Re: Copyright and MP3 issues

On Mon, Apr 26, 1999, Dirceu Pereira <dpsrosa[_at_]ax.ibase.org.br> wrote:
>
> I read this list very often but, since I am in faraway Brazil, I tend
> to participate much less than other readers.
>
> Does anyone know a good source of information about copyright issues
> arising from the illegal copying of music through the mp3 format?
> or about the use of digital watermarks against possible copying of
> coptrighted materials?
>
> I have heard not only of one case about mp3, such as RIAA V. Diamond,
> but also about record companies which sent many cease and desist
> letters to website owners which carries illegal mp3 files. Many
> sites are supposedly being shut down.
>
> I am having difficulties in finding other sources of legal info through
> the web, specially legal articles which deal with this matter directly,
> or give weight to this issue.
>
> All help, or links, will be highly appreciated

    There are quite a number of good law review articles on digital musical recordings on the Internet; however, there are no direct article on mp3 and copyright. The closest you can get is Nancy A. Bloom, Protecting Copyright Owners of Digital Music -- No more Free Access to Cyber Tunes, 45 J. Copyright Soc'y 179 (1997). In fact, I am currently working on an article on RIAA v. Diamond.

    Basically, RIAA revolves around two issues. First, is the manufacture, import, and distribution of mp3 players a violation of the Audio Home Recording Act of 1992 ("AHRA"). AHRA prohibits legal actions for copyright infringement based on the manufacture, importation, or distribution of a digital audio equipment or media for private non-commercial recording. As a compensation to the recording industry, AHRA requires digital audio recording machines to be equipped with a Serial Copy Management System. The Act also "requires manufacturers and importers of digital hardware and blank digital software to pay compensatory royalties to music creators and copyright holders," who are likely to be injured by the new digital audio recording technology.

    RIAA argues that mp3 players is a digital audio recording device and fits within the scope of AHRA. Diamond counterargues that its mp3 player has no recording function and is not a digital audio recording device under AHRA. Even though Diamond's argument is stretching, an analysis of the legislative history would reveal that AHRA is a compromise between the electronics industry and the recording industry. The computer industry is barely in the picture. When Congress passes legislation without serious consideration of other interests, the exclusion of other interests groups is significant. Indeed, as Prof. Litman argues, the Copyright Act involves various deals struck by different interests groups, and courts should honor those compromises. Thus, Diamond is likely to prevail.

    If Diamond does not violate AHRA, RIAA can sue under the Copyright Act. However, in light of Sony Corp. of America v. Universal City Studios, Inc. and the Digital Millenium Copyright Act, courts would likely find fair use in the case. Indeed, my article argues that the mp3 player is good to the music industry. It creates opportunities for amateur and independent musicians, promotes economic commerce and online music delivery, and reduces the production and distribution costs of recording companies.

Peter Yu
<peter_yu[_at_]email.msn.com> Received on Wed Apr 28 1999 - 03:32:34 GMT