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ONLINE ENTERTAINMENT AND COPYRIGHT LAW:

COMING SOON TO A DIGITAL DEVICE NEAR

YOU

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

APRIL 3, 2001

Serial No. J–107–9

Printed for the use of the Committee on the Judiciary

(
(II)

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JEFF SESSIONS, Alabama

SAM BROWNBACK, Kansas

MITCH MCCONNELL, Kentucky

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

CHARLES E. SCHUMER, New York

RICHARD J. DURBIN, Illinois

MARIA CANTWELL, Washington

SHARON PROST, Chief Counsel

MAKAN DELRAHIM, Staff Director

BRUCE COHEN, Minority Chief Counsel and Staff Director
(III)

C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Page

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington ................ 170

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 3

WITNESSES

Barry, Hank, Interim Chief Executive Officer, Napster ...................................... 22

Berry, Ken, President and Chief Executive Officer, EMI Recorded Music ......... 51

Cannon, Hon. Chris, a Representative in Congress from the State of Utah ...... 88

Farrace, Mike, Senior Vice President, Digital Business, Tower Records/Books/

Videos, MTS, Inc. ................................................................................................. 106

Fish, Edmund, President, MetaTrust Utility Division, InterTrust Technologies ................................................................................................................. 116

Gottlieb, Steve, President and Founder, TVT Records ......................................... 46

Greenberg, Sally, Senior Product Safety Counsel, Consumers Union ................ 110

Henley, Don, President, Recording Artists Coalition ............................................ 13

Kearby, Gerald W., President and Chief Executive Officer, Liquid Audio,

Inc. ......................................................................................................................... 53

Morissette, Alanis, Recording Artist ...................................................................... 17

Murphy, Edward P., President and Chief Executive Officer, National Music

Publishers’ Association ........................................................................................ 103

Parsons, Richard D., Co-Chief Operating Officer, AOL Time Warner ................ 7

Richards, Robin, President, MP3.com, Inc. ........................................................... 90

Rosen, Hilary, President and Chief Executive Officer, Recording Industry

of America ............................................................................................................. 57

Valenti, Jack, Chairman and Chief Operating Officer, Motion Picture Association of America ..................................................................................................... 10

QUESTIONS AND ANSWERS

Responses of the Recording Artists Coalition to questions submitted by the

Senate Judiciary Committee ............................................................................... 125

Responses of Mike Farrace to questions submitted by Senators Hatch, Leahy

and Kohl ................................................................................................................ 129

Responses of Mark Traphagen, on behalf of InterTrust Technologies Corporation, to questions submitted by Senators Hatch, Leahy and Kohl .................. 143

Responses of Gerald W. Kearby to questions submitted by Senators Hatch

and Leahy ............................................................................................................. 145

Responses of Billy Pitts, Executive Vice President, MP3.com Inc., on behalf

of Robin Richards, to questions submitted by Senators Hatch and Leahy ..... 146

Responses of Richard D. Parsons to questions submitted by Senator Hatch ..... 150

Responses of Richard D. Parsons to questions submitted by Senator Leahy ..... 155

Responses of Hilary Rosen to questions submitted by Senator Hatch ................ 159

SUBMISSIONS FOR THE RECORD

American Federation of Musicians of the United States and Canada, Steve

Young, President, statement ............................................................................... 164

American Federation of Television and Radio Artists, Ann Chaitovitz, Director of Sound Recordings, statement .................................................................... 165

Boldrin, Michele, Professor of Economics, and David K. Levine, Armen

Alchian Professor of Economics, University of Minnesota, letter .................... 168

Broadcast Music, Inc., statement ........................................................................... 169
Page

IV

CenterSpan Communications Corporation, Frank G. Hausmann, Chairman

and CEO, statement ............................................................................................ 172

Feldman, Lawrence E., Esquire, Jenkintown, PA, statement ............................. 175

Future of Music Coalition, Jenny Toomey, Executive Director, statement ........ 177

Griffin, Jim, Founder and CEO, Cherry Lane Digital & OneHouse LLC,

article .................................................................................................................... 182

National Association of Recording Merchandisers, statement ............................. 192

NWEZ.NET, Gloria Hylton, President, statement ................................................ 197

Video Software Dealers Association, statement .................................................... 203
(1)

ONLINE ENTERTAINMENT AND COPYRIGHT

LAW: COMING SOON TO A DIGITAL DEVICE

NEAR YOU

TUESDAY, APRIL 3, 2001

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to notice, at 10:06 a.m., in room

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch,

Chairman of the Committee, presiding.

Present: Senators Hatch, DeWine, Brownback, Leahy, Feinstein,

Schumer, Durbin, and Cantwell.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S.

SENATOR FROM THE STATE OF UTAH

Chairman HATCH. Good morning, and welcome to today’s hearing

entitled ‘‘Online Entertainment: Coming Soon to a Digital Device

Near You.’’ That is kind of a long title. There have been a number

of significant developments since the Committee’s hearings last

year on online entertainment and copyright law. Among many, let

me mention three:

First, the Ninth Circuit has ruled that at least as a preliminary

matter, Napster as we have known it cannot continue. For them,

as Mr. Henley might say, it has been ‘‘The End of the Innocence.’’

Even Napster acknowledges that this is so. And in its alliance with

the forward-thinking Bertelsmann, Napster has pledged to reinvent

itself so that the technology and music fan community it has unleashed can work together in a way that respects copyright law and

the rights of creators. It has been suggested that this new Napster

can be online in June, or at the latest, July.

Second, MP3.com has settled its litigation with the large record

labels and publishers and yet, having paid damages and been

granted licenses to go forward, still cannot bring its service to the

public. As Ms. Morissette might question, isn’t it ‘‘Ironic’’?

And, third, but by no means least, several significant market developments have been announced that seem to put us a step closer

to the ‘‘celestial jukebox.’’ One was reported in last Friday’s Wall

Street Journal that two of the five major labels, Vivendi-Universal

and Sony, were moving toward launching a consumer online service

called ‘‘Duet’’ which will bring their joint catalogs to consumers.

And the second, and even more significant, announcement was yesterday’s deal between three of the big labels—AOL Time Warner,

Bertelsmann, and EMI—and the independent music service pro-
2

vider, Real networks, to bring a subscription music service to consumers over the Internet.

Pro-competition marketplace solutions that provide for a significant online offering of popular music delivered to consumers

through an entity not controlled by the labels has been the type of

positive synergy that I have long hoped to see. And I hope to learn

more about the details of these developments and to hear more

heartening information on this front. This Committee is here today,

and will continue in the future, to monitor these and related developments in our ongoing efforts to ensure that our intellectual property laws keep pace with technology.

Technology has made our lives more convenient, but it has also

made us more impatient. When a consumer drives up to a gas

pump, she can insert her credit car, confirm that she has adequate

funds in her account, her account is debited, and the oil company’s

account is credited, the transaction is completed, the consumer is

thanked, and the tank is filled. All of this occurs within a matter

of seconds, and the transfer of sensitive financial data is done so

securely and with utter precision.

Now, while there are significant additional challenges in the context of a product that is delivered wholly online, most consumers

think similar technological advances should allow them access to

the music and the movies they love whenever and wherever they

want it. I believe it can, and that it can do so in a way that respects the rights of those who create the works we all want to

enjoy in this new way. Instant access to an infinite offering of perfectly performed creativity on a portable device the size of a pen,

or a phone, or in the car, or wherever I want it, without dragging

cases of CDs, is more than a new way of delivering the same product. It is a transformation of our experience of entertainment and

poses a revolution in the businesses that have delivered it. And I

do appreciate the disconcerting panic that the uncertainty of new

technology might cause established businesses such as the record

labels.

But as a music lover, and as one who enjoys the best that human

creativity offers, I—and fans across this country—eagerly anticipate these technological transformations the future holds. That is

why we are here today. As inventor Charles Kettering admonished,

‘‘We should all be concerned about the future, because we will have

to spend the rest of our lives there.’’ Artists, record labels, and

music fans.

The developments I mentioned have involved primarily entertainment companies and technology companies. But as Mr. Henley

has pointed out, ‘‘there’s three sides to every story.’’ Today, we may

find there are even more sides than that. We have tried to broaden

the discussion beyond just the business entities that mediate the

primary relationship. We need to keep in mind in this process that

between the artist and the audience. We need to look to see what

the future of these various industries holds and how technology has

and will continue to change it.

When it comes to technology, I must admit, I try to avoid making

any predictions. Whenever I am tempted, I think back to the year

1927, when H.M. Warner of Warner Brothers said, ‘‘who the hell

wants to hear actors talk?’’ Or more recently in 1977, when Ken
3

Olsen, the founder of Digital Equipment Corporation, said, ‘‘there

is no reason anyone would want a computer in their home.’’ But what I can safely predict is that we will have no choice but

to embrace technology, and in order to do this properly, especially

as policymakers, we need to understand it. And that is precisely

why I am pleased to have such a large and distinguished group

here today sharing their thinking with us about these matters. As

many as are here, many were not able to participate because of

space and time constraints. We will include in the record many

statements from a number of artists and technology companies and

others. Joining us today are leaders in the entertainment and technology businesses, as well as consumer advocates and some of the

most distinguished creators of popular music. I look forward to

learning from each perspective presented today.

I will conclude by saying that some may feel about the road

ahead as Woody Allen expressed it: ‘‘We stand at a cross-roads, one

road leading to despair and hopelessness, and the other leading to

extinction, and I hope we have the wisdom to choose correctly.’’ He

has a way of putting things.

Well, I am optimistic that we will be able to choose the road that

embraces technology, respects the creativity of artists, and meets

the justifiably impatient demand of consumers. With apologies to

Ted Nugent, who, unfortunately, could not make it today, I do not

believe that we are riding a ‘‘Terminus Eldorado.’’ Rather, I like to

take the advice of Alanis Morissette, with whom I met this morning, who suggested on her last album that the appropriate response

to experience, even to experience we don’t particularly want, is a

resounding ‘‘Thank U.’’ I believe the road ahead is very exciting. I

do know some things about this, but I do not know precisely where

it leads, nor will I predict, but I can see some exciting possibilities.

And I look forward to exploring them with all of you today.

This is an important hearing. It can help to determine where we

are going in the future. And we have some of the most important

people on earth here today with regard to the issues involved, the

complex issues and the contradictory issues that are involved, and

we look forward to hearing from all of you.

Senator Leahy?

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR

FROM THE STATE OF VERMONT

Senator LEAHY. Thank you, Mr. Chairman. When I see a crowd

this size, I wonder whether you must be giving away something

free.

[Laughter.]

Senator LEAHY. I will just let that one float out there with no

editorial comment.

I am glad to see my friend Don Henley here. The last time we

were together it was a little bit quieter venue, but I am not going

to be photographing you here. We have the best photographers in

the country lined up here. I will let them do that.

Technology changes have become almost exponential in the last

few years. When I arrived in the Senate 26 years ago, Mr. Valenti

remembers I not only had hair but it was dark at that time. But

when I arrived here 26 years ago, I installed what was the latest
4

technology—and I was the first Senator in the country ever to do

this—to make it easier for my constituents to contact me. That

technology was an 800 telephone line, the first Senator ever to

have done that. It was the latest and best technology.

Now, look at the difference. I still have the 800 number, but I

get a lot more e-mails from my constituents than I do telephone

calls. I get them day and night and so on. In fact, I get sometimes

more e-mail messages than the antiquated Senate computer system

is able to handle. And when the computer systems here in the Senate are temporarily shut down because of too much of a good thing,

we realize quickly how dependent we are on them.

Now, this Committee examined the challenges to the music industry posed by new online technologies at a hearing almost a year

ago. I am glad to see back before the Committee some of the same

witnesses who testified at last year’s hearing and to welcome the

other witnesses Senator Hatch has invited.

Music has been at the forefront of the online copyright battles,

but the issue raised by the deployment of new software applications and new online services have even broader implications for

other forms of copyrighted works.

For the copyright industry, to paraphrase a classic phrase from

a book I first read back in the third grade, one of my favorites, ‘‘It

is the best of times, it is the worst of times. It is the age of wisdom,

it is the age of foolishness.’’ These are certainly good economic times for our copyright industries. Computer software, motion pictures, television programs,

music, publishing, other copyright-based industries have proven to

be a critical engine for our economy. According to one recent study,

American copyright industries accounted for almost 5 percent of

our gross domestic product. To put that in actual numbers, that is

over $450 billion. And employment in this sector grew more than

three times as fast as the remainder of the fast-growing U.S. economy.

In the same year, 1999, the U.S. copyright industry led all other

major industry sectors with over $79 billion in foreign sales and exports. That is more than the automobile, the car parts, the aircraft,

or the agricultural sector. That is a big change from when I came

to the Senate.

The growth of these industries has been good for American workers. It has been good for our economy. And their continued success

depends on strong copyright laws and effective enforcement of

these laws.

Every year, the copyright industries lose billions of dollars in lost

revenue to hard goods piracy around the world. According to Forester Research, one pirated product is made for every three legitimate ones. Think of that. A quarter of the products are pirated.

Now, understandably, especially in a digital age, software manufacturers, the record companies, the movie producers, the retailers,

whose business is selling licensed copies of these copyrighted

works, are concerned that the losses are going to accelerate as digital works are downloaded freely and without consideration to the

owners of these products.

Over the past years, Senator Hatch and I and others on the Judiciary Committee have worked constructively and productively to-
5

gether. We have tried to provide a legal framework to protect our

country’s intellectual property. We have worked hard to craft intellectual property legislation that fulfills the promise of our Constitution, not simply to secure rights for authors and inventors, but do

it in a way that promotes the progress of science and the useful

arts.

Now, we also strive to ensure that copyright law protects fair use

and free speech and promotes consumer choice and technological

innovation.

Our past history has shown that oftentimes new technologies

may initially appear to trump intellectual property protection, but

in the end, they usually open new opportunities for artists and new

sources of revenue for the copyright owner and new choices for consumers. I can understand how artists and writers can be worried.

I went on to a site—not Napster, I should point out—but I

downloaded Don Henley, I downloaded ‘‘Annabel,’’ ‘‘Damn It, Rose,’’

‘‘Everything Is Different Now,’’ ‘‘For My Wedding,’’ ‘‘Goodbye to a

River,’’ ‘‘Inside Job,’’ ‘‘Miss Ghost,’’ ‘‘My Thanksgiving,’’ ‘‘Nobody

Else in the World But You,’’ and others. I picked those because

they are among my favorites. For Ms. Morissette, I saw, again,

ones I enjoy very much, ‘‘All I Really Want,’’ ‘‘Forgiven,’’ ‘‘Head

Over Feet,’’ ‘‘Ironic,’’ ‘‘Mary Jane,’’ ‘‘Perfect,’’ ‘‘Wake Up,’’ ‘‘You

Learn.’’ I am just looking at the computer here.

Now, most of those I have at home, the CDs that I bought at a

store and have enjoyed. I can imagine, though, probably some of

the calculations that are going on in your mind as I read down

these. But I am also reminded of the battles in the early 1980’s of

the videocassette recorder. As recently documented in the new

book, Digital Copyright, the motion picture industry initially predicted that the invention and marketing of the VCR would lead to

the destruction of the American television and motion picture industries. Indeed, a representative of the American Federation of

Television and Radio Artists told a Congressional Committee back

in 1982, that, ‘‘Unless we do something to ensure that the creators

of the material are not exploited by the electronics revolution, that

same revolution which will make it possible for almost every household to have an audio and video recorder will surely undermine,

cripple, and eventually wash away the very industries on which it

feeds and which provide employment for thousands of our citizens.’’

As one commentator recently observed, ‘‘Both the motion picture

and television industries discovered that the videocassette recorder

generated new markets for prerecorded versions of their material.’’

In fact, I don’t think there is a movie—and Mr. Valenti would know

this better than all of us—if there is a movie made today where

they don’t think what the after-sale aspects of video or DVD recording might be.

I think the VCR’s history of success will repeat itself in this new

era. The copyright industries appear to have learned from this history. They are making efforts to develop new business models that

will flourish in the digital environment. We want to hear from entertainment companies and online service providers and retailers

about what they are doing to provide legitimate sources of copyrighted works online and what obstacles remain.
6

Now, the courts have ruled on the application of copyright law

to Napster’s operation. There are additional court hearings in that

case next week. And whether I agree or disagree with what the

court is doing, this is not the place to relitigate that case or the

MP3.com case.

At our last hearing, each witness was asked about Congress’ role

here. Each witness then—and some of you are here today—stated

clearly that no Congressional action was wanted or needed and

that the marketplace was the right place to resolve these matters.

So I am going to be interested in hearing how the marketplace

is evolving, how we make the best of these times, but also how we

ensure those people who are such superb artists and writers and

performers are able to be compensated for their work, because as

much as I love new technology—I don’t think anybody else uses

new technology any more than I do up here, I don’t want Don Henley or Alanis Morissette or anybody else to not be able to continue

to produce because they are not being compensated for their work.

So let’s figure out how we do such things. I mean, how do we protect the genius of those who do this, but also the genius of those

who have designed everything from Napster to MP3.com. In other

words, how do we use the technology and balance the rights of all

creators of copyrighted works.

Thank you, Mr. Chairman.

Chairman HATCH. Thank you, Senator.

We have a long and distinguished list of witnesses today, and in

the interest of time, I will give the barest of introductions to each

witness before they begin each of their presentations.

On the first panel, we will hear first from Richard Parsons, who

is the co-chief operating officer of AOL Time Warner, one of the

world’s premier entertainment companies.

Jack Valenti is no stranger to this Committee as Chairman and

CEO of the Motion Picture Association of America. We certainly

welcome both of you here and look forward to hearing your testimony.

Don Henley is a leading advocate for artists and is a world-renowned writer and artist in his own right. I have a great deal of

respect for Don Henley, and we are very pleased to have you with

us.

Alanis Morissette is similarly one of the most popular artists in

the music industry and music business today, and it was really a

pleasure to get acquainted with you, Ms. Morissette. We are very

appreciative that you would take time to be with us.

Hank Barry, as you all know, is the interim CEO of Napster, the

music file exchange service, which has been some of the cause of

this excitement we have had around this over the last number of

years.

Steve Gottlieb is president of TVT Records, a large independent

record label. We are grateful to have both of you with us and look

forward to your testimony.

Ken Berry is president and CEO of EMI Recorded Music and

which, of course, is one of the premier companies in the business.

We appreciate you taking time to be with us, Mr. Berry.
7

Gerald Kearby is president and CEO of Liquid Audio, an online

music delivery and technology company. Mr. Kearby, we are very

happy to have you here.

And, finally, no stranger to this Committee and someone who has

helped us through the years to understand some of these issues,

Hilary Rosen, who is president and CEO of the Recording Industry

Association of America. Ms. Rosen, as always, we look forward to

hearing your testimony.

We look forward to all of your presentations here today, and in

the interest of time, we would ask each of you to summarize your

presentations if you can and do it in as fast a summary as you can.

So we will start with you, Mr. Parsons, and go right across the

table.

STATEMENT OF RICHARD D. PARSONS, CO-CHIEF OPERATING

OFFICER, AOL TIME WARNER

Mr. PARSONS. Mr. Chairman and members of the Committee,

thank you very much and good morning. In view of the long list

of speakers, I will try to set an example, if not of eloquence then

at least of brevity. But even in the interest of brevity, let me not

forget good manners. Let me thank you, Mr. Chairman, for inviting

us here to speak today. And thank you also for the leadership that

you and Senator Leahy and the other members of this Committee

have provided in this area of not only superintending the rights of

copyright owners, but looking out for the interests of consumers as

we enter this digital age. We appreciate your thoughtful efforts in

trying to help shape public policy to protect both important interests.

Also, I would be remiss if I didn’t call out—this is a distinguished

panel, but just join you in expressing appreciation for two of the

members of the panel in particular: Don Henley and Alanis

Morissette. In our business it is complex and it is growing more so,

but we understand that at the core of the creative side of our business is the creative genius of artists who make it go. It all starts

with them, and while on occasion—and you may hear some of it

today—we have internal fusses and feuds and family fights, these

are two artists who are associated with our labels, and we couldn’t

be prouder of them, and we want to acknowledge that we acknowledge that at the end of the day it starts with their creative genius,

and the rest of us just kind of build on that.

So, with that, let me say that as co-chief operating officer of

AOL, I am in charge of what we refer to as our ‘‘content businesses.’’ Behind that somewhat sterile label are four of the world’s

most creatively dynamic enterprises: the Warner Music Group,

Warner Brothers Studio, New Line Cinema, and Time Warner

Trade Publishing.

Together, these businesses produce an extraordinary array of

movies, music, television programming, and books. Today they are

also grappling with the effects of digital media in general and the

Internet in particular, the very stuff which this hearing is intended

to address.

Now, I won’t try and explore all of the implications of the digital

revolution for our company or for our industry, both because I
8

would be here all day if I tried and, more fundamentally, it is a

universe still evolving on a minute-to-minute basis.

Instead, let me offer three basic observations that I believe past

and present experience suggests might guide our way as we enter

the new digital age.

First, we know that the digital distribution of entertainment content is a real business and that it will grow exponentially going forward. As my friend and partner in crime at AOL Time Warner Bob

Pittman puts it, ‘‘How often do you launch a business where you

know millions of consumers are already lined up and waiting for

your product?’’ Because we recognize this, we also recognize that the digital age

presents a tremendous opportunity to our company to bring new

levels of convenience and choice to consumers, to develop new artists, and to expand the market for creative content. Those companies that can meet these criteria and meet this challenge will succeed in the new digital marketplace. Those who can’t, won’t.

Second, we know that where there is no effective copyright protection, there are no creative enterprises, save those directed by

wealthy patrons or government. This is as true in the digital world

as it was in the analog one.

Quite simply, a vibrant, vital democratic culture can’t exist without the legal right of individual artists and the enterprises that

nurture, develop, and distribute their work to direct how and

where it is to be used and to reap the rewards therefrom.

In the end, I think anyone who wants to be a part of a business

involving copyrighted material must respect the copyrights of others, not merely out of respect for the law, but out of the simple requirement of survival.

If the history of America’s economic success has taught the world

anything, it is the indispensable role of a system of law in creating

a marketplace where buyers, sellers, and producers can be certain

of their rights and responsibilities.

Like free governments, free markets are impossible to sustain

without the collective willingness to observe and enforce the legal

safeguards that ensure that the pursuit of happiness doesn’t descend into mass piracy and anarchy.

As inconvenient as it may be for some, the legal right and moral

necessity of intellectual property protection can’t be conjured out of

existence by the wave of a digital wand. Either we abide by the

rule of law or we end up with chaos.

Third, when it comes to the shape, substance, and operation of

the digital marketplace, none of us knows what future format it

will take.

Put aside the logical absurdity of trying to write regulations for

an industry that doesn’t even exist yet, and consider what is the

best way to ensure that consumers get to decide in what form and

at what price they receive information and entertainment on digital networks.

The answer, I submit, is fairly simple: strong, market-drive competition. Along with guaranteeing copyright protection, our shared

focus should be on fostering an environment that secures a marketplace in which consumers have an optimum array of different and

convenient choices for quality and value.
9

Now, yesterday, as you mentioned, Senator, our companies took

a big step in that direction with the announcement of an agreement to form something called MusicNet, which is a collaboration

between AOL Time Warner, RealNetworks, EMI, and Bertelsmann.

It is a breakthrough platform for online music subscription services

in both a safe, convenient, and lawful manner. This agreement ushers in, we believe, the era of secure, convenient, interactive mass

music distribution that consumers demand that we want to provide. By licensing our music catalogues to MusicNet, we create new

outlets for our artists and for their work. By distributing a

MusicNet-powered subscription service on AOL, we can offer the

best interactive music experience for our online members, allowing

them to choose from a broad selection of different labels and artists.

In conclusion, I would say that amid all the views you will hear

today, it is my hope we can reach consensus on these three facts:

digital distribution is here to stay; copyright is key to making it

fair for consumers and creators alike; and competition and consumer choice are the way to ensure a continuing supply of highquality content at affordable prices.

Thank you very much.

[The prepared statement of Mr. Parsons follows:]

STATEMENT OF RICHARD D. PARSONS, AOL TIME WARNER

Chairman Hatch and the Members of this Committee, I’m Richard Parsons, CoChief Operating Officer of AOL Time Warner, and I’m Grateful for the Chance to

appear here today.

In view of the long list of speakers, I’ll try to set an example, if not of eloquence,

then of brevity.

As Co-Coo, I’m in charge of what we refer to as our ‘‘Content Businesses.’’ Behind

that somewhat sterile label are four of the world’s most creatively dynamic enterprises: Warner Music Group, Warner Bros. Studio, New line cinema and Time Warner Trade Publishing.

Together, they produce an extraordinary array of movies, music, television programming and books. Today they are also grappling with the effects of digital media

in general and the internet in particular, the very issues this hearing is intended

to address.

The merger of AOL and Time Warner has put the timetable for change on hyperspeed. I won’t try to explore all the implications for our company or industry, both

because I’d be here all day and, more fundamentally, It’s a universe still evolving

minute to minute.

Instead, let me offer three basic observations that, I believe, past and present experience tells us to be true.

First, we know that the digital distribution of entertainment content is a real

business and will grow exponentially. As my friend and partner Bob Pittman puts

it, ‘‘How often do you launch a business where you know millions of consumers are

lined up and waiting for your product?’’

This is a tremendous opportunity to bring new levels of convenience and choice

to consumers, develop new artists and expand the market for creative content.

Those companies that can meet these criteria will succeed in the new digital marketplace; those who can’t, won’t.

Second, we know that where there’s no effective copyright protection, there are

no creative enterprises, except those directed by wealthy patrons or government.

This is as true in the digital world as it is in the analog one.

Quite simply, a vibrant, vital democratic culture can’t exist without the legal right

of individual artists and the enterprises that nurture, develop and distribute their

work to direct how and where it is used, and to reap the rewards.

In the end, I think, anyone who wants to be part of a business involving copyrighted material must respect the copyrights of others, not merely out of respect for

the law, but out of the simple requirement of survival.
10

If the history of America’s economic success has taught the world anything, it’s

the indispensable role of a system of law in creating a marketplace where buyers,

sellers and producers can be certain of their rights and responsibilities.

Like free governments, free markets are impossible to sustain without this collective willingness to observe and enforce the legal safeguards that ensure ‘‘the pursuit

of happiness’’ doesn’t descend into mass piracy and anarchy.

As inconvenient as it may be to some, the legal right and moral necessity of intellectual property can’t be conjured out of existence by the wave of a digital wand.

Either we abide by the rule of law or we end up with chaos.

Third, when it comes to the shape, substance and operation of the digital marketplace, none of us knows what future forms it will take.

Put aside the logical absurdity of trying to write regulations for an industry that

doesn’t even exist yet, and consider what’s the best way of ensuring that consumers

get to decide in what format and at what price they receive information and entertainment on digital networks.

The answer is simple: strong market-driven competition.

Along with guaranteeing copyright protection, our shared focus should be fostering an environment that secures a marketplace in which consumers have an optimum array of different and convenient choices for quality and value.

Yesterday, we took a big step in that direction with the agreement by

realnetworks, EMI, Bertelsmann and AOL Time Warner to create musicnet, a

breakthrough platform for online music subscription services.

This agreement ushers in the era of secure, Convenient, interactive mass music

distribution that consumers demand and that we want to provide. By licensing our

music catalogues to musicnet, we create new outlets for our artists and their work.

By distributing a musicnet-powered subscription service on AOL, we can offer the

best interactive music experience for our online members, allowing them to choose

from a broad selection of different labels and artists.

Amid all the views you’ll hear today, it’s my hope we can reach consensus on

these three facts: digital distribution is 5 here to stay; copyright is key to making

it fair for consumers and creators alike; competition and consumer choice are the

way to ensure a continuing supply of high-quality content at affordable prices.

Thank you.

Chairman HATCH. Thank you.

Mr. Valenti, we will turn to you.

STATEMENT OF JACK VALENTI, CHAIRMAN AND CHIEF OPERATING OFFICER, MOTION PICTURE ASSOCIATION OF AMERICA

Mr. VALENTI. Thank you, Mr. Chairman. I brought with me my

timer so that I can be sure that I am not going to filibuster, which

is an attitude devoutly to be admired by all.

Chairman HATCH. We forgot to put ours up, but I have asked

them to get it. But we are going to give you time.

Mr. VALENTI. Let me start by saying that the copyrights industries, which are composed of movies, television, home video, music,

publishing, and computer software, represent America’s greatest

economic asset, and, I might add, its premier export trade prize.

We are creating new jobs at three times the rate of the remainder

of the economy. We bring in more international revenues than agriculture, than aircraft, than automobiles and auto parts. We have

a surplus balance of trade with every single countries in the world.

No other American enterprise can make that statement. That is a

revelatory statement because last year this country suffered over

$400 billion in deficit balance of trade. We are an economic engine

of growth that is the envy of the known world.

More extraordinary is the reach, the global reach of the copyright

industries. That creative material is joyously received by every

country, creed, and culture, and the American movie, as anybody
11

who travels abroad would testify, is omnipresent. We are hospitably patronized on every continent.

Now, I want you to know that we believe the Internet represents

a glorious new potential of a new delivery system so that we can

bring movies to American homes. I am pleased to report to you that

within 4 to 6 months, several of the major film studios will be online with movies, and the other major studios will follow close on

their heels. We are using new technology to try to protect these

movies on their journey from cyberspace to American homes, to

prevent wholesale reproduction as well as retransmission on the

Internet. But if that protection is not enough and we need more

technological protection, some of which will require Congressional

legislation, we will be back to you to ask for your help in protecting

America’s most precious creative prize.

I think that Congress has to stand guard to preserve, protect,

and defend copyright, without any question, against those who

want to erode it or shrivel it or exile it.

Now, I might add that new technology makes possible through

the Internet people to illegally download movies today without permission of the owner and without any payment.

