. Rep. No. 1476, 94th Cong., 2d Sess. 64 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5677 [hereinafter H.R. Rep. 1476].
127. 17 U.S.C. 101 (1994).
128. H.R. Rep. 1476, supra note 107, reprinted in 1976 U.S.C.C.A.N. at 5677.
129. Id.
130. 17 U.S.C. 101 (1994).
131. H.R. Rep. 1476, supra note 107, reprinted in 1976 U.S.C.C.A.N. at 5678.
132. 17 U.S.C. 101 (1994).
133. H.R. Rep. 1476, supra note 107, reprinted in 1976 U.S.C.C.A.N. at 5678.
134. Ginsburg, supra note 42, at 1480.
135. Id.
136. 17 U.S.C. 501 (1994).
137. Marlee Buttery, Note, Blanket Licensing: A Proposal for the Protection and Encouragement of Artistic Endeavor, 83 COLUM. L. REV. 1245, 1246 (June 1983).
138. Buffalo Broadcasting Co. v. ASCAP, 546 F. Supp. 274, 277 (S.D.N.Y. 1982).
139. Id.
140. Id.
141. Id.
142. Id.
143. SESAC is considerably smaller than ASCAP and BMI, and is a private, profit-making organization. GORMAN & GINSBURG, supra note 42, at 515. For the purposes of this paper, only ASCAP and BMI, both non-profit organizations, will be discussed.
144. Id.
145. Jay M. Fujitani, Comment, Controlling the Market Power of Performing Rights Societies: An Administrative Substitute for Antitrust Regulation, 72 CALIF. L. REV. 103, 105 (Jan. 1984).
146. Polygram Int'l Publishing Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1318 (D. Mass. 1994). ASCAP has over 68,000 members who are composers, songwriters, lyricists, and music publishers, http://www.ascap.com. BMI has over 180,000 songwriters, composers, and music publishers, http:// www.bmi.com. License fees are usually based on a flat fee or a percentage of gross receipts. Fujitani, supra note 126, at 105. For instance, networks typically pay a flat fee. GORMAN & GINSBURG, supra note 42, at 516. While "local television and radio stations pay a fee based on sponsorship receipts (less certain deductions)." Id. However, licensees that are similarly situated must be treated equally, and if the licensee believes that the rates are unreasonable, a court may remedy the problem. Id. Performing rights societies monitor the public performance of its members' copyrighted works through examining station logs, visiting different venues, and taping broadcasts. Barbara Cohen, Note, A Proposed Regime for Copyright Protection on the Internet, 22 BROOK. J. INT'L L. 401, 423 (1996). Based on such information, royalties are distributed either on a "spreading of payments" formula or according to the number of each member's performed works. Id.
147. Polygram Int'l Publishing Inc. v. Nevada/TIG, Inc., 855 F. Supp. 1314, 1318 (D. Mass. 1994). ASCAP has over 68,000 members who are composers, songwriters, lyricists, and music publishers, http://www.ascap.com. BMI has over 180,000 songwriters, composers, and music publishers, http:// www.bmi.com. License fees are usually based on a flat fee or a percentage of gross receipts. Fujitani, supra note 126, at 105. For instance, networks typically pay a flat fee. GORMAN & GINSBURG, supra note 42, at 516. While "local television and radio stations pay a fee based on sponsorship receipts (less certain deductions)." Id. However, licensees that are similarly situated must be treated equally, and if the licensee believes that the rates are unreasonable, a court may remedy the problem. Id. Performing rights societies monitor the public performance of its members' copyrighted works through examining station logs, visiting different venues, and taping broadcasts. Barbara Cohen, Note, A Proposed Regime for Copyright Protection on the Internet, 22 BROOK. J. INT'L L. 401, 423 (1996). Based on such information, royalties are distributed either on a "spreading of payments" formula or according to the number of each member's performed works. Id.
148. Johnson, supra note 8. In 1995, ASCAP reached $436.8 million in revenue which was a 3% increase from the previous year. Id. In 1996, BMI reached approximately $385 million in revenue, which was a 10% increase from 1995. Id.
149. House Judiciary Courts and Intellectual Property Copyright Protection on the Internet (Feb. 7, 1996)(testimony of Francis W. Preston, President and CEO of Broadcast Music, Inc.).
150. Id.
151. Fujitani, supra note 126, at 107.
152. Id.
153. Bennett M. Lincoff, Commentary: Everyone Covered by Blanket Licenses - Deals Will Help Online Services Expand, BILLBOARD, Dec. 16, 1995.
154. Id.
155. Id.
156. ASCAP, BMI Venture Online - Performance Rights Societies Ink Celestial Licensing Deals, INFO. L. ALERT: A VOORHEES REP., Nov. 17, 1995.
