1

2 8 Currents Int'l Trade L.J. 31, *

Copyright (c) 1999 Currents: International Trade Law Journal Currents: International Trade Law Journal Summer, 1999 8 Currents Int'l Trade L.J. 31 LENGTH: 15192 words ARTICLE: Music on the Internet: Can the Present Laws and Treaties Protect Music Copyright in Cyberspace? NAME: Stephen Summer LEXISNEXIS SUMMARY: ... In response to the many questions raised by the application of digital technology to entertainment content but left unanswered by the 1995 Act, Congress recently passed the Digital Millenium Copyright Act. ... Finally, the OSP does not modify the content of the infringing transmission in any way. ... TEXT: [*31] I. INTRODUCTION "Over its several centuries of existence, copyright law has successfully negotiated a series of "crises" precipitated by changes in information distribution by adapting itself to new technological circumstances." n1 In the last 100 years, several issues under the "new media of photography, motion pictures, and sound recordings" have tested the flexibility of copyright law. n2 But today, with the advent of the Internet, the very foundation of copyright law is now being challenged. As these advances in technology bring about changes in society, they in turn generate demands for new legal regimes. n3 One of the most complex legal issues concerning the Internet is the protection of musical copyright. As we turn to the new millennia, the advent of a new form of information technology-digitization--is challenging the "flexibility" of the current copyright structure. n4 The basic concepts of copyright law are founded on the premise of "print-on-paper information distribution." n5 These laws evolved from the "chaos of economic and cultural conditions caused in part by the spread of movable type throughout Europe." n6 As these basic tenants of copyright law are being supplanted by: magneric tape, floppy disks, silicon chips, CD's, and CD-ROM's, many are beginning to question "the continued relevance of traditional copyright law." n7 The focus of concern is this "worldwide web of interconnected university, business, military and science [computer] networks known as the Internet." n8 "Through this elaborate system of supercomputers, switching stations, and personal computers flows the sound of music." n9 Using a modem and digitizing equipment, anyone with Internet access can "retrieve, store and listen to [any] digitized audio file." n10 This article will look at the potential impact of the Internet on the music industry; with special focus on issues concerning the transmission of music over the Internet. Section II will focus on the history of the Internet, how music is changed into digital form, and culminate with a synopsis of the inherent copyright issues associated with the digital transmission of music.

3 8 Currents Int'l Trade L.J. 31, * Section III will present an overview of U.S. copyright law, beginning with a brief history of the Copyright Act of 1976, and emphasize the exclusive rights at issue in cyberspace. This section will also take a look at the present state of copyright protections in the U.S. with a focus on the most current amendments to the copyright act. Section IV will provide an overview of the current state of global copyright. This section will provide a history of the relevant conventions and discuss the interaction between current U.S and World copyright treaties, their political stumbling blocks, and the ramifications stemming from the lack of global unity. Section V will look at the reality of the internet copyright problems: prevention of illegal distribution of copyrighted works. In this section, a brief overview of current prevention technology will be examined. The final section will examine current ideas for creating a copyright-safe Internet and whether solutions offered by industry and Congress are the solution to the current and future musical copyright issues in cyberspace. II. THE INTERNET A. THE DEVELOPMENT OF THE INTERNET "Today, the Internet is a global network comprised of over 3.8 million host computers linking approximately 35 million people in 140 countries." n11 The number of people who join the Internet community expands by a million a month, and may pass 100 million by the end of the century. n12 "The dramatic growth of this web of computer networks can be traced back to a design made in 1964 by Paul Baran, a Rand Corporation researcher." n13 The purpose behind the design was to create a communications network that had no point of origination, no central switching station and above all, no governing authority. n14 Adopted from Paul Baran's original concept, the "Advanced Research Projects Agency network (ARPAnet) n15 was unveiled in 1969 by the United States Defense Department." n16 This was premised on the defense notion, that in the event of a nuclear attack, no link to any other city would be reliable nor should national security be vested in one central computer. n17 Even though initially ARPAnet only connected four research labs, "it would become the precursor for the sprawling Internet of [*32] the 1980s and 1990s." n18 By the mid-1980's, a system of high speed data lines were installed under the supervision of the National Science Foundation. (NSF) n19 These connections formed the foundation of what is now known as the Internet. n20 It did not take long before "students and researchers across the globe embraced the new technology and used the Internet to communicate and share information." n21 Initially, the Internet was conceived as a non-commercial vehicle for defense purposes, but in 1991, the NSF ended restrictions on commercial usage and for the first time, the public had access to the Internet. n22 Almost immediately, "commercial on-line providers such as Prodigy, CompuServe, America Online, Genie, and Delphi Internet Service" offered users access to the Internet. n23 The concept that makes the Internet unique--decentralization--also "sets the tone for legal analysis of sending music over the network." n24 Essentially, because there is no way to turn off the Internet, it seems impossible to maintain any sort of control over a person's use. n25 "At its inception, there was an effort to maintain some sense of order on the Internet from within the user community." n26 Initially, the network was "self-policing." n27 When someone got out of line the community "would shout down or shun that person." n28 Today, with the enormous expansion, "self policing" has lost its power. n29 As the network has expanded geographically, the informal code of behavior on the Internet has lost its effect. n30 The legal implication raised by the Internet's lack of centralized control is the resulting difficulty for copyright owners to bill for and track use of intellectual property...since there's no central tracking mechanism. Copyright violations, are