Now, creative property is private property. To take it without

permission and without payment collides with the core values of

this society, and otherwise rational people, who wouldn’t dream of

stealing a videocassette off the shelf of a Blockbuster store, blithely

download movies casually, which seems to be for many accepted

normality of Internet behavior.

Now, I will tell you again, to repeat, that creative property is private property. Right now consultants tell us that at least 350,000

movies are being illegally downloaded every day right now, with estimates up to 1 million downloads illegally within the year. So,

again, creative property is private property. To take it without permission or payment just because technology say it is easy to do so

is wrong.

Now, with all the passion that I can summon—and I am about

to deplete it right quick—I am asking this Committee and the Congress to make sure that copyright is not allowed to decay, for if

that happens, this Nation will see the slow undoing of an enormous

creative and economic asset, and we will be squandering part of

that economic future.

So I will utter three words that will thrill this Committee: In

conclusion—that is Goldwyn, ‘‘in conclusion.’’ Well, forget it, I won’t

go into that.

[Laughter.]

Mr. VALENTI. But I want to leave you with this question: Who

will invest huge sums of private risk capital in the production of

films if they cannot protect that creative material from being stolen

on the Internet, or anywhere in cyberspace? That is the question

I leave with you, and I share Mr. Parsons, and I hope some of the

other people on this panel, of the eternal enduring value of copyright as a great, great asset of this country.

Thank you.

Chairman HATCH. Well, thank you. I think— Mr. VALENTI. Mr. Chairman, let me ask you a question. I am

under 5 minutes. I would like to take 32 seconds—and I mean 32
12

seconds—to show you on this screen an actual take-down, an illegal

take-down that we did in our office of the picture that won the

Academy Award for Best Picture while it was still playing in the

theaters. I want you to see this actual take-down, if one of my experts will come over here. This is where—

Senator LEAHY. I will do it for you, Jack, if you want.

Mr. VALENTI. But I want you to see this. This is the actual takedown, Mr. Chairman, of and I am going to spin it for 32 seconds

to show you the watchable quality of ‘‘Gladiator.’’

[Video shown.]

Mr. VALENTI. That is what is happening today. The award-winning ‘‘Gladiator’’ is one of those 350,000 films that are being

downloaded.

Senator LEAHY. We also thank Allison for getting it downloaded.

Mr. VALENTI. Thank you very much.

[The prepared statement of Mr. Valenti follows:]

Jack Valenti, Chairman and CEO, Motion Picture Association, Washington, D.C.

When Abraham Lincoln first ran for Congress, he began his first campaign speech

by saying: ‘‘My politics are short and sweet, like the old woman’s dance.’’ Taking

my cue from Abe Lincoln, I say: ‘‘My message is short and sweet—and urgent.’’

The Copyright Industries (movies, TV, home video, music, publishing and computer software) are America’s greatest trade prize. We are creating jobs at three

times the rate of the rest of the economy. We bring in more international revenues

than aircraft, more than agriculture, more than automobiles and auto parts. What

is more astonishing and more valuable is that we have a Surplus Balance of Trade

with every single country in the world, while in 2000 this nation suffered an unholy

rise to almost $400 Billion in Deficits. No other American business enterprise can

make that statement, which is why we represent an economic engine of growth that

is the envy of the known world.

Even more extraordinary is the global reach of the Copyright Industries. American creative material is joyously received by every country, creed and culture on

this planet. The American movie, as anyone who travels abroad can testify, is omnipresent all over the world, hospitably patronized on every continent.

We believe the Internet has great potential as a new delivery system for movies.

Several movie studios will be OnLine with their films within four to six months.

They will be content encrypted, to protect these films on their way to American

homes. If it becomes clear that more protection is needed, some of which might require congressional legislation, we will return to you for help.

Keep in mind it that the preeminence of the Copyright Industries as an American

economic and creative prize is the prime reason why the Congress must stand

guard, to preserve and defend Copyright against those who would loosen its protective bindings, or try to shrink it, or erode it. New technology makes possible,

through the Internet, the illegal use of creative material without the permission of

the owner nor any payment for its use. Creative property is private property. To

take it without permission, without payment to its owners, collides with the core

values of this society. Yet that is precisely what is happening. Otherwise rational

people who would not dream of stealing a videocassette off the shelf of a Blockbuster

store are using movies without permission or payment, which is, for many, the assumed normality of current Internet behavior. It is estimated that today some

370,000 movies are being downloaded, illegitimately, every day. By the end of the

year it is estimated that one million illegal downloads will take place every day.

To repeat, creative property is private property. It cannot be casually pilfered simply because it is easy to do so. Moreover, with all the passion I can summon I tell

this Committee that if Copyright is allowed to decay, then this nation will begin the

slow undoing of an immense economic asset, which can squander our creative future. The question that the Congress must answer is: Who will invest huge amounts

of private risk capital in the production of films if this creative property cannot be

protected from theft?

Chairman HATCH. Well, thank you, Jack. That is a powerful

statement, and I agree with you on copyright issues, there is no

question about it, and you as well, Mr. Parsons.
13

Mr. Henley, we look forward to your very important comments

about your industry.

STATEMENT OF DON HENLEY, ON BEHALF OF THE

RECORDING ARTISTS COALITION

Mr. HENLEY. Thank you, Mr. Chairman. I am certainly honored

to be here today, and I appreciate the opportunity to speak today

on behalf of recording artists and, more particularly, the Recording

Artists Coalition, of which I am a co-founder.

Recording artists have for far too long been insufficiently represented here in Washington. I think you would agree with that.

Chairman HATCH. I do.

Mr. HENLEY. The RIAA, Recording Industry Association of America, does not speak on behalf of recording artists, even though they

have given the impression at times that they do. The RIAA speaks

only on behalf of its membership, which is solely composed of major

and independent record companies.

Now, over the next several years, Congress and the Copyright

Office and the record companies and the Internet companies will

lay the groundwork for intellectual property rules and royalty rates

for the exploitation of music on the Internet. At this point there

has been little input from the recording artist community. Most, if

not all, of the discussions have been between the labels and the

Internet companies.

I would like to point out that there would be no need for these

discussions if it were not for artists and their creative works, and

we must be actively involved in the development of this framework

or our interests will not be protected. And so artists today are simply asking for a place at the table.

As you know, Mr. Chairman, the Recording Artists Coalition was

at the forefront of the initiative to repeal the work-for-hire legislation that was enacted in November 1999. I would like to thank you

and the other Senators on the Committee for repealing that legislation. In the past, copyright law amendments have been enacted

only after serious and, at times, lengthy deliberations. Generally,

all of the interested parties were afforded an opportunity to present

their views to Congress. No copyright law amendment has ever

passed without this type of fair and democratic deliberation, except

this most recent amendment.

Before the passage of the amendment adding sound recordings to

the list of works eligible for work-for-hire status, Congress heard

only one viewpoint, which was that of the RIAA. You were told that

the amendment was a technical change when, in fact, it was a substantive change, one that would have deprived recording artists of

the right to pass to their families and heirs the lifeblood of their

careers: their sound recording copyrights. Once you recognize this

surreptitious manipulation, you set out to right the wrong, and recording artists and their families will never forget your courageous

and principled stand.

But we are here today to discuss the digital music marketplace

and what action, if any, Congress must take to meet the needs of

the creators and consumers. The Recording Artists Coalition’s position is very simple. We believe that recording artists should always

be paid for the exploitation of their sound recordings on the Inter-
14

net, unless the recording artist makes the decision to provide his

or her recordings free of charge to listeners.

Napster has stated in public that it intends to build a fee-based

service that compensates creators. We look forward to the implementation of that service, and services like it. We recognize that,

whether we like it or not, Napster has changed everything. We are

listening to our fans. Millions of people have begun to experience

interactive music services, and they have so far been getting these

services free of charge. But I agree with Napster that, with some

improvements, many of its users will be willing to pay for this sort

of service. In fact, according to Mr. Barry, 70 percent of people surveyed said that they are willing to pay for this type of service.

Napster and other locker-type systems have flourished because

the record industry has failed to be forward-thinking and has made

it extremely difficult for legitimate companies to license rights on

an arm’s-length basis. The record industry has fiddled on the sidelines while the digital revolution went on without them. The major

labels should have spent their time negotiating and implementing

a fair and comprehensive licensing system, one that addresses the

interests of all parties, including recording artists. And while we

support the copyright infringement lawsuits filed by the record industry, the lawsuits should not be used to destroy a viable and useful independent Internet distribution system. It is in the best interests of recording artists, as well as consumers, that Congress promotes an atmosphere of independent digital distribution of music.

The solution resides in the marketplace and not in the courtroom.

If, however, a resolution cannot be reached quickly, compulsory licenses should be considered, but only as a last resort.

Under the Digital Millennium Copyright Act, performers—that

is, recording artists—are now, for the first time ever, entitled to a

public performance right. Writers of music share a public performance right with publishers. The publishers do not recoup advances

under the writer’s share. The writer’s share is protected by an

independent collection society. Payment for digital performances

should follow this logic. It is vitally important that the recording

artists receive digital performance royalties directly from the

source without the record company recouping royalties against outstanding accounts, or by engaging in unnecessary bureaucratic disputes.

So long as the major record companies represented by the RIAA

and the recording artists engage in public battles over these issues,

as well as others, the RIAA cannot act as an objective, independent

body.

This single, digital, public performance royalty that I speak of is

currently in force, and it applies to very specific, non-interactive

digital broadcasts only. Recording Artists Coalition believes that

Congress should examine the possibility of expanding artist performance rights to include interactive services. Music fans should

be able to hear music anywhere, anytime, on demand. Many businesses have recognized that, in the wake of Napster, the competition is for interactivity. The record labels themselves have begun

to develop interactive music services as well as license their catalogues to other companies. My colleagues and I are concerned that

artists do not have rights to direct remuneration for interactive
15

services. Furthermore, Congress should ensure that radio stations

are not exempt from payment of digital royalties for Internet radio

broadcasts. It is fundamentally unfair that broadcasters have always been exempt from paying performers a performance right for

analog broadcasting, and we don’t want to see this inequity extended to the Internet.

In addition to Internet issues, recording artists have other serious contractual problems with major labels. A new artist agreement is one-sided in favor of the labels. In most cases, a new artist

has little leverage for negotiate favorable terms. Many artists and

music attorneys believe that the standard industry contract is unconscionable.

The record company in many instances advances all or part of

the costs of recording, promotion, and marketing, and then recoups

the costs from the artist royalty. As a result, a typical artist could

sell half a million records and not see one dollar in royalties. Even

if an artist is lucky enough to recoup, the label maintains ownership of the masters and the copyrights. Just as you have so

insightfully observed, Mr. Chairman, it is as though you have paid

off your mortgage and the bank still owns your house. One way to

even this playing field would be for Congress to consider a Federal

7-year term, much like the law that helped movie actors gain free

agency in California. While the California law is not perfect, it provides a good model for Congress to consider.

I would like to address just one more important issue, if I might.

While there are many ways that Congress can help the recording

artist while encouraging a prosperous digital marketplace, expanding fair use is not one of them. Fair use is a delicate balance that

adequately addresses the needs of the record companies, the recording artists, and the public.

No recording artist wants to limit the use of his or her music

within the traditional parameters of fair use. However, by expanding the exception, Congress will effectively institutionalize free

commercial distribution of music on the Internet. This is not why

fair use was created. The answer for all parties involved and the

public’s demand for high-quality digital services likes in the fair licensing of music.

I thank you again for this opportunity to discuss these important

issues with the Committee. Congress must continue to hear from

the independent voice of recording artists, and the Recording Artists Coalition is dedicated to bringing these and other issues directly affecting us to your attention and to the attention of the public, as well as working with you to resolve these problems. Recording artists must always have an independent voice as our interests

are unique and vital and, at times, contrary to the interests of the

RIAA and the major record companies. The bottom line is that artists create the music that fuels these industries and, hence, it

would appear obvious that our interests and concerns should be seriously considered.

Thank you, sir.

[The prepared statement of Mr. Henley follows:]

STATEMENT OF DON HENLEY, ON BEHALF OF THE RECORDING ARTISTS COALITION

Mr. Chairman and Members of the Committee,
16

I am honored to be here and I thank you for the opportunity to speak today on

behalf of recording artists and the Recording Artists Coalition (RAC). Recording artists have for far too long been insufficiently represented in Washington DC. The

RIAA does not speak on behalf of recording artists, even though it gives the impression at times that it does. The RIAA speaks only on behalf of its membership, which

is solely composed of major and independent record companies. Over the next several years, the Congress, the Copyright Office, the record companies and the Internet companies will lay the groundwork for intellectual property rules and royalty

rates for the exploitation of music on the Internet. At this point, there has been little input from the recording artist community. Most, if not all, of the discussions

have been between the labels and the Internet companies. Yet, the artists are the

ones who create the content for distribution. There would be no need for these discussions if it were not for artists and we must be actively involved in the development of the framework, or our interests will not be protected. Artists are simply

asking for a seat at the table.

As you know Mr. Chairman, RAC was at the forefront of the initiative to repeal

the ‘‘work for hire’’ legislation that was enacted in November 1999. I would like to

thank you and all the other Senators on the Committee for repealing that legislation. In the past, Copyright Law amendments have been enacted only after serious,

and at times, lengthy deliberations. Generally, all interested parties were afforded

an opportunity to present their views to Congress. No Copyright Law amendment

has ever passed without this type of fair and democratic deliberation, except this

most recent amendment.

Before passage of the amendment adding ‘‘sound recordings’’ to the list of works

eligible for ‘‘work for hire’’ status, Congress heard only one viewpoint, that of the

RIAA. You were told that the amendment was a technical change, when in fact it

was a substantive change; one that would have deprived recording artists of the

right to pass to their families and heirs the lifeblood of their careers, their sound

recording copyrights. Once you recognized this surreptitious manipulation, you set

out to right the wrong, and recording artists and their families will never forget

your courageous and principled stand.

We are here today to discuss the digital music marketplace and what action, if

any, Congress must take to meet the needs of the creators and the consumers.

RAC’s position is very simple. We believe that recording artists should always be

paid for the exploitation of their sound recordings on the Internet, unless the recording artist makes the decision to provide his or her sound recordings free of charge

to listeners.

Napster has stated in public that it intends to build a fee-based service that compensates creators. We look forward to the implementation of that service, and services like it. We recognize that, whether we like it or not, Napster has changed everything. We are listening to our fans. Millions of people have begun to experience

interactive music services. They have so far been getting these services free of

charge, but I agree with Napster that, with some improvements, many of its users

will be willing to pay for this sort of service.

Napster and other ‘‘locker’’ systems have flourished because the record industry

has failed to be forward thinking and has made it extremely difficult for legitimate

companies to license the rights on an arm’s length basis. The record industry fiddled

on the sidelines while the digital revolution went on without them. The major labels

should have spent their time negotiating and implementing a fair and comprehensive licensing system; one that addresses the interests of all the parties, including

recording artists. While we support the copyright infringement lawsuits filed by the

record industry, the lawsuits should not be used to destroy a viable and useful independent Internet distribution system. It is in the best interests of recording artists,

as well as consumers, that Congress promotes an atmosphere of independent digital

distribution of music. The solution resides in the marketplace and not in the courtroom. If, however, a resolution can not be reached quickly, compulsory licenses

should be considered—but only as a last resort.

Under the Digital Millenium Copyright Act (DMCA), performers—that is, recording artists, are now, for the first time ever, entitled to a public performance right.

Writers of music share a public performance right with publishers. The publishers

do not recoup advances against the writer’s share, as it (the writer’s share) is protected by an independent collection society. Payment for digital performances should

follow this logic. It is vitally important that the recording artists receive digital performance royalties directly from the source without the record company recouping

royalties against outstanding accounts, or by engaging in unnecessary bureaucratic

disputes.
17

So long as the major record companies, represented by the RIAA, and the recording artists engage in public battles over these issues, as well as others, the RIAA

can not act as an objective, independent body.

This single, digital, public performance royalty that is currently in force applies

to very specific, non-interactive digital broadcasts only. RAC believes that Congress

should examine the possibility of expanding artist performance rights to include

interactive services. Music fans should be able to hear music anywhere, anytime,

on demand. Many businesses have recognized that, in the wake of Napster, the competition is for interactivity. The record labels themselves have begun to develop

interactive music services as well as license their catalogs to other companies. My

colleagues and I are concerned that artists do not have rights to direct remuneration

for interactive services. Furthermore, Congress should ensure that radio stations are

not exempt from payment of digital royalties for Internet radio broadcasts. It is fundamentally unfair that broadcasters have always been exempt from paying performers a performance right for analog broadcasting; we don’t want to see this inequity

extended to the Internet.

In addition to Internet issues, recording artists have other serious contractual

problems with the major labels. A new artist agreement is one- sided in favor of

the labels. In most cases, a new artist has little leverage to negotiate favorable

terms. Many artists and music attorneys believe that the ‘‘standard industry contract’’ is unconscionable.

The record company, in many instances, advances all or part of the costs of recording, promotion and marketing, and then recoups the costs from the artist royalty. As a result, a typical artist could sell a half million records and not see one

dollar in royalties. Even if an artist is lucky enough to recoup, the label maintains

ownership of the masters and the copyrights. Just as you have so insightfully observed, Mr. Chairman, it is as though you have paid off your mortgage and the bank

still owns your house. One way to even this playing field would be for Congress to

consider a federal seven-year term, much like the law that helped movie actors gain

free agency in California. While the California law is not perfect, it provides a good

model for Congress to consider.

I would like to address one more important issue. While there are many ways

Congress can help the recording artist while encouraging a prosperous digital marketplace, expanding fair use in not one of them. Fair use is a delicate balance the

adequately addresses the needs of the record companies, the recording artists, and

the public.

No recording artist wants to limit the use of his or her music within the traditional parameters of fair use. However, by expanding the exception, Congress will

effectively institutionalize free commercial distribution of music on the Internet.

This is not why fair use was created. The answer for all parties involved and the

public’s demand for high-quality digital services, lies in the fair licensing of the

music.

I thank you again for this opportunity to discuss these important issues with the

Committee. Congress must continue to hear from the independent voice of recording

artists. RAC is dedicated to bringing these and other issues directly affecting recording artists to your attention and to the attention of the public, as well as working

with Congress to resolve these lingering problems. Recording artists must always

have an independent voice as our interests are unique, vital, and at times contrary

to the interests of the RIAA and the major record companies. The bottom line is

that artists create the music that fuels these industries and hence it would appear

obvious that our interests and concerns should be seriously considered.

thank you for your time.

Chairman HATCH. Thank you, Mr. Henley. You have given us a

lot to think about.

Ms. Morissette?

STATEMENT OF ALANIS MORISSETTE, RECORDING ARTIST

Ms. MORISSETTE. Good morning, and thank you, Chairman

Hatch, for inviting me to testify at today’s hearings. I would like

to start by letting you know how deeply grateful and fortunate I

feel for all of the success and opportunities that I have in my life.

I feel blessed to be able to share my expressions the way I do and

feel privileged to be able to speak on behalf of fellow artists who

have encouraged me to do so.
18

The reality is that for every artist fortunate enough to be in my

position, there are thousands of other incredibly gifted artists

whose work may never be heard. It is with this in mind that I

speak today on behalf of all musical artists who have a passionate

desire for a direct voice when it comes time to discuss the issues

that control their future, their livelihoods, and their ability to work

and create. I believe it is vital for us to be an integral part of the

solution-creating process. I invite other artists to join me, and I

honor those artists who have already spoken. I now join them in

sharing the same vision and goal.

I have come to realize that what we are trying to do is develop

a solution that satisfies the concerns of three separate groups.

First, and most importantly, there are the people who listen to the

music and are in the audience. Second, there are the artists and

all the members of the creative community. And, third, there are

the record companies and people who have built and who will continue to build businesses that connect the first two. An effective solution, as I see it, can only culminate if each of these groups have

their own voice in the solution-creating process.

Music fans have a voice through elected officials, such as you, the

Members of Congress. The record companies have always had their

voices heard through their lobbying organizations, such as the

RIAA. The reason I am here today is to let you know that although

these intermediaries claim to represent the creators, and while

there certainly have been some alignment of goals at times, our interests are not always the same.

There are an ever increasing number of ways in which those interests conflict, particularly in the digital age. No matter what you

may hear from any of these parties, it is artists, and artists alone,

who I believe to be truly able to accurately communicate and represent our unique and fundamental point of view. You need look

no further for evidence of this than the recent bankruptcy and

work-for-hire issues which would have worked against artists and

gone by unnoticed if the artistic community had not spoken up.

As an artist, I have one goal: to continue to create and share my

creative expressions with as many people and as directly as possible. If the intermediaries can help facilitate that connection, I

welcome their involvement. Where they impede that connection, I

question it, and I assume I am not alone in that concern.

My only explanation as to the reasons why artists have not spoken up in the past, individually or collectively, as often as they are

beginning to now is this: We are an incredibly diverse group of individuals whose energies go into writing, recording, and producing

our music, and months, if not years, of touring on the road. As a

result of this diversity and the amount of time and energy spent

creating and sharing those creations, it has been difficult for us to

speak with a unified voice and to decide who the person or persons

would be to speak on our behalf. It has, therefore, been easy for

others to speak up under the guise of doing so on our behalf.

I also believe that some artists are afraid of tapping into or being

portrayed as having tapped into the business-minded part of themselves, believing that it may somehow compromise their artistic integrity, and I understand this, although I ultimately believe it is

an act of self-care and that they are honoring their expressions by
19

allowing themselves to be aware of and concerned about their livelihood.

I also know there has been fear generated in the artistic community of speaking in a way that would throw any negative light on

the relationship between artists and their record companies. I

choose not to speak specifically about those issues here today, as

one quote taken out of context could be subject to misinterpretation

and be deeply misrepresentative of my greater view on this issue.

History has not been kind to artists who have candidly expressed

points of views that differ from those of their record company. To

say the least, to have spoken up could potentially have exacerbated

an already strained relationship. Artists want to continue to share

their music with as many people as they possibly can. Up until recently, their only way of doing this was through traditional means.

Without any other true option that would allow them to pursue

their goals, they would understandably, if not reticently, accept the

status quo.

We have now clearly evolved into a new and exciting digital era

in which we are discovering new ways to share our music directly

and interactively. Though I cannot speak for every artist, my initial

resistance to the new services created online was based on the debate having been framed in terms of piracy. Being labeled as such

by the record companies, it understandably sent a ripple effect of

panic throughout the artistic community. But what I have since

come to realize is that for the majority of artists, this so-called piracy may have actually been working in their favor. Most recording

artists never receive royalties past their initial advance due to the

financial structure of most record company contracts. From these

artists’ viewpoint, their music is free since they do not, in the end,

receive money from any of the sales. That free Internet distribution

allows the artist to aggregate an audience and create a direct relationship with that audience as well as develop a community among

the people who love their music. This in turn allows that artist to

generate compensation through other outlets, such as touring and

merchandise. For the majority of artists, this amounts to making

enough money to be in survival mode.

I believe that most artists write and create motivated by the goal

of expressing themselves and of sharing their expressions with as

many people as possible and view the financial reward as a natural

and welcome outcome as opposed to it being their singular motivation.

At this critical juncture in the digital era, there are an infinite

number of decisions to be made regarding how music use will be

monitored, where the money generated from such use will go, how

it will go there, whom it will go through, and how it will ultimately

be divided up.

I believe it would be in everyone’s best interest to make sure that

the creators of music and art are duly compensated for their work

and, most importantly, that they will have a direct voice in the

process of making these decisions. I also believe that the people

and companies who invest a lot of time and money, working very

hard to distribute our music with people around the world, are deserving of being compensated for their work as well. By embracing

the concept of interactive music online and by finding the best way
20

we possibly can to make sure that we come up with a system that

allows artists to be compensated for such use online, we are fostering a direct, immediate, mutually gratifying, and I think incredibly

exciting relationship between artists and the people with whom

they are communicating.

In the big picture, it will benefit the exact companies who have

resisted it the most. History has proven time and again that a

greater variety of formats and distribution opportunities lead to

more choices for consumers, increased awareness of the artists and

their music, and ultimately a continued and greater reward financially, creatively, and personally for everybody involved.

As with any paradigm shift, there are understandable fears and

apprehensions to be addressed, and I believe we can arrive at a

place where all three groups can continue to thrive. However, I believe the only way this can happen is if all three groups communicate their own distinct points of view to each other and if we are

all open and honest about our true agendas and concerns. I have

always believed in the concept of everyone winning or there not

being a deal to be made. That remains true to this day, and yet

it would be remiss of me not to notice that the longer we wait in

the ‘‘no deal’’ holding pattern while trying to figure this out, we run

the risk of missing the opportunity to connect directly with people

and of driving these forward-thinking distribution outlets created

by the Web underground.

We are faced with many difficult and complex questions during

this exciting time in music history. I am here to emphasize how important I believe it to be that, as you are considering constructing

legislation that will govern the future of digital music distribution,

that I, along with all artists, be actively involved in helping to develop what I know can be gratifying solutions for all involved.

Thank you very much for your time.

[The prepared statement of Ms. Morissette follows:]

STATEMENT OF ALANIS MORISSETTE

Good morning. Thank you Chairman Hatch for inviting me to testify at today’s

hearings. I would like to let you know how deeply grateful and fortunate I feel for

all of the success and opportunities that I have in my life. I feel blessed to be able

to share my expressions the way I do and feel privileged to be able to speak on behalf of fellow artists who have encouraged me to do so. The reality is that for every

artist fortunate enough to be in my position, there are thousands of other incredibly

gifted artists whose work may never be heard. It is with this in mind, that I speak

today on behalf of all musical artists who have a passionate desire for a direct voice

when it comes time to discuss the issues that control their future, their livelihoods

and their ability to work and create. I believe it is vital for us to be an integral

part of the solution creating process. I invite other artists to join me and I honor

those artists who have already spoken. I now join them in sharing the same vision

and goal.

I have come to realize that what we are trying to do is develop a solution that

satisfies the concerns of three separate groups: First and most importantly there are

the people who listen to the music and are in the audience, secondly, there are the

artists and all the members of the creative community and thirdly, there are the

record companies and people who have built and who will continue to build businesses that connect the first two. An effective solution, as I see it, can only culminate if each of these groups have their own voice in the solution creating process.

Music fans have a voice through elected officials such as yourselves, members of

the congress. The record companies have always had their voices heard through

their lobbying organizations such as the RIAA. The reason I am here today is to

let you know that although these intermediaries claim to represent the creators, and

while there certainly have been some alignment of goals at times, our interests are
21

not always the same. There are an ever-increasing number of ways in which those

interests conflict, particularly in the digital age. No matter what you may hear from

any of these parties, it is artists and artists alone who I believe to be truly able

to accurately communicate and represent our unique and fundamental point of view.

You need look no further for evidence of this than the recent bankruptcy and workfor-hire issues, which would have worked against artists and gone by unnoticed if

the artistic community had not spoken up.

As an artist, I have one goal: to continue to create and share my creative expressions with as many people and as directly as possible. If the intermediaries can help

facilitate that connection, I welcome their involvement. Where they impede that connection, I question it and I assume that I am not alone in this concern.

My only explanation as to the reasons why artists have not spoken up in the past,

individually or collectively, as often as they are beginning to now is this: We are

an incredibly diverse group of individuals whose energies go into writing, recording

and producing our music, and months if not years of touring on the road. As a result

of this diversity and the amount of time and energy spent creating and sharing

those creations, it has been difficult for us to speak with a unified voice and to decide who the person or persons would be to speak on our behalf. It has therefore

been easy for others to speak up under the guise of doing so on our behalf. I also

know that there has been fear generated in the artistic community of speaking in

a way that would throw any negative light on the relationship between the artists

and record companies. I choose not to speak specifically about those issues here

today as one quote taken out of context could be subject to misinterpretation and

be deeply misrepresentative of my greater view on this issue. History has not been

kind to artists who have candidly expressed points of view that differ with those

of their record company. To say the least, to have spoken up could potentially have

exacerbated an already strained relationship. Artists want to continue to share their

music with as many people as they possibly can. Up until recently, their only way

of doing this was through traditional means. Without any other true option that

would allow them to pursue their goals, they would understandably, if not reticently

accept the status quo.

We have now clearly evolved into a new and exciting digital era in which we are

discovering new ways to share our music directly and interactively. Though I cannot

speak for every artist, my initial resistance to the new services created online was

based on the debate having been framed in terms of ‘‘piracy’’. Being labeled as such

by the record companies, it understandably sent a ripple effect of panic throughout

the artistic community. But what I have since come to realize is that for the majority of artists, this so-called ‘‘piracy’’ may have actually been working in their favor.

Most recording artists never receive royalties past their initial advance due to the

financial structure of most record company contracts. From these artists’ viewpoint,

their music is free since they do not, in the end, receive money from any of the

sales. That ‘‘free’’ internet distribution allows the artist to aggregate an audience

and create a direct relationship with that audience as well as develop a community

among the people who love their music. This in turn allows that artist to generate

compensation through other outlets such as touring and merchandise. For the majority of artists, this amounts to making enough money to be in survival mode.

I believe that most artists write and create motivated by the goal of sharing their

music with as many people as possible and view the financial reward as a natural

and welcome outcome as opposed to it being their singular motivation.

At this critical juncture in the digital era, there are an infinite number of decisions to be made regarding how music use will be monitored, where the money generated from such use will go, how it will go there, whom it will go through, and

how it will ultimately be divided up.

I believe it would be in everyone’s best interest to make sure that the creators

of music and art are duly compensated for their work and most importantly, that

they will have a direct voice in the process of making these decisions. I also believe

that the people and companies who invest a lot of time and money, working very

hard to distribute our music with people around the world are deserving of being

compensated for their work as well. By embracing the concept of interactive music

online, and by finding the best way we possibly can to make sure that we come up

with a system that allows artists to be compensated for such use online, we are fostering a direct, immediate, mutually gratifying and I think incredibly exciting relationship between artists and the people with they are communicating.

