The Changing Legal Face Of Music

Ken AshfordCourts/Law, Science & TechnologyLeave a Comment

Once upon a time, you heard a song on the radio, you liked it, and you went to the brick-and-mortar store and bought it.  You bought it on vinyl, or cassette, or on CD.

And you owned it.

Those days are all but gone now, and the music industry is trying to adapt to the new technology.  

And as it turns out, you may not own the music that you think you own.

Surprised?  You shouldn't be.

There is a difference between owning a CD which contains music (on the one hand), and having the right to play a song – i.e., licensing (on the other hand).  

As music consumers, we're used to the first thing.  That's because, in the days of yore, a record company would have to actually manufacture the medium (the record, cassette, CD) that contained the song.  You knew you owned something because you could physically touch the medium — the CD, cassette, etc.

But now that songs can be distributed virtually, the concept of ownership must also move to a virtual one — i.e., licensing.

This is what the music industry wants you to think of it as.  That is, the music industry will tell you that you don't own Katy Perry's "Firework"; you merely have a license to listen to it whenever you want.

And that's fine.  Most people don't care about whether a song is owned or licensed, so long as they, as consumers, have control over when it can be heard.

However, BMI just upped the ante:

Capitol Records and others have brought a lawsuit in Federal Court in Manhattan against, a subscription Internet music “locker” service that raises issues about the legality of unlicensed “cloud-computing” music services. MP3tunes claims not to be liable for copyright infringement because it offers storage by customers of the customers’ own music collections on a remote system it operates. BMI holds that the public performing right has long applied to on-demand, interactive streaming. MP3tunes and their amici (“friends of the court”) make several legal arguments that could create loopholes in the copyright law relating to the public performing right.

MP3tunes claims that it is offering only passive equipment and should not be liable for any of the activities of its customers that occur when they use its service and that the customers are the ones that upload the music, thereby committing the “volitional acts” that MP3tunes claims that the law requires for direct infringement. It claims customers push the “play button” and therefore the customers are the volitional actors when it comes to transmissions of the performances.

What does all that mean?

Well, it involves the newest innovation in computing: cloud computing.  For those unfamiliar, "cloud computing" means this: Your files are stored at Place A, but you use them at Place B.  We're used to having files (programs, apps, etc.) stored on the device in front of us (the computer, the smartphione, etc.), but because of the Internet, they don't HAVE to be in front of us.  And that's where cloud computing comes in.  I have all my music at home, on my computer.  I also have them on my iPod.  But there exists the capability for me to listen to those songs whereever I am, by streaming them over the Internet.  It's similar to Internet radio, except that I select the tunes, which come from my music collection.

BMI is taking the position that music streaming over the Internet — even music from my music collection that I pick — constitutes a "public performance".

It's a ludicrous position and one that will be tough to win.  But if it does, it means that cloud music — the ability to store your music at home, but stream it to your car or work or whereever you are — will die before it even takes off.