4 8 Currents Int'l Trade L.J. 31, * therefore commonplace and rights in copyright on the Net are enforced only by the honor system. Moreover, the anything goes attitude held by many Internet users, many of whom are "huge music enthusiasts," complicates the process of enforcing copyright protection. n31 Anonymity is another distinguishing feature that becomes the ally of anyone attempting to commit infringement of copyright on the Internet. n32 "The anonymous remailer, an online software device, allows a user to send e-mail and post to USENET without exposing the identity of the author." n33 Music, therefore, can be posted anonymously for the entire on-line community to download while anyone trying to track the exchange is left with useless information as to the primary individual responsible for the upload. n34 In essence, "since cyberspace is so vast, the unauthorized transfer of copyrighted materials is often untraceable." n35 B. DIGITIZED MUSIC: THE SUBSTANCE OF TRANSMISSION "Hayden Gregory, Chief Counsel of the House Judiciary Subcommittee on Intellectual Property, has noted that copyright concerns may be summed up in the word "digital." n36 Digitization opens a global outlet for distribution of music with or without a copyright owner's consent. As a consequence, the music community and the legal community are being forced to address situations of first impression. n37 Marybeth Peters, a key government official on copyright matters, succinctly stated the problem when she "referred to the Internet as the world's biggest copying machine." n38 "These unique challenges to protecting the rights of copyright owners were isolated by Emery Simon, Executive Director of the Alliance to Promote Software, when he spoke of three major characteristics of the "digital information revolution." n39 Speaking before a Senate Judiciary subcommittee, Mr. Simon said: . First, digitization offers an easy and inexpensive method to create an unlimited number of perfect copies. . Second, digitized information can be instantaneously uploaded and downloaded by an unlimited number of users. . Third, information in disparate media can be converted into a single digital stream and can easily be manipulated to create a variety of new works. n40 To better understand these unique problems created by digital transmission, it is necessary to ensure an understanding of the digital process. Digitization is the translation of information into mathematical bits. Information is converted into a series of 1's and 0's [commonly known as bits]. n41 This information can then be transmitted, and because there is no friction, there is no degradation of the signal. What makes digitization so dangerous to the music community is once the music is converted to digital bits, sent and reassembled into sound, there is "virtually no loss in quality from the original recording." n42 When "compared to the analog format of recording where there is a decrease in quality as each copy is made, the process of digitization allows infinite duplication of [near] perfect copies which equal the original." n43 Once a musical work is converted to a digital format it becomes a file and can be transferred over the Internet just like any other text file. One major drawback [to] this format is that digitized data files are extremely large and can occupy a lot of storage space on a users hard drive. Not only are music files large in size, but the amount of time it took a CompuServe user to download a popular rock music song was estimated between sixty and ninety minutes using a modem set at a speed of 9,600 or [*33] 14,400 baud. Nevertheless, the storage and downloading requirements did not deter the more than 7,000 members of the CompuServe community who copied the song onto their home computers during an eight-day period. n44

5 8 Currents Int'l Trade L.J. 31, * This download occurred in 1994. Today, the problems of downloading music files have virtually been overcome. Sophisticated compression programs are readily available and baud rates are now functioning at 56,000 b.p.s. n45 The irony today is that most of the "dissemination of music over the Internet is ultimately accomplished via home computer technology." n46 Computer equipment is affordable and accessible. It is now the standard for a home computer to contain software to create access to the Internet as well as a modem to connect one to the online server. n47 Sound cards are widely available and can be plugged into personal computers for approximately $ 100. Therefore, by spending a few hundred dollars, an Internet user can "add CD-quality . . . to any PC." n48 C. POTENTIAL COPYRIGHT CONFLICTS With the relative ease of uploading and downloading via the Internet, the standard means of compensation under copyright laws must be rethought. It has been suggested that it is virtually impossible to try and monitor actual or even approximate use of copyrighted material on the Internet. n49 It is not feasible for Internet monitors to attempt to judge uploading and downloading of copyrighted material based upon the music industry's random sampling or any other such mechanism. n50 "Traditional mechanisms for gathering royalties must be reworked in the context of cyberspace to account for the fundamental shift towards access and usage in electronic commerce as compared to the traditional physical movement of goods through the economy." n51 Consumers are now able to download the newest CD from their favorite artist instead of having to go to the music store to buy the CD. In fact, it is very likely that the consumer will be able to chose between downloading the whole album or downloading a single cut. Consequently, "compensation relating to musical works likely will be tied more and more closely to the consumer's specific usage of a composition rather than to the acquisition of a physical embodiment of a song in the form, for example, of a CD." n52 In the digital world, the customer will not really own a copy of the recording, but will actually be paying for the use of the file which is something very similar to the current state of software distribution. "Licenses for music and other forms of copyrighted matter are currently parsed according to the 'bundle of rights' granted in Section 106 of the Copyright Act." n53 Consequently, the administration of each right must be handled and licensed differently. For example, "the right to produce sheet music is licensed separately from [the] permission to publicly perform the same composition." n54 At the present time, in cyberspace there are very few licensing agreements for the digital distribution of music. n55 Because music in the not so distant future, will be transferred over the Internet "in the form of binary files...further refinement of the nature and scope of licenses for the exploitation of musical compositions" will be necessary for any protection to be derived. n56 To ensure future success in cyberspace in creating music licensing, adjustments should be made to include what is now an intangible product. Additionally, some form of collection must be developed specifically for the Internet. n57 "Since digital works can be disassembled and put to many types of uses that are fundamentally different from the uses of analog works, there is a greater risk of losing royalties where license mechanisms are not calibrated to define and detect particular uses." n58 With the current technology on the Internet it is more difficult to maintain "control of the reproduction and particularized usage of copyrighted works." n59 As for example, "in 1996, two songs from Irish superband U2's then unreleased POP album were allegedly heisted from computers in the recording studio and posted at Web sites in at least four countries for free downloading." n60 Another issue of significance is one of digital sampling. n61 Digital Sampling is where small sections, or phrases of a particular song are "sampled". Sampling is accomplished by digitally recording material into a storage facility such as a keyboard. Once the sound is recorded it can be edited. The sample can then be utilized like any other sound on a synthesizer. n62 This sampled sound can also be used as part of a different song recording. Problems are created because generally, sampling is done without the express permission of the original artist. n63