In the big picture, it will benefit the exact companies who have resisted it the

most. History has proven time and again that a greater variety of formats and distribution opportunities lead to more choices for consumers, increased awareness of

the artists and their music and ultimately a continued and greater reward financially, creatively and personally for everybody involved.
22

As with any paradigm shift there are understandable fears and apprehensions to

be addressed and I believe we can arrive at a place where all three groups can continue to thrive. However, I believe the only way this can happen is if all three

groups communicate their own distinct points of view to each other and if we are

all open and honest about our true agendas and concerns. I have always believed

in the concept of everyone winning or there not being a deal to be made. That remains true to this day and yet it would be remiss of me not to notice that the longer

we stay in the ‘‘no deal’’ holding pattern while trying to figure this out, we run the

risk of missing the opportunity to connect directly with people and of driving these

forward thinking distribution outlets created by the web underground.

We are faced with many difficult and complex questions during this exciting time

in music history. I am here to emphasize how important I believe it to be that as

you are considering constructing legislation that will govern the future of digital

music distribution, that I, along with all artists be actively involved in helping to

develop what I know can be gratifying solutions for all involved.

Thank you very much for your time.

Chairman HATCH. Thank you very much. We appreciate having

you here.

Mr. Barry, we will turn to you.

STATEMENT OF HANK BARRY, INTERIM CHIEF EXECUTIVE

OFFICER, NAPSTER

Mr. BARRY. Thank you, Senator. Thank you for inviting me to appear before you today. I am glad to be here representing the more

60 million people who are part of the Napster community.

As I did the last time I was here, I would like to take a moment

to acknowledge Shawn Fanning, who is behind me today. He was

19 the last time we met. He is 20 now, so he is over the hill.

The question before us today is: What does it take to make music

on the Internet a fair and profitable business? I think it is going

to take an act of Congress, a change to the laws to provide an industry-wide license for the transmission of music over the Internet.

The Internet needs a simple and comprehensive solution, similar to

the one that allowed radio to succeed. The Internet does not need

another decade of litigation.

I have tried for the last 9 months to make a market-based solution. We were able to reach agreement with Bertelsmann on a business model and license terms for the sound recordings and the musical compositions that they control. Yet I can’t today report that

any other such agreement has been reached with a major label or

publisher. We were fortunate to make an agreement with Mr. Gottlieb here.

One obstacle may have been a lack of will, but all the record and

publishing companies represented on the panel today now say they

want to move forward in this area, and I take them at their word.

What, then, is the problem? Licensed music should now be available over the Internet as it is over the radio. I think a large part

of the problem is complexity.

If you take this CD by the Holmes Brothers, it is no simple object. There are two separate and distinct copyrighted works embodied in each track on this gospel CD. For each track, there is the

owner of the sound recording, the tape that you make in the studio.

There is also a separate work, the musical composition, the song,

the sheet music, the song the artist sings. By law, each track of the

CD is also considered a reproduction of the musical composition, so

you are buying two works.
23

On this single CD, for example, there are 13 sound recordings

and eight separate music publishers. And that is pretty typical.

Now, if you multiply that times 3,000 record companies in the

United States and 25,000 music publishers times 27,000 new CDs

made ever year, I think you can see that separate, individual negotiations for license agreements are just not viable. They are not a

viable option.

This situation has led to endless private negotiations and litigation. Let me show you sort of a John Madden-style diagram of the

state of litigation just among those of us who are on the panel here

today. That is just the people who are here today.

So how can this mess be cleaned up? Well, I think this is the center of this issue, and here I find myself in surprising agreement

with the perceptive, reasoned analysis by the RIAA. You may know

that Vivendi-Universal recently made musical compositions available online without getting the publisher’s permission. The RIAA

has gone to the Copyright Office after the fact, arguing for a compulsory license for situations like this.

Let me quote to you from the petition that the RIAA made to the

Copyright Office. ‘‘The music industry is unique among owners and

users of copyrighted works in that reproduction and distribution of

musical works has been subject to a compulsory license since 1909.

The availability of a compulsory license has ensured that necessary

rights can be obtained when needed, at a known price, and pursuant to established procedures.’’ The RIAA then argues that extending the compulsory license to

their new digital offers would—and I am now quoting again— ‘‘avoid the need for individual negotiations on a scale that is unprecedented in the industry and, thus, facilitate the launch’’ of

these new services.

This is the official position of the RIAA, and I endorse this principle. But I endorse it not just for musical compositions but for

sound recordings as well.

Congress has repeatedly used such licenses to advance public

policy goals in the context of new and frequently inefficient marketplaces. These industry-wide licenses for defined services, with clear

payment structures, have encouraged beneficial new technologies

and responded effectively to particular market failures.

Music on the radio works because of what is functionally an industry-wide license. Cable television, satellite television, Web casting—you in the Congress have effectively encouraged new technologies through these types of licensing arrangements in a way

that fostered competition and benefited consumers and creators

alike.

Copyright, Senator, is a tool of public policy. It does not vindicate

a private right. Copyright requires a constant balance between the

public’s interest in promoting creative expression and the public’s

interest in having access to these works. This is a balance that has

often proven impossible to find without the help of Congress.

Finally, the Napster community says loudly and clearly that we

want artists and songwriters to be paid. I think that the license

you create should also include a direct Internet rights payment to

artists. There is certainly precedent for this, Mr. Henley said, in

the so-called writer’s share of public performance—that is, radio
24

and television payments that are collected by ASCAP and BMI.

You may know that a portion of these payments goes directly to the

songwriter.

Senator, this is a moment of tremendous opportunity. For many

years, our Nation and this Committee heard wonderful promises of

an emerging Internet music era where people could have convenient access to the entire catalogue of recorded music over the Internet at the touch of a button. Well, as often happens, history arrived

ahead of time, and it is a uniquely American story. A young man

with no standing, no credentials, no connections, and no plan for

placating the powerful, sat down outside Boston and created an entirely new system. I think it is meaningful that within 18 months

we are no longer debating whether there should be music on the

Internet but, rather, debating the best way to make sure that it

continues. More than 60 million people have starred on a new

stage in our National love affair with music. All of us are finding

new music and music we had forgotten how much we loved.

The question before this Committee is a matter of policy: how to

make this new world of Internet music work. The next step should

not be shutting it down. The Congress has effectively promoted

new technologies in the past while ensuring that creators benefit

and are paid. And I believe it is essential that we do so again

today.

Thank you.

[The prepared statement of Mr. Barry follows:]

STATEMENT OF HANK BARRY, INTERIM CEO, NAPSTER

Mr. Chairman and members of the Committee, thank you for inviting me to appear before you today. I am happy to be here on behalf of Napster and all the members of the Napster community. As I did last time I was here, I would like to take

a moment to acknowledge Shawn Fanning, the founder of Napster, who is sitting

behind me today. He was 19 then. He is 20 now—and despite his advanced years,

he is not yet over the hill.

I think no one in this room—even those with whom we have disagreed vigorously

would contest that accessing music over the Internet is something that tens of millions of people, young and old, love to do. Over half of Napster’s users are over 25,

and they come from all walks of life. The question before us today—from all of our

very different perspectives and responsibilities—is what does it take to make music

on the Internet a fair and profitable. business.

To realize this goal, I believe it will take an Act of Congress—a change to the laws

to provide a compulsory license for the transmission of music over the Internet. And

today I will tell you why I strongly believe such a change is necessary, an important

step for the Internet, and why it will be good for artists, listeners and businesses.

NEGOTIATION HISTORY

When I last testified before this Committee last July, I did not believe this issue

required a legislative solution. I believed that Napster should find a private contractual solution that the rights holders and the people who use Napster could all support. We said ‘‘let the marketplace work.’’

Since that time the Napster community has continued to grow. We then had 20

million members; we have grown to more than 60 million members today, even as

we aggressively comply with the District Court’s injunction.

Since people who use Napster buy more music than others and are very willing

to pay for music over the Internet, I believed there was a basis for making an agreement with the record and music publishing companies. We built our business model

around this idea: that the people using Napster want artists and songwriters to be

paid, and that peer-to-peer Internet technology is the most efficient and convenient

way ever devised to make music accessible.

I have tried for the last 9 months to make an agreement under which Napster

can get a license from the record companies and the music publishers. I believed
25

that any such agreement would serve as a precedent for other agreements and could

serve as the basis for payments by the people using Napster to recording artists and

songwriters. We were able to reach agreement with Bertelsmann on a business

model for a new service and license terms for the sound recordings and the musical

compositions they control. Yet I cannot today report that any other such agreement

has been reached with a major label.

Perhaps I should not have been surprised at this result. Although the World Wide

Web portion of the Internet has been around for 7 years, and billions of investor

dollars have been spent founding and attempting to grow technology companies and

consumer companies that would help all of us access music over the Internet, to this

date no service has been able to provide a comprehensive offering of music on the

Internet that is licensed by the major recording and publishing companies.

For the record companies, the promise of music over the Internet has always been

‘‘coming real soon now’’. Every time this Committee holds a hearing on these issues,

new promises of imminent progress are made. Just last July, Fred Ehrlich from

Sony told this Committee ‘‘we are in active conversations’’ with both eMusic and

mp3.com. But, once again, these have turned out to be empty statements.

The DMCA was supposed to solve many of these problems. As Chairman Hatch

said in the last hearing of this Committee on this issue:

‘‘In short, it was believed that a stable, predictable legal environment would encourage the deployment of business models which would make properly licensed content more widely available. Sadly, this has not yet occurred to any great extent in

the music industry, and the DMCA is nearly two years old.’’

Look at the facts. Where are the Internet businesses with clear and complete recording and music publishing licenses? There are none. Where are the emerging digital media companies with negotiated agreements with all rightsholders? There are

none.

And of course these companies argue that this is Napster’s fault. That argument

might be granted some validity if there were even one fully-licensed business with

anything approaching a comprehensive consumer offer. But there are none.

We might all well ask—why is this so complicated? Why can’t the record companies and music publishing companies just issue licenses to eMusic, Liquid Audio,

Listen.com, Yahoo, MSN and Napster, and everyone else, so consumers can pay

money and have access to music over the Internet, while ensuring that artists and

songwriters are paid? Why have the record and publishing companies continually

said they are going to license, and then not followed through?

Well, one obstacle may have been a lack of will—the record companies have stated

repeatedly that they believe that licenses of sales over the Internet will cut into

physical goods sales and generally damage, not increase, their business. This fear,

of course, has not been founded in reality to date. CD sales are stronger than other

retail, even in the face of uncertain economic times. Internet music has increased

interest in music as a whole. Like the VCR, the cassette, and every other major innovation, Internet music has been greeted by a chorus of doom from existing distributors. But let’s assume that the will is there to license music over the Internet—

certainly all of the record and publishing companies represented on this panel now

say they want to move forward in this area.

Even if we assume that everyone agrees that licensing music for the Internet

would be a good thing, my experience is that it is an almost impossibly complicated

thing. And unfortunately I have to explain how complicated it is by going over the

rights structure in this industry. So if you will let me do that. . .

INDUSTRY OVERVIEW

This background description here is for those of you who are not copyright lawyers. Bob Kohn of eMusic wrote a great book on this if you want further information.

As the members of this Committee know, when you buy a CD or tape, you are

really getting copies of two separate works. The first is the sound recording that

the artist and producers and musicians made in the studio. The second is the musical composition, the song that is being played. By law, each copy of the CD is also

considered a reproduction of that musical composition. The complex part about this

is that the sound recording and the musical composition that is sung on the sound

recording (the ‘‘song’’—the music) are almost always owned by different companies,

even where, as in many cases, the recording artist is the same person who wrote

the song.

Now if you are trying to make music available to the public on the Internet,

whether for download or streaming or even for broadcast, and if you need a private

contractual agreement to do that, then you have to negotiate with both sets of
26

rightsholders—the record companies and the music publishers. First you have to go

to the record companies (and if you want the good stuff, like polkas and Lithuanian

folk songs, you have to go to many record companies—there are over 3,000 record

companies in the US alone).

And when you have negotiated each of those 3,000 separate agreements, you are

only half way there—because then you have to go and negotiate with all of the

music publishers—and there are over 25,000 independent music publishers in the

US alone. Mr. Murphy’s organization represents many of them, but I believe Mr.

Roberts from MP3.com would tell you that anything less than an overall comprehensive license to all compositions doesn’t do you much good, because the likelihood is

that rights you have and the rights you need will not match at all. And even one

failure to match can bring down the whole structure.

This is further complicated by the fact that several of the largest music publishers, controlling millions of songs, are owned by the record labels, but the music publishing catalogs they control bear no relation to the sound recordings they control—

they are not the same songs. For a final complication—the music publishers have

two separate rights, the right to make a mechanical copy of the song and the public

performance right, that may both be implicated in this type of licensing. And each

of those rights is administered for them by a different rights organization.

Now, as you know Senator, that is a simplified statement of the rights structures

in this industry.

COMPULSORY LICENSES

So, what can Congress do to simplify this in a way that will work?

Well, here—at the center of the matter—I find myself in surprising agreement

with a perceptive recent analysis by the RIAA.

Vivendi Universal and the National Association of Music Publishers are in a dispute based on the fact that Universal made musical compositions available online

without getting the publishers’ permission. The RIAA has gone to the Copyright Office seeking guidance as to whether Section 115 of the Copyright Act applies in such

circumstances. The RIAA articulates a compelling case for the need for compulsory

licenses. The RIAA says that two fundamental problems limit access to music on

the Internet: first, that independent sequential negotiations with all rights holders

(like those I described a minute ago) are practically impossible in any reasonable

time frame. Second, they say that the laws regarding rights are unclear.

It’s an argument I would like to examine with you in some detail.

So let me quote now from the RIAA’s Petition. I have attached the entire Petition

to my testimony.

The RIAA said: ‘‘To the extent that On-Demand streams and Limited Downloads

make use of musical works, it is right and proper that songwriters and music publishers receive a reasonable royalty, as appropriate and as provided under existing

law. RIAA’s member companies are ready and willing to pay reasonable applicable

royalties for the services they operate or authorize.’’

[so far so good]

A few paragraphs down, they continue.

‘‘To be compelling to consumers, it is believed that a service must offer tens or

hundreds of thousands of songs, in which rights may be owned by hundreds or thousands of publishers. No service provider is eager to embark on individual negotiations with all those publishers unless it is necessary.’’

[well—that’s my experience too. Continuing. . .]

‘‘The music industry is unique among owners and users of copyrighted works in

that reproduction and distribution of musical works has been subject to a compulsory license since 1909. In the nearly a century that the mechanical compulsory license has existed, it has become the foundation of business practices that are deeply

ingrained in the industry and have been embraced by the copyright owners whose

works are subject to it.’’

‘‘. . . the availability of a compulsory license has ensured that necessary rights

can be obtained, when needed, at a known price, and pursuant to established procedures. Recognizing that the business practices founded upon the compulsory license

extend to On-Demand streams would avoid the need for individual negotiations on

a scale that is unprecedented in the industry and thus facilitate the launch of OnDemand Streaming services. . .’’

‘‘The lack of clarity as to the issues described above has become the primary obstacle to the launch of digital services designed to meet ever-increasing consumer

demand . . . . Representatives of the RIAA and its members have negotiated with

representatives of music publishers concerning the licensing of services that would

offer On Demand Streams and Limited Downloads. However, in large part because
27

of the uncertainty as to the fundamental questions of law addressed above, these

negotiations have not yet successfully resolved the matter.’’ In short, the RIAA’s position is that Internet music is a mess because everyone

involved asserts complex and varying rights, that there are too many potential

licensors for ‘‘independent sequential negotiations’’, and that the best way for the

market to move forward quickly and fairly may be a compulsory license for musical

compositions.

That is the official position of the RIAA—and I endorse this principle. But I endorse it not just for musical compositions -but for sound recordings as well. Not just

for music publishers, but also for record companies.

DO THEY WORK? EXAMPLES OF COMPULSORY LICENSES

As the RIAA says, compulsory licenses have a long history of success, allowing

for the widespread implementation of a new technology while ensuring that rights

holders are compensated. Congress has repeatedly used such licenses as a way of

advancing public policy goals in the context of new and frequently inefficient marketplaces. Compulsory licenses have encouraged beneficial new technologies, and responded effectively to particular market failures—including excessive contracting

costs and anticompetitive market structures.

Let’s look at some examples:

In 1909, Congress created a right against the reproduction of musical compositions in mechanical forms (i.e., piano rolls), but limited this right through the creation of a mechanical compulsory license for musical works. The legislative history

behind the mechanical compulsory license reveals that Congress enacted this provision, not only to compensate composers, but to prevent the Aeolian Company, which

had acquired mechanical reproduction rights from all of the nation’s leading music

publishers, from limiting the dissemination of the music to the public through the

creation of a monopolistic environment. Thanks to this, once a song has been recorded by anybody, it may be recorded by anyone else, without a further license

from the music publisher, if the person making the new recording notifies the publisher and pays a statutorily mandated royalty based on the number of copes made.

That’s where ‘‘cover’’ songs come from—and only those of us who have heard different versions of ‘‘Louie Louie’’ can appreciate what that compulsory license has

meant for American music.

Years later, Congress again enacted several additional compulsory license, this

time related to consumers’ ability to access broadcast transmissions via cable and

satellite systems. In 1976, Congress passed a compulsory license for cable television

systems that retransmit copyrighted works. Pursuant to the compulsory license provision, copyright owners are entitled to be paid prescribed royalty fees for a cable

television company’s secondary transmission of the copyrighted work embodied in

television and radio broadcasts.

Then, in 1988, Congress passed the Satellite Home Viewer Act of 1988 (SHVA),

which created a compulsory license system for satellite carriers that retransmit television broadcasts that operates similar to the cable compulsory license. Congress

acted again in 1999 when it expanded the SHVA’s scope to include local-into-local

retransmission.

Congress recognized the ability of these then cutting edge technologies to further

disseminate to the public television and radio content, and the need to ensure that

rights holders remained adequately compensated. Congress understood, however,

the inefficiencies inherent in forcing cable or satellite providers to negotiate individual licensing agreements, thereby resulting in the use of a compulsory license system.

Interestingly enough, considering the current controversy, Congress’ next foray

into compulsory licenses applied specifically to music. The Digital Performance

Rights in Sound Recordings Act of 1995 created a limited performance right for

sound recordings, subject to a compulsory license for certain digital audio deliveries

of sound recordings. The compulsory license originally applied, in general, to noninteractive satellite and cable audio digital deliveries. The Digital Millennium Copyright Act amended the original law to explicitly include non-interactive webcasting

of sound recordings within the compulsory license’s scope.

At the time, Congress reasoned that these new technologies promised to encourage the widespread dissemination of this music to the public. Once again, Congress

enacted the compulsory license mechanism as a means to ensure that artists and

other rights holders were compensated, while not hindering the continued development and deployment of these digital delivery systems.

Finally, I think we can all agree that AM and FM radio have been good for recorded music. The benefits of radio have flowed from the effective compulsory li-
28

cense created by performing rights societies, such as ASCAP and BMI. They enforce

songwriters’ and music publishers’ performance rights through a court created process that removes the need to negotiate with individual rights holders. While Congress did not create this procedure, it has implicitly endorsed it by recognizing these

performing rights societies in recent legislation. Further, Congress repeatedly has

refused requests to outlaw the use of these blanket licenses.

In all of these cases of compulsory licensing, creators benefit from, but do not completely control, the distribution of their product. A balance is struck—a balance that

is at the heart of all intellectual property law. Remember, intellectual property is

not the same as real property or personal property—copyright is a limited right.

Copyright is not based on a private right of the individual, it is a creation of and

a tool of public policy. It requires a constant balance between the public’s interest

in promoting creative expression and the public’s interest having access to those

works. This is a balance that has often proven impossible to find without the help

of the Congress.

IMPORTANT ELEMENTS OF ANY LICENSING REGIME FOR INTERNET MUSIC

Let me offer a few specific elements that I think are important for a fair and equitable compulsory license law.

Any such solution has to apply to the entire catalog of the applicable rightsowner,

whether record company or music publisher. Too often companies have entered into

licensing arrangements that contain a clause saying that the subject matter of the

license will be decided ‘‘later, when the rightsholders can determine what rights the

rightsholder owns and can license.’’ This process, which is generally know a ‘‘rights

clearances’’ is often used to transform what looks like a real license into an empty

shell.

Any such solution should also offer licensees both the sound recording rights and

the musical composition rights. As we have seen above, it makes no sense for a licensee to have a sound recording license, and then have to begin negotiating with

all the publishers.

Any technology requirements for copyright management and security have to be

general enough so that they are capable of being fulfilled by many vendors. Private

licensing regimes have been recently reported which would violate this basic principle of neutrality, by linking access to rights to the use of particular software—even

as there are interlocking financial arrangements between the rightsholders and the

software companies. ASCAP cannot tell a radio station what brand of transmitter

to use; and no such new technological extensions of market power should be a part

of any new licensing.

The licensing terms under any compulsory licensing system must be the same for

all. I am particularly concerned here about a point Senator Hatch made at our hearing last July, that he was concerned that the major record companies would make

cross-licensing arrangements among each other that would have economic terms

that would ensure that the Internet services the record companies operate would

have greater profits than any other licensed services.

BENEFITS TO ALL ARTISTS

We must be careful to construct a structure that will allow all recording artists,

songwriters, record companies and publishers, not just the few large entities, to participate and profit from music on the Internet. I believe that the great strength of

American music is as much in choral, gospel and inspirational music bands, as it

is in the latest Top 40 hits. Certainly a 10 minute walk through the shared files

of Napster users suggests the same. We all listen to everything. And so all independent labels and publishers should participate as well.

Finally, I think we should adopt a direct Internet rights payment to artists. There

is certainly precedent for this in the so-called ‘‘writer’s share’’ of public performance

(radio and television) payments that are made by ASCAP and BMI. As you know,

a portion of those payments goes directly to the songwriter. We can do the same

and give artists a direct benefit from these new technologies.

CONCLUSION

Senator, this is a moment of tremendous opportunity. For many years, our nation

and this Committee heard wonderful promises of an emerging digital music era,

where people could have convenient access to the entire catalog of recorded music

over the Internet at the touch of a button.

Well, as often happens, history arrived ahead of time.

And it is a uniquely American story.
29

A young man with no standing, no credentials, no connections, and no plan for

placating the powerful, sat down outside Boston and created an entirely new system.

Within 18 months, we were no longer debating whether there would be music on

the Internet, but debating the best way to make sure that it continues. More than

60 million users have started a new stage in our national love affair with music.

Napster users are nearly 50% more likely to say they are listening to more music

now than six months ago, compared to others on line. All of us are finding new

music—and music we’d forgotten how much we loved.

The question before this Committee is a matter of policy. How to make this new

world of Internet music work. The next step should not be shutting it down, but

making it work for everyone. The Congress has effectively promoted new technologies in the past, while ensuring that creators benefit; it is essential that we do

so again today.

Thank you.
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Chairman HATCH. Thank you, Mr. Barry.

Mr. Gottlieb, we look forward to your testimony.

STATEMENT OF STEVE GOTTLIEB, PRESIDENT AND FOUNDER,

TVT RECORDS

Mr. GOTTLIEB. Mr. Chairman and distinguished members of the

Committee, good morning, and thank you for inviting me to participate. I am both honored and humbled to be here among such highly celebrated business colleagues and legendary recording artists.

My purpose in appearing before you today is to share our concern

that copyright remain a tool to incentivize creators and not a

means to enlarge or enhance market power.

By way of introduction, I am president and founder of TVT

Records, one of the largest, free-standing, independent record companies in America. By free standing, I mean we are neither owned

or funded or distributed by or otherwise aligned with any of the

five multinational music companies.

Like many independents, ours is a story of most unlikely success.

Armed with almost no capital and less experience, my company

sprang from an odd collection of old TV themes. Back then, independents were considered a low-rent farm club. The major companies owned the charts, and the notion of an independent having a

hit without the help of a major label was most unlikely. Happily,

times have changed and today independent records grace the top

of the charts every day.

As an independent, TVT is part of a community of thousands of

entrepreneurs and artists responsible for one of the most vital segments of the U.S. music industry. Collectively, our market share is

some 17 percent of domestic retail sales, a market share greater

than four of the multinational music companies and second only to

that of Universal.

Beyond our collective market power, the independent community

plays a unique role as the principal spawning ground for new artists and new music movements. It is by virtue of the independent

community’s constant prodding and rejuvenation of the music scene

that we as Americans enjoy such a diverse choice of music and

such a productive and profitable music industry.

Independent entrepreneurs, artists, and society are beneficiaries

today of what is essentially a level playing field with regard to

music marketing and distribution. This allows consumers to hear

a broad array of music on the radio, to find it at their record stores,

and to embrace it as they so choose. And they do so with unpredictable results that no record company, no matter how well capitalized, can sit idly by, comforted with the notion that their past success is a predictor of future outcomes.

This level playing field also allows copyright creators, the artists

upon whose gifts and talents we so depend, to create with the

knowledge that, beyond themselves, the ultimate arbiter of taste

will be the public. The hallmark of the music business is the public

listens to songs and artists, not record companies. Ideally, those

songs and artists compete with one another in a marketplace of

musical ideas.

With the advent of the digital age, the greatest threat to the

composition of the music industry, its vibrancy and independent
47

spirit, is the emergence of new barriers between music providers

and the market discipline exerted by public demand. Some years

ago, decidedly without the authority of rights to do so, Shawn Fanning introduced the world to a profound new notion. What this notion depended on, aside from the misappropriation of music copyrights, to which I will return, is unfettered access on an even-handed basis to the idealized infinite jukebox. It is, I would argue, this

freedom to choose from everything in existence that has so ignited

the passion of Napster users. It is the freedom to choose which has

so inspired and renewed people’s love of music online and the freedom to choose that underlies the digital music revolution. It is freedom, and not free-ness or the absence of cost. For, surely, while

copyright owners may not have been recompensed through

Napster’s infancy, clearly many others have been able to monetize

the consumer’s passion for digital music.

As the advertisements for a wide array of hardware makers currently attests to, enjoyment of online music has been a major driver of computer sales and has helped fuel extraordinary growth for

ISPs and infrastructure providers alike. Music file sharing has

earned itself recognition as the killer Nap.

Once security issues are addressed—and security must be addressed—the question becomes: What will this new digital world

look like? The genius of Napster is that all music is available on

an equal footing and that the consumer’s choice prevails. Our concern is that, without Congressional scrutiny, any service such as

Napster that requires consent of all copyright owners may be unfairly dominated by the few owners of the most content. The result

would be a two-class system of copyrights where the copyrights

that are owned and aggregated by multinational corporations are

treated one way and the copyrights of everyone else another.

We have already begun to experience that firsthand, and right

now our lawyers are in New York in front of a Federal judge and

jury defending our copyrights against a company that has taken

the viewpoint that, while the major labels were entitled to substantial damages and licensees with regard to their copyrights, independent labels were not.

Such a two-class system of copyright, one that places copyright

value based on who owns it and what market they can exert, would

be a tremendous setback to our fertile entertainment economy.

The various announcements of entities being fostered by the

major record labels, all are consistent in their failure to acknowledge the necessity of a scheme whereby all content creators are

treated equally. None of these vehicles to date, as far as I can tell,

have made it clear that the creation of a level playing field is one

of their organizing principles. Indeed, the very opposite seems to

have been expressed, that is, by all these vehicles, with the exception of Napster.

I should point out that TVT, while in a lawsuit with some online

companies, has been not slow to offer its content on the Internet.

Since 1999, our entire catalogue has been made available free to

the consumer on a timed-out and secure basis. And we remain No.

1 in the number of secure downloads provided to consumers.

More recently, we were the first label to recognize that once

Napster had expressed its willingness to acknowledge copyright
48

and to establish a scheme to compensate all rights holders, that we

had indeed reached the goal of our litigation with them. Thus, we

became the first label to withdraw all of our claims against

Napster and entered into a license agreement with them for their

anticipated new secure music subscription service.

Amongst all entities vying to provide music online in a responsible and secure manner, Napster alone has promised to create a

platform on which all rights holders may compete on the basis of

quality and appeal of their content. This commitment to equal access and opportunity may never come to fruition if Napster is not

successful in persuading the major content owners to grant it

rights.

Under such a circumstances the question arises: Can a marketplace in which a few entities control so much content produce a

universal delivery system in which equal access and equal opportunity, financial and otherwise, is provided to all? The question is

one that I believe the Committee must consider to be an issue of

importance. If the largest aggregators of content are able to leverage their market power to gain undue advantage, then they will be

allowed to transform a mechanism intended to incent creation into

a mechanism that perpetuates the current marketplace status quo.

Such a distortion of copyright policy would institutionalize current

content owners’ positions of dominance in the marketplace and

shift the benefit of copyright law from creators to the largest of

aggregators.

The unique nature of the phenomenon introduced to us all by

Shawn Fanning has the potential to open up a whole new horizon

to all content owners and consumers alike. I welcome the Committee’s scrutiny of the marketplace as it works through these many

new and interesting challenges and hope the Committee’s continued interest in the matter will assist motivating our industry’s

leaders to indeed lead us toward a fair and equitable market solution, one that will neither limit consumer choice or create inequities among content owners.

Chairman HATCH. Thank you, Mr. Gottlieb.

[The prepared statement of Mr. Gottlieb follows:]

STATEMENT OF STEVE GOTTLIEB, PRESIDENT AND FOUNDER, TVT RECORDS

Mr. Chairman and distinguished members of the Committee, good morning and

thank you for inviting me to participate in this hearing. I am both honored and

humbled to be here among such highly celebrated business colleagues and legendary

recording artists. My purpose in appearing before you today is to address how in

this digital age, copyright remains a tool to incent creators and not a mechanism

to enlarge market power.

