My thesis for this project is that artists and copyright holders are finding it beneficial to waive their copyright in some cases of new technology, even though the industry as a whole tries to take the stance that uses of technology should be restricted. The example of this that I focus on is MP3 blogs, which tend to make available for download unauthorized material, and how major labels are beginning to reach out and even provide such blogs with material in the hope that they will benefit from the promotion. At the same time, however, major labels and the RIAA continue to attack peer-to-peer systems which very similarly, although on a much larger scale, allow users to download unauthorized material. This type of case shows that while the industry states that it wants to restrict use of technology, it is actually finding ways to use the same technology to promote its artists. Many new artists are able to gain exposure and there is opportunity that was never before available to the average person. That is the original intent of copyright law, which is to promote progress and encourage creation, something which excessive copyright on songs, and restrictions on technology such as the anti-device provision in the DMCA impede.

            This case is an appeal by Napster of an injunction that does not require the plaintiffs to provide any individual file names of potentially infringing works available on the Napster system. The orders require the plaintiff to provide notice to Napster of copyrighted works by providing the title and artist name for each work. When given a list of copyrighted recordings, Napster would have three days to search all files on its system and prevent the transmitting or distribution of those files. Plaintiffs had sent in notices of hundreds of thousands of copyrighted works without the corresponding file names in the Napster system. Napster complained that the plaintiffs did not provide variants in song and artist name and could mix complying items in the same notice as non-complying items because Napster could not check in the time allowed by the injunction. The consequence was that Napster would end up blocking many authorized files.  The arguments were that the DMCA set limitations on the judicial power of ISPs such as Napster, did not assess the "staple article of commerce" doctrine set forth in Sony, and that Napster has commercially significant non-infringing uses but is forced to block sharing of files even though the names do not always correspond with the contents of those files.

 

            This case brings up some important points in my research about why copyright holders are finding it beneficial in some cases to waive some of their copyright in order to use new technologies such as MP3 blogs to promote music, while they continue to fight similar technology such as peer-to-peer services. Any discussion of Internet Service Providers (ISPs) liability is important because it affects how people can make blogs and share new things over the internet. There are several ISPs which allow anyone to create a blog from them, and these businesses are based on previous cases such as the Sony Corp v. Universal City Studios, Inc case where liability of technology providers is limited if they do not have specific knowledge of infringing uses of the technology. It also shows how even though a company can send take down notices, it is still difficult and costly to actually take a case to court and win it, no matter how clear cut it originally seems.

            This essay describes what an MP3 blog is, and how record labels want to capitalize on the promotion that they provide while fighting file sharing at the same time. The essay discusses the types of copyright infringement and fair use and how they apply to MP3 blogs, as well as the factors that cause the court to view MP3 blogs more favorably than peer-to-peer networks. It discusses law suits against Napster and also by the RIAA against peer-to-peer users.  The article explains what establishes liability for infringing use, and the different expansions of the Copyright Act which have been brought by copyright owners in addressing new technologies. It then discusses some of these acts and gives some examples of violators. The next section explains the defense used when copyright owners bring suits, which is fair use, and it lists and describes the four factors in deciding fair use on a case by case basis.

 

            This essay incorporates basically every aspect of my research into why copyright holders are willing to waive certain copyright in cases such as MP3 blogs, while they continue to fight against much of new technology such as peer-to-peer services. It describes what MP3 blogs are and how they are used and different sites that can link to the unauthorized music.  It shows what the copyright holder needs to look for in order to bring a suit against infringing users, and also explains how the user of the work can try to use fair use as a defense.