6 8 Currents Int'l Trade L.J. 31, * "Under U.S. copyright law, economic incentive drives the creation of expressive works." n64 "In cyberspace, compensation for musical creations increasingly will be a function of technology sufficient to track the use and to collect the royalties due various rights holders." n65 III. COPYRIGHT IN THE U.S. A. BRIEF HISTORY "The right of copyright, as a conceptual type of "intellectual property," came into existence through English law and the Statute of Anne in 1710." n66 The founding fathers in an effort "to promote the progress of Science and useful Arts," granted Congress the power to give exclusive copyrights to authors, inventors and creators. n67 "Although this original legislation pertained only to "maps, charts, and books," copyright protection has expanded to encompass a wide range of items." n68 It is often argued, with little objection, that copyright law exists and has evolved in specific relation to technological development and change; prior to Gutenberg, moveable type, [*34] and the demand for printed matter created thereby, there was no practical need to protect the writings of authors. While this is a good argument, it does not seem entirely true. Music is a good example. Sheet music existed in 1790 when the first copyright act was enacted by Congress, yet music was not included in the list of that which was copyrightable. The 1790 copyright law protected 'the author or authors of any map, chart, book or books," extending to them "the sole right and liberty of printing, reprinting, publishing and vending" such works. An 1802 amendment extended copyright protection to "arts of designing, engraving and etching historical and other prints." It was not until 1831 that music was added to the list of copyrightable subject matter by Congress. n69 Our modern statute, the Copyright Act of 1976, expanded the list to encompass "eight broad categories of "original works of authorship," including not only traditional literary works, but also creations ranging from music to architectural works." n70 Included in this Act, were the exclusive rights to reproduce the work in copies, to prepare derivative works based on the copyrighted work, to distribute copies of the work and to perform or display the work publicly. n71 All of these rights can come into play in a networked environment. Moreover, in principle, the rights copyright confers will be the same whatever the format of the work, whether originally created in hard copy or in digital format. n72 Music--in contrast to most other copyrightable subject matter--can implicate from just one to all five of the rights in the "bundle of rights" granted by copyright law. n73 1. REPRODUCTION RIGHT "Perhaps the most fundamental right granted by the Copyright Act is the exclusive right to reproduce the copyrighted work." n74 Essentially, no one should create a copy of a work without the express consent of the copyright holder. This right, when discussed from the print world concept, merely distinguishes between legitimate and infringing uses. n75 But, when applied to the Internet, "copies of a work are made not only when the online user stores a work to a hard or floppy disk, or prints it out, but also when a temporary copy is received in the memory of the computer." n76 The "reproduction is created within the computer memory to make the work accessible by means of the computer. Thus, simply accessing a work online implicates the reproduction right, even if the user does not [intend to] make a more permanent copy on a hard or floppy disk." n77 2. PUBLIC PERFORMANCE AND DISPLAY RIGHTS "Disseminating works over electronic networks also calls into play the copyright owner's public performance and display rights." n78 The Copyright Act defines a public performance or

7 8 Currents Int'l Trade L.J. 31, * display to include the following conduct: . to transmit or otherwise communicate a performance or display of the work...to the public, . by means of any device or process, . whether the members of the public capable of receiving the performance or display, . receive it in the same place or in separate places and . at the same time or at different times. n79 Thus, if an online music listener were to transmit his favorite collection of jazz music, the transmission could be both a public display and a reproduction. n80 The reproduction would be the result of the file being held in the temporary memories of the recipient's [computers]. n81 The transmission of the music would constitute a public display "if its recipients would be considered the public. n82 "The Copyright Act does not define "the public," but it does provide that a work is performed or displayed "publicly" if it is performed or displayed "at any place where a substantial number of persons outside a normal circle of a family and its social acquaintances is gathered." n83 The "global village of cyberspace, the entire community of network users--or if not all users, then at least the users of a given bulletin board service--could be considered "a normal circle of a family and its social acquaintances." n84 Is simply posting a work on a network, without directly sending it to members of the public, also a "public performance or display"? Once the work is posted, members of the public with access to that network are capable of receiving the performance or display...in separate places and at the same time or at different times. While the users will not receive the performance or display until they call the work up, the text of the Copyright Act provides for disjunction [between the] . . . time of receiving the program [and program use]." n85 Consequently, under the present laws digital transmission of music on the Internet would be a public performance. 3. DISTRIBUTION RIGHT The Copyright Act also grants the author the exclusive right "to distribute copies...of the work to the public by sale or the transfer of ownership." n86 "Disseminating a work on a digital network may not only constitute a public performance or display by means of transmission, it might also be considered a distribution of copies. The network servers and all those who access the work on the network receive 'copies' of the work in their computers." n87 An interesting situation arises from this distribution over the Internet. In the world of musical distribution, there is a physical transfer of a product. Whereas in the digital world, copies, when distributed, cause new copies to be made in the machines of the recipients without relinquishment by the original distributor. n88 "As a result, there may be no transfer of ownership of the distributor's copy, and the distribution right as currently defined, may not be implicated." n89 Eventually, it will be necessary to redefine the rights of reproduction, distribution and public performance or display to accommodate the unusual circumstance as described above." n90 [*35] 4. DERIVATIVE WORKS RIGHT Another right in the bundle that might also be at issue in a variety of online circumstances--the right to prepare a derivative work. n91 The Copyright Act defines a derivative work as encompassing any "form in which a work may be recast, transformed or adapted." n92 Here, the online transmission comes in an easily adaptable form. The digital transmission can be combined with other digital transmissions to create a completely different work. For example, a compilation album featuring the individuals favorite artists. The compilation could be accomplished without the

8 8 Currents Int'l Trade L.J. 31, * original author's permission. B. RECENT CHANGES IN U.S. LAWS TO ADDRESS COPYRIGHT ON THE INTERNET As previously mentioned, the Copyright Act of 1976 expanded the list of "copyrightable" forms. But, more importantly, the Act "differentiated between musical compositions and sound recordings," by granting an exclusive performance right only to musical compositions not sound recordings. n93 Until 1972, sound recordings were not afforded any protection by federal copyright.
n94

The denial of protection for sound recording has not stopped the record industry from trying to secure a right for the public performance of recordings. For years, legislation to include a performance right in sound recordings has crossed the desk of Congress only to be rejected. n95 Basically, Congress has denied these requests because, since the passage of the Copyright Act of 1976, the recording industry has prospered. Consequently, there is "no persuasive ammunition since the lack of a performance right in sound recordings has not created any economic difficulty." n96 This has all changed within the last three years. The industry has experienced a significant drop in sales. n97 Major chains like Blockbuster have closed fifty stores. n98 "Due to these problems, the record industry is more concerned than ever with the possibility of future profit loss attributable to unregulated copyrighted music on the Internet." n99 In response to these concerns, Congress, in November of 1995, enacted the Digital Performance Right Act. 1. DIGITAL PERFORMANCE RIGHT IN SOUND RECORDINGS ACT OF 1995. (DPRSRA) This new law "significantly broadens the Copyright Act by (i) adding a subsection which grants copyright holders of sound recordings the exclusive right to publicly perform their work by digital transmission; and (ii) expanded the compulsory "mechanical license" from pertaining only to physical phonorecord delivery to also including delivery by digital transmission." n100 In essence, this act created the "legal channels necessary to properly compensate the artists and authors for access to their copyrighted sound recordings", but only in the digital environment. n101 To best understand the point behind DPRSRA's copyright law, it is important to be familiar with certain copyright concepts. One must be able to distinguish between performers' rights in sound recordings and performance rights in musical compositions. Performers' rights are "rights granted to performers for their individual contributions" n102 to sound recordings. n103 Thus, "where a performance is part of a copyrighted sound recording, absent a work-for-hire situation, the performer [or the producer] is usually a joint author of the sound recording." n104 "A performance right to a musical composition, on the other hand, is a separate right granted to the copyright owner of a musical work, which might be either the composer, music publisher, or record company, to perform or authorize a public performance of a musical composition." n105 These distinctions are important because persons who have rights in a sound recording, have not had a public performance right. But, with the advent of the DPRSRA, these producers and performers are now granted a limited public performance right. n106 In contrast, the copyright owner of a musical work has, since 1972, had an exclusive performance right, without the limitations that have been imposed on sound recording copyright owners. n107 Take for example, this analogy: If a certain batch of chocolate chip cookies is delicious, the baker will write the recipe down. This recipe serves as an encoded version of the cookies. One cannot eat the recipe itself, but another chef can decode the recipe to produce cookies that taste the same. The relationship between a recipe and cookies is a good example of the relationship between a composition and a performance. A composer uses a pencil to encode the lyric and melody of music she has created into a written form called a composition. Like the recipe, the composition does not intrinsically satisfy the human senses. It is impossible to listen to a composition, but an artist can use a guitar to decode the composition and produce the same aurally pleasing lyrics and