By way of introduction I am Steve Gottlieb president and founder of TVT Records,

the largest freestanding independent record company in America. By freestanding

I mean we are neither owned by; funded by; distributed by; nor otherwise aligned

with any of the five major multinational music companies. Like many independent

labels ours is the story of the most unlikely success. Fresh from school with degrees

from Yale and Harvard under my belt, I foolishly undertook to license Americas

best-loved and appreciated music, namely our TV themes, and assemble them in a

compilation called Televisions Greatest Hits. The resulting vinyl LP, for alas that

was the poor state of our music technology at that time, became a worldwide success. From those humble beginnings, armed with almost no capital and even less

experience, I began my assault on what was then a music establishment of 6 major

record companies. Back in those days independents were considered to be a low rent

farm club at best. The major record companies owned the charts and the notion of

an independent having a hit record without the ‘‘help’’ of a major most unlikely.
49

Happily times have changed and albums from independents regularly grace the top

of the bestseller charts. So to has TVT changed.

From a one-man shop in 1985, TVT now employs well over 100 people and enjoyed

sales in excess of 50 million dollars last year. Our roster now extends well beyond

TV themes running the musical gamut from hard rock to pop to hip-hop to R&B

to alternative. Through TVT SoundTrax, our label is also a force in motion picture

soundtrack albums including releases from such top films as Steven Soderburgh’s Oscar nominated ‘‘Traffic’’—a film I am proud to be associated with as, I hope, Sen.

Hatch is as well

As an independent, TVT is a member of a community of thousands of entrepreneurs and artists responsible for one of the most vital segments of the US music

industry. Collectively our market share is some 17% of domestic retail sales, a market share greater than four of the multinational music companies, and second only

to that of Universal. This figure perhaps understates the size of the independents’ share of music that most engages the public’s interest. To wit, in the major labels’ own filings against Napster they have acknowledged that a full 27% of the music

files shared were non-major titles. Beyond our collective market power, the independent community plays a unique role as the principle spawning ground for new

artists and new music movements. It is by virtue of the independent community’s constant prodding and rejuvenation of the music scene that we as Americans enjoy

such a diverse choice of music and such a productive and profitable music industry.

Fellow entrepreneurs, artists, and society are all beneficiaries what today is an

essentially level playing field with regard to music marketing and distribution. This

level playing field allows consumers to hear a broad array of music on radio, to find

it at record stores and to embrace it as they choose. And embrace it they do—with

such unpredictable results that no record company, no matter how well capitalized,

can sit idly by comforted by the notion that their most recent success will have any

bearing on their ability to identify, attract, and support tomorrow’s most popular

artist. As the marketplace continually reminds us, picking tomorrow’s stars is, at

best, a low percentage game.

The hallmark of the music business is that the public listens to songs and artists—not record companies. Ideally, those songs and artists compete against one another in a marketplace of musical ideas. This competitive framework has evolved

from and depends upon a combination of laws, regulations, judicial rulings and market forces. For example, laws against both Payola and concentrated radio station

ownership, combined with the discipline of market forces, insure that radio stations

are always searching for what excites the listener. Failure to do so would only create opportunity for competitors to gain an advantage in the marketplace. Similarly

retailers, who can ill afford to drive a customer across the street, are forced by the

marketplace to stock whatever consumers demand. This proximity to public yields

an essentially open marketplace.

Where there is a lack of marketplace competition—wherein parties are isolated

from the discipline of public demand—as in the area of music video television, the

results are informative. There, the majors have demonstrated both the desire and

ability to exploit their market dominance so as to deprive independents from gaining an amount of airtime devoted to their artist that is anywhere near commensurate with their marketshare.

Moving beyond these examples to our current dilemma, the advent of the digital

age brings the greatest threat yet to the vibrant composition and independent competitive spirit of the music industry. This threat is the emergence of new barriers

between music providers and the market discipline exerted by public demand.

Some years ago, decidedly without the authority or rights to do so, Shawn Fanning introduced the world to a profound new notion and tapped directly into this

market demand. His notion of having immediate access to the entire world of music

without limitation has allowed a wholly new and unique way of interacting with

music as transformative, different, and disruptive an innovation as the radio. This

powerful concept was instantly understood and embraced by the public in an unprecedented manner as something with no real world equivalent. What this innovation depended on (aside from the misappropriation of music copyrights to which I

will return) is unfettered access on a democratic and evenhanded basis to the idealized infinite jukebox. It is, I would argue, this freedom to choose from everything

in existence that has so ignited the passion of Napster users; it is this freedom to

choose which has so inspired and renewed people’s love of music online; and it is

this freedom to choose that fuels the digital music revolution. It is freedom—not

freeness or absence of cost. For surely while copyright owners may not have been

recompensed through Napster’s unauthorized infancy, clearly many others have

been able to monetize the consumer’s passion for digital music. As the advertisements for a wide array of hardware and software makers currently attests to, enjoy-
50

ment of online music has been major driver of computer sales and has helped fuel

extraordinary growth for ISP’s and infrastructure providers. Music file sharing has

earned itself recognition as the killer ‘‘Napp’’. And peer to peer sharing will certainly be an application that will grow to accommodate and encompass other forms

of intellectual property.

Once security issues are addressed, as they must be, the question becomes what

will this new digital world look like? The genius of Napster is that all music is

available on an equal footing and that the consumer’s choice ultimately prevails. If

this is something we all value, if this free choice is as important to us as the underlying free expression itself, how can we preserve it? In my opinion, Napster and the

overwhelming public support it has received, attest to the fact that a service such

as they have envisioned by opening up universal desktop access to all music on

some limited, controlled, and licensed basis deserves careful consideration as something quite possibly in the public interest.

Our concern is that without Congressional scrutiny, any service, such as Napster,

that requires consent of all copyright owners may be unfairly dominated by the few

owners of the most content. The result would be a 2-class system of copyrights

wherein the copyrights owned and aggregated by multinational corporations and

represented by professional trade associations are treated one way—and the copyrights of everyone else another. In this potential future what becomes significant

about the economic reward accorded to copyright is not so much the nature of the

copyrighted content but rather the nature, or more specifically the market share of

its owner. We have already begun to experience that firsthand. Right now, TVT’s lawyers are in New York in front of a Federal Judge and jury, defending the copyrights of our artists against a company, MP3.com, that has taken the peculiar viewpoint that while major labels were entitled to substantial damages and license fees

with regard to their copyrights, independent labels are not.

Such a 2-class system of copyrights that places copyright value based on who the

owner is and what market power they can exert would be a tremendous setback to

our fertile entertainment economy. Similarly, the various announcements of entities

being fostered by the major record labels have all been consistent in their failure

to acknowledge the necessity of a scheme where by all content creators are treated

in an even-handed fashion. A lack of equal treatment serves to, in effect, shift the

benefits and protections conferred by copyright away from creators whom copyright

law is meant to reward and to the largest aggregators of such copyrighted content.

This shifting landscape undermines the level playing field on which creators have

historically enjoyed a fair expectation that they will be able to compete. None of

these vehicles to date, as far as I can tell, have made it clear that the creation of

a level playing field is one of their organizing principles. Indeed, the very opposite

seems to have been expressed—that is by all these vehicles with the exception of

Napster.

I should point out that TVT, while in a lawsuit with MP3.com, has not been slow

to offer its content on the Internet. We are particularly proud as a label to have

a history of ‘‘firsts’’ on the Internet. We were the first label to invest in Reciprocal,

a major digital rights management security firm. We were the first label to adopt

Microsoft’s Secure Windows Media format with regards to our label’s musical output

and believe we remain to this day the label to have delivered the largest number

of secure music files via download to the consumer. In November of 1999 we put

our entire catalog online free to the consumer on a timed-out and secure basis. More

recently, we were the first label to recognize that once Napster had expressed its

willingness to acknowledge copyrights and to establish a scheme to compensate all

rights holders, that we had indeed reached the goal of our litigation with them.

Thus, in January of this year, we became the first label to withdraw all of our

claims against Napster and entered into a license agreement with them for their

anticipated new secure music service.

Amongst all entities vying to provide music online in a responsible and secure

manner, Napster alone has promised to establish a system that acknowledges rights

of all content owners and recognized the central importance of creating a platform

on which all rights holders may compete—compete on the basis of the quality and

appeal on their content. This commitment to equal access and opportunity may

never come to fruition if Napster is not successful in persuading the major content

owners to grant it rights. Under such a circumstance the question arises: Can a

marketplace in which so few entities control so much product, produce a universal

delivery system in which equal access and equal opportunity, financial or otherwise,

is provided to all content owners?

The question is one that I believe this Committee must consider to be an issue

of importance. It is my opinion that rewarding copyright aggregators at the expense

of copyright creators is antithetical to the spirit of the law. If the largest
51

aggregators of content are able to leverage their market power to gain undue advantage over smaller copyright owners in the exploitation of copyright, then they will

be allowed to transform a mechanism intended to invent creation into a mechanism

that perpetuates the current marketplace status quo. Such a distortion of copyright

policy would institutionalize current content owners positions of dominance in the

marketplace and shift the benefit of copyright law from individual creators to the

largest of aggregators.

The unique nature of phenomena introduced to us all by Sean Fanning has the

potential to open up a whole new horizon to all content owners and consumers alike.

While, in my opinion, intervention may currently be premature, I do welcome the

Committee’s continued scrutiny of the marketplace as it works through these many

new and interesting challenges and sincerely hope the Committee’s ongoing interest

in the matter will assist in motivating our industry’s leaders to indeed lead us toward a fair and equitable market solution—one that will neither limit consumer

choice or create inequities amongst content owners.

Thank you.

Chairman HATCH. Mr. Berry, we are honored to have you with

us. We look forward to hearing from you.

STATEMENT OF KEN BERRY, PRESIDENT AND CHIEF

EXECUTIVE OFFICER, EMI RECORDED MUSIC

Mr. BERRY. Mr. Chairman, Senator Leahy, and members of the

Committee, my name is Ken Berry. I am president and CEO of

EMI Recorded Music, and I have been in the music business for

nearly 30 years. EMI is the world’s third largest recorded music

company and the world’s largest music publisher. Over the years,

we have been home to artists such as Frank Sinatra, the Beach

Boys, the Beatles, Garth Brooks, and Janet Jackson.

EMI Recorded Music develops, promotes, markets, and distributes music to fans, and we embrace any technology that makes

music more accessible and enjoyable for the consumer. The Internet is the most exciting and revolutionary technology to impact our

industry ever. It is also much more than a new medium for promotion and distribution. It is a transforming one, for fans, artists,

and record companies alike.

My message to this Committee is simple: EMI is embracing this

medium. We are working to create a legitimate digital marketplace, to make our music easier to access for consumers. In order

to achieve this, we are making significant investments in our company to adapt to the digital marketplace. EMI alone has signed

three dozen deals in the past 2 years to make music available online from North America to Europe to Australia and the Pacific

Rim.

Name a new business model, from direct-to-consumer to business-to-business, and chances are we have embraced it. Name a

mode of digital delivery, and recordings in the EMI library are

probably online in it already, or will be very soon. We are opening

kiosks, portals, digital downloads, customized CDs, and music videos on demand.

Just yesterday, as you heard from Dick Parsons, we announced

EMI’s participation in MusicNet with two other record companies

and real networks to create a technology platform and music clearinghouse to license on a non-exclusive basis companies seeking to

sell subscription services. All of our deals have a common goal: to

expand the availability of our music in a manner that protects our

and our artists’ rights.
52

We are proud of the progress we have made at EMI, and we are

excited still about the possibilities that lie ahead. A critical obstacle

stands in the way of these possibilities. Some of the companies to

whom we have licensed our rights are finding it difficult to build

viable businesses in an environment dominated by the unlawful

downloading of our entire catalogue for free.

Mr. Chairman, it is impossible for legitimate innovators to compete with those who say the rules should not apply to them. At

EMI we are excited at the prospect of this great digital transformation. The opportunities that the Internet brings to the music

community are limitless, and the biggest winners are the fans, who

will have faster, more convenient access to our global music catalogues.

Like all of my employees, I am in this business because I love

music, and I have had the good fortune to work with many outstanding artists. I want to thank the members of this Committee

for your long-standing support for intellectual property rights, and

I would be happy to answer some questions later on.

[The prepared statement of Mr. Berry follows:]

STATEMENT OF KEN BERRY, PRESIDENT AND CEO, EMI RECORDED MUSIC

Mr. Chairman, Senator Leahy, Members of the Committee, my name is Ken Berry

and I am President and CEO of EMI Recorded Music. I have been in the music business for nearly 30 years.

EMI is the world’s third largest recorded music company and the world’s largest

music publisher. Over the years we have been home to artists such as Frank Sinatra, The Beach Boys, The Beatles, Garth Brooks and Janet Jackson.

EMI Recorded Music develops, promotes, markets, and distributes music to fans

and we embrace any technology that makes music more accessible and enjoyable for

the consumer.

The Internet is the most exciting and revolutionary technology to impact our industry ever—but it is also much more than a new medium for promotion and distribution. It is a transforming one—for fans, artists and record companies alike.

My message to this committee is simple: EMI is embracing this medium. We are

working to create a legitimate digital marketplace—to make our music easier to access for consumers.

In order to achieve this, we are making significant investments in our company

to adapt to the digital marketplace.

EMI alone has signed three dozen deals in the past two years to make music

available online from North America to Europe to Australia to the Pacific Rim.

Name a business model—from direct-to-consumer to business-to-business—and

chances are we’ve embraced it. Name a mode of digital delivery, and recordings in

the EMI library are probably online in it right now or on their way soon. Kiosks.

Portals. Digital downloads. Customized CD’s. Music videos on demand.

Just yesterday we announced EMI’s participation in MusicNet, a partnership with

two other major record companies and RealNetworks to create a technology platform

and music clearing house to license, on a nonexclusive basis, companies seeking to

sell subscription services. All of these deals have a common goal—to expand the

availability of our music in a manner that protects our and our artists rights.

While we are proud of the progress we have made at EMI, we are more excited

about the possibilities that still lie ahead.

A critical obstacle stands in the way of those possibilities. Some of the companies

to whom we have licensed our rights are finding it difficult to build viable businesses in an environment dominated by the unlawful free downloading of our entire

catalogue. Mr. Chairman, it is impossible for legitimate innovators to compete with

those who say the rules shouldn’t apply to them.

At EMI, we are excited at the prospect of this great digital transformation. The

opportunities that the Internet beings to the music community are limitless. And

the biggest winners are the fans who will have faster, more convenient access to

our global music catalogues.

Like all of my employees, I am in this business because I love music and have

had the good fortune to work with many brilliant artists. I want to thank the Mem-
53

bers of this Committee for your longstanding support of intellectual property rights

and would be happy to answer any questions.

Thank you.

Chairman HATCH. Thank you, Mr. Berry.

Mr. Kearby, we will take your testimony now.

STATEMENT OF GERALD KEARBY, PRESIDENT AND CHIEF

EXECUTIVE OFFICER, LIQUID AUDIO, INC.

Mr. KEARBY. Good morning, Mr. Chairman and distinguished

members of the Committee. I would like to thank Senator Hatch

and Senator Leahy and the other members of the Committee for

the opportunity to be here today.

My name is Gerry Kearby. I am the co-founder of Liquid Audio.

I began my career 30 years ago here in Washington, D.C., where

I played music for the Marines down at Marine Barracks and 8th

and I. In the early 1980’s, I developed technology for rock and roll

bands in the Bay Area like the Grateful Dead and the Jefferson

Starship. In the mid–1980’s, I developed technology for LucasFilm

that became the first digital audio editing tool for film and audio

production. My partners and I formed Liquid Audio to provide a secure environment for digital delivery of music. My job here today

is to tell you that the ability to secure and distribute music is not

a roadblock. The technology exists right now.

We founded the company in 1996, and we founded it as an endto-end security system to distribute copyrighted material on the

Internet. There was a lot of technology involved: encoding and

hosting and digital rights management, which is known as the

DRM business now, retail integration, distribution, consumer fulfillment, reporting services, and payment of copyright royalties.

Our DRM is one of the most widely used systems to protect

music copyrights today. We have over 13,000 artists from more

than 1,200 record labels that use our technology to sell their music

today. In addition to the liquid format, we also distribute in Windows media format for Microsoft, and Microsoft named Liquid

Audio as the key distribution channel for Windows media content.

So beyond the encoding of music, distribution of music is very

important. We have built a channel of over 1,000 retailers, everybody from Amazon and Best Buy, Billboard, CDNOW, Tower

Records, and Yahoo!, to 200 radio stations. We connect major

record labels and independent record labels to 1,100 music program

directors around the country in order for these record companies to

get their music quickly to radio as it breaks.

Our consumer software enables millions of consumers to enjoy

music, to download it, where the rules apply, to burn it to CDs or

put it out to a portable device.

We have developed an open platform that is compatible with

many formats, including MP3, RealNetworks, AOL’s WinAmp,

Microsoft Windows Media, and Sony’s Open Magic Gate.

We have been providing security since 1997 when we partnered

with Capitol Records actually to sell a download from a major artists. The challenge here is the balance of security with the consumer’s need for the ease of use. Consumers will be driven to illegitimate channels as long as the technology provides overly strict kind

of controls and as long as they can’t find all the music they want.
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Since 1997, we have worked closely with artists and record labels, retailers and consumers to improve the secure download experience. We have been successful at doing it, and this technology exists today.

I would like to quote Mr. Barry here. The system has been accepted and approved by major record labels, Mr. Barry said. We

have elected to include Liquid Audio’s digital download format because it allows us to offer our music securely and at a very high

quality, using an easy online purchase process.

So security is not a barrier to providing the music that the consumers want on the Net. Liquid Audio provides a proven security

system that is used by major labels and independent labels, by

many thousands of music retailers and consumer product companies.

So why, then, are there tens of millions of consumers turning to

unauthorized sites to obtain digital music? The answer is simple.

The music most people want is not available for purchase through

legitimate channels. The good news is that millions and millions of

consumers are excited about digital music, but those consumers

must be attracted to legitimate sites.

We are optimistic that the current marketplace can be changed,

and now it is incumbent upon all of us to demonstrate that copyrights can be respected and that music can be accessible in every

format, every car, and every portable device.

We don’t believe that all or even the vast majority of users of the

illegitimate music-sharing systems are cyber shoplifters at heart.

We believe that consumers will embrace and pay for systems that

are legitimate, easy to use, and reasonably priced.

But that can’t happen unless all the music consumers want is

made available, including access to all the rich and varied catalogues owned by the majors and the independent record labels.

With the assistance of this Committee, encouraging record labels

and content owners to work with all participants who add value to

the music industry, fans will remain loyal and the music economy

will grow for all legitimate participants.

The problem before us does not involve a failure of the copyright

system or of technology, but a failure in the marketplace. It is time

to address this failure before the damage is irreversible. We look

forward to further encouragement from this Committee and other

Members of Congress to make the dream of widespread music delivery a reality. This effort will help the entire industry and satisfy

the millions of fans who are excited about digital delivery of music.

Thank you very much for the opportunity to testify.

[The prepared statement of Mr. Kearby follows:]

STATEMENT OF GERALD W. KEARBY, PRESIDENT AND CHIEF EXECUTIVE OFFICER,

LIQUID AUDIO, INC.

I. INTRODUCTION

Good morning Mr. Chairman and distinguished members of the Committee. My

name is Gerry Kearby and I am the Chief Executive Officer of Liquid Audio. I would

like to thank Chairman Hatch, Senator Leahy and the other members of the Judiciary Committee for the opportunity to appear before you today to speak about an

important topic: Online Entertainment and Copyright Law. I am a co-founder of

Liquid Audio and have spent my working life in the music business. I began my

25-year music industry career playing in the United States Marine Corps band.
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After that I was a sound engineer for bands such as the Grateful Dead, Diana Ross

and the Jefferson Starship. I was one of the first pioneers in the digital music industry when I built components for the first digital audio editing tools for LucasFilm

Limited. My partners and I formed Liquid Audio to provide a secure environment

for the delivery of digital music over the Internet.

II. LIQUID AUDIO

Founded in 1996, Liquid Audio created and deployed the first, and most widely

adopted solution for the secure delivery of digital music over the Internet. Liquid

Audio provides a complete end-to-end infrastructure to use the Internet as a lowcost environment to distribute copyrighted music. This includes encoding, hosting,

digital rights management (known as DRM), distribution, retail integration, consumer fulfillment, reporting services and payment of copyright royalties.

Liquid Audio has been first in every key area of digital music delivery. Some

major record labels use Liquid Audio for a limited amount of music released thus

far—a few hundred titles. The majority of EMI online retailers have chosen Liquid

Audio as their digital service provider. The Liquid Audio DRM is one of the most

widely used systems to protect music copyrights. The Liquid Catalog of 150,000

independent record label tracks is the largest collection of secure independent

music. Finally, Microsoft named Liquid Audio ‘‘the key distribution channel for Windows Media content.’’

Liquid Audio has a proven its secure distribution system for the Internet marketplace that enables musicians, record labels and retailers to publish, and securely

distribute digital music to online consumers. Highlights of the Liquid Audio system

include:

• 1,200 Record Labels—Liquid Audio’s secure distribution solution enables more

than 13,000 artists from 1,200 independent record labels to securely distribute

their digital music.

• Network of 1,000 Music Retailers—Liquid Audio’s retail integration solution

enables more than 1,000 retailer’s Web sites, including Amazon, Best Buy, Billboard, CDNOW, Tower Records and Yahoo!, to promote and sell digital music

to consumers.

• Over 200 Radio Stations—Liquid Audio’s radio promotion network coordinates

the promotion and distribution of new record releases, and through our joint effort with R&R Music Meeting, extends this reach to thousands of radio stations

across the United States.

• Millions of Consumers—Liquid Audio’s consumer software enables the millions

of consumers visiting the 1,000 sites in our network to download and enjoy digital music.

Liquid’s solution enables content owners to promote and sell their music in a variety of formats. Our Retail Integration and Fulfillment Systems (RIFFS) enables retail Web sites to sell music downloads from the 150,000 track Liquid Catalog. Liquid

also provides a state-of-the-art consumer software application enabling users to preview, purchase, download, organize and export digital music in a secure environment. Finally, Liquid Audio’s distribution platform is open and compatible with

many formats and technologies including MP3, RealNetworks, AOL WinAmp, Microsoft Windows Media, Liquid Audio, Sony ATRAC3, AAC and Dolby Digital AC–3.

Thus, Liquid Audio’s digital music distribution system is a comprehensive, secure

platform that is delivering music in a legitimate, user-friendly environment to millions of customers today. Because it is open and scalable, Liquid’s system is capable

of serving all of the needs of its existing users as well as millions of more users

to access the music they demand while satisfying the needs of artists and labels to

provide for security and compensation.

Knowing we could not build an industry alone, in 1998 Liquid Audio became a

founding Board member of the Digital Media Association (DIMA), a trade organization of more than seventy member companies that provide legitimate, copyrightcompliant music and audio-visual services for consumers, creators and business

partners.

III. DIGITAL MUSIC SECURITY

The primary challenge is balancing security with ease of use. Consumers will be

driven to illegitimate channels by overly strict controls and complicated procedures.

Since our founding, we have listened to and worked closely with artists, writers,

publishers, record labels, retailers and consumers. Liquid Audio has been successful

in developing a user-friendly system. Our four-part digital music security solution

protects music on the Internet today. Those four parts are:
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• Copy Control.—Liquid Audio’s system enforces usage rules set by content owners that mandate how consumers can use their content, including rules on the

number of secure copies, exports to devices and time-outs.

• Distribution Management.—Secure protocols protect all parts of the Liquid

Audio distribution system to prevent unauthorized acquisition of content as it

moves from publishing through Internet distribution, downloading and reporting. Liquid Audio has developed a territory management system that ensures

compliance with international licensing obligations.

• Usage Tracking.—Liquid Audio is able to uniquely identify each piece of music.

Liquid Audio can embed indelible and inaudible DRM information into the

audio waveform as a watermark or in digital files as an encrypted header. The

embedded information identifies and tracks audio usage and cannot be removed

without destroying the recorded music.

• Royalty Payments.—Liquid Audio’s reporting system allows for timely and accurate accounting for music use and distribution of the corresponding royalties to

creators and content owners.

Liquid Audio’s digital music security system is flexible. It allows artists and labels

a variety of security options when delivering music, and it allows users a variety

of options when consuming the music.

Liquid’s digital music security system has been tested and approved—as demonstrated by use today by thousands of companies. EMI Recorded Music’s CEO, Ken

Berry said: ‘‘We have elected to include Liquid Audio’s digital download format and

software in our trial because it allows us to offer our music securely and at a very

high quality, using an easy online purchasing process.

In addition to our retail network, some 1,200 record labels from majors to independents including Atlantic, Artemis, Capital, MCA, Zomba and edel AG labels, and

artists such as Lenny Kravitz, Dave Matthews Band, Don Henley and Aimee Mann

use the Liquid digital music security system. Finally, Liquid’s security systems are

embedded in consumer products.

Security is not a barrier to supplying all the music consumers want on the Internet. Today, Liquid Audio provides a proven digital music security system in use by

major labels, many independent labels, music retailers and consumer product companies.

IV. THE INTERNET MUSIC ‘‘PROBLEM’’

Over the last several months I have been dismayed and frustrated by the extraordinary traction in the marketplace and public attention awarded to companies that

do not respect the law, or do not respect the copyrights of creators and producers.

I am dismayed because it is difficult to compete with companies that have seemingly

unlimited resources combined with disrespect for the law. But I am as frustrated

with the response of the copyright owners to litigate rather than compete. That response has been detrimental to themselves, to the recording artists and to otherwise

trusted partners such as Liquid Audio.

As a result of Napster, tens of millions of consumers who otherwise would have

been willing to pay a fair price for quality online music have been conditioned to

obtaining music for free. Creators and producers of music and other entertainment

products have been forced to expend enormous resources to defend their copyrights.

This has diverted their attention and resources away from legitimate partners like

Liquid Audio that can help develop the ultimate marketplace weapon—competitive

alternatives.

It is hard to blame millions of consumers for obtaining compelling music that is

easily accessible and free. Some may find their actions unlawful, but the judicial

system would be overwhelmed and artists’ fans would become their enemies if creators used the law as their only weapon. As noted below, Liquid Audio proposes a

competitive marketplace solution. Napster has proven there is a market. Now the

rest of us must work collaboratively to compete. In addition to litigating where appropriate, creators and record labels must turn to their trusted partners for assistance—not just Liquid Audio but several trusted partners, including our technology

company competitors.

V. THE INTERNET MUSIC SOLUTION—THE CONTENT

Liquid Audio’s digital music distribution system not only respects the copyright

rules and protects the content, it provides an attractive environment for Internet

users to legitimately experience and acquire music. As I noted earlier, although Liquid was the first, there are a number of other companies not present here today

that are fully prepared to provide these secure services and have devoted them-
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selves to the same effort. The stage is set for a competitive marketplace that will

serve the needs of music fans, artists and their record companies.

Why then are tens of millions of users turning to unauthorized sites on the Internet to obtain digital music? The answer is simple. The music most people want is

not available for purchase through legitimate Web sites. The good news is that millions and millions of consumers are excited about digital music. But those consumers must be attracted to legitimate Web sites.

Liquid Audio is optimistic that the current marketplace can be changed. Now, it

is incumbent upon all of us to demonstrate that copyright can be respected and

music can be accessible in every format, in every home, in every car and on every

portable device. We do not believe that all or even the vast majority of the users

of illegitimate music download systems are ‘‘cybershoplifters’’ at heart. We believe

consumers will embrace and pay for services that are legitimate, reasonably priced

and easy to use. Online resellers using a secure online system, such as Liquid

Audio’s, will be able to add value to attract consumers to their sites and will provide

a legitimate Internet digital music experience.

This cannot happen unless all the music that the consumers want is made available, including access to all the rich and varied catalogs owned by the major and

independent record labels. Defining price points and business models in an open and

competitive marketplace is never easy, and there will always be Napster progeny

that promote taking rather than purchasing. But with the assistance of this Committee, by encouraging record labels and content owners to work with all participants who add value to the music industry, fans will remain loyal and the music

economy will grow for all legitimate participants.

VI. CONCLUSION

Liquid Audio is optimistic that the current unfortunate state of affairs can be reversed. The Ninth Circuit has ruled. Now we must show our fellow citizens they

can respect copyright yet still acquire the music they want, when they want it,

where they want it, and how they want it. Liquid Audio stands ready to provide

those services. But we can only provide the music consumers want if all music, and

not just a token sample, is made available by the copyright owners on reasonable

licensing terms.

We appreciate the efforts of the members of this Committee, and their encouraging remarks that record labels and content owners should work with all of the legitimate participants in the online music community to create a secure and competitive

marketplace.

The problem before us does not involve a failure of the copyright system, but a

failure in the marketplace. It is time to address this failure before the damage is

irreversible. We look forward to further encouragement from this Committee and

other members of Congress to make the dream of widespread legitimate online delivery of digital music a reality. This effort will help the entire music industry. It

will also satisfy the innumerable music fans who are excited about the digital delivery of music but have not been able to find a broad and deep online music experience that offers them legitimacy and value.

Thank you for this opportunity to testify today.

Chairman HATCH. Thank you, Mr. Kearby.

Ms. Rosen, we look forward to your testimony.

STATEMENT OF HILARY ROSEN, PRESIDENT AND CHIEF EXECUTIVE OFFICER, RECORDING INDUSTRY ASSOCIATION OF

AMERICA

Ms. ROSEN. Thank you, Mr. Chairman.

I listened eagerly at the outset to the opening statements, Mr.

Chairman, of you and Senator Leahy, and I heard the words that

people were concerned about piracy. For me, this hearing is not

about piracy. It is about opportunity.

While it is tempting to respond to a lot of what I have already

heard this morning, I think you have an idea, at least, of what it

has been like for record companies trying to get into this space

with a lot of thoughtful additional opinions about how we get there.
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Napster was exciting, but giving away someone else’s music,

frankly, without their permission is yesterday’s news. On the

screen before you are samples of dozens of Web sites with whom

record companies have signed licensing agreements and on which

fans can find digital music right now.

I am going to keep talking as this is playing, but the story is

about plans to bring new services that will offer even more variety,

better audio quality, and new features to the marketplace as soon

as possible.