            This is a long essay about corporate power in the music industry. The argument is that cross-ownership in the media tends to reduce competition and increases profits, in turn, forcing music production to become increasingly uniform and profit driven, and harming artistic expression. It has descriptions of corporate sponsorship, and the loss of diversity. The next section is about Clear Channel Communications, and how the consolidation takes away jobs, excludes a large variety of music, and provides listeners with a biased source of information. Next, is the analysis of a recent hit, which examines the predetermined song structure which results in homogenized music and play lists, this is called the sound of corporate music. The conclusion suggests that a number of musicians would prefer to circumvent the bureaucratic systems of the industry, and that in order to preserve the artists ability to express sometimes controversial and diverse views, that musicians and the population at large would prefer legislation that moves away from monopolies.

 

            This article is relevant to my research in finding out why copyright holders are willing to waive some of their copyright in such cases as MP3 blogs, which often involve unauthorized downloading of copyrighted work. In the conclusion of the article, it suggests that a majority of musicians are not so upset about free downloads and many who are independently minded, support distribution systems that are not connected with the industry devotion to profit. Some artists who want to make more controversial material release it for free on the internet. It also suggests that this is a reaction to media consolidation, and provides some argument that more copyright control leads to the growth of monopolies, and the limiting of new technology and expression.

            This article is written by Cary Sherman, president of the RIAA as a response to a speech by Consumer Electronics CEO Gary Shapiro in which Shapiro stated that downloading off the Web is neither illegal nor immoral. Sherman says that statement is wrong and misleading. Shapiro says that legal downloading from record companies and legitimate online music companies is fine but there is a problem with unauthorized downloading of copyrighted material, and sites Title 17 of the United States Code. Sherman writes that the fair use argument employed by Shapiro makes falsely seem as if copyright owners are against fair use, and that the fair use claim is unsupported when it comes to unauthorized use. Sherman argues against Shapiro's claim that downloading is different from taking a tangible property by writing that both owners have been deprived of something of value. Sherman refutes Shapiro's use of the first amendment and also says that companies are in fact aggressively pursuing a more flexible business model that does take advantage of new technology. Shapiro writes that the industry using technology and the internet is beside the point and that the real issue in what Shapiro is saying is that "digital stealing isn't really stealing" and the last thing we need is more polarizing rhetoric.

 

            For my research on why copyright holders are willing to waive copyright in some instances such as MP3 blogs because the new technology has benefits in promotion, this article is a firm example of the view from the record labels about copyright law and internet uses. It is written by the president of the RIAA, Cary Sherman and gives an argument in favor of strong copyright law, and a rebuttal to a speech by the Consumer Electronics CEO Gary Shapiro in favor of weaker copyright law. It provides the viewpoint of the music industry about downloading, but it is interesting in that it does not mention anything about record companies such as Warner who at times chose to solicit certain independent blogs and will send the bloggers music with the hope that the blog will help promote the record label's artist for free.

            This is a speech given by Gary Shapiro, the President and CEO of the Consumer Electronics Association about growing tension between copyright owners and new technology. Shapiro speaks about how new reproduction technology and transmission technology has increased the fears of the music and motion picture industries. He draws parallels to new technology in the past such as the VCR, and CD and cassette recording. Today with mass availability of copies of music and movies, the content community has used congress, courts, and the media to challenge new technologies. Shapiro says that he believes that hardware and software companies have an interest in working together to see more products,  and that they can misuse source protection and DVD encryption to sell more products while limiting new technologies. Shapiro says that lawsuits have shut down file -sharing services, threaten peer-to-peer networks, challegenged as illegal devices which allow consumers to skip commercials, and has subpoenaed ISPs to identify downloading subscribers. Congress has introduced legislation that will require technology to be shaped by a government-mandated copy protection system. Shapiro comments on the language used by Hollywood and the music industry using words like "piracy" and "stealing" to describe downloading. Shapiro asserts that downloading is neither illegal nor immoral. He says that downloading is not taking away a copy of the product from someone, and in some cases helps promotion. His principles for policymakers to follow ask that a very high amount of evidence be found before restricting technology.