9 8 Currents Int'l Trade L.J. 31, * melody that the composer wrote, otherwise known as a "performance." Further, an artist creates a sound recording by recording this performance. Authors create compositions, and artists create sound recordings. Both of these creations have separate copyrights. n108 Before the DPRSRA enactment, there was no public performance royalty paid to the sound recording copyright holder--only to the composer. "Although performance rights in sound recordings are recognized in over fifty other countries by law or [*36] custom; in the United States, [even] the Beatles must rely on a consumer purchasing the physical product like a cassette or compact disc to make money from their sound recording." n109 Therefore, "physical sales are the primary way an artist makes money from the sound recording." n110 It is imperative that nothing stand in the way of that exchange. Because of the lack of regulation on the Internet, artists are not being compensated for their work. Hence, the enactment of the DPRSRA. Unfortunately, there were major problems with the DPRSRA. For one, it was complicated. Senator Orin Hatch, told his colleagues that "the legislation is complex." As Lionel Sobel stated; The Internal Revenue Code is "complex"; the Digital Performance Right in Sound Recordings Act of 1995 is something else. Incomprehensible perhaps, may be fairer, because the convoluted language of the new Act appears to have been required by a number of very specific problems which the Act attempts to address with precision. The Act is reminiscent of the television series "Jeopardy," because the Act gives the answers but its readers must guess the questions. Unlike Jeopardy where the answers are short and clear, many of the answers given by the Act are they themselves difficult to understand without knowing in advance what the questions are. n111 Secondly, critics argue that it is too narrowly drawn. The Act does not "provide sound recordings with the full performance rights extended to other creative works." n112 The Law allows exemptions for traditional radio and television broadcasts of music and covers only subscription and interactive services on the Internet. n113 "Moreover, since the law applies only to "digital audio transmissions," it does not extend to analog transmissions or audiovisual works." n114 Basically, the Act fails to address "transmissions that may be sent by independent bulletin board services that upload and download information on their own without charging a fee for people to access information" mainly music. n115 In response to the many questions raised by the application of digital technology to entertainment content but left unanswered by the 1995 Act, Congress recently passed the Digital Millenium Copyright Act. n116 2. THE DIGITAL MILLENIUM COPYRIGHT ACT In the final days of the 105th Congressional session, Congress passed the Digital Millenium Copyright Act (DMCA). President Clinton signed it into law on October 28, 1998. n117 The DMCA is divided into five titles: . Title I, the "World Intellectual Property Organization (WIPO) Copyright and Performances and Phonograms Treaties Implementation Act of 1998," . Title II, the "Online Copyright Infringement Liability Limitation Act," creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities. . Title III, the "Computer Maintenance Competition Assurance Act," creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair. . Title IV, contains six miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, "webcasting" of sound recordings on

10 8 Currents Int'l Trade L.J. 31, * the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures. . Title V, the "Vessel Hull Design Protection Act," creates a new form of protection for the design of vessel hulls. n118 Title I, of the DMCA, brings the U.S. in compliance with the WIPO treaties. n119 This creates and extends the copyright protection for U.S. works throughout the world. For compliance, WIPO demands "certain technical amendments to U.S. law, in order to provide appropriate references and links to the treaties." n120 It also creates "two new prohibitions in Title 17 of the U.S. Code: one on circumvention of technological measures used by copyright owners to protect their works, and the second on tampering with copyright management information--and adds civil remedies and criminal penalties for violating the prohibitions." n121 Section 103 of the DMCA adds a new chapter 12 to Title 17 of the U.S. Code creating a new set of civil and criminal penalties for persons who directly or indirectly circumvent a technological measure that effectively controls access to" a copyrighted work. n122 This provision can be violated in one of two ways: (1) by directly descrambling, decrypting or otherwise hacking around the technological barriers to access with which a copyright owner has protected a work; or (2) by manufacturing, importing or trafficking in technology that is primarily designed or produced for this purpose. The ban on manufacturing, importing and trafficking in pirate technology took effect immediately on the enactment of the act, but the prohibition against individual acts of circumvention will not become effective until Oct. 28, 2000, two years after enactment. n123 The new Chapter 12 also "prohibits the removal, alteration or falsification of copyright management information." n124 Copyright management will most likely take the form of encryption. Located in the disk will be information such as "the name of the author and copyright owner, the terms and conditions governing the use of the work and any identifying numbers or symbols conveyed in connection with copies or phonorecords of a work or performance or displays of a work." n125 The intent is to maintain the integrity of the copyright identifiers so owners can keep track of their works in cyberspace. n126 Title II of the DMCA changes Chapter 5 of the Copyright Act to create "safe havens" for online service providers (OSP's), who have worried about potential liability resulting from the copyright infringement acts of their users. n127 The Act was amended to ensure that an OSP will not be liable for monetary infringement damage when its users transmit infringing material. The [*37] OSP's will not be liable if they adhere to certain conditions: . First, the transmission of the infringing material must have been initiated by or at the direction of a person other than the OSP . . Second, the transmission, routing and storage of the infringing material is carried out through an automatic technical process without selection of the material by the service provider. . Third, the OSP does not select the recipients of the infringing material, except as an automatic response to the sender's request. . Fourth, the OSP maintains no copy of the transmission, which is readily accessible to anyone other than the recipient. . Finally, the OSP does not modify the content of the infringing transmission in any way. n128 "Title IV removes an exemption created by the Digital Performance Right in Sound Recordings Act of 1995." n129 This section addresses the apparent loophole that allowed "webcasters", who digitally broadcast music in a manner very similar to any radio broadcast, an