Mr. Parsons and Mr. Berry have already talked about the announcements from their companies, about their partnerships with

RealNetworks. Other companies, like Sony and Universal, have

formed ventures to offer subscription services which they are going

to launch later this year. Many independent record companies have

also signed such deals.

On the other side of these efforts lies a new frontier for music

fans. Today’s hearing and the many participants on this panel are

evidence that there are several moving parts to this issue. There

is a host of technology-related issues from identifying partners and

finding technologies, like Gerry Kearby’s company. We are actually

one of his many competitors. The systems and business models that

have a chance of succeeding with consumers have to be thought

through. This whole grand experiment is about the consumer and

the music fan and how to create even more passion for music and

its delivery.

Of course, the music starts with the artist, musicians and songwriters. Without their talent, without their passion, there would be

no consumer demand and no music industry to fulfill that demand.

Record companies have already started to consult with their artists

in individual discussions to assure that these new business models

offer fair returns for everybody. More needs to be done.

Negotiations are underway with music publishers and songwriters, for they also must be fairly compensated, and I am confident that those negotiations will succeed.

Has our start been too slow? Perhaps. But measured against the

scope of the challenges, we have moved at an extraordinary pace,

and I have no doubt that the current efforts underway are immense and determined. The marketplace is moving correctly and it

is moving quickly, and we can provide and protect the incentive to

create along the way.

We all know that what is done in this space for music has great

import for all entertainment products and for all domestic policy— the legal precedents, the public policy responses, and the marketplace acceptance by consumers. We are grateful to this Committee

for the opportunity to discuss these issues and, indeed, America’s

record labels are proud to be in the forefront of this amazing period

of change, and we are confident that the outcomes will be wonderful for creators and music fans alike.

Thank you.

[The prepared statement of Ms. Rosen follows:]

STATEMENT OF HILARY ROSEN, PRESIDENT AND CEO, RECORDING INDUSTRY

ASSOCIATION OF AMERICA

Mr. Chairman, Senator Leahy and members of the Committee, thank you for the

opportunity to appear before you today.
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The title of this hearing is ‘‘Online Entertainment and Copyright Law: Coming

Soon to a Digital Device Near You.’’ It’s an apt title, Mr. Chairman. But if you’ll excuse me for borrowing the senatorial parlance, I have an amendment to offer. Because online entertainment isn’t

coming soon. It’s here . . . and it’s getting better everyday.

Napster was exciting. But giving away someone else’s music without their permission is yesterday’s news. The story now is the music industry’s efforts to alert fans and consumers to the

huge amounts of legitimately licensed music that is currently available on-line. And

the story is about our plans to bring new services that will offer even more variety,

better audio quality and new features to the marketplace as soon as possible.

The goal is to have several different kinds of systems and business models for

music fans to choose from, available in as many locations on-line as possible, on a

nonexclusive basis to encourage competition—and to make these services and products compatible with new hand held devices and other technologies that are emerging around the corner. To achieve this goal, America’s record labels are licensing

innovatively, constantly and aggressively and they are in some cases putting finishing touches on systems that they have built themselves.

Flashing on the screen before you are samples of the dozens of web sites with

whom RIAA member companies have signed licensing agreements and on which

fans can find digital music right now. And these are in addition to the hundreds

of statutory licenses already in place for webcasting.

Just yesterday, three companies with major record companies, AOL Time Warner,

EMI and Bertelsmann announced a partnership with Real Networks’ to create

MusicNet, a technology provider and a music clearinghouse to license its platform

to companies seeking to sell subscription services under their own brands. It has

been widely reported that two others, Sony Music and Universal Music have formed

a venture to offer subscription services which will launch this year. Many independent record companies have signed similar licenses and are using their catalog in innovative ways to bring music to the consumer. Portals and web sites will combine

these services to offer aggregated music services to consumers.

Building entirely new businesses is a complex endeavor. But we’re approaching

this challenge the same way we know any member of this committee would handle

a piece of legislation—sorting through the issues as quickly but as thoroughly as

you can, and doing all you can to bring the diverse interests involved together.

Is it easy? Of course not. Is it worth it? Absolutely.

Because on the other side of our effort lies a new frontier for music—one in which

garage bands have a global audience, songwriters can compose with their brethren

an ocean away and fans have unlimited choices and record labels have unparalleled

opportunities.

Like any new frontier, when it comes to exploring this one, taking short cuts

would short-change the people and possibilities we are trying to reach.

TODAY’S HEARING VALIDATES THE COMPLEX ISSUES RECORD COMPANIES HAVE FACED

The make up of today’s hearing panel symbolizes the complex issues record companies are facing as they work to coordinate the diverse interests involved in bringing music online.

TECHNOLOGY ISSUES

Finding the right technologies and the right technology partners to help build systems is a key first step. Gerry Kearby and his company Liquid Audio have been in

this space from the start tweaking their technology several times as the marketplace evolved. I can only imagine the frustration he has felt when at each stop along

the way another technology company has joined the fray as a competitor; and sometimes as soon as a decision is made, a new advance is made technologically.

There are systems issues like determining compatibility for the multiple devices

that are currently on the market and those that might be developed in the future.

What interfaces are required for consumer use? Should the system be adaptable to

multiple kinds of business models or will separate systems be built for each service?

Is the music database digitized in the proper formats to give flexibility to develop

new services?

And there are many others: Which technology do you use to compress and decompress content? What combinations of encryption and watermarking should be used

to protect the content? What levels of protections should be associated with each different business model? The consumer is always in the forefront of this discussion.

How do you devise a system that’s as easy to use as placing a CD in a CD player?

Then there is the so called ‘‘back room’’ operation. You need customer service for
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when the downloads or streams fail to materialize and you need to fashion transaction systems that work with multiple outlets. You need clearinghouses to assure

that royalties are paid to the right people for the right activity.

All of these questions are important and they are being answered every day. And

not just for the United States, for these are global issues. For if there is one thing

this Committee well knows, the Internet is a global distribution system and it must

be treated as such. You simply can’t have a long-term successful business if you are

not thinking about multiple territories.

ARTISTS AND SONGWRITERS

Don Henley and Alanis Morrisette personify what we all know—that artists and

songwriters and musicians are the soul of the music business—that the Internet

represents an extraordinary opportunity for them—and for record companies to succeed, they must succeed. A relationship between artists and labels must be defined

that works for the Digital Age.

Artists have historically had a one-to-one contractual relationship with the record

company that relies on the sale of individual albums. Yet some of the new distribution systems rely on consumer access to multiple artist’s works for fixed prices in

a subscription based model. It is important that individual artists are compensated

fairly and these discussions take time. In any business, contract discussions can be

messy and sometimes lengthy. But this is a very important issue to the record companies and there is a strong commitment on their part to comprehensively addressing it in the work on new distribution systems. Progress has been made on this

front but more needs to be done.

And artists need access to information to do their own distribution if they aren’t

signed to a record label. These artist’s ability to protect their own copyrights and

enforce their rights against pirates are as important to them as it is to the record

companies.

We also need licenses from songwriters and music publishers, Le.: NMPA’s constituency as well as ASCAP, BMI and SESAC—to do our business. We have arrangements in place for simple downloading of full songs, but new models such as

subscriptions are being discussed right now. Coming up with a standardized royalty

rate for all manners of business models—most of which haven’t even been invented

yet—is a daunting task, but we’re committed to getting it done.

RETAILERS

As Mike Farrace here from Tower Records On-line will tell you, 97 percent of

music sales are still brick-and-mortar transactions—and we have to ensure that online distribution enhances rather than undermines the commercial viability of our

retail partners. In addition, retailers have valuable customer relationships with both

the sales of physical goods as well as downloads. Those relationships are important

and is certainly the subject of many discussions between retailers and record companies.

These are all exceptional challenges. Measured against their scope, we have

moved at an extraordinary pace. Clocked in Internet speed, I think it has been too

slow. We all do. But I have no doubt of the intensity of the effort currently being

made and the determination to be successful. The marketplace is working and we

do not need additional legislation to assure progress.

I am amused by those who suggest that record companies don’t want to be online with legitimate music—that we don’t want to serve our customers. It is a ridiculous notion that should be given no credence by this Committee or this Congress.

We are a huge industry trapped inside a small physical package. Our freedom from

selling only physical CDs or cassettes means a huge expansion worldwide in the artists we can support, the diversity of music we can offer and the commercial potential we can unleash. We understand that better than anyone else and we are taking

the most active steps to embrace the opportunity.

THE CONSEQUENCES OF ON-LINE PIRACY

There is one way to overcome every one of the challenges mentioned above—to

accelerate online music to real-time speed—to cause every legal or technical complication magically to disappear.

And that’s to break the law.

Because once you conclude that piracy is permissible and intellectual property is

worthless, licensing is a snap. Technical protection becomes a breeze. And royalties

are no great shakes either.
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I don’t believe that anyone on this Committee or in this Congress supports piracy—in physical form or in the on-line arena. And over the last few years, the

courts have gone a long way to define exactly what constitutes on-line piracy. We

are pleased with these court decisions. The courts have confirmed that piracy exists

both when there is obvious mal-intent but it also occurs when seemingly well-intentioned people launch business services using copyrighted work without first securing

licenses. The notion that the latter type of piracy is morally or economically permissible in the guise of technical innovation has been resoundingly rejected by the

courts and should be by this Committee.

We look forward to Napster complying fully with the requirements the court has

imposed. To date they certainly have not—but I remain optimistic and am committed to working productively with them in this regard. Indeed, several of our member

companies who are plaintiffs in this case have committed to licensing Napster once

they have a legal service to bring music online in a manner that takes advantage

of peer-to-peer technology while respecting intellectual property. One of our member

companies, Bertelsmann, is even funding their entry into this legitimate marketplace.

I believe that disputes are best avoided when ground rules are most clear. Innovation is produced most quickly when intellectual property is protected most rigorously.

We stand ready to defend those principles—not just for ourselves but for all of

the partners in the chain of a legitimate digital music business. All of those companies you have just seen me flash though deserve the benefit of a lawful marketplace.

They can’t compete otherwise.

THE FUTURE IS BRIGHT AND THE MAP WILL BE DRAWN FOR OTHERS

The frontier of online music isn’t in courtrooms. It’s on computers. It isn’t in disputes. It’s in digital devices. And above all, it isn’t in litigation. It’s in innovation.

The challenges involved in building a legitimate market for online music are

daunting. Were the opportunity any less immense, they might not be worth the cost.

But the opportunity is that immense. The frontier of digital music—is that thrilling. To be sure, the legitimate road may be a bit longer—but taking a short cut

would shortchange the music fans on whom our industry depends.

We are doing this right—and we are moving quickly—and we can protect the incentive for innovation along the way. Indeed, America’s record labels are proud to

be in the forefront of this amazing period of change and we are confident that the

outcomes will be wonderful for music fans and creators alike.

Thank you.

Chairman HATCH. Thank you, Ms. Rosen.

This has been a really interesting panel, and we are sorry that

we have to have so many witnesses, but you are all critical to our

understanding. We have had a wide variety of interesting comments here today that were very thoughtful, reflective, and very

much consternation to us on what to do and what needs to be done.

Mr. Parsons and Mr. Berry, Ken Berry, let me ask you this question to begin. I have been encouraged by the reports of the record

labels’ taking significant steps into the online distribution space, as

Ms. Rosen has helped us to understand, especially the announcement of the alliance of Warner Music, EMI, and Bertelsmann with

RealNetworks to form MusicNet. Nevertheless, some concerns remain.

What assurances can you give us that this alliance will foster

open competition among online music distributors and retailers, allowing diverse companies like Tower Records On-line, for instance,

or Liquid Audio or the new Napster and so on to use their own

music players and digital rights management systems to keep their

own customer information to compete with America OnLine, for example, as a music service provider? Let’s start with you, Mr. Parsons.

Mr. PARSONS. Thank you, Mr. Chairman. First of all, a word

about MusicNet in terms of what it is and why we think it expands
62

opportunity for everybody. MusicNet is going to be, in essence, a

B-to-B platform that aggregates the music initially of the three

companies you just identified, namely, Warner, EMI, and

Bertelsmann, and hopefully, going forward, all of the music available. In other words, we will be seeking to get licenses from the

other majors and the independents, aggregate all that music, and

make a service available to other distributor platforms that are

looking to create relationships with consumers, so that MusicNet

will not have a direct relationship with the end-user consumer but

will have relationships with affiliated or syndicated platforms, like

AOL, like RealNetworks, or like any of the platforms you just mentioned. All of those we will try and deploy this service as widely

across as many different distribution platforms as possible.

So the key to this thing is that MusicNet, using the real technology, will have a secure, convenient, easy-to-access, in essence,

turnkey product to distribute to other platforms that have relationships with consumers. It is non-exclusive so, in other words, it

doesn’t detract in any way from the existing competitive landscape.

What it does is it adds a powerful new alternative for distributors

to go to for, in essence, the turnkey solution to get access to deep

and rich music content.

Chairman HATCH. Mr. Berry, do you care to comment?

Mr. BERRY. Mr. Chairman, as Mr. Parsons has already said, the

arrangements we are entering are non-exclusive, and it is intended

to accelerate the process of getting music into the Internet space

and make it easier for consumers to find a broad aggregation of

music. But it is not our sole access to the consumer, nor is it the

exclusive way in which we intend to exploit our music in the Internet space.

We have entered into, as I said earlier, many licenses and will

continue to enter into new licenses in the future in order to accelerate this process of getting music out there in the Internet arena.

We have even said, as you probably know, in the press comment

yesterday that when Napster has their viable new business model

which respects the rights of artists and record companies, we will

be prepared to talk about entering into a license there with that

new model.

Chairman HATCH. Thank you.

Mr. PARSONS. In fact, if I just might add?

Chairman HATCH. Mr. Parsons?

Mr. PARSONS. Ken makes a good point that neither side of this

relationship that the music companies have created with MusicNet

is exclusive. MusicNet will be offering this service to a range of distribution platforms, and all of the music companies are not exclusive to MusicNet. They will also be entering into, in the fullness

of time, their own relationships with other aggregators of their content. So this is just one new way to go.

And we did, in fact, not only agree to consider licensing Napster,

but in the agreement itself, it provides that MusicNet service will

offer an affiliation and a relationship to Napster provided that

Napster simply meet certain conditions of security and legal operation that were set forth in the agreement. So that is done.

Chairman HATCH. Thank you.
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Mr. Valenti, I think you summed up the importance of the totality of these industries as well as anybody has ever done so before

this Committee. And I think you have done a great deal of service

in helping us all to understand how important not just movies but

music and everything else is.

Having made that statement, I would like to ask Mr. Henley and

Ms. Morissette a question. Digital distribution systems like the

Internet allow the artist and the music fans to connect in a new

way. It offers a more transparent mechanism for accounting to artists for the use of their works. And it might even create some cost

savings for music fans.

What could intermediaries like the record labels and technology

companies do, and what reforms might Congress make to most significantly harness the opportunities offered to artists, especially

niche artists, and their fans? And I would welcome responses from

anybody on the panel, but let’s start with you, Mr. Henley, and

then go to Ms. Morissette.

Mr. HENLEY. Well, Congress can help by fostering an atmosphere

of openness and communications between the record companies

and the artists. We are very concerned about fair compensation,

not only just getting paid for music on the Internet but how much

we get paid and what kind of licensing system there will be. We

are concerned about who is going to collect these digital royalties

and how they will be disbursed to recording artists.

Chairman HATCH. Do you have any doubt that what Mr. Ken

Berry and Mr. Parsons have described will also include the artists

and the writers, the creative people in the royalty distribution?

Mr. HENLEY. Well, I would certainly hope so. As I said in my testimony, up until now the dialog has only been between the record

companies and the Internet companies, and we have been excluded

basically from that dialog. And we would like to be a part of it in

the future certainly.

Chairman HATCH. Mr. Parsons, did you want to answer that

question?

Mr. PARSONS. To be sure, Senator, the artists, as I said in my

opening statement, it all starts with the artists. We have no intention of excluding them, frankly, either from the discussion, the ongoing discussion of how the business should roll out in the online

world and most particularly from their fair share of the proceeds

from this. In essence, each of the record companies that are signed

up to this have obligations to their artists and to the publishers,

which we fully intend to honor on a go-forward basis.

Chairman HATCH. And to the writers as well? In other words,

you are including them with the artists as well?

Mr. PARSONS. Absolutely. And I think the first bridge that we

had to build, however, had to be to kind of create a model in the

marketplace that, if you will, was different than the Napster

model; in other words, a model that enabled someone to have a digital rights management system that you could capture revenues

around the use of this copyrighted material, and then the allocation

of it will be determined either in accordance with pre-existing contractual relationships or, frankly, in many instances, we will have

to go back to artists, writers, and publishers and negotiate new

terms.
64

Chairman HATCH. Ms. Morissette, would you care to comment?

Ms. MORISSETTE. I am in support of dialoguing and focusing on

the present and going forward with this new digital era. There

have been dynamics in the past that have not been in favor of artists, to say the least. And I think that artists are more open to dialog, I think, now more than ever. So I am open to dialoguing about

it, and I am open to creating new forms of, you know, transparency, really, of where the money is coming from and who it is

going through, and ultimately how it is divided up, as I said earlier.

So I think at this point in time, artists more than ever are open

to being included in those dialogs and being part of that creation

of the solution.

Chairman HATCH. Thank you.

Mr. Henley?

Mr. HENLEY. It is important to remember what I said in my testimony earlier, that recording artists do not at this time have protection in terms of a public performance right for interactive services. That has to be created.

Another concern is the issue of recoupment. As I also pointed out

earlier, the publishers do not recoup advances against the writer’s

share of royalties. And if some sort of collection agency is created

by the record companies, such as Sound Exchange, we would like

to hear the record companies say that they will not use that collection agency as simply another pool from which they can recoup advances for tour support, for promotion, things of that nature.

So there are a lot of excruciating details that need to be worked

out in this new world.

Ms. ROSEN. Mr. Chairman, can I just make a comment on that?

Chairman HATCH. Yes.

Ms. ROSEN. I don’t want the Committee to be under the impression that there is not a copyright for certain uses. I think the issue

that Mr. Henley is referring to is that in certain limited instances

there is a statutory license that is administered collectively for

radio-like Web-casting. Interactive services are more akin to the direct distribution rights of record companies, of book publishers, of

film companies. Those are administered on a contract-by-contract

basis. So there is no collective licensing of those rights and, therefore, no fear for artists about a collective body diverting those

rights. Those rights are administered individually by copyright

owners by contract, the same way that physical record sales are administered.

So I think that there are a host of issues for individual record

companies and their individual artists to talk about in terms of

whether or not their contracts provide for those services, but the

right clearly exists and it is important.

Chairman HATCH. My time is up, but I would like to ask just one

other question to you, Mr. Barry, and Mr. Kearby as well. Do the

recent announcements like the ones made about MusicNet give you

more hope that your companies will be licensed by the record labels?

Mr. BARRY. Well, Senator, when I heard the announcement yesterday, my first thought was that we ought to have a hearing like
65

this every week because I think it does move things forward a bit.

But I think there are—

Chairman HATCH. I am game, but—

[Laughter.]

Mr. BARRY. Permanent oversight might be a good idea.

Senator LEAHY. We will do a compulsory licensing hearing next

week.

Chairman HATCH. Compulsory hearings.

Mr. BARRY. I think yes, and the questions really that are still out

there are the ones I raised in my testimony. In order to enable this

Internet music, we are going to have to have rights to the entire

catalogues. We are going to have to have rights to musical compositions as well as sound recordings. And I would ask Mr. Parsons

and Mr. Berry whether rights to musical compositions are included

within the licenses they are giving to MusicNet, for example.

I also say that—there was a discussion about technical requirements, security requirements. I think those are absolutely appropriate. They need to be established and administered in a very

open and even-handed basis and not to require technology from any

particular vendor but rather be open standards.

I think that, as Mr. Gottlieb said, we should have the same

terms for all. There shouldn’t be cross-licensing, as you, Senator,

were concerned about last year, that it be an even playing field, as

Steve said, so that, for example, the deals that are made between

AOL and EMI are no different than the deals that are made generally for MusicNet.

Then, finally, I think it is really important that we allow people

other than the major labels to participate in these industry-wide

structures.

Chairman HATCH. Thank you.

Do you care to comment, Mr. Kearby?

Mr. KEARBY. Yes, sir. I think we are encouraged by the announcement of MusicNet. We are concerned that unless all of the

content is available from all of the record labels, we won’t have a

wide enough audience for this, and people will be stuck in a Beta

and VHS land where one technology supports one set of record labels and another technology supports another.

I can and should state that we are dismayed, really, to consider

that the record labels would go and directly discuss with Napster

licensing. We think that rewards years of illegal behavior, and we

think that companies like Liquid Audio and many of our competitors who have lived by the rules for the last 5 years shouldn’t be

disadvantaged by a company that aggregated so many millions of

consumers by providing intellectual property for free.

Chairman HATCH. Thank you.

Mr. Valenti, I am going to come back to you. I just have to ask

this question. You know, I can see the many conflicts and problems

here. There is no question about it. Without the artists, without the

writers, you wouldn’t have the product. Without the consumers,

you wouldn’t have any buying of it. Without AOL, EMI, et cetera,

et cetera, you wouldn’t be able to—artists wouldn’t have a chance

to get their stuff out there and have the funding to make things

work.
66

Mr. Valenti, I can’t tell you how much your remarks impressed

me here today because of what the totality of the entertainment industry means to our balance of trade and the enjoyment that people have all over the world and how America is the No. 1 leader

throughout the world. You make that case very well.

But I have been sitting here thinking that maybe there are some

other solutions as well. If you go to compulsory licensing, you are

talking about violations of the GATT Treaty. So it is not a simple

thing to do. It is a very complex thing to do, and it is the last thing

anybody really should want to do, in my opinion, unless, like Mr.

Henley says, it is the last resort to resolve this.

But I remember a number of years ago I came up with the idea

to do an orphan drug bill. Now, you might think, what has that got

to do with music, movies, entertainment, et cetera? But at the time

they were developing three or four orphan drugs a year in the

pharmaceutical industry. But we put a very small incentive, a tax

incentive, into orphan drugs, and today there are well over 200 orphan drugs. And these are orphan drugs to help populations of

200,000 or less.

I am wondering if there isn’t some way that we could maybe

even put some incentive into this system so that you don’t have

some of these conflicts, so that there may be a way of resolving all

of these problems. I can see Mr. Hank Barry’s position that if you

are going to do a deal with RealNetworks and it is non-exclusive,

why can’t you do the same deal with him or with Mr. Gottlieb or

anybody else, for that matter? If you do that deal, why can’t the

artists and the writers be paid, and why can’t their royalties be secure? Why is there this conflict and this feeling?

I think RIAA is very, very important in this whole thing. No

question about it. You do a great service. Without you the industry

wouldn’t be as solvent or as strong as it is. So every one of you

plays a very important role.

I would like you all to think about this. Maybe something like

the orphan drug incentives that created a mass of orphan drugs

that have benefited people who would never have had those pharmaceuticals had it not been for us having some minor, but yet important, incentive.

Now, think about it, because that may be an answer that might

help all of you. It may be just another lame-brain Hatch idea. You

never know. But I will do my best to try and help the industry.

I don’t have any axe to grind here. I want to see it work. I want

to see it really—Senator Leahy particularly liked the ‘‘lame-brain

Hatch idea’’ phrase.

Senator LEAHY. When did this ever happen?

[Laughter.]

Chairman HATCH. But just think about it, would you? Then help

this Committee, because we don’t know what to do. We know we

are going into a new age. We know that music is going to be disseminated in far different manners than it has ever been disseminated before. We know that the idea of gold records and platinum

records is going to be a thing of the past. We know that online is

where people are going to get most of their music. We know that

the whole business plan or various business plans have got to be

revised and revamped. We know that artists are very upset and
67

concerned. We know that writers are very upset and concerned. We

have seen a lot of writers who have discontinued their contracts because the industry is concerned. There are a lot of really talented

people who have no chance whatsoever, because we can’t come up

with the solutions to these problems and provide the incentives to

really help far more people, not just artists and writers and consumers but the businesses themselves.

This is an area that I really love to consider, an area I really love

to work on. I would really love to help all of you. You can see the

conflicts and the disparities. Your comments on that, and then I

will quit.

Mr. PARSONS. May I, Mr. Chairman?

Chairman HATCH. Yes.

Mr. PARSONS. It does seem to me you have pointed out the tip

of the iceberg of complexity around these issues. They are enormously complex.

Chairman HATCH. They really are.

Mr. PARSONS. And the interests are competing at various levels.

But I do think, back to what I was saying in my comments, you

know, you have to have some faith in the marketplace in terms of

working through these issues. And if your Committee fails to see

progress, it seems to me that is when the yellow flags go up.

But I submit to you that progress is being made. Progress is

being made because—

Chairman HATCH. It seems to be, but it also seems to be very

slow in the making. And, you know, one of the things that bothers

me is that music can be on the radio and royalties are paid and

people are taken care of. It is kind of just accepted. Why is that

not possible on the Internet?

Mr. PARSONS. I think—

Chairman HATCH. I understand every company wants to have its

own Web page, its own distribution system, its own right to control

some product. But, still, it’s not that way on radio.

Mr. PARSONS. I just think it takes time for those conflicting and

competing and complex interests to work their way out. But the

great incentive here is—frankly, we are all in business to make

money now, I grant you. The artists are in business, as Don Henley

and Alanis say—

Chairman HATCH. And you are all critical to—

Mr. PARSONS.—first and foremost to create, you know, an artistic

vision or expression. But there is a little bit of money underlying

that as well. And we will figure it out, and I think we are figuring

it out. And I think the MusicNet transaction is—

Chairman HATCH. But do I have to hold a hearing every week

to get this figured out?

Senator LEAHY. Well, it actually worked. You got AOL Time

Warner and EMI to announce the Bertelsmann RealNetworks, the

MusicNet Sounds. I mean, Lord knows what we get next week.

Mr. PARSONS. I assure you, we didn’t just go to work on that last

week.

[Laughter.]

Senator LEAHY. I understand that the timing is great. I am going

to have a question on—
68

Chairman HATCH. Senator Leahy, I have taken way too much

time. I apologize. But I have to say that this Committee is very

concerned about all these issues. I don’t want any of you to feel like

this Committee is not considering your thoughts. But as you can

see, there are a lot of different ideas here, a lot of different conflicts, a lot of different problems. There is no simple way of solving

it. But I have thrown out this idea of perhaps some sort of an incentive that might bring you all together. I don’t know. But I know

we couldn’t do anything in orphan drugs until we wrote this simple

bill, and today there are millions of people being helped, small

groups of people who never would have been helped before, and

from those orphan drugs we have had major blockbuster drugs developed as extensions of them.

So there may be some way we could do this. I hope you will help

us.

Mr. Barry, you look like you want to comment on this.

Mr. BARRY. Senator, I would just echo your comments. I think

that we have a marketplace here that is extraordinarily slow to

mature, and we have seen in the past with respect to the Satellite

Home Viewer Act, the Digital Performance Rights Sound Recording

Act, the Copyright Act modifications with respect to cable television

that every once in a while Congress has to step in and enable these

new marketplaces.

I will just give you a quote from September 1997: ‘‘The Internet

presents the recording industry with tremendous opportunities,

and already some companies are experimenting with the online delivery of music directly to consumers on demand.’’ I mean, this has

been—this is Carrie Sherman from the RIAA.

This is a long-standing issue, and I really believe—I think that

there is good faith on both sides here—in fact, on all sides. And

there are many sides. But I think that this question of all these

varying rights, the complexity of the rights situation is really the

issue. And I know the music publishers are here today. I think that

they are absolutely key to this discussion as well.

Chairman HATCH. Mr. Henley, you have indicated you wanted to

say something.

Mr. HENLEY. Yes. Thank you, sir.

Most of this discussion here today has been about distribution of

music on the Internet and the digital revolution. I would just like

to point out—and I know we don’t have time to go into it here

today, but perhaps we could come back another time and discuss

some of these other issues. There are historic issues concerning

problems between the artists and the recording industry, including

copyright ownership, as manifested in the work-for-hire issue that

has still not been worked out, despite a directive from the Congressional Committee where we had the hearing last May. So there are

still serious issues regarding work for hire that need to be addressed. There are issues regarding the nature of the standard recording contract. There are issues such as the 7-year statute in

California, which is the crux of the Courtney Love lawsuit.

All these issues need to be scrutinized by Congress so that the

playing field can be leveled. It will be nice to work out the digital

revolution, but we have some things going back 50 years that we

would like to come and talk about at some point.
69

Chairman HATCH. We would be glad to listen.

Senator Leahy, sorry.

Senator LEAHY. Thank you. No, I find it interesting because you

speak of the orphan drugs and the others, but there are also some

in the Senate—and the House, for that matter—who feel that we

don’t want to build the technology, nor could we, or the business

model, nor could we, that we may jump-start everything through

compulsory licensing. I am not suggesting that is what this Committee would do by any means, but I would not want anybody to

leave not realizing that there are some in the House and Senate

who feel that way. Probably one of the important things about having a hearing like this is to get all sides heard.

Mr. Parsons, you mentioned earlier and were making the comment that, of course, MusicNet did not get put together overnight

in time for this hearing, and as one of the witnesses said, ‘‘Isn’t it

ironic?’’ the announcement was made just before the hearing.

My question is: When will this become real? I realize we had the

announcement before the hearing, but when will we actually have

MusicNet?

Mr. PARSONS. Well, good question, Senator. I think that, just to

take a step back for a moment, these companies have been working

toward this objective for quite some time. If there was a seminal

event or catalytic event, I will call it, I would refer more to the decision of the Ninth Circuit in the Napster case that sort of said,

look, these are the rules of the road going forward, now stop living

in a dreamland of hope that somehow you can avoid the copyright

laws and their application to the online world, and get about the

business of creating legal models. And that is what I think put a

little bit more fire on the efforts, because I would remind the Senator that we at Warner Music Group have been associated with

RealNetworks on MusicNet for over a year, we brought the other

guys in.