            For my research on MP3 blogs and why copyright holders are willing to waive some of their copyrights and allow the blogs to post their music this speech shows a view which is far to the fair-use and weak copyright law. It is clear support for allowing the new technologies and the internet to be created and exist, and for there to be significant evidence of a negative effect on the copyright holder before the technology is restricted. The key line by Shapiro for my project is when he submits that downloading off the Web is neither illegal nor immoral. He sites fair use as being given on a case by case basis and that in many cases of downloading the use has "been shown to be neutral or beneficial to the copyright owners, and have either been tolerated or accepted as fair use." He also discusses how downloading can even lead to further sales, when people buy the whole CD from the song he or she heard on the internet.

In this article, the Boston Globe reporter talks to several bloggers and discusses what motivates audiobloggers otherwise known as MP3 bloggers to create sites and post songs. In these blogs, the author finds a song he or she wants to share, and posts it online as an MP3 file along with a commentary or review about the song so that readers can learn about the band and download and listen to the song if they choose. Bloggers will do this for free, as one blogger says "Selfishly, I get validation that people like my music taste... But I want people to find new music that they love." The music industry tends to leave blogs alone because they promote artists for free and are capable of creating "buzz" for an unknown artists and quickly establishing them among a loyal fan base. Litigation is expensive and MP3 blogs are small-scale and some labels have begun supplying blogs with music so there have not been many confrontations between record labels and bloggers. Some bloggers receive "cease and desist" letters from labels and although a code of conduct has not been written, there is a concept of ethical audioblogging. Songs are removed after being posted for typically around one or two weeks, no more than two tracks are posted from each album, and links to sites where readers can buy the albums are provided.

 

            For my research on why copyright owners are willing to waive some of their copyright when it comes to MP3 blogs, this is a useful article in seeing a little bit of the motivation for both bloggers and record labels to coexist. It provides some commentary by the bloggers themselves as to why they put work into blogs and what makes it important for them to exist. It also discusses blog ethics which are part of the reason labels are not against MP3 blogs, and looks at one blogger's idea for a possible future move for the labels which could start their own blogs in order to promote their back catalogues. That provides an interesting comparison between a legal MP3 blog created by a label and an illegal MP3 blog which may have more credibility among the blogging community.

This is a New York Times article about how Warner Brothers Records became the first major record label to ask MP3 blogs to play its music. Robin Bechtel, vice president for new media at Warner Brothers and Reprise Records had the company contact MP3 blog websites and ask the bloggers to post and review songs by the band The Secret Machines. This is an interesting strategy for a major record label to pursue because most MP3 blogs post song files without permission from the copyright holder. According to Bechtel, Warner chose blogs which "were promoting music responsibly" by having permission to the downloadable songs and also linking to stores where the full albums could be bought. The label would benefit by gaining free promotion and establishing a little known artist. Out of at least eight MP3 blogs contacted by Warner, only one blog posted the track, after having it sent. Many bloggers only look to find new music and the Secret Machines were already being played on radio. Two other sites had already posted Secret Machines tracks before Warner had sent them and once several blogs have posted tracks, others are less likely.

            The move backfired for Warner however because after the song was posted on the blog Music for Robots, several comments posted under different names were linked back to computers in the Warner offices. The indie rock song was also sent to a hip-hop blog, Cocaineblunts which was seen by the writer as proof of a disconnect between the major label and blog culture.

 

            This article is central to my project which is to look at how copyright holders are now willing to waive their copyright in certain cases such as MP3 blogs while the RIAA continues to sue peer 2 peer software. Blogs have not upset labels because there is such a strong culture of unwritten rules and basically a code of conduct for bloggers. For example, songs are not left up for long periods of time, only a couple of tracks from an album are posted and links are included to stores where full albums can be bought, and bloggers will take down songs if asked by the copyright holder. In this article we see how a major label is realizing that in order to reach a large portion of album purchasers they need to promote their artists as independents by using the internet and particularly mp3 blogs to break new acts. However, the very reason why MP3 blogs have not particularly bothered the labels is also preventing the labels from being able to use the blogs as they wish.

professor at Columbia Law School