157. Suzan, supra note 19, at 807.
158. ASCAP, BMI Venture Online, supra note 136.
159. Johnson, supra note 8.
160. Id.
161. See supra text accompanying notes 20-23.
162. Unsure About Buying CD? Sample Songs on Internet, SACRAMENTO BEE, Nov. 20, 1996, at F2.
163. Chris Rose, UK, US Music Copyright Bodies Take the Lead in Addressing Problem of Internet Music, COMPUTERGRAM INT'L, May 10, 1996; http:// www.ascap.com/new/nmts/licensing/licensing.html.
164. Id.
165. Id.
166. Id.
167. Id.
168. Rose, supra note 143.
169. ASCAP, BMI Venture Online, supra note 136.
170. Id. (quoting Neal Friedman, Esq. of the Washington D.C. firm Pepper & Corazzini). See also Buttery, supra note 118, at 1246.
171. Jim Kirk, Performing Online; Music Licensing Debate Takes Center Stage, CHI. SUN-TIMES, Oct. 12, 1995, p. 51.
172. Lincoff, supra note 133.
173. Kirk, supra note 151, at 51.
174. Id.
175. Id.
176. Pub. L. No. 104-39, 109 Stat. 336 (codified as amended at 17 U.S.C. §§ 106(6) & 114 (Nov. 1, 1995)). The law became effective February 1, 1996. Davis & Medina, supra note 104.
177. "Sound recordings" are defined as works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied. 17 U.S.C. 101 (1994).
178. William O. Ferron, Jr., Christopher J. Daley-Watson & Michael L. Kiklis, Online Copyright Issues: Recent Case Law & Legislative Changes (Part I), COMPUTER LAW., Jan. 1997, at 7.
179. 17 U.S.C. 106(6) (1994).
180. Marie D'Amico, Turning Trademarks Topsy-Turvy on the Net; Music on the Internet & the Digital Performance Right in Sound Recordings Act of 1995; Government Activity, DIGITAL MEDIA, Nov. 29, 1996, at 18.
181. Id. The statutory license rate is available for most "subscription" transmissions. Davis & Medina, supra note 104. The
182. 17 U.S.C. 114(d)(2) (1994).
183. 17 U.S.C. 114(d)(1) (1994).
184. 17 U.S.C. 114(d)(3) (1994).
185. Ferron, Daley-Watson & Kiklis, supra note 158.
186. 17 U.S.C. 114(d)(3) (1994).
187. 17 U.S.C. 114(d)(2) (1994).
188. Martin, supra note 161, at 746.
189. See supra note 161.
190. Davis & Medina, supra note 104.
191. 17 U.S.C. 115(a)(1) & (c)(3) (1994).
192. D'Amico, supra note 160.
193. Id.
194. Davis & Medina, supra note 104.
195. Id. The RIAA is still actively pursuing Internet pirates. In January 1998, they successfully sued and shut down three Web sites that provided visitors hundreds of popular recordings to download without obtaining permission from the owners. Don Jeffrey, Downloading Songs Subject of RIAA Suit Action Intended to Stem Flow of Internet Piracy, BILLBOARD, June 21, 1997. As damages, three federal courts ordered site operators to pay each RIAA member company over $1 million. RIAA Online Suit Settled Big-Bucks Judgments Send Warning, BILLBOARD, Jan. 31, 1998. The RIAA decided to send a warning and agreed to forego the monetary judgment provided that the defendants, who did not make any money from the sites, do not become repeat offenders. Id.
196. Id. The RIAA is still actively pursuing Internet pirates. In January 1998, they successfully sued and shut down three Web sites that provided visitors hundreds of popular recordings to download without obtaining permission from the owners. Don Jeffrey, Downloading Songs Subject of RIAA Suit Action Intended to Stem Flow of Internet Piracy, BILLBOARD, June 21, 1997. As damages, three federal courts ordered site operators to pay each RIAA member company over $1 million. RIAA Online Suit Settled Big-Bucks Judgments Send Warning, BILLBOARD, Jan. 31, 1998. The RIAA decided to send a warning and agreed to forego the monetary judgment provided that the defendants, who did not make any money from the sites, do not become repeat offenders. Id.
197. Jessica Litman, The Herbert Tenzer Memorial Conference: Copyright in the Twenty-First Century: The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L. J. 29, 31 n.14 (1994).
198. See supra note 34.
199. Atwood, supra note 1.
200. Huffstutter, supra note 10 (quoting music attorney Don Passman).
201. Id.
202. Id.
203. 17 U.S.C. 1001 (1994).
204. See supra text accompanying notes 133 & 136.
205. See supra text accompanying notes 131-135.
206. See supra text accompanying notes 153-155.
207. See supra text accompanying notes 11-16.
208. Pack, supra note 9. Such ads take up approximately one-fourth of the screen on each page. Id.
209. ONLINE LAW, supra note 41, at 114.