But when will it be real? It is real now. The licenses that were

granted to MusicNet as a result of this agreement exist. The terms

exist. The licenses for distribution between MusicNet and AOL and

Real exist and were signed. What still is in beta testing is the actual technology, the digital rights management technology that is

going to make all of this work. Real and MusicNet are in their beta

testing. I think they will actually be out in the market probably the

middle of this month with that test, and we at AOL are looking to

be marketing the service late summer, early fall.

Senator LEAHY. The reason I ask, somebody mentioned the 1996

Communications Act. I remember us being told just go ahead and

leave us as much flexibility as possible, cable rates, for example,

will come down. They didn’t. They went up. We will offer a lot more

services. Service didn’t get a heck of a lot better in most of the

cable systems, certainly not Fairfax County where it is somewhere

in the 50’s or 60’s in its quality and ability. I only mention that

because I am familiar with that one as a user. I can usually get

a better picture off my rabbit ears. But that is for some of us older

people who remember that expression. Younger folks here won’t.

But I also think of the optimism we had about the satellite home

viewer Act, but we are still waiting for many of the access in some

of the rural areas, and I worry about this.
70

But let me ask both you and Mr. Ken Berry, I understand you

are going to license your music to MusicNet on a non-exclusive

basis. Am I correct in that?

Mr. BERRY. That is correct.

Senator LEAHY. I think that is going to be good news to the

music retailers. They have sold your music for years in brick-andmortar shops as well as online. They obviously don’t want to be

cutoff from your music catalogue.

How do you respond to Mr. Farrace’s concern that you may use

your power to ‘‘steal our customers’’ and ‘‘all retailers just want a

level playing field and let them decide how to market and sell

music’’?

Mr. BERRY. Well, EMI Music’s policy has been for many years to

try and make our music ubiquitous. We would like the consumer

to encounter our music in as many environments as we can possibly get it to. We don’t assume that the consumer will come to us.

We need to go and find them.

To that end, we have worked closely with a lot of retailers, and

we were amongst the first to do it, to build relationships so that

if we were in the world of digital downloads, for example, we did

it through retail sites.

Now, clearly, new media does bring for the first time the ability

for record companies to deal directly with individual consumers,

but my expectation is that there will be many services offering

music to the consumer, and we will need to service a number of different intermediaries between us and that consumer, some of

which may indeed be retail organizations.

Senator LEAHY. Let me follow a little bit up on that. Ms. Rosen

has testified that the RIAA member companies have licensed dozens of Web sites—we saw some here earlier—to provide music for

downloads and for streaming, in addition, I think, to hundreds of

statutory licenses for Web-casting. And I think that is a great step

forward. I have said for some time that litigation against unlicensed sites is only a partial answer. You can’t just say, well, we

are going to close down sites and not provide legitimate alternatives to obtain digital music. People want to be able to obtain

digital music, the beauty of having every copy exactly the same and

exactly the same quality.

Liquid Audio and Tower have licenses to deliver some music online. But Mr. Kearby from Liquid Audio and Mr. Farrace from

Tower have expressed concern that the music most people want is

not available through legitimate sites. Mr. Farrace says only a

small percentage of the millions of songs available in CD are authorized for digital sale. And right now actually Napster may have

the biggest offering, which I suspect is one of the explanations of

its popularity.

Mr. Hank Barry said, ‘‘To this date, no service has been able to

provide a comprehensive offering of music on the Internet that is

licensed by the major recording and publishing companies.’’

So, Mr. Parsons and Mr. Ken Berry and Ms. Rosen, why isn’t

there something like the equivalent, the digital equivalent of Tower

Records up and running, first off? And—well, let’s take that first

off.
71

Ms. ROSEN. Senator Leahy, I think it is important to sort of put

this issue in perspective about the nature of the offerings and the

timetables under which they have occurred.

At the outset, the expectation was that people wanted a singlesdriven online business, because that is what they couldn’t get currently from albums. So everybody wanted to be able to buy singles.

Gerry Kearby invented a great system—he has some competitors in

this system—to sort of sell downloaded singles. All of the record

companies provided those downloadable songs, some through aggregated partners and also through individual sites.

What happened then was that Napster created a scenario where

it was essentially everything you wanted all at once, in essence,

kind of an ‘‘all you can eat’’ approach. The consumer liked that

idea, you know, as other people today have said. They liked the

idea of being able to think up any song, going up to Napster, and

pulling it down. So the business model thinking has completely

evolved since that time.

But Napster a year ago said that they wanted a legitimate service. They still haven’t been able to build one. They have $50 million

from one of my companies. They still haven’t been able to build a

legitimate legal service. This is not easy to do.

What the record companies did when the Napster phenomenon

came on was said: This is an interesting thing and we are going

to learn from this, because we understand how our consumers have

started to think and started to consume music. So we have got to

prepare our back rooms, our technology service providers, we have

got to find legitimate partners in the space to help us build subscription-based services, the so-called ‘‘all you can eat’’ services.

That essentially started last year. That takes a lot of time. Hank

Barry hasn’t been able to get it done either. So the only reason he

has got all the music is because he doesn’t license any of it.

So it has got to be very clear to this Committee and to the public

that the evolution of the music offerings on the Internet have been

quite thoughtful, quite deliberate, and really have changed with

the consumer mind-set.

The other thing that I think is worth pointing out is that there

is not a single industry making any money on the Internet, except

the sex business. You know, they are the only ones who have figured out how to actually sell products through the Internet. And

so the fact—

Senator LEAHY. Are they on the Internet?

Ms. ROSEN. I have heard. I have heard.

[Laughter.]

Ms. ROSEN. Although I am sure no one around here would actually have been a customer.

The fact is that there is a lot of legitimate companies like Mr.

Kearby’s, like all of those ones I have showed, that are actually trying to compete in the marketplace, attract more investment capital,

get more funding, and get more attention to their sites. It is very

hard to do that in an environment where Napster continues to operate, No. 1. And, No. 2, as you are following the consumers’ wants

and needs, the technology and the assets required to back that up

are enormous. I think you have heard these companies are commit-
72

ted to providing that, but this has not been sort of a slow process.

This has been an evolution of consumer demand.

Senator LEAHY. You don’t have any question that you envision a

future where there will be a profitable sale or can be a profitable— Ms. ROSEN. I don’t have any question about it.

Senator LEAHY.—sale of music on the Internet.

Ms. ROSEN. And, to be honest, I resent Mr. Barry’s suggesting

that it is too slow when he himself hasn’t been able to do it legitimately.

Mr. PARSONS. Before we— Senator LEAHY. Let me get Mr. Parsons and Mr. Ken Berry, and

then I have a question for Mr. Hank Barry who might follow up

on this.

Mr. PARSONS. Let me just say the vision you just outlined is exactly what the MusicNet model is all about. Essentially, we, EMI,

BMG—and I would point out that EMI and Warner Music Group

are the largest publishing entities; we own the greatest number of

copyrights out here in terms of a deep catalogue—have essentially

licensed that catalogue so that for the first time you now have companies with deep, rich catalogues, licensed catalogues, to the

MusicNet service to be made available.

Now, one of the reasons I said we are going to actually not be

in the marketplace with the product is not just technology, but we

have to clear the rights. I mean, we have gone through a sample,

I think, of about 70,000 songs that we would put on day one to see

with respect to that sampling—and as I have said, we have got

over a million copyrights. So we took a sample of 70,000. We went

through to see where we have the full complement of rights, not

just from the music companies but from the artists, from the writers, from all of those constituencies Senator Hatch mentioned a

moment ago.

We have got to clear those rights and make sure that whatever

we turn over to be available for downloading we have got the rights

to do that, and then the money will follow back to the rights owners.

It is a much simpler task if you basically disregard or ignore

everybody’s rights. But I wanted to leave this on a hopeful note.

The MusicNet service that we announced is exactly what the Senator has in mind in terms of a place you can go and get everything.

Senator LEAHY. Well, and keep in mind what I have said probably a dozen times in hearings like this and a hundred times elsewhere, I want the artists, the performers, those who have invested

in them, to get a return on their investment. I don’t want Mr. Henley or Ms. Morissette to go out and see their songs that they have

worked hard on, that are popular because of their unique contribution to it, to be available free—

Mr. PARSONS. That is what takes some of the time.

Senator LEAHY. Mr. Ken Berry, you wanted to say something, did

you, before I go to Mr. Hank Barry?

Mr. BERRY. Just to repeat a little bit what Dick Parsons said a

moment ago, we have had to build systems in our respective music

companies that can, first of all, digitize the content wherein so it

can be manipulated and, furthermore, build systems that will track

the revenue bank so the artists actually do get paid, which are not
73

issues with these free services where our content is being given

away. It is a very significant investment, and it clearly has taken

some time.

Of course, we do invest an awful lot in our artists’ careers. It is

not just a question of signing them. We are making big investments all the time, particularly in this new digital era, to make

sure that we are set up to actually provide the full service through

to the consumer. And clearing rights, as has been mentioned before

by people here, is complicated, but we are in the process of doing

it and we are getting the answers to this particular obstacle right

now.

Senator LEAHY. Mr. Hank Barry, I believe you want to run a legitimate business. I don’t mean that in a condescending way at all.

I mean it very sincerely, and I have talked to you before. You have

a brand name that can be very valuable, something as well-known

as Coca-Cola, at least among those who are going to be using it,

or we think of brands like Ben and Jerry’s, coming from Vermont.

But I also believe the record companies want to share the benefits of the marketplace that you happen to build, which is a tremendous one, provided you make your system secure, No. 1, and,

second, compensate the artists and the copyright owners. I am not

going into the court cases. Those are pretty clear.

But I went back this weekend, and I went on your Web site, and

I just wanted to check some of the things that are available. You

can find the Lenny Kravitz song ‘‘Again’’ by typing Lenny Kravitz

in the artist line and ‘‘Again’’ in the title line. You are not using

any misspelled words or anything else. And there is a song that I

believe is on Billboard’s Top 10 right now. You can find a song I

like, ‘‘Hotel California’’ by the Eagles. You simply type these words

in the appropriate lines. Marvin Gaye’s song ‘‘I Heard It Through

the Grapevine’’ is there. Now, that is a song that has been licensed

for various commercial uses as well.

Now, all those songs are copyrighted. I suspect there is not permission to have them there. What do you say about this? I mean,

what do you do? Because, on the one hand, I see what you are trying to do. You are trying to put together an easily downloadable

business. You agree, as I understand, with me that artists should

be compensated. But what do we do in a situation like this?

Mr. BARRY. I appreciate the chance to respond to that because

it is something that people have made a lot of contentions about.

This is the matter that is before the district court right now. As

you know, the Ninth Circuit entered an order and the district court

fashioned an injunction to implement that order. We are complying

with that district court order, I think in an objectively measurable

way. We have detailed the actions that we have taken in three separate compliance reports to the district court, one of which we are

submitting today.

Since March the 5th, the total number of files available through

the service—remember, it goes from the hard drive of one user to

the hard drive of another—has dropped from 375 million to under

100 million. We have blocked over 300,000 separate songs with 1.6

million individual file names. We have pulled together 100,000 additional title variants, and we have licensed Grace Notes data base.

We have also changed Napster’s terms of use so that we are going
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to bar participation of people who attempt to bypass this filtering

system.

Now, is that enough? No. As we have seen, some songs get

through. Is it harder to find a song? Yes. The Ninth Circuit said— and I think it is true—this is not an exact science, and we are

working to make it better.

Those are the facts. But we are not asking this Committee and

we are not asking the court of the plaintiffs to take our word for

it. We asked the judge to appoint an independent technical evaluator—and she did so last Friday—to make sure that we are doing

everything that is possible to comply with the injunction. She has

appointed that independent technical advisor, and that person is

going to help to find whether we are acting correctly and whether

the plaintiffs are acting correctly under the injunction. So we look

forward to working with that independent advisor and working

harder to address the issues that you raised.

Senator LEAHY. I have other questions for the record, but one

last question for Mr. Valenti, because every time I mention compulsory licenses, I see Mr. Valenti’s hair stand up on end, and I can’t

do that anymore. Because some have called upon Congress to step

in to control the licensing for music and other forms of entertainment in the online space, which in the digital world involves your

industry, Mr. Valenti, how do you feel about that?

Mr. VALENTI. How do I feel about— Senator LEAHY. Compulsory licensing.

Mr. VALENTI. Well, I think we have to understand, I am not talking about music now because that is— Senator LEAHY. No, I am talking about for the movies.

Mr. VALENTI. Movies alone. I think we have to understand that

the difference between the analog world, in which we mostly exist

today, and the binary number world, the digital world, in which we

will exist tomorrow, is the difference between lightning and the

lightning bug. Totally different. And the reason why a compulsory

license won’t work, will be totally unworkable with movies, four

quick points:

One, a compulsory license today for cable and satellite is defined

by limited viewing areas. The cable system in Washington, D.C.,

doesn’t go to Philadelphia. And if you have a satellite, it has to be

within the footprint of the satellite. On the other hand, the Internet is global. It is instant at 186,000 miles per second and it is

global. And I know there is supposed to be technology out there to

contain it, but guess what? It doesn’t work and it is mainly, I

think, what I call the dot-com hype.

Second, I think that the independent producer would be devastated. When the independents go out to make a movie, they have

to finance it themselves. They go outside the studio system. And

they pre-sell their movie to various territories, to France, to Germany, to Japan, to Argentina. And if you had a compulsory license,

they would be out of business. They couldn’t pre-sell because there

is no limitation on that reach.

Third, government price-fixing never works. I was present in the

1976 Copyright Act, and I personally negotiated with your predecessor, Mr. Chairman, John McClellan. And in those days, I don’t

know how it works today, but he didn’t fool around with Sub-
75

committees and Committee members. He had all the power and, by

jingo, he used it. I am sure that is the same way— Senator LEAHY. Orrin does it exactly the same way.

[Laughter.]

Senator LEAHY. Never mind, you know, being bipartisan and everything. He still does it the same way. I come in and I have to

go to his office and schmooze each morning.

[Laughter.]

Chairman HATCH. I wish. I just wish.

Mr. VALENTI. And as a result, we started out with about 7 percent of a cable system’s revenues, and then it got down to 6 and

then 5 and 4. And every morning when you got to John McClellan’s

office, he had a new lower rate. And, finally, when it got to about

1 percent, I ran up the white flag because I thought that the Senator was going to go down to zero before we were done. As a result, today a cable system with $9 to $10 million in revenues pays 1.89 percent of its revenues for its compulsory license.

On a satellite, a satellite pays 19 cents per subscriber for all the

programming of a single broadcasting station for 1 month. Now, if

ever I saw a thing that was totally out of balance, that is it.

And the fourth thing is I think that—keep in mind that if you

set a rate on a compulsory license for movies, you would have to

set that rate as the potential to cover the entire world because that

is what the Internet does, which means that American consumers

would be subsidizing the viewing of European and Latin American

and Asian citizens. They would be paying the rate so that somebody else abroad could get it free. It just won’t work and doesn’t

need to work, because the movie industry around the world has

been operating for about 70 years, 80 years, back to 1913 when

‘‘The Squaw Man’’ came out, and it works in a negotiated basis

around the world.

I might add, finally, that if you look at a cable system today, the

marketplace works. For example, MTV— Senator LEAHY. Be careful on that. They are monopolies, they

give lousy service, and they don’t—but go ahead.

[Laughter.]

Mr. VALENTI. I must say— Senator LEAHY. You pay to have at least 20 preachers wearing

bad hairpieces who sit on there and tell you if you will send money

just to their company, you have salvation.

Ms. ROSEN. You are going to get letters, Senator Leahy.

Mr. VALENTI. Senator, I have learned one thing in my long and

some would say checkered career. I never debate with a Senator.

Senator LEAHY. Of course you do, but that is OK.

Mr. VALENTI. Having said that—

[Laughter.]

Chairman HATCH. What do you mean?

Mr. VALENTI. Shall we move along? All of the programs, mostly

on cable, like HBO, Showtime, USA, Lifetime, Discovery, TNT

Movie Classics, these are all negotiated in the marketplace. There

is no compulsory license there. All negotiated. So I can’t speak

about music or anything else, but in the movie business, the idea

of a compulsory license is an idea whose time has not and should

not come.
76

Senator LEAHY. Thank you.

Chairman HATCH. Thank you.

Senator Feinstein?

Ms. ROSEN. Senator Leahy, could I just add one thing on that

with respect to music?

Senator LEAHY. Yes.

Ms. ROSEN. Sorry. A quick question. Everything that Jack said

about the Internet being global and once it is licensed applies for

music as well. But people should remember that there has actually

never been a compulsory license that goes to the core distribution

right. Any compulsory licenses that have ever been considered have

always been in very limited areas of public performance, which for

most—for copyrighted works are secondary or tertiary markets.

When you talk about the compulsory license in this instance or the

one that Mr. Barry or some others have suggested, you are talking

about the core distribution right of a reproduction, and that would

be a disaster.

Senator LEAHY. Thank you.

Chairman HATCH. We are going to keep the record open for questions by members of the Committee through Friday. But we are

running out of time.

Senator Feinstein?

Senator FEINSTEIN. Well, thanks very much, Mr. Chairman.

I think Mr. Valenti’s opening remarks really in a sense were a

tribute to copyright and intellectual property laws, which have

really allowed this industry, all of it—its many complex parts—to

grow and prosper and really in a sense to become the envy of the

world.

For my State, California, Napster was in my backyard—well, I

guess San Mateo County—the movie industry is premier, and much

of the foundation of intellectual property industries emerge in California. So obviously their protection is very important to me.

It is also important that consumers are able to utilize new technology and do it in a way that protects these copyright laws.

Now, since our last hearing, Mr. Barry, you went through a court

case. The world is different today than it was at our last hearing.

And I want to ask this question: I think you still do advocate for

compulsory licenses. Is that correct?

Mr. BARRY. I think that whenever there is a feeling in the marketplace—and that is my contention, that there is a feeling in the

marketplace here—then Congress has to look at it. And that is one

of the options, I believe, yes.

Senator FEINSTEIN. Well, have you formulated a pricing structure that would adequately compensate artists, record labels, et

cetera?

Mr. BARRY. What we are trying to do here today, Senator, is

identify through all the varying views that are here on the panel

and some that are in the room but not here on the panel, such as

the publishers— Senator FEINSTEIN. Could you move your mike closer?

Mr. BARRY. Oh, sorry.

Senator FEINSTEIN. I want to hear the fine points.

Mr. BARRY. What we are trying to do here, Senator—and obviously we are at the very early stages of trying to figure out wheth-
77

er this marketplace is working—is to define some of the rights that

are involved when one goes to have a full catalogue of music available.

I will give you an example. MP3.com, which is also a company that is located in California, in San Diego, has paid over $160 million in settlement fees with respect to sound recordings with the

major labels, and yet the service associated with that is not available now. And that is because they don’t have publishing rights.

They don’t have publishing rights to the catalogue that is associated with the sound recordings.

And I think that if I had to name one place where there is really

an issue in the marketplace, it is with respect to this complexity

of licensing. I asked earlier—and I don’t believe I have had an answer yet—whether music publishing rights are included within the

rights that MusicNet is going to provide. And I would suggest to

you, Senator, that getting a license from MusicNet without publishing rights is not going to enable anyone to actually have the kind

of service that we are all saying the consumer should have. And

so Mr. Parsons might have an answer to that right now.

Senator FEINSTEIN. Mr. Parsons, do you want to respond to that?

Mr. PARSONS. Well, yes. As I indicated earlier, on the MusicNet,

the full complement of rights to enable the streaming or

downloading of our catalogues—EMI’s, Warner Music, BMG’s—is

included in the license that we gave to MusicNet. But, Senator, I

just think—you know, my colleague Mr. Valenti started this hearing off by saying, you know, intellectual property rights are private

property rights. And when one thinks about a compulsory license,

the hurdle that one should have to clear to say that I am going to

abrogate the rights of an owner of property to determine how that

property is used because there is some broader, overriding public

interest applied to this space, yes, it is complicated—not that it

can’t be done because we just did it. It is complicated to sort

through the maze of rights and to make sure the property owners

are appropriately contacted and consented and paid.

But it certainly doesn’t rise to the level of, you know, U.S. Congress intervention to say that it is so important that people have

access to the music in this fashion that we are going to override

the rights of the copyright owners, whoever they may be, and provide it on some compulsory basis.

That is why I was saying to Senator Hatch earlier, let the marketplace work. It is working and we are getting there, but the theory of Napster—and I heard the answer to Senator Leahy. It

sounded to me like, you know, a thief who gets caught and then

tells the judge, well, look, I am prepared to go straight and I will

go to a trade school or whatever, but in the meantime, I need to

continue to steal because it is all I know. I don’t think that is a

legitimate approach to this. I think the approach has to be to respect the rights of the people who own the property and to work

through the complexities. I mean, that is what we are trying to do,

and that is what we said, if Napster can do it that way, they, too,

will be entitled to a license from MusicNet, which, as I say, is the

full complement of rights that you need to stream and download

the music that our companies offer.

Senator FEINSTEIN. Thank you. I would like to ask—
78

Mr. BARRY. Senator, I—

Senator FEINSTEIN. Would you like to respond to that, Mr.

Barry?

Mr. BARRY. Well, you had asked me the question about whether

we had a pricing mechanism in place.

Senator FEINSTEIN. Correct.

Mr. BARRY. And the answer is that I think that we are just raising the issue. This is clearly something that nobody here favors in

the sense of we all would like the marketplace to work. We are all

committed to that.

But as Mr. Henley said, as a last resort we have to look at this.

And you can look around the Internet today, and there isn’t any

service that has a comprehensive license to both sound recording

and publishing to make that available to consumers. There is no

Internet equivalent of ASCAP. There is no Internet equivalent of

any clearance organization. And so that is the point I am raising.

Senator FEINSTEIN. Yes. I guess what Mr. Parsons is saying is,

if you believe that this is private property, then it is up to you to

work out the individual agreements to be able to put up that private property.

I would like to ask Ken Berry a question, if I could. Napster has

said many times that no one will talk to them about licensing, and

they publicly stated that they would offer $1 billion over 5 years

to the record labels if they could get licenses.

I would like to ask you: Are you willing to give Napster a license?

Mr. BERRY. First of all, we have had conversations, as Hank

knows, about the prospect of having a license in the future when

the legitimate business model is established. And, of course, it has

not been at this time and is not expected in the immediate future.

So we await the outcome of the new commercial model, and we will

definitely enter into serious conversations about a license at that

time.

But in the offer of the $1 billion, which was a very large number

in most people’s terms understand, we believe our business is migrating to the Internet, and that is where our music will be sold.

And our investments in music come to many billions of dollars, just

as EMI, let alone my competitors, whether they are independents

or other majors in this industry, and to try and take a license to

basically take over the music space on the Internet, the amount of

money involved is very, very significant to compensate the music

companies, which is why there is such a negative response to it.

But we are interested in talking about a license, as I heard already my colleague on the left, but a lot of companies have, as you

say, gone straight and actually offered legitimate services and not

tried to offer our content for free. And there is an issue about the

fact that Napster is clearly offering our content for free even now,

as was identified, Lenny Kravitz being one of our recordings. And

this is a very serious problem for us, and we think it is very unfair

on the people running legitimate models right now, trying to make

a business. How can they do so in this climate where music is

being given away for free?

Senator FEINSTEIN. Would Napster like to respond to that, Mr.

Barry?
79

Mr. BARRY. Just one footnote, Senator. In the press briefing

where we described our economic offer and the various economic offers we have been making over the last 9 months to the labels, we

made it very clear that in the new Napster service there will not

be the ability to export a file from a person’s PC. So there will be

limitations on burning. There will be limitations on exporting to a

Rio device. And we told all of the record labels that there would

be fidelity limitations. So you would have a media limitation and

a fidelity limitation. So I just want to make clear for the record

that was the context in which that offer was made.

And I would say further that, with respect to a possible industrywide licensing arrangement, we would continue to make those sorts

of limitations, because we actually believe that Napster is a promotional service. Most people use it to listen to, sample music before they go out and buy it. And so, therefore, these limitations on

burning and limitations on export were things that we clearly stated publicly at the same time—the same day, actually, that we

made that offer.

Chairman HATCH. Senator, could we turn to Senator Schumer at

this time?

Senator FEINSTEIN. Thank you, Mr. Chairman.

Chairman HATCH. We are running out of time, and I don’t want

to completely shortchange the second panel.

Senator SCHUMER. Well, thank you, Mr. Chairman. I want to

thank you and all of our diverse witnesses. Every time we have a

hearing, we realize how complicated all of this is. I just want to say

I start out from two places that a year ago I thought might be contradictory. I don’t think they are now. One is that copyright must

be protected. You just can’t take people’s stuff and give it away for

free, no matter what your rationale is. Everyone would like to have

for free. That is not how we work. And it is not fair, it is not right.

And if we started doing that here, we could start—you know, it is

music, it is an intangible good, but you might want to do the same

thing in so many other places. But, second—and, again, I don’t

think these are contradictory—that digital music has to be made

widely available on the Internet, because the Internet has brought

so many new possibilities that it is exciting. And the question is

how you protect the intellectual property, the copyright, and still

use technology to give all these new advantages that people have.

For me, it comes down sort of personally. Being from New York,

we have lots of people who are artists, who are would-be artists—

I guess no one thinks they are a would-be artist—undiscovered artists, and lots of companies that do a great job distributing music.

I am proud that New York is the music capital.

On the other hand, you know, my 16-year-old daughter banged

on my door one morning and said, ‘‘Dad, you got to pass a constitutional amendment to protect Napster.’’ The first political statement

out of her mouth after all these years.

[Laughter.]

Senator SCHUMER. And basically what she did for me, she gave

me the best birthday gift I ever received, which was she asked me

my 16 favorite songs, she put them on one CD—this is a year ago

so it was OK then, I guess—including songs that I had been in

search of. When I was a kid, I had a crush on Rene Strasberg and
80

the song ‘‘Don’t Walk Away Renee’’ came out by the Left Banke,

and I have been trying for 20 years to get that song on my—

Senator LEAHY. Well, there is a well-known song if there ever

was one.

Senator SCHUMER. It is a great song.

[Laughter.]

Senator SCHUMER. I won’t sing it for you, Mr. Chairman.

Chairman HATCH. Let’s not knock our artists.

Senator SCHUMER. I then went and asked my daughter to ask

her friends—Mr. Henley is saying that was a junkie song, I think,

to Ms. Morissette there.

Mr. HENLEY. No. With all due respect, Senator, the word ‘‘Don’t’’

is not in the title of that song.

Senator SCHUMER. Oh, ‘‘Walk Away Renee.’’

Mr. HENLEY. Thank you.

[Laughter.]

Senator SCHUMER. Well, let me say this to you, sir—

Senator LEAHY. That ruins the whole story.

Senator SCHUMER. I didn’t want Renee to walk away, but she

did.

[Laughter.]

Senator SCHUMER. She was only going out with college guys, you

know.

In any case—enough of this. In any case, I went and asked my

daughter, I asked her, ‘‘Would you’’—I tried to ask her about the

issue of intellectual property, which I believe in. And I said, ‘‘Would

you be willing to pay for this?’’ I would be willing to pay $50 for

that album, which is more than probably anyone would envision

me being charged for it. And she said yes.

And then she on her own went and asked 15 of her friends in

high school would they be willing to pay for all of this, and they

said yes.

So intellectually we are no longer at a conundrum here. I think

everybody sort of agrees that intellectual property must be kept

and protected, and at the same time the new technologies must be

expanded. And I think after hearing from Mr. Kearby and others,

Mr. Parsons, Mr. Barry and Mr. Berry, that technology is there.

And so the question is: How do we get there? And I am not sure,

being a novice at this, that what we are not hearing here is everyone agrees to the place we ought to get, but everyone is sort of

standing in line, elbowing, they want to be the one to get there

first. And that is probably true of every person at this table.

And, I don’t know, it is hard for us who are not the technological

experts to figure out who is right and who is wrong in all of that.

And so I have a few specific questions, but I would ask the witnesses to think about this general question. Am I wrong in that assumption? Am I wrong in the assumption that we all want to get

to the same place and each of us has a different way?

And then you have two conflicting things here. The record companies, whether the big ones like Mr. Parsons and Mr. Berry come

from, or the littler ones like Mr. Gottlieb comes from, have something that all the rest of you folks need. They have the right to do

with the music what they want.
81

You have the other folks, the technological people have copyrights and patents on their technology, but my guess is that there

are other people who will come up with other patents on that,

whereas nobody else will have the copyright on ‘‘Don’t Walk Away

Renee’’ and other—I mean, ‘‘Walk Away Renee’’ and other greater

songs. So that is a conundrum as well.

So I guess my general question to everybody here—and then I

have three specific ones that I am going to ask, too, so I can get

answers to those. But my general question I would ask to anyone

to respond to, do we all think we will end up in the same place?

And is this just a discussion as to who is doing it? Or is it beyond

that?

And then my specifics are as follows: one to Mr. Barry of

Napster, and that is, you know, you want people to make deals

with you, and yet it seems to, I guess, somebody who is trying to

be as objective about this that you are still allowing people to

download copyright-protected materials from Napster despite court

orders, despite everything else. And that would say to me, if I were

lining up to make a deal with you, I don’t think I should. And so

I would like you to answer that specifically. I would like to know

how many people have been knocked off the system compared to

how many people who are still on the system. Because if you do

believe in intellectual property, that is a sine qua non, and I don’t

think you would have the right—I would like to see the technology

that you have started prevail. But if you are doing that, maybe you

shouldn’t be the one sitting at the table making the deal.

Mr. BARRY. I understand, Senator.