11 8 Currents Int'l Trade L.J. 31, * exemption "from paying the new performance royalty created by the 1995 Act." passage of this act, that exemption no longer exists.

n130

With the

Although the legislation is difficult to understand, the U.S. is now in compliance with the WIPO treaties. The next section will examine what the U.S./WIPO alliance accomplishes and the current state of copyright protection worldwide. IV. OVERVIEW OF THE COPYRIGHT POLICIES WORLDWIDE There is no international intellectual property law that "automatically protects fixed works of original authorship throughout the world." n131 Generally, the laws of the country in which unauthorized use occurs control the protection of an artist's work. n132 "The largest and most influential international copyright convention is the International Union for the Protection of Literary and Artistic Works commonly referred to as the Berne Convention or Berne Union." A. THE BERNE CONVENTION The original Berne Convention, which formed because of efforts by Victor Hugo, is the oldest and most prestigious multilateral copyright treaty. n134 Its primary intention was to promote five objectives: (1) the development of copyright laws in favor of authors to bring about better worldwide copyright protection; (2) the removal over time of reciprocity as a basis for rights, with protection to be based instead on national treatment; (3) the elimination of discrimination in rights against foreign authors in all countries by assimilating foreign authors via national treatment; (4) the reduction of formal requirements for the recognition and protection of copyright in foreign works; and (5) the promotion of a high uniform level of international legislation for the protection of literary and artistic works." n135 This convention provides two possible alternatives in which protection is achieved: (1) nationality and (2) the place of publication. n136 Nationals of a Berne Convention member receive protection in all other member countries. There is also protection for works even if the author's country is not a signatory, so long as the work is first presented in a Berne Convention member country. n137 But a problem still arises in the distinction between performers' and producers' rights and performance rights. The Berne Convention grants literary authors and authors of "dramatic, dramatico-musical and musical or other artistic works" public performance rights. n138 Significantly, the Berne Convention does not protect sound recordings or producers or performers of sound recordings. n139 B. THE ROME CONVENTION "International performance rights in sound recordings are protected under a neighboring rights n140 regime by the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations (Rome Convention)." n141 The Rome Convention extends rights to "performers, producers, and broadcasting organizations." n142 Unlike the Berne Convention, rights granted under the Rome Convention are limited to reproduction, public performance, and broadcasting. n143 A common belief, is that "rights in sound recordings would be greater in a copyright regime than a neighboring rights regime." n144 Thus, it should be easy for the United States to join the Rome Convention." n145 This is not necessarily a correct assumption. "Until the Digital Performance Right Act, the United States did not grant sound recording copyright owners a public performance right, and the limited rights granted under the DPRSRA do not meet the requisite minimum standards for adherence to this Convention." n146 Another problem pertains to equal treatment. "Sound recording copyright owners who are nationals of a Rome Convention member country are granted performance rights in other member countries." However, "performers and producers from other countries (such as the United States) that do not adhere to the Rome Convention are not treated as nationals and thus are not protected." n147 Generally, the

n133

12 8 Currents Int'l Trade L.J. 31, * U.S. does not feel that adherence to this convention is critical. U.S. lawmakers make two important observations: (1) the convention [*38] has never been updated and (2) the convention appears to lack the ability to keep up with the ever-changing face of modern technology. n148 These facts coupled with the lack of equal treatment provide a strong argument for U.S. noninvolvement. C. THE GENEVA CONVENTION "While the United States is not a signatory to the Rome Convention, it does adhere to the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms." n149 The Geneva Convention protects producers of phonograms against unauthorized duplication and unauthorized duplicates of phonograms distributed to the public. n150 "The distribution rights protected under the Geneva Convention are consistent with the distribution rights for sound recordings granted under United States copyright law." n151 However, neither performance rights nor performers' rights are granted under the Geneva Convention. n152 "Instead, the Geneva Convention leaves it to the discretion of each signatory country to determine whether performers are granted performance rights." n153 The Geneva Convention was created in response to the "perceived widespread piracy of phonograms." n154 The contracting states decided that the best means by which to address these piracy concerns was to protect the reproduction and distribution rights of phonogram producers. n155 There has been no international movement to update the Geneva Convention. Because the United States adheres to the Geneva Convention, United States producers of sound recordings are protected under the terms of the convention in all signatory countries. Since the minimum requirements to join the Geneva Convention are less stringent than those required to adhere to the Rome Convention, most countries who are members of the Rome Convention are also members of the Geneva Convention. "However, even creators of sound recordings who are nationals of countries that do not protect sound recordings or that do not adhere to the Geneva Convention are eligible for protection of their works in the United States. Under U.S. copyright law, national eligibility exists if the author's country adheres to any treaty or convention specified in 17 U.S.C. 104(b)(1), (2), and (4)." n156 Thus, any author of a published sound recording who satisfies one of section 104's criteria is now eligible for the limited performance rights granted under the Digital Performance Rights Act of 1995. The converse, however, is not true. "United States [citizens] are not granted digital performance rights abroad, because none of the conventions or treaties that the United States adheres to, grants any performance rights in sound recordings. This is a point of major contention for United States sound recording owners."
n157

D. HARMONIZING UNITED STATES DIGITAL PERFORMANCE RIGHTS AND EXISTING INTERNATIONAL CONVENTIONS "The Rome Convention is the only international treaty presently in place that could incorporate the digital performance rights granted under the Digital Performance Right Act, as it is the only existing treaty which protects sound recording performances." n158 However, the United States does not adhere to the Rome Convention, "nor can it hope to join the Rome Convention because the U.S. Copyright Act cannot reasonably be expected to be amended to meet the minimum requirements of the Rome Convention." n159 "Even if Congress did amend the Copyright Act and the United States joined the Rome Convention, it is uncertain whether this would provide domestic sound recording copyright owners with sufficient performance rights in this new digital era." n160 The Rome Convention has not been revised since it was first created in 1961. n161 "It does not include any language on cable transmission or satellite broadcasting, and most importantly, it does not address the concerns raised by digital technology and transmissions." n162 "Furthermore, articles 12 and 16 of the Rome Convention exempt the remuneration right for the broadcasting of music from the rule of national

