Record stores are going out of business and it’s clear why: MP3s allow for faster access, higher quality, and easy sharing. Records and CDs are rapidly becoming a stop off on memory lane, nostalgically representing a time when things were things. Today, things (like music) are intangible, fluid ribbons of space, transmitted throughout the world in the blink of an eye, and often without care for boundaries of law or geography.
In what many consider to be a particularly confusing and contrary decision, the 2nd Circuit affirmed a 2007 District Court ruling that established that downloaded music does not constitute a “public performance” for the purpose of copyright protection. In its decision, the Appeals Court walked through the language of Section 101 of the Copyright Act, reasoning that music transmitted through a player is not “recited,” “rendered,” or “played” as required by the Copyright Act for public performance protection. Further, it determined that performance requires “contemporaneous perceptibility,” which is lacking here.
The case is American Society of Composers, Authors and Publishers v. United States, and on September 26, the Supreme Court will be determining whether to hear it.
Generally speaking, the process for acquiring music digitally is a passive one: users log into the system, search for the music they want, and select “Download.” On P2P interfaces (peer-to-peer), one gains access to other users’ music by uploading his own. The Court thought that because the download itself is so passive (and not performative), the digital copy is therefore also not performative.
There have been several amicus briefs written on the case, and it will be interesting to see how the Supreme Court will handle the issue.
Critics of the District and Appeals Courts’ decision argue that it aligns itself squarely against the Copyright Act, and (perhaps more importantly) the legislative and policy interests it was designed to further and protect. However, it should be noted the portion of the Copyright Act at issue here was passed in 1976, the same year that the RIAA introduced “Platinum” status for artists who sold one million records. The creation of “going platinum” served to accommodate the immense sales from disco music. In short, the Copyright Act was written when things were things, and things have changed.
The debate in which the Supreme Court will engage when deciding this issue will probably largely turn on policy questions, both as to the specific industries of music production and technology, and to copyright protection in general.
Leeward Legality 