Senator SCHUMER. And the second question, a specific—and then

I will let everybody answer all of these in the interest of time—is

to Mr. Parsons and Mr. Berry. I think the model that you guys

have put together is very interesting and could work. Two of your

friendly competitors have a different model. How do those come together? And then, second, what do you do in terms of contracts

with smaller companies like Mr. Gottlieb’s? Do they get the same

terms if they have produced and put the sweat and equity into getting a song out as the larger companies, or are they going to get

a different type of deal that is not as advisable? Because I think

that is important as well.

In other words, let’s assume the Big Five, it is, come together.

What happens to the 17 percent of the music that is—was it 17?

Or some nice, significant percentage—that is not one of the big

companies in terms of how they relate to this new technology that

is going to do the music.

So with that I would ask Mr. Hank Barry to answer my first

question, Mr. Parsons and Mr. Berry to answer my second question, and then all of you to answer the general question that I

asked, or anyone who wants to. Mr. Barry?

Thank you for your indulgence, Mr. Chairman.

Mr. BARRY. I will start with the general question, which is I do

think that we all see the tremendous benefit of this and we are all

going to the same place. For me, the fundamental question is

whether the marketplace is going to function efficiently to get us

there. And in my remarks earlier, I gave some reasons why I
82

thought it was not. Obviously other people have a different view.

But that is my answer to the first question.

With respect to the second question—and I detailed our compliance efforts earlier, Senator; you might not have been here. But let

me say generally that you have to think about how the Napster architecture works. We don’t host any files. You can’t download a file

from Napster. You download a file from another person who is

using the system at the same time. Napster is a directory, an

index, with community around it with respect to the other uses

who are on the system at the same time you are logged on. So it

is essentially a real-time search engine. And the challenge there— which is recognized by the Ninth Circuit Court. They said this is

not an exact science. The challenge that we have in complying with

the district court’s injunction is to identify all the files as people

are logging them in, block the ones that should be blocked, and in

general, as I said earlier, when people are not acting appropriately

with respect to the rules of the system, removing those people from

the system.

Under our previous notices, we blocked over 750,000 people from

participating on the system under our DMCA notice regime. And

as I said earlier, we have blocked 1.6 million files, which represent

about 300,000 individual songs. And I did say earlier, Senator, that

I don’t think it is good enough. It is an iterative process, and we

are working on it every day to make it better.

Senator SCHUMER. Has it interfered with the functioning of

Napster on the street?

Mr. BARRY. It has slowed down performance— Senator SCHUMER. I don’t hear that it has.

Mr. BARRY. Well, our testing says that it has.

Senator SCHUMER. Does anyone disagree with that?

Mr. BARRY. Well, people can disagree. The fundamental point

that you make, though, is that things are still available through

the service that shouldn’t be there, and I agree with that. And certainly the court anticipated that when it appointed last week this

independent technical advisor who is going to advise the court

about whether we are doing all the things that are possible in

order to comply with the injunction.

So I think we are in agreement on the goal. The question is what

is the way to get there.

Senator SCHUMER. Does any single person want to just answer

what Mr. Barry said? Ms. Rosen?

Ms. ROSEN. I don’t think I have to get into it much, except that

my best analogy that came immediately to mind when he said that

was when my son is hitting my daughter and she is crying, and

then I tell him to stop, he says, ‘‘But, Mom, I’m not hitting her as

hard anymore, so I don’t want to stop.’’

It is sort of irrelevant, the degrees of compliance. You are either

compliant or you are not.

Mr. BARRY. Yes, I think that is true, and if I could just point to

a chart for a moment here with respect to our activity and blocking

files on the system over the last 4 weeks, people can see that we

have gone from a regime where people had access to about 375 million files to a regime where they have access to approximately 100

million. Now, that may not seem a lot, and if you can find the file
83

that you want, it doesn’t matter to you. And we understand that.

And so we are going to do a better job, and I take Ms. Rosen’s

point.

Senator SCHUMER. The second question to Mr. Parsons and Mr.

Berry.

Mr. PARSONS. Very quickly, because I am aware of time, also. All

of us in the business believe that in order for a legitimate service

to find real success in the consumer marketplace, you have to have

access to all the music, so that eventually I am sure there will be

two, four—I don’t know how many—six services up that everyone

licenses, but that have different personalities and different other

features but have access to all the music. But because this is America and because willing buyers and willing sellers in the normal

course of commerce find each other and negotiate the terms under

which they will do business, it just takes some time to assemble

all that music in one place.

So we started MusicNet with three of the majors. There are obviously two majors who are not in yet, and a bunch of independents,

but our objective is to get them all into the boat on this platform.

There will be others. Universal and Sony are working now on

something called Duet. They haven’t quite launched it yet, but that

will be a different technological platform. And their objective will

be to get everybody in that boat so that we can have competition

around presenting music online to consumers in an easy, affordable, value-added way; i.e., you come to one place, you can get anything you want.

With respect to your second question, clearly I indicated earlier

that MusicNet will be out seeking to license not only the two majors but the independents. The terms of those licenses, however,

will be negotiated in traditional, free-market, American commerce

fashion; i.e., you have got something I want, I have got something

you want, let’s sit down and talk about how we come together

around that.

Chairman HATCH. OK. With that, I am going to have to cut it

off, because we have one more questioner, and then we are going

to have to go to last panel. We are really out of time.

Senator CANTWELL. Thank you, Chairman Hatch and Senator

Leahy, for calling this important hearing. Obviously the delivery of

online music is testing how the marketplace and law can work together to bring new entertainment services to the many people who

are here listening today.

Obviously this whole industry is quite young, and there is not a

lot of history guiding us in this process. We can learn from the past

when new mediums were developed, like radio or television, that

oftentimes those industries were rocked and ultimately revolutionized. And I think that is what we are seeing today.

Legitimate, secure online music services are good from the consumer, and they are good for the economy. And the testimony that

you have had today has tried to explain each of your vision on how

we get there. Obviously artists, as Mr. Henley talked about, want

more flexibility in the current business models. The music industry

execs who have put time and energy into the marketing of those

products want to make sure that investment is ultimately protected. The security solution providers, as Mr. Kearby is one of,
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have put time and energy into new technology and think that the

technology is there and ready and want to see that technology is

used to delivery those new services. And consumers rightly should

benefit from not only the new technology, but new business models.

So my question is, as you all now have been thrown into this online music sandbox and are being required to play together, if you

will, our choices seem to be: one, as the somewhat supervising

adults, to go back and say work it out; the Chairman articulated

a second alternative, which would be to have, you know, this Committee continue to be an oversight and pressure point on this discussion; I don’t know if I quite heard him right, but I think he

mentioned weekly or every couple weeks a hearing, which seems

quite extraordinary; or the possibility of legislation.

Now, by comparison, I would have to say to my colleagues, when

I think about the other new economy challenges of protecting personal privacy, e-commerce taxation, I would actually say that by

comparison to those, there has been a lot of progress here. Now,

maybe the demand for music is more incentive than the unknowing

consumer whose personal privacy has been eroded. But the issues

seem to me to be those three choices.

So I would like to ask at least a couple of the panelists, others

if they want to join in: How should we measure this progress in

a real timeline? Is it possible in the next 6 months to see full catalogues online in a business model that consumers would accept?

And I guess what I would like to do is ask Mr. Henley and Mr.

Hank Barry and Mr. Kearby and Ms. Rosen specifically to respond

to this. Is that the bottom line that we are negotiating? Mr. Henley, you may say not—even if we get full catalogues online, the existing model isn’t flexible enough for us. I mean, artists would like

to have the opportunity to have their music in certain—or, Ms.

Morissette, you have obviously done this already, so you have seen

the benefit of having some music out there even in a timed-out version or what have you. That is good for your overall promotion.

So are we going to see something in the next 6 months that will

satisfy the consumers and the business? Are we talking about a

model that is in the very, very near term going to provide that kind

of benefit to consumers and the industry? Or are we talking about

one of the other two choices of continued hearings or possible legislation?

Mr. KEARBY. Well, I would like to start. From Liquid Audio’s perspective, when Chairman Hatch asked earlier, Does MusicNet help

or hurt?, I guess the real answer to that question—and I hadn’t

thought of it at the time—was, well, I guess it depends on the licensing terms. And is the playing field level for distributor vis-avis MusicNet? Are we going to get the same pricing, therefore, be

able to offer that pricing to our channels that MusicNet gets and

offers to its channels?

Presuming that the answer is yes and presuming that the publishing issues are taken care of, then my answer is yes, we can

have a system up and running in 6 months. We always say we are

the tool makers, not the rulemakers. We will find out what the

rules are relative to output to portable devices and CDs. But, yes,

a system can be put into play in 6 months that protects property

and has a subscription service. The real issue is: What are the pric-
85

ing concerns and what, if any, will the consumers, you know, require of the marketplace relative to those pricing terms?

Ms. ROSEN. You know, I am an optimist but I am also a freemarketeer, and I think that the question that you ask is a good

one. But it is also what test will this be measured by. I don’t think

that this Congress or this Committee wants to be in a position

where people are essentially forced to go into businesses that are

not going to be profitable, that are going to be money-losing, that

are going to be cannibalizing. I think people are trying to be

thoughtful about that.

As we have said before, people are having a lot of trouble making

successful business models on the Internet and other industries. So

these are somewhat time-consuming.

I think the test has already actually been passed. There have

been a lot of market trials and a lot of experimentation, and the

intent is serious. I am optimistic that we have long passed the time

in the music business where people thought that this was a ‘‘what

if’’ proposition as opposed to a ‘‘when’’ proposition. This is happening, if only because a more ubiquitous environment of legitimate

music available, not succeeding, cedes the territory to the pirates,

and we are not willing to do that because there is no upside to anybody to do that. We want to sell music. That is why we take risks

on artists. That is our business. And so this is a place where we

are going to do that.

Senator CANTWELL. Mr. Henley or Mr. Barry?

Mr. HENLEY. Well, I hate to keep going back to this, but the last

15 or 20 speakers have crystallized my point about the artist being

left out of this equation. As Alanis and I sit here, there is a pingpong game going back and forth across our heads about business

models on the Internet, when, in fact, we don’t know how our intellectual property is going to be protected. We are already in disputes with record companies about abuses of our copyrights and

our intellectual property, and the Internet gives a whole new array

of ways in which our copyrights and our intellectual property can

be exploited. So we need some statutory protection. We need some

explanations. We need some answers about how we are going to get

fairly compensated in this new Internet world from all the other

people who are sitting here.

Senator CANTWELL. But I also heard you say flexibility. In some

instances, you said you would be willing to forego those royalties

at your own discretion. You are after flexibility— Mr. HENLEY. I didn’t say I would be willing to do that. I said if—

[Laughter.]

Mr. HENLEY. If an artist so chooses. There are many people on

Napster right now who want them to distribute their music free of

charge, and that is their prerogative. Having been in this business

about 38 years, I don’t see it that way. I don’t need the promotion.

I am not a new artist. If other people want to do that, that is fine

with me. But I don’t necessarily want to do that. But, you know,

people are free to do what—if they want to give their music away,

that is their prerogative, but I don’t—I didn’t mean to imply that

I was willing to do that.

Senator CANTWELL. So if the security solution and the labels are

saying in 6 months we think we will have catalogues available, we
86

think there will be business models that consumers can access—because there is a lot, obviously, online now. You are still saying you

have concerns about the artist compensation that you wish this

Committee would address.

Mr. HENLEY. Six months sounds like a very short time to me,

and we still don’t know how this money is going to be collected and

how it is going to be distributed to artists. And, again, we are unprotected.

Mary Beth Peters, who is the head of the U.S. Copyright Office,

has said that in the world of copyright, American artists are the

most unprotected on the planet. And so we have grave concerns

about how we are going to be compensated fairly in this brave new

world of Internet. And we are not getting answers to those questions.

Ms. MORISSETTE. And I believe in the building of the new models

is where we want to have our voices heard, because there is no

question that not only are the new models going to be needed to

be established, which I am hoping is going to be done with the

three groups that I talked about earlier, but also it would be remiss

of us not to reference, if nothing else, what the past models have

looked like. And, you know, the dawn of this new digital era has

shone light on all of it, which is part of what is exciting.

Chairman HATCH. Well, let me interrupt here. I have to say that

I am challenging all of you that we are going to have a lot more

hearings if your interests aren’t served, because without you, without the creators and the artists, we wouldn’t have anything. Without the consumers, we wouldn’t have anything. Without the distribution channels, we wouldn’t have anything. And without the

publishers, we wouldn’t have anything.

Every one of you is critical, so I am just suggesting to those of

you who make and build these business plans that you make sure

that everybody here is considered. And between you and me, I

would like it to be done without the almighty hand of the Federal

Government. I think it can be done. I agree with you, Mr. Parsons,

that it ought to be done on a business basis. It does take time, but

I hope that you can get it done more quickly.

Let me just say before we let you all go—and I apologize to you

for being so long—we will keep the record open for questions. We

hope you will answer these questions because this is an important

hearing, and the questions that we ask are going to be very, very

important with regard to what happens in the future.

I want to add that over the years I have heard from record companies, research companies, artists, and technology companies, and

I want to see if there is anything we can do in Congress to help

all of these parties in solving some of these problems, especially a

number of important policy issues that, of course, have been raised

by all of you. I think they are worthy, and they are ripe for consideration for this Committee.

Many of these center on enhanced protections for copyright while

improving the respect we have for artists. Now, the issues that I

think both Senator Leahy and I would like to throw out to you as

a consideration for you to help us with are as follows—or at least

these are some of them:
87

Number one, the public policy of limiting artists’ personal service

contracts. This is the issue raised in the Courtney Love litigation

under California law.

Number two, how we can ensure that the current fair-use rights

we enjoy, such as making personal copies of a CD on your own

hard drive or in your home, could co-exist with digital rights protection technologies.

Number three, how we can provide for enhanced technological

protections such as the recognition of watermark technology used

by copyright owners when they provide their works over the Internet.

Number four, how we can resolve these work-for-hire problems

and issues that have been raised here today before we get to acrimonious litigation between the artists and the record labels.

Number five, the collection and accounting of digital royalty

rights, which appears to be a big problem here. We have to resolve

that.

Number six, one issue of fairness that I have heard lots about,

which involves the ownership of Internet domain names that correspond to the personal names of artists. Why should people steal

artists’ names and then want to charge you to use your own name?

That is ridiculous, as far as I am concerned, but I would like your

advice on that. I would like to hear from all the interested parties

how we can help resolve some of these issues and further the creativity of our society.

Well, let me just say this has been a marvelous panel, and I

know a lot of you have really sacrificed to be here. It means a lot

to us, and I personally apologize for going so long, and I apologize

to the next panel for it going so long. But it has been important,

and we will continue to hold hearings that may elucidate what

needs to be talked about in these areas.

With that, we will recess— Senator LEAHY. May I just— Chairman HATCH. Senator Leahy?

Senator LEAHY. I just want to say, Mr. Chairman, there are a

number of these important issues. I think what Mr. Kearby said

struck me. He wants to make the tools, not the rules, to paraphrase what he said. And I am not sure any of us on this panel

would be prepared to, even if we could pass all the laws we wanted

today in a fast-changing world like this, who knows just what to

do. I don’t have any doubt that when you speak about the tools,

these can be done. Whatever kind of business model you want, any

way of distribution you can do. And I suspect that we are going to

find more and more consumer uses of that, whether it is down to

something like this monitor and this mouse carrying all your

records and everything else.

But Mr. Henley points out, I think very well, that it is one thing

if you have a starting artist who wants to give away as a promotion

music, that is fine. They do it in a lot of things. They do it with

ice cream. Ben and Jerry’s did it when they first started out. But

then they became a multi-million-dollar business once people got

used to it. Even well-established artists, Mr. Henley and Ms.

Morissette, if they have a new album out, maybe they want to direct market it, assuming they don’t have contractual obligations;
88

otherwise, they may want to give it away. Well, that should be

their choice. But otherwise they should always be compensated. I

mean, that is the thing we have to find out.

I think there is great genius in Napster and MP3 and all the

other technical applications for the Internet that have been done.

As one who feels very strongly about our copyright laws, as one

who looks even back to the beginning of this country and the Constitution when we talk about such issues, I want to make sure artists are protected. Otherwise, we are not going to have anything in

the future. My friend from Utah has raised some points that are

going to open up in some ways a Pandora’s box, but I think it is

not all that bad that we open it.

Chairman HATCH. Thank you, Senator.

With that, we want to thank you. We are going to take a five

minute-recess. We would like to come out and shake hands with

you while we set up the other panel.

[The Committee stood in recess from 12:55 p.m. to 1:06 p.m.]

Chairman HATCH. We are privileged on this next panel to have

Congressman Chris Cannon, my dear colleague from Utah who is

very familiar with Internet matters.

Then we will hear from Robin Richards, who is President of

MP3.com, a leading Internet music distributor.

Ed Murphy is President and CEO of the National Music Publishers’ Association.

Mike Farrace is Senior Vice President at Tower Records, a leading online and brick-and-mortar music retailer.

Sally Greenberg is Senior Product Counsel of Consumers Union.

Finally, Edmund Fish is President of the MetaTrust Utility Division of InterTrust Technologies, a provider of technological protections for copyright content online.

We look forward to your presentations today. We are really out

of time, and I don’t want to short-change you, but I would like you

to summarize as best you can. If you can do it in less than 5 minutes, we would appreciate it.

We are going to reserve questions on the part of the Committee

so that we can submit those in writing to you because this panel,

in particular, should give us the best you can in writing as to what

should be done about some of these issues.

So with that, we will turn to you, Mr. Cannon, and we appreciate

your patience in waiting. We appreciate all of you for being patient

in waiting this long.

STATEMENTS OF HON. CHRIS CANNON, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF UTAH

Representative CANNON. Mr. Chairman and Senator Leahy. I

thank you for the opportunity to offer some thoughts on the issue

of digital music and copyright.

Let me start off by saying that, as a conservative, I believe in

and respect property rights, whether the property in question is

physical, personal, or intellectual. Around the globe, people read

books written by American authors, watch movies created by American directors, and listen to songs performed by American artists,

all because we as a Nation respect creativity and provide a legal

framework that encourages it.
89

As such, I cannot and will not support anyone who profits off

other people’s creativity or innovation and fails to compensate the

creator. However, facilitating public access to creative works is also

a key goal, one that in no way is inconsistent with Congress providing incentives for creativity. With that thought in mind, I would

like to specifically address the the marketplace for digital music

distribution.

As you know, I have experience as a venture capitalist, starting

more than a decade ago with Utah-based Geneva Steel. As e-commerce has taken hold, I have moved the focus of my efforts to technology. Like most venture capitalists, I have watched companies

such as musicmaker.com and others that had hoped to distribute

music via the Internet go out of business.

To be sure, the failure of online music distribution to take hold

is in part rooted in the immaturity of the marketplace and the lack

of residential broadband access. But there are also troubling signs

that the recording industry may have intentionally chosen not to

license music to new entrants to the marketplace.

It has been suggested by a number of observers that the industry

may be manipulating copyright law to deprive the digital music

market of competitive forces. If that charge is proven, the copyright

model that the recording labels have come to rely upon will almost

certainly require adjustment.

Any system of distribution that increases cost to consumers, decreases choices, or distorts the market should be thoroughly examined, particularly when that system exists only as an outgrowth of

rights to intellectual property conferred by Congress.

We all know that Congress’ historical approach to copyright law

has not been static. Copyright protection is not a black-and-white

issue. From player pianos to satellite television, we have been willing to modify copyright to meet blockages in the marketplace.

Whether the problem of digital music requires modification has

yet to be determined. But I would hope Congress would not shy

away from an examination of the issues merely because the same

copyright stakeholders who sought from us the sweeping changes

of the Digital Millennium Copyright Act 2 years ago now demand

the absolute rigidity of the status quo.

Clearly, everyone here would prefer a market-driven solution to

the issue. Yesterday’s announcement regarding the industry’s new

deal with RealNetworks is a step in the right direction. However,

the fact that the new distribution service will be 60-percent owned

by recording labels highlights the potential dangers of vertical integration in the marketplace. If anti-competitive practices are taking

place, we must be prepared to shift our paradigm regarding copyright licensing to ensure a vibrant and competitive market for online music.

The Internet continues to bring us wonderful, new developments,

from entertainment to telemedicine. My hope is that as a result of

vigorous competition among digital media companies, we will see

a decline in the cost of digital music and other information, and

with it more options for artists and consumers.

Mr. Chairman, thank you for holding this hearing. I look forward

to working with you and other members of this chamber and my

colleagues in the House to ensure an appropriate balance between
90

protection of intellectual property rights and the need for efficient

distribution of information in the digital world.

Thank you.

Chairman HATCH. Well, thank you, Mr. Cannon. We will excuse

you because we know you have other duties, but we appreciate

having the benefit of your experience.

Representative CANNON. Thank you.

Chairman HATCH. Mr. Richards, we will turn to you.

STATEMENT OF ROBIN RICHARDS, PRESIDENT, MP3.COM, INC.

Mr. RICHARDS. Good afternoon, Mr. Chairman and Mr. Leahy.

Thank you for having me here today to testify.

I heard a lot of compelling issues, I heard a lot of confusing

issues. Some folks needed licenses and some folks wanted better security. Artists wanted to be paid for their works, as they rightfully

should when they go on the Net, and consumers want their music

in digital formats.

I hear the new service that is coming; keyword: it is coming. I

look at MP3.com and I look at where we have been. I am here to

request your help because we have licenses. We have security that

the publishing companies and record companies have approved. We

have collection and accounting systems where we can account for

all of the listens. We have 28 million users, according to Media

Metric’s newest survey. We pay artists and writers every time

somebody listens to their songs.

But the law is holding us back, and I am here to request your

help in clarifying existing copyright law to ensure that the millions

of Americans who have purchased CDs—and we need to make sure

we talk about purchased CDs versus free music on the Internet or

not purchased CDs—Americans who have purchased CDs be allowed to access them online whenever and wherever they want.

Last September, our company’s CEO appeared before this Committee and described our innovative online music service and the

disputes we found ourselves in with the music industry over the

virtual music lockers we had created for consumers so that they

could use the Internet to play back the CDs that they buy from the

brick-and-mortar and online retail establishments.

Since that time, MP3.com has paid tens of millions of dollars to

the five major record labels in the Harry Fox Agency, which claims

to represent over 25,000 music publishers. Yet, after trying for

nearly 6 months, we still aren’t able to provide our listeners with

access to the nearly two-thirds of the songs on CDs that they have

purchased in the locker system.

So what is causing this problem and what can be done about it?

The problem we are facing in giving consumers access to music online—and it is a problem that will be faced by every Internet music

provider, AOL Time Warner and Real, as well; we are just a little

bit ahead of them—is that there is no practical way for us to get

licenses from all the music publishers with copyright ownership

claims on the more than 900,000 songs in our digital library.

Dealing with this problem will require Congressional action. But

while Congress considers that action, we need a more immediate

fix—the establishment of a safe harbor under the auspices of the

Copyright Office that will allow businesses like ours to begin bring-
91

ing music consumers the benefits that online technology offers,

while protecting the interests of copyright owners. There is no contractual dispute between Ed and me; we are doing fine.

Obtaining licenses for every song would be a monumental task

even if the publishing information were readily available, but it is

not. Even for brand new CDs, it can take up to 2 months to track

down who the publishers are. Mr. Murphy doesn’t have that information.

More importantly, because the Harry Fox Agency doesn’t represent every music publisher—the last estimate was 70 percent— and because many songs have several different publishers—some of

our new music, hip-hop and rap, can have 10 publishers on one

song claiming a share of the rights there—it appears that there is

no practical way for us to get the clearances we need through the

marketplace.

Nobody wants to buy a CD with 15 songs and find out that they

can only listen to 4 or 5 of them, but that is the situation we find

ourselves in. The good news is that the reproduction and distribution rights we need to get from the publishers already are subject

to statutory compulsory license under Section 115 of the Copyright

Act. It is here already.

The bad news is that its statutory licensing mechanism which

dates back nearly 100 years is badly out of date. Even though Section 115 was amended in 1995 to extend it to certain online activities, the Copyright Office has never established royalty rates for a

service like ours.

Moreover, the procedures that the Office traditionally has used

in granting statutory licenses are cumbersome, time-consuming,

and expensive. We actually would have to manually search the

Copyright Office’s records for the names and addresses of the copyright owners of each of the hundreds of thousands of song titles on

the CDs that our consumers have purchased and stored online.

And we would have to submit a separate application to the Copyright Office for each song whose current owners could not be located. That is thousands of folks we can’t find. Using this antiquated system for obtaining licenses in a digital era would completely overwhelm the Copyright Office, which typically handles

only a few hundred statutory license applications in a single year

under 115.

In short, our problem in getting licenses isn’t contractual nature,

and the free market can’t help. Our problem is that the marketplace and statutory licensing mechanisms that were developed in

the pre-digital era simply cannot handle the demands of the Internet-fueled digital music economy.

People don’t want to use the Internet to store and listen to some

of their music purchases. They want all of the music they own to

be available online to them, and this makes sense and seems right.

We have built a system that can allow people to get the added

value from their music purchases that the Internet promises. We

and other innovators who will follow surely in our footsteps can

make it possible for your children to leave their CD collections safely at home when they go off to college, or for you to listen to any

of your CDs in your car or on a hand-held device without toting

around suitcases full of silver discs.
92

To do these things, we need your help. Consumers need to know

exactly what they can do with their music purchases, not just what

they can’t do. And we need Congress to reform and modernize the

Section 115 compulsory license. We urge you to look to the model

of the satellite and cable compulsory licenses which permit copyright users to submit periodic royalty payments into a pool that is

then distributed among copyright owner claimants. This model

gives the users of copyrighted works assurance that they have the

protection of a compulsory license even if they cannot identify in

advance every person who might claim an ownership interest in

the works being used.

But most importantly, we need for Congress to encourage the

Copyright Office to create an immediate safe harbor that will allow

companies like ours to have the protection of a compulsory license

while waiting for Congress and the Office to establish rates and update the procedures for getting those licenses.

We have shown that we are willing to pay copyright owners for

licenses. We ask your assistance in overcoming the inadequacies of

the current law and the system and marketplace and the statutory

mechanisms for obtaining those licenses so that true competition

can exist and music online can finally emerge.

I thank you for your time.

[The prepared statement of Mr. Richards follows:]

STATEMENT OF ROBIN RICHARDS, PRESIDENT, MP3.COM, INC.

Thank you for this opportunity to appear before you this morning. My goal today

is to describe to you some of the hurdles faced by the developers of on-line music

technologies in obtaining all of the licenses that the record labels and music publishers insist are necessary before consumers can take advantage of those technologies—even technologies that simply allow consumers to listen to the CDs that

they purchase from brick and mortar and on-line retail establishments. In particular, I want to focus on the problems that Internet-music services such as ours face

in meeting the music publishers’ insistence that we obtain licenses covering the incidental reproductions that are inherent in enabling consumers to listen to their CDs

in MP3 format. And, finally, I will describe an easily implemented ‘‘safe harbor’’ proposal that would allow the purchasers of recorded music to begin taking immediate

advantage of some of the benefits that on-line music technology offers them while

government and industry attempt to resolve larger questions regarding the application of the copyright law in the digital environment.

I appear before you as part of a new industry—an industry that represents a new

economy in the throws of tumultuous transition. I don’t think it is an exaggeration

to say its future—the jobs it generates, the consumers it serves and the value it

brings to artists and creators—is greatly dependent upon your actions.

The Internet music industry is at a critical juncture. The Wall Street Journal just

three weeks ago put the problem in perspective. The Journal said, and I quote: ‘‘The

music labels are asking lawmakers to stay out of the digital-music fight while they

roll out their own competing online services, and, so far, it is working.’’ The article

went on to say that Congress is not ready to intervene. ‘‘Instead,’’ the article said,

‘‘lawmakers plan to keep a spotlight on the issue by holding hearings and publicly

urging the labels to move ahead quickly on their own services.’’

If this, indeed, is the position of Congress, then Congress is doing what it has seldom done, taking the side of one segment of an industry against another. This is

not merely a matter of Congress allowing the marketplace to work out its problems.

The stark reality is that Congress is taking the side of Goliaths against David. Congressional inaction will, in fact, give the music industry conglomerates that control

both the sound recording copyright and the copyright in the individual songs on

those recordings time to snuff out the competing small businesses attempting to

emerge in the on-line music service sector. There will be no competition, except

among these conglomerates themselves, who eventually will effectively control the

music industry from one end of the spectrum to the other.

If that sounds alarmist, it should. Let me explain why.
93

We are a premier, worldwide, Internet music service provider. We give upandcoming musicians access to a market and marketing that would otherwise be

closed to them. We assist new entrepreneurs to use the management tools we’ve developed and refined to create their own services and businesses. We team with radio

stations to bring the music of their local artists to on-line listeners. We provide

unique music and management services to retailers. We sell CDs, recommend and

assist with hardware and software, and provide free musical greeting cards. We

have a children’s channel, too.

I want to focus on just one of our services. In January 2000, we launched a service

called My.MP3.com. My.MP3.com is a digital music storage ‘‘locker’’ service that

uses MP3 compression technology to enable people to use Internet connected devices

to listen to the CDs that they purchase at their local record store or from on-line

retailers such as junglejeff.com and, in the near future, towerrecords.com. Today,

the primary playback device for My.MP3.com users is their personal computer. But

in the not too distant future, consumers will be able to use My.MP3.com to access

their purchased CD collections using hand-held Internet-enabled devices and Internet-connected devices installed in their cars.

The way the My.MP3.com service works is as follows: with respect to a CD that

a consumer already has purchased, the consumer takes the CD and places it in the

CDROM tray of his or her computer; our ‘‘Beam-It’’ software then ‘‘reads’’ the CD

and, having established that it is a real, legitimate CD release, adds the CD to a

secure, personalized ‘‘locker’’ which can be accessed by that consumer—and only by

that consumer. With respect to CDs purchased on-line from one of our retail partners, the consumer can use our ‘‘Instant Listening’’ software to add a CD in MP3

format to his or her personal locker at the same time the consumer pays one of our

on-line retail partners for the CD, thereby allowing access to the songs on the CD

even before the disc is physically delivered.