13 8 Currents Int'l Trade L.J. 31, * treatment." n163 These rights are instead subject to reciprocity. Since the United States does not grant its sound recording copyright owners these rights, U.S. sound recording copyright owners would not enjoy these reciprocal rights abroad. Thus, in order for the United States to ensure that the digital performance rights now granted to all nationals of any member of the expansive treaty list in section 104(b)(1) will be similarly granted to U.S. sound recording copyright owners, the United States will have to seek such protection by other means. n164 V. THE REAL ISSUE Because of "recent advances in audio compression technology coupled with trends toward higher network bandwidth, lower memory costs and lower storage costs it appears that the obstacles to music distribution on the Internet will soon be overcome." n165 [*39] Distribution of music over the Internet could easily become one of the most sought after services. Consequently, the music industry must find a way to safely distribute music over the Internet or it will face widespread theft.
n166

A. TECHNOLOGICAL ADVANCES As previously stated, the Internet has been called the world's biggest copy machine. Obviously, text is not the only medium transferred over the Net. There are major concerns in the music industry that the new advances, such as MP3 and the Rio PMP 300, will make the Internet the world's primary source for pirated music. n167 1. MP3 "MP3 is an audio format that compresses recorded music to a digital size small enough to be transmitted easily and quickly over the Internet." n168 The major concern for the industry is the relative ease of file transfer using this format. The process is simple. Once the compression software is installed, a person can copy a CD into the computer and either attach the file to an email or post on a web site for all to enjoy. Even though MP3 is not the only compression format available, it is the most popular. What makes the format so appealing is, in part, the fact of no "protective technology to prevent the duplication of copyrighted materials." n169 The real reason for MP3's popularity is that it is free. People think it is "really cool that they have lots of stuff they didn't pay for." n170 The RIAA, an organization that represents virtually the entire mainstream American music industry, states the problem succinctly: "Anyone with a modem and an Internet connection can upload a song or a full album to a music archive site for free, and then make that work available to an estimated 160 million Internet users worldwide." n171 MP3 is now widely available at many web sites such as www.a2bmusic.com. n172 a2bmusic promotes free downloadable music and instructs one on how to download the necessary MP3 technology to enjoy that music. This site fully complies with all copyright laws. However, there are many sites as easily accessible that are not in compliance and have no plans to do so. "A flash point came last fall with Diamond Multimedia Systems' introduction of the Rio, the first widely available portable MP3 player/recorder." n173 2. RIO This device is a small, easy to use and relatively inexpensive (under $ 200) unit that allows one to store tunes downloaded from the Internet, or copied from a CD. n174 The major recording companies are alarmed "at the explosive popularity of the Rio." n175 "They tried unsuccessfully in court to stop Diamond from distributing it, arguing it would encourage piracy." n176 Diamond made the successful argument that because the Rio only downloads and does not upload, piracy is not

14 8 Currents Int'l Trade L.J. 31, * an issue. n177 Although, it must be noted that programmers have already devised a program that "lets you move MP3 files out of a Rio and onto a PC's hard drive." n178 It will be interesting to see if this development becomes a new cause of action. "The Rio lawsuit is not the first time the entertainment industry has gone to court to try to prevent a new technological device from being sold." n179 In the late 1970s and early 1980s, Walt Disney, Universal and other motion picture studios attempted unsuccessfully to stop the sale of videotape recorders, arguing unsuccessfully, that the new machines would contribute to copyright infringement. A decade later, a dispute arose over digital audio tape (DAT) recorders, as the recording industry feared that infringers could use the devices to make multiple high-quality counterfeit reproductions (known as "serial" copies) from a digital copy of the original work. n180 To resolve the apparent crisis, Congress passed the compromise Audio Home Recording Act of 1992 (AHRA). n181 The AHRA permits the sale of DATS, as well as other digital audio recording devices if: 1) the device incorporates the Serial Copy Management System (SCMS) or some similar system to prevent the making of serial copies of copyrighted material; and 2) the manufacturer or importer pays a royalty on the sale of each machine.
n182

"The Act expressly provides that no digital audio recording device can be the subject of an action for copyright infringement." n183 This Act, not the Copyright Act, is how the RIAA brought its action against the Rio. In preparation for any future challenges, Diamond has installed the SCMS and purportedly is setting aside a certain percentage of their profits in case future litigation requires a royalty payment. n184 The rate technology is changing on the Net, by next year MP3 most likely will be obsolete. Therefore, the solution for the recording industry may not lie in the law but in the development of a product that is both protectible and of a superior quality to the MP3. There is technology already on the market that does afford this type of protection. B. ENCRYPTION The basic premise of encryption is the encoding of each CD with some form of identification and tracking information. Watermarking is one form of encoding. n185 "The industry has recently expanded on this idea by proposing that a seal of authenticity--The Genuine Music Mark--be applied to Internet music protected by a yet-to-be-created copyright friendly technology." n186 The encryption technology developed by the recording industry could also be a thing of the past if the type of transmission changes. It has been suggested that if the only way a record company can make money is by controlling copying, it will not survive in the digital age. n187 [*40] C. OPTIONS "Many in the legitimate and piracy communities say the challenge posed by MP3 is one that requires a shift in the record industry's business model, not the technology affecting that business model." n188 Ram Samudrala, a musician and a postdoctoral fellow at Stanford University states this view: It's a marketing problem, [with regards to] digital download piracy issues. In the broadband world, unsigned or unknown bands will be competing against famous people, and the only way to compete in that environment is to get a broader fan base through distribution of music. Anything you do to curtail that flow of distribution, you're really shooting yourself in the foot. So it's not only inevitable that you must [allow users to copy], it's something you have to do to survive. n189

15 8 Currents Int'l Trade L.J. 31, * VI. CONCLUSION Adapting current copyright laws to the Internet will be difficult. Even with the addition of the Digital Millenium Act, the U.S. and the world face an unprecedented task in deciding the best means of ensuring global copyright protection. Unfortunately, there is not a consensus on how to address these problems. Primarily, the world leaders do not really understand the magnitude of the problem. At present, world leaders still view the problem through political eyes. To create a global unity on copyright two major concepts must be addressed: 1. whether the world copyright laws, alone, are strong enough to carry the burden of protection; and 2. whether the present copyright laws are the best way to provide copyright protection on the Internet. This author believes that the copyright laws were not designed to deal with the speed and anonymity of the Internet. The new technology is creating better and faster ways to "digitize" information including music. As technology solves the problems of slow transmission and huge storage demands; the combination of these factors is creating a situation in which there is no way to track distribution of music using the current methods. Consequently, as we approach the new millennium, a different view of compensation for copyright needs to be devised. In essence, it should not be based on products sold, but reevaluated and modified to reflect the future mode of distribution--the Internet. Legal Topics: For related research and practice materials, see the following legal topics: Communications LawRelated Legal IssuesCopyrightComputer & Internet LawInternet BusinessLicensingGeneral OverviewInternational Trade LawTrade AgreementsIntellectual Property Provisions FOOTNOTES:

n1 CRAIG JOYCE, WILLIAM PATRY, MARSHALL LEAFFER, PETER JASCI, COPYRIGHT LAW, 44-45 (1998).

n2 Id.

n3 Id.

n4 Id.

n5 Id.

n6 Id.

16 8 Currents Int'l Trade L.J. 31, *

n7 Id at 45.

n8 Kenneth D. Suzan, Comment: Tapping to the beat of a digital drummer: fine tuning US copyright law for music distribution on the internet. 59 ALB. L. REV. 789 (1995).

n9 Id.

n10 Id. at 790.

n11 Id. at 792.

n12 See David E. Kalish, Big Boss is Watching and Worrying, HOUS. CHRON., Mar. 19, 1999, at 1F.

n13 Suzan supra note 8, at 792

n14 See id. Paul Baran developed a system where each message was cut into tiny strips and stuffed into electronic envelopes, called packets, each marked with the address of the sender and the intended receiver. The packets were then released like so much confetti into the web of interconnected computers, where they were tossed back and forth over high-speed wires in the general direction of their destination and reassembled when they finally got there. If any packets were missing or mangled..., it was no big deal; they were simply re-sent. Id.

n15 Id. ("Using the ARPAnet, scientists at different locations could log-in to remote computing resources to accomplish their work more quickly."). The ARPAnet was named after the government's Advanced Research Projects Agency; it helped scientists and researchers share limited computing resources. Id.

n16 See id.

n17 See id.

n18 See id. at 793.

n19 See id.

17 8 Currents Int'l Trade L.J. 31, *

n20 See id.

n21 See id.

n22 See id.

n23 See id.

n24 See id.

n25 See id.

n26 See id.

n27 See id.

n28 See id. at 794.

n29 See id.

n30 See id.

n31 See id.

n32 See id. at 795.

n33 See id.; see also How to Keep Your ID a Secret on Usenet, S. F. CHRON., Mar. 9, 1995, at D3. Anonymous postings to the USENET newsgroups can be made by registering with an automated remailer before sending the file to the name of the newsgroupanon.penet.fi. Once the file is received in Finland, the following process occurs:

18 8 Currents Int'l Trade L.J. 31, *

When you first sign up, the remailer assigns a random name to you, like an 12345. Whenever you want to send a message, you send it to the remailer, which strips off your name and [E]-mail address, puts an 12345 anon.penet.fi on it instead, and forwards the message to its destination. Readers can respond to the message and send you mail - by sending it to the remailer, which will strip off their address and forward their messages to you. The remailer knows who an 12345 is, but nobody else does. And since it's in Finland, a country with very strong laws about personal privacy that also happens to be on another continent, its secrets are fairly safe. Id.

n34 See id.

n35 See id.

n36 See id.

n37 See id.

n38 See id.

n39 See id.

n40 See id.

n41 See id. at 797.

n42 See id.

n43 See id.

n44 See id. at 798.

n45 See id.; See generally, Playing at Musical Shares, GUARDIAN (London), Sept. 8, 1994, at T2 (compression facilities take a 3.4 minute CD quality' single taking up 37.4 megabytes of hard drive space and squash it into a 3.74 megabyte soundfile using a compression ratio of 10-1. If you are using a 14,400 bps modem it will take you roughly 35 minutes to download a track of this sort.). Ironically, this is now old information. When one considers the advent of new compression programs using MP3 and modem baud rates of 56K the serious possibility of illegal use of one's music becomes a distinct reality. Id.

19 8 Currents Int'l Trade L.J. 31, *

n46 See id. at 799.

n47 See id.

n48 See id. at 800.

n49 See generally, Barbara Cohen, A Proposed Regime for Copyright Protection on the Internet, 22 BROOKLYN J. INT'L L. 410 (1996).

n50 Id.

n51 Don E. Tomlinson & Timothy Nielander, Unchained Melody: Music Licensing in the Digital Age, 6 TEX. INTELL. PROP. L.J. 277, 279 (1998).

n52 Id.

n53 Id. at 280, see generally 17 U.S.C.A. 106 (West Supp. 1998).

n54 Id.

n55 Id.

n56 Id.

n57 Id.

n58 Id.

n59 Id.

20 8 Currents Int'l Trade L.J. 31, *

n60 Id.

n61 Id.

n62 Id.

n63 Id. at 281.

n64 Mazer v. Stein. 347 U.S. 201, 219. 100 U.S.P.Q. (BNA) 325, 333 (1954), "The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in Science and useful Arts." Id.

n65 Id.

n66 Michael B. Rutner, The ASCAP Licensing Model and the Internet: A Potential Solution to High-Tech Copyright Infringement, 39 B.C.L. 1061, 1062 (1998).

n67 Id. at 1063.

n68 Timothy D. Howell, Intellectual Property Pirates: Congress Raises the Stakes in the Modern Battle to Protect Copyrights and Safeguard the United State Economy, 27 ST. MARY'S L.J. 613, 627 (1996).

n69 Tomlinson supra note 51, at 283.

n70 Howell, supra note 58 at 628.

n71 See generally 17 U.S.C. 106.

n72 See 17 U.S.C. 102(a); Section 102(a) of the Copyright Act, one of the 1976 revisions, poses the principle of the indifference of the medium in which the work is expressed. Id.

21 8 Currents Int'l Trade L.J. 31, *

n73 See 17 U.S.C.A. 106 (West Supp. 1998).

n74 Adam P. Segal, Dissemination of Digitized Music on the Internet: A Challenge to the Copyright Act, 12 COMPUTER & HIGH TECH. L.J. 97, 111 (1995).

n75 Niva Elkin-Koren, Cyberlaw and Social Change: A democratic Approach to Copyright Law in Cyberspace , 14 CARDOZO ARTS & ENT LJ 215, 275 (1996).

n76 Jane C. Ginsburg, Article: Putting Cars on the "Information Superhighway": Authors, Exploiters, and Copyright In Cyberspace, 95 COLOM. L. REV. 1466, 1476 (1995).

n77 Id.

n78 Id. at 1480.

n79 17 U.S.C. 101 (1976), The Act also provides: "To transmit a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent." Id.

n80 Ginsburg supra note 76, at 1479.

n81 See id.

n82 See id.

n83 See id.

n84 See id.

n85 See id.

22 8 Currents Int'l Trade L.J. 31, *

n86 See id.

n87 See id.

n88 See id.

n89 See id. at 1482.

n90 See id. at 1482, see also Paul Mallam, Copyright and the information superhighway: some future challenges, 6 ENT. L. REV. 234, 236 (1995).

n91 See id. at 1483, see generally 17 U.S.C. 106(2).

n92 See 17 U.S.C. 101 (1976).

n93 June Chung, The Digital Performance Right in Sound Recordings Act and its Failure to Address the Issue of Digital Music's New Form of Distribution, 39 ARIZ. L. REV. 1361, 1362 (1997).

n94 See Lionel S. Sobel, A New Music Law for the Age of Digital Technology, 17 ENT.L. REP. 3, 3 (1995).

n95 See id.

n96 See id.

n97 See id.

n98 See id.

n99 See id.

23 8 Currents Int'l Trade L.J. 31, *

n100 Lisa E. Davis & Rhonda Adams Medina, The Piper Must Be Paid; New Law Grant Performance Rights for Digital Age 1999, N.Y.L.J., at S1.

n101 Dustin Mets, Did Congress Protect the Recording Industry into Competition? The Irony of the Digital Performance Right in Sound Recordings Act, 22 DAYTON L. REV. 371, 372 (1997).

n102 Rebecca F. Martin, The Digital Performance Right in the Sound Recordings Act of 1995: Can it Protect U.S. Sound Recording Copyright Owners in a Global market?, 14 CARDOZO ARTS & ENT. L. J. 733, 759 (1996).

n103 Id.

n104 Id.

n105 Id. (see also 17 U.S.C. 106(4) and (6), and 101(1994); (definition of to perform or display a work "publicly")).

n106 Id.

n107 Id.

n108 Mets supra note 101, at 372.

n109 Id. at 374.

n110 Id. at 375.

n111 Lionel S. Sobel, A New Music Law for the Age of Digital Technology, 17 ENT. L. REP. 3 (1995).

n112 Davis & Adams, supra note 100, at S2.

n113 See id.

24 8 Currents Int'l Trade L.J. 31, *

n114 See id.

n115 Chung supra note 93, at 1365.

n116 See Bob Kohn, A Primer on the Law of Webcasting and Digital Music Delivery, 20 ENT. L. REP. 4 (1998).

n117 U.S. Copyright Office Summary, The Digital Millenium Copyright Act, Dec. 1998, at 1.

n118 See id.

n119 See id.

n120 See id. at 2

n121 See id.

n122 See id. at 3.

n123 David Goldberg, An Expansive Set of Revisions, N.Y.L.J., Nov. 20, 1998, 3, at 4.

n124 See id.

n125 See id.

n126 See id.

n127 See id. at 5.

25 8 Currents Int'l Trade L.J. 31, *

n128 See id.

n129 See id. at 6.

n130 See id.

n131 Martin, supra note 102, at 756.

n132 Id.

n133 Id. The other principal international treaty is the Universal Copyright Convention ("U.C.C."), which was formed shortly after World War II and took effect in the United States on September 16, 1955, as last revised at Paris, July 10, 1974. The U.C.C. is administered by a United Nation's agency, UNESCO. As of 1989, 26 country members of the U.C.C. were not Berne Convention members. Id.

n134 See id.

n135 See id. at 757.

n136 See id.

n137 See id.

n138 See id.

n139 See id.

n140 The term "neighboring rights" refers to rights granted to performers and producers of phonograms, and sometimes is used to describe the rights of broadcasters as well. The distinction between authors' rights and neighboring rights is that "neighboring rights are nearly always rights in derivative works because they presuppose a pre-existing work." International copyright scholars have frequently noted that there is no merit to the argument that these derivative works are inferior to authors' works or that they demand less artistic skills.

26 8 Currents Int'l Trade L.J. 31, *

n141 Martin, supra note 102, at 759.

n142 See id.

n143 See id.

n144 See id.

n145 See id.

n146 See id.

n147 See id.

n148 See id.

n149 See id. When the Copyright Act was amended in 1971 to grant protection for sound recordings, the United States became eligible to join the Geneva Convention. In 1973 the Senate ratified the Geneva Convention, and the Convention became effective in the United States on March 10, 1974. Id.

n150 See id.

n151 See id.

n152 See id.

n153 See id.

n154 See id.

27 8 Currents Int'l Trade L.J. 31, *

n155 See id.

n156 See id.

n157 Martin, supra note 102, at 761.

n158 Id. at 762.

n159 Id.

n160 Id.

n161 Id.

n162 Id.

n163 Id.

n164 Id.

n165 Jack Lacy, et al., Music on the Internet and the Intellectual Property Protection Problem, from Presentation at Proceedings of ISIE, Guimares, Portugal, (visited July 1997) <http://www.a2bmusic.com/docs/musicipp.doc>.

n166 See id.

n167 See id.

n168 ( The term MP3 is derived from "Motion Picture Experts Group, Audio, Audio Layer 3," and is sometimes referred to as MPEG. MP3 reduces the digital size of the music to approximately 1/12th its original size). See id.

28 8 Currents Int'l Trade L.J. 31, *

n169 See id.

n170 See id. at 4.

n171 See id. see also <http://www.riaa.com/tech/techans.htm.>.

n172 < http://www.a2bmusic.com>. This is one of many sites that offer a free download of MP3 software. Ironically, this site is sponsored by AT&T.

n173 Dickerson M. Downing & Brendan P. McFeely, MP3 Gets Music Industry's Ear; Will Digital Audio Format Mean On-Line Boom In Pirated Tunes? 1999 N.Y.L.J., S1, S3-4.

n174 See Dwight Silverman, Rio, MP3s deliver tunes for our time, HOUS. CHRON., Apr. 2, 1999, at 3F.

n175 See id.

n176 See id.

n177 See id.

n178 See id.

n179 See Downing & McFeely, supra note 173.

n180 See id. at 4.

n181 See id.

n182 See id.

29 8 Currents Int'l Trade L.J. 31, *

n183 See id.

n184 See id.

n185 Lacy, supra note 165, at 4.

n186 Downing & McFeely, supra note 173, at 7.

n187 See Doug Reece, Industry Grapples with MP3 Dilemma, BILLBOARD, July 18, 1998, at 5.

n188 See id.

n189 See id.