I want to emphasize that My.MP3.com differs from music file-sharing or ‘‘swapping’’ services that allow users to download, save, and trade music that they have

not purchased. CDs can be accessed on My.MP3.com only for a real-time listening

experience, not for downloading and copying. And before any CD can be accessed

on our service that CD will have been purchased twice: once by the listener and,

as discussed below, once by us.

As you know, not long after launching the My.MP3.com service, we were sued for

copyright infringement both by the major record labels and by certain music publishers. The problem that we faced in trying to defend ourselves against these lawsuits is that the Copyright Act never anticipated the development of a technology

such as My.MP3.com. While Congress has made certain changes to the Copyright

Act in effort to address the use of digital transmission technology to deliver music

to consumers, these changes rightfully focused on concerns that ‘‘on-demand’’ serv- ices that allowed consumers to choose what music they received over the Internet

could lead to the widespread production and distribution of perfect ‘‘pirate’’ copies

of sound recordings. Congress never foresaw—or addressed—the development of an

‘‘on-demand’’ service such as My.MP3.com—a service that poses no piracy threat

since users can only ‘‘demand’’ music that they already have purchased and only for

the purpose of receiving what essentially is a ‘‘private’’ performance via real-time,

streaming audio, without the ability to duplicate, save, or share the transmissions.

Because Congress never foresaw the development of a personal purchased music

‘‘locker’’ service like My.MP3.com, the door was left open for record labels and music

publishers to argue that My.MP3.com was infringing their copyrights by allowing

consumers to access their purchased CDs in MP3 format. In particular, the copyright owners cited the fact that instead of developing a system that requires consumers to convert their own CDs into the MP3 format, My.MP3.com went out into

the marketplace and bought those same CDs and converted them for the consumer.

According to the record labels and music publishers, the act of converting these CDs

to MP3 format, so that consumers who had separately purchased those same CDs

could listen them to in that format, constituted an act of infringement. In addition,

the music publishers took note of the fact that when a consumer listens to a song

from his or her My.MP3.com locker, that song is delivered to the consumer by

means of a ‘‘streaming’’ audio technology that automatically makes a temporary or

‘‘buffer’’ copy of a portion of the song as a necessary and integral part of the transmission process. Although this buffer copy lasts only a few seconds and is eliminated once the playback of the song begins, the music publishers asserted that, in

order to use this technology to playback a CD to a consumer who has purchased

that CD, My.MP3.com needed a separate license to make and distribute copies of

the song.

In response to these lawsuits, we voluntarily ‘‘shut down’’ the My.MP3.com service

and entered into settlement negotiations with various copyright owners and their
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representatives. Shutting down our service deprived consumers of the ability to access the music that they had purchased and stored in their on-line lockers. There

is a certain irony in the fact that by forcing us to shut down our site, the record

labels and music publishers undoubtedly drove many of our customers to services

such as Napster, where they not only could find and play the CDs that they already

had bought, but also could (and probably did) obtain access to a vast array of music

selections without ever having to purchase them.

In any event, although we disagreed with the interpretation of the copyright law

put forward by the record labels and publishers, our desire to get our service back

up and running led us to enter into very costly agreements covering all of their

claims. We have agreed to pay for converting the CDs that we purchase into MP3

format. We have agreed to pay for performing both the sound recordings and the

songs contained on those CDs.

And we even have agreed to pay the publishers for the temporary, momentary ‘‘buffer’’ copy that automatically is made (and deleted) each time someone listens to

their own music out of their My.MP3.com locker. Yet, today, nearly six months after

signing the last of these agreements, we haven’t been able to obtain all of the licenses that the copyright owners insist we must have before we can fully relaunch

the My.MP3.com service.

Despite what you may hear from some of the copyright owners, our inability to

obtain the necessary licenses is not merely a contractual problem that can and will

be solved by the marketplace. Rather, it is a reflection of the fact that the existing

marketplace and statutory music licensing mechanisms—mechanisms that developed nearly 100 years ago—simply do not work in the digital environment. As a

matter of public policy, it is incumbent on government to address the failure of

these marketplace and statutory mechanisms, both through immediate remedial action and through a comprehensive reassessment of the application of the copyright

law to digital music technologies.

The particular marketplace and statutory failure that is currently frustrating our

ability to provide the My.MP3.com service to consumers involves the licensing of the

right to reproduce and distribute musical compositions, by means of streaming MP3

transmissions, to consumers who have bought the CDs on which those compositions

appear. As I have indicated, we do not agree that the essentially ‘‘private’’ performances facilitated by our technology should trigger any additional copyright payments

(over and above the compensation received by copyright owners as a result of the

purchase of their works by us and by users of our service). Nonetheless, faced with

a threatened onslaught of litigation, we agreed to pay the music publishers for making an ‘‘incidental digital phonorecord delivery’’ each time someone uses the

My.MP3.com service to listen to one of their own CDs.

Incidental digital phonorecord deliveries—IDPDs for short—are a type of ‘‘me- chanical’’ reproduction and distribution requiring licenses from the owners of the

publishing rights in the songs contained on a CD. Our licensing agreement was

made with the Harry Fox Agency (‘‘HFA ’’), an arm of the National Music Publishers

Association that, for nearly 75 years, has served as the music publishing industry’s

principal clearinghouse for the administration of mechanical rights licenses. According to its website, HFA issues licenses, collects and distributes royalty payments,

and audits the books and records of licensees on behalf of more than 25,000 music

publishers who, in turn, represent the interests of over 150,000 songwriters.

When MP3.com and HFA announced their licensing agreement last October, the

joint press release proclaimed that the deal was intended to give us licenses for over

a million songs. And, in fact, we immediately provided HFA with a list of over

900,000 song titles, along with information identifying the CD on which each song

appeared and the name of the artist performing the song, exactly as was requested

by HFA. Six months later, however, HFA still has not been able to issue licenses

to us for nearly two-thirds of these songs.

We are not suggesting that HFA hasn’t tried to clear the rights to more songs.

Rather, the problem appears to be that HFA’s system for issuing mechanical rights

licenses for its publisher members simply cannot handle the demands of the digital

marketplace. In order for us to obtain a license for a particular song from HFA, we

not only have to provide them with the song title, CD and artist, but we also have

to know who owns the publishing rights for the song. This information is not readily

available to the public and, to date, HFA has been unable or unwilling to match

our list of song titles with their database of the songs published by their publisherclients or to otherwise make available to us the information that they insist be provided on each license request.

Nor is this problem limited to the songs on ‘‘older’’ CDs. Making newly released

CDs available to consumers through the ‘‘Instant Listening’’ option is one of the key

attractions of the My.MP3.com service—and is something that helps promote the
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sale of music. (For example, before we shut down the My.MP3.com service, participating retailers who offered their customers our Instant Listening option saw their

sales of new releases as much as double.) But even after settling with the labels

and publishers, we have been stymied in obtaining licenses for the songs on newly

issued CDs.

A good illustration (reflected in the attached Exhibit 1) is our experience with the

new Jennifer Lopez CD, ‘‘J–Lo.’’ Shortly after Epic/Sony records released this CD,

we attempted to make it available on My.MP3.com. We had obtained the necessary

rights from the record labels with respect to the sound recording copyright and we

had agreements with ASCAP and BMI giving us the right to ‘‘publicly perform’’ the

songs on the CD. However, we couldn’t get HFA to give us the required (by them)

license for any of the songs. When we asked HFA why the songs on this new CD

were not in their database and, thus, licensable, we were told that HFA would be

able to issue licenses covering some—but not necessarily all—of the songs, but that

it would take 6-8 weeks after receipt of a license request for HFA to locate the publishers associated with each song and get clearance. That’s 6 to 8 weeks for just one

CD. Consequently, we have been unable to offer consumers who buy the J–Lo CD

from one of our on-line retail partners the opportunity to use ‘‘Instant Listening’’ to begin listening to their purchase while waiting for the physical disc to be shipped

to their homes. Similarly, even after the customer has the actual CD in hand, he

or she cannot use the Beam It software to add the songs on the CD to his or her

My.MP3.com locker.

Apart from the problem of obtaining information matching up the songs we want

to play with the songs owned by publishers represented by HFA, the difficulties we

face in getting the My.MP3.com service back up and running are exacerbated by the

fact that HFA does not represent every publisher and by the fact that the publishing rights in many, if not most song titles are held by multiple owners in varying

percentages. For example, if you look at the liner notes of a ‘‘rap’’ CD—one of the

most popular genres of music on-line, you will see as many as ten publishers on any

given song. Many of these publishers may be impossible to locate or are otherwise

unreachable.

Thus, even if HFA granted us licenses to the song catalogs of all of the publishers

that they represent, there will be songs in My.MP3.com lockers for which we do not

have clearance, or for which we have only a partial clearance. Indeed, we have already encountered the situation where, after activating a song in reliance on an

HFA-issued license, we received notice from a non-HFA affiliated publisher claiming

a partial ownership interest in the song and objecting to its being made available

on our service.

In short, there is no marketplace mechanism that will allow us to fully relaunch

My.MP3.com—thereby giving consumers access to all of the songs on all of the CDs

that they have purchased and stored on their My.MP3.com lockers—without running a significant risk that we will be sued by unknown publishers claiming ownership rights in some of those songs.

Given the potential unavailability of marketplace licenses for any number of

songs, the obvious solution is the establishment of a statutory licensing mechanism.

And, in fact, nearly a hundred years ago, Congress addressed concerns that the

withholding of music licenses could lead to the emergence of ‘‘a great music monopoly’’ by establishing a statutory compulsory copyright license for anyone who wants

to reproduce and distribute copies of a previously license—which originally applied

to the reproduction and distributionof songs in mechanical formats such as piano

rolls—to cover the digital delivery of reporductions of songs (including IDPDs), neither the statutory procedures for invoking the compulsory license, nor the Copyright

Office’s implementing regulations, have been adopted to meet the demands of the

on-line music environment.

A more detailed synopsis of the workings of the statutory mechanical copyright

license (currently codified in Section 115 of the Copyright Act) is attached as Exhibit

2 to this testimony. Suffice it to say here that before MP3.com could claim protection under the statutory license, we would have to manually search the Copyright

Office’s records for the names and addresses of the copyright owners of every one

of the nearly one million songs on the My.MP3.com service—a task that in and of

itself is economically and practically infeasible. Moreover, for any song that does not

have current ownership information on file, MP3.com (or any other on-linemusic

provider seeking a comulsory license to a wide spectrum of musical works) would

have to file a separate compulsory license application. This means that if current

information is not available for merely a third of the million songs searched—a not

improbable result given the songwriters and publishers are not required to notify

the Copyright Office about changes in the ownership of a son’s publishing rights,

or even to register the copyright in the song in the first place—over 300,000
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separate filings would have to be made at the Copyright Office. To put the burden

that this would create in some perspective, last year the Copyright Office processed

roughly 350 Section 115 license applications.

Congree cannot stand idly by and simply hope that the gridlock currently frustrating the relaunch of MY.MP3.com (which will frustrate the introduction of other services as well) will resolve itself. Many of you probably have seen the ad on television

in which a weary traveler stops at a remote establishment and is offered a choice

of every song ever recorded in every format. We are supposed to be shocked at this

unimaginable concept. But, given the advances in digital technology, the idea that

every piece of recorded music could be available at the click of a mouse is not unimaginable at all. What does remain unimaginable, however, is that anyone could

ever track down all of the copyright owners in every single song and get them to

agree to license terms. If the ‘‘science fiction’’ depicted in that ad is to become ‘‘science fact,’’ government must deal decisively—and quickly—with some fundamental questions regarding the on-line use of music.

For example, the rights implicated by the use of streaming audio technology must

be clarified. If streaming audio is being used simply to perform a musical work,

should the owners of the copyright in that work have additional rights because the

transmitting entity, in order to render this performance, must first convert the work

to MP3 format and because the creation of temporary ‘‘buffer’’ copies are an inherent part of the streaming process? We note that the Copyright Office has initiated

an inquiry to address this issue in response to petitions filed by our company and

by the RIAA. We hope the Office is able to offer some much needed guidance. But

if the Office is unable or unwilling to do so, we urge Congress to step in and address

these matters in a prompt and timely fashion.

Once the scope of the rights implicated by the use of streaming audio technology

are clarified, Congress must ensure that there is a practicable means of licensing

those rights. In particular, if it is determined that the right to convert DCs to MP3

format and/or to make ‘‘buffer’’ copies requires a license from the music publishers,

Congress must reform the Section 115 compulsory license so that it can be utilized

in the digital environment. We urge Congress to look to the model of the satellite

and cable compulsory licenses, which permit copyright users to submit periodic royalty payments into a pool that is then distributed amongst copyright owning claimants. This model gives the users of copyrighted works assurance that they have the

protection of a compulsory license even if they cannot identify and locate every person who might claim a copyright interest in the works begin used.

Finally, Congress needs to address the rights of music purchasers. The public,

quite frankly, is confused. At every turn the courts, applying statutory provisions

that never contemplated the services to which they are being addressed, are telling

consumers what they cannot do. It is time for government to step in and clarify

what someone who purchases a CD can do. Specifically, Congress needs to address

the following questions:

(1) Can and should consumers be able to listen to their own purchased CDs on

any digital device? In 1992, Congress enacted the Audio Home Recording Act, which

gave consumers the right to copy CDs to tapes. Now questions abound about consumers’ use of the next generation of technology, such as personal computers and

MP3 players. Each new device or format raises a new the issue of what the law allows consumers to do with the music that they purchase.

It shouldn’t take a separate act of Congress to permit consumers to use a new

gadget to listen to their music. Let’s clarify copyright law once and for all and give

consumers the explicit right to convert their music CDs into other digital formats

for the purpose of enjoying their purchases on any Internet-enabled device.

(2) Can and should music buyers be allowed to store their music in places where

they can most easily access it? One of the benefits offered by digital technology is

that it can make music fully portable. No more lugging around CDs in order to have

your music collection at your fingertips. Imagine being able to access all of your

music purchases from your PDA, phone, car or wherever you happen to be. This is

becoming more of a reality every day as the world around us goes on-line.

Unfortunately, the drafters of the Copyright Act never contemplated this situation

so it’s subject to extensive legal debate. Music buyers should be rewarded with the

maximum use of the music that they purchase with their hard-earned dollars. Let’s

ensure that they have the rights to house their music purchases in places where

they can best access it. And let’s encourage companies that build technologies to

help them to do this faster or better.

(3) Should CD buyers be subject to additional fees when they store and playback

their purchased music collections? If you buy a Ford, do you expect you can drive

it anywhere without having to pay Ford more money? If you buy a paperback best

seller, would you be surprised to be billed more money based on where you read
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it? Can you think of any product you purchase outright, only to be surprised with

additional charges in the future? In some instances, there could be fraud charges

for selling something and then hitting the unsuspecting purchaser with more

charges.

Yet this seems to be where we are headed with music CDs. Consumers believe

they are buying CDs, but copyright owners argue that, under current law, payments

can be imposed on a consumer’s use of on-line technologies that allow them to store

and playback the music that they have already bought. Is a consumer truly buying

a CD or is it just a lease they’ll have to continue paying on forever? Music buyers

have the right to demand clarity in this area. Either CDs should be properly labeled

as a lease and future payments defined in advance, or consumers should be only

charged once no matter how or where they listen to their music. This is essential

for them to make informed buying choices.

Last year we supported a bill, the Music Owners’ Listening Rights Act, which addressed many of the questions posed above. We believe that the approach taken in

that legislation offered an appropriate resolution of the rights of consumer with respect to the on-line storage and playback of their purchased CDs. However, we are

not wedded to a single approach and look forward to working with Congress, the

Copyright Office, and the music industry to clarify and confirm the rights of music

consumers in the digital environment.

While we believe that there is a pressing need for quick action to clarify and reform the process by which on-line uses of music are licensed (to the extent licensing

is necessary), we are not naive. We recognize that the questions that we have posed

will not be answered overnight. Fortunately, there is a short-term solution available

that will give My.MP3.com and other similar on-line digital music providers a ‘‘safe

harbor’’ from infringement claims while protecting the music publishers’ interests.

Although Congress extended the Section 115 compulsory license to ‘‘IDPDs’’ in 1995,

the Copyright Office has never adopted rules setting the rates or terms for invoking

that license. In fact, the Office has expressly adopted a rule ‘‘the adoption of such

rates and terms.

It is simply not right for the benefits of a statutory compulsory license enacted

by Congress to be denied to on-line music providers because no rates or terms have

been established for its use. We urge that you support our efforts to get the Copyright Office to establish a safe harbor mechanism whereby on-line music users can,

by filing informational statements at the Copyright Office, obtain the protection

from liability that compulsory licensing is intended to give. These statements would

include the names of the songs for which protection is sought, together with information regarding the name of the CD on which the song appears, the artist performing the song, and the number of times that the song has been ‘‘delivered’’ to

consumers. Once rates and terms have been established, royalty payments covering

the activities described can be made.

This safe harbor approach, if implemented, will immediately solve the problem

faced by MY.MP3.com and other on-line music providers: the risk of being sued for

using songs owned by publishers who cannot be identified through the existing marketplace and statutory licensing mechanisms. More importantly, it will allow consumers to take advantage of innovative technologies that increase the value of their

purchased CDs through on-line storage and playback. Put simply, as soon as this

safe harbor approach is implemented, we will provide the required information and

by the next day we will be in a position to ‘‘unlock’’ all of the purchased music that

users of the MY.MP3.com service have stored on-line.

In conclusion, I would like to return to my opening comments. I hope that the

implication in the Wall Street Journal article was not correct. I hope that it is no

Congress’ intention to allow the major record labels and mu8sic publishing companies to buy time until they drive others and us from this market, a market we created, a market we nurtured, a market we served. Such inaction would have catastrophic consequences, create an unholy alliance between government and the conglomerates, and set a very bad precedent.

The confusion and uncertainty surrounding the application of current copyright

law to new digital music services helps only the established music industry, which

is seeking through vertical integration to control not only the publishing and sound

recording rights, but also the avenues of music distribution. Innovative new companies such as ours languish in regulatory limbo, while the international music conglomerates have free reign and the time they need to duplicate services that we invented, we innovated, we financed, we marketed and we brought on line, with some

of the technology we revolutionized.

The real losers will be consumers, who will be denied competitive choices they

have every right to expect. Also lost to them will be the spirit of innovation, invention and entrepreneurship that brought them this new technology and new services
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in the first place. It is that spirit that has served as the backbone of the American

economy since the days of our founding. Small business drives our economy, not any

looming international conglomerates that seek to control it.

I am grateful to the Committee for scheduling this hearing and offering me the

opportunity to describe the difficulties that we face in bringing the benefits and

value of on-line digital music storage and playback to the purchasers of recorded

music. I hope this hearing is not a placeholder. I hope it does not end with Congress

believing this is enough while the others take advantage of our situation. I hope you

will use this hearing as a springboard to action and find the necessary balance between the rights of copyright owners and the rights of consumers.

Thank you.

INTERNET MUSIC AND THE SECTION 115 ‘‘MECHANICAL’’ LICENSE

I. THE SECTION 115 ‘‘MECHANICAL’’ LICENSE:

What is the ‘‘mechanical’’ license? The ‘‘mechanical’’ license, which was first enacted in 1909 to address concerns about the possible emergence of a ‘‘great music

monopoly,’’ and which now can be found in Section 115 of the Copyright Act, is a

‘‘compulsory’’ copyright license that allows anyone to record and distribute their own

‘‘cover’’ version of a previously published copyrighted ‘‘nondramatic musical work’’

(i.e., a song) without having to negotiate with the copyright owner for the right to

do so. The Section 115 license also applies when copies are made and distributed

of a pre-existing recording of a song; however, in order to reproduce and distribute

copies of a pre-existing recording, an additional license (referred to as a ‘‘master recording license ’’) must be obtained from the record label that owns the copyright

in the pre-existing recording. The rate for the mechanical license was initially set

by Congress and is subject to periodic revision by a Copyright Arbitration Royalty

Panel.

How do you obtain a ‘‘mechanical’’ license? Section 115 provides that, if the name

and address of the copyright owner of a particular song can be identified from the

Copyright Office’s records, anyone wishing to exercise the statutory ‘‘mechanical’’ license to make and distribute copies of that song must serve a ‘‘notice of intent’’ on

the copyright owner prior to distributing any copies; failure to serve this notice before distributing copies bars reliance on the mechanical license. The statute also requires the compulsory licensee to make monthly royalty payments to the copyright

owner (based on the number of copies distributed) and to provide the copyright

owner with CPA-certified annual statements of account. The statute directs the

Copyright Office to prescribe, by regulation, the form, content, and other requirements regarding service and certification of the initial notice of intent and the

monthly and annual statements.

If the name and/or address of the copyright owner cannot be ascertained from the

registration or other public records of the Copyright Office, the notice of intent must

be filed directly with the Office; in such cases, however, no royalties will be due

until such time as the copyright owner has identified itself in the Office’s public

records.

The Copyright Office has declined to promulgate ‘‘official’’ forms for either the notice of intent or the royalty statements. Instead, the Office has prescribed a set of

rather detailed and burdensome filing requirements. The most burdensome requirement is that a separate notice of intent must be filed for each song for which the

license is claimed. In addition to information about the song itself, each notice must

be signed by an officer of the licensee, must contain detailed information about the

licensee (e.g., the names of all of the officers and directors of any entity with a

greater than 25% beneficial ownership interest in the licensee), and must be served

on the copyright owner by registered or certified mail. For each notice that is filed

with the Copyright Office (because the name/address of the copyright owner is not

available), a $12 filing fee must be paid; another $8 fee must be paid if the licensee

wants to receive an acknowledgement of the filing from the Office.

The role of the Harry Fox Agency. In practice, the statutory mechanical license

process is rarely, if ever, utilized. Instead, mechanical rights licenses are granted

(at the statutory royalty rate) by the Harry Fox Agency (‘‘HFA ’’). According to its

website (http://www.nmpa.org/hfa.html), HFA represents more than 22,000 U.S.

music publishers. Songwriters (who are the original copyright owners of the songs

they compose) typically assign their copyright interests to publishing companies.

The process of applying to HFA for a mechanical license requires a separate application for each song; the information required by the application form includes the

name(s) of the publishers who hold an interest in the song for which the license is

being sought and the percentage ownership interest held by each publisher. The
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HFA website indicates that it takes 4-8 weeks for a license to be granted if the application is submitted manually. When a song is released for the first time on CD,

the labels and/or publishers don’t always tell HFA; consequently, when an application for a mechanical license is filed for a new song, HFA may have to go back to

the publisher for authorization to grant the statutory license:

II. THE PROBLEM OF LICENSING THE ON-LINE DISTRIBUTION OF MUSIC

In 1995, Congress sought to clarify the application of the ‘‘mechanical’’ compulsory

license to the on-line distribution of music by amending Section 115 to specify that

it covered digital transmission services that make ‘‘digital phonorecord deliveries.’’

Notwithstanding this amendment, the ability of consumers to utilize Internet-based

tools to enjoy recorded music continues to be frustrated by legal uncertainty over

the scope of the Section 115 compulsory license and by the practical

unmanageability of the current Section 115 process in an Internet environment.

Furthermore, when it comes to the distribution of music on-line, neither the Harry

Fox Agency nor the record labels can be relied upon as a surrogate for the statutory

licensing process.

Legal uncertainty. The 1995 amendments to Section 115 provided for the establishment of royalty rates not only for ‘‘digital phonorecord deliveries,’’ but also for

‘‘incidental digital phonorecord deliveries’’ (‘‘IDPDs ’’). Unfortunately, the neither the

Copyright Act nor the Copyright Office’s rules define what constitutes an ‘‘IDPD.’’

The music publishers argue that the temporary ‘‘buffer’’ or ‘‘RAM’’ copies typically

made on a web-user’s computer in order to receive a ‘‘streamed’’ real-time Internet

performance of a song constitute IDPDs for which the transmitting entity must obtain mechanical licenses—separate from the licenses are needed to perform the

song. Not surprisingly, streaming audio services, including digital locker services

such as My.MP3.com disagree.

In addition to legal uncertainty as to what constitutes an IDPD, there is legal uncertainty as how the Section 115 license is to be applied with respect to IDPDs. The

1995 amendments directed the Copyright Office to conduct a rulemaking to establish such rates and terms; however, upon request of the songwriters and record companies, the Office ‘‘deferred’’ the adoption of IDPDs rates and terms—a decision that

remains in effect today. The Office has never explained the meaning of its ‘‘deferral’’

decision. For example, if during the deferral period a transmission service does not

file a ‘‘notice of intent’’ before making IDPDs of a particular song, does the service

lose any right to rely on the mechanical compulsory license after the deferral is lifted? Are transmission services immune from liability for IDPDs made during the deferral period or will the rates adopted when the deferral is lifted apply retroactively?

Practical unmanageability. Even if there was no uncertainty as to what constitutes an IDPD or as to the significance of the Copyright Office’s deferral of IDPD

rates, the Copyright Act and the Copyright Office’s rules erect insurmountable practical obstacles to the use of the license by Internet-based music providers who are

deemed to be making IDPDs. The problem is that an on-line digital locker service

such as My.MP3.com, which allows consumers to access streamed performances of

their personal music collections on any Internet-enabled device, needs clearance for

literally hundreds of thousands of song titles.

• As a prerequisite to obtaining a compulsory mechanical license under Section 115,

MP3.com would have to manually search the Copyright Office’s records for the

name and address of the copyright owner for hundreds of thousands of song titles (or pay someone to conduct such a search).

• The Copyright Office currently charges $65.00/hour to search its records (with an

estimated time to conduct a search of between 8 and 12 weeks)

• It is likely that, for a substantial number of song titles (totally in the tens, if not

hundreds, of thousands), the Copyright Office records will not reveal the name

and/or address of the copyright owner. For each of these titles, MP3.com would

have to submit to the Office a separately prepared and signed ‘‘notice of intent’’

along with a $12 filing fee per notice.

• Even where the Office’s records identify the name and address of the copyright

owner, it is a virtual certainty that the records for thousands of songs will be

out-of-date and that notices sent to the listed address will be returned as undeliverable; in such cases, MP3.com will have to file with the Copyright Office

each returned notice, along with evidence of the attempted service.

• And, finally, as for the songs for which accurate addresses can be obtained,

MP3.com will have to prepare and serve, via registered or certified mail, separate notices for each title, and will have to submit monthly payments and CPAcertified annual accounting statements for each title.
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• In short, compliance with the current Section 115 procedures is not feasible, either practically or economically. And if MP3.com did try to follow the existing

procedures, the Copyright Office would end up being buried in an avalanche of

paper that it could never process.

On-line music distributors cannot rely on The Harry Fox Agency and/or the record

labels as an alternative to the Section 115 compulsory license process. As noted

above, distributors of recorded music traditionally have obtained mechanical licenses through the Harry Fox Agency rather than through the statutory processes

established by Section 115 and the Copyright Office’s rules. However, when it comes

to on-line distribution of recorded music, neither the Harry Fox Agency, nor the

record labels can be relied upon to provide a workable alternative to statutory licensing.

In October 2000, MP3.com, which had been accused of making unlawful digital

phonorecord deliveries by certain music publishers, entered into a widely publicized

settlement with those publishers and with the Harry Fox Agency. In the joint press

release announcing the settlement, the publishers characterized the agreement as

a ‘‘landmark proposal’’ that the Harry Fox Agency could ‘‘refer to the music publishing and songwriting community with confidence and enthusiasm.’’

More than five months later, the Harry Fox Agency has been able to give

MP3.com mechanical licenses for only a fraction of the nearly one million song titles

owned by its publisher-principals. Nor has MP3.com been able to obtain publishing

information or clearances from the publishing subsidiaries of the major record labels, despite having entered into separate settlements with each of those labels.

CONCLUSION

Given the unwillingness and/or inability of the publishers and the record labels

to provide Internet music distributors with the mechanical rights that allegedly are

necessary to operate their businesses—rights that are supposed to be subject to

‘‘compulsory’’ licensing—and given the practical impossibility of complying with the

prerequisites for that ‘‘compulsory’’ license, it is clear that Congress must seriously

consider major reform to Section 115 in order to ensure that the public is able to

enjoy the benefits of innovative, on-line music technologies such as My.MP3.com.
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Chairman HATCH. Thank you, Mr. Richards.

Mr. Murphy, we are glad to have you here.

STATEMENT OF EDWARD P. MURPHY, PRESIDENT AND CHIEF

EXECUTIVE OFFICER, NATIONAL MUSIC PUBLISHERS’ ASSOCIATION, INC.

Mr. MURPHY. Thank you, Mr. Chairman, and thank you for your

ongoing participation in efforts to help the creative community and

the songwriters and publishers.

Mr. Chairman, you have asked whether online entertainment

will be coming soon to a digital device near you. For music, the

question is not whether it is coming; the music is here. Our members have licensed more than 30 enterprises, most of them fledgling

businesses less than 5 years old, to distribute recordings of music

over the Internet. Among them are eMusic, MP3.com, and

MusicBank. These companies have chosen to respect the rules laid

down by Congress by obtaining licenses and paying compensation

to the copyright owners.

These licenses demonstrate that the music publishers are committed to licensing their music on the Internet, and confirm that

Congress has provided us with sufficient flexibility to license new

and innovative music services. In this connection, I understand

that MP3.com has said here today that music publishers have not

issued licenses under their settlement agreement. This is not totally correct. HFA has deemed MP3.com to hold interim licenses for

virtually every song in our publishers’ repertoire. This amounts to

more than 600,000 songs that are available right now to be used

by My.MP3.

NMPA and HFA have also agreed to extend these interim licensing agreements, and promised not to support any lawsuits against

MP3.com while the parties hammer out the final details of processing individual license requests for each song that MP3.com wishes

to make available on its service.

We are committed to devoting whatever resources are necessary

to help MP3.com support proper licensing requests. The challenge

is to put Humpty Dumpty back together again after the fact because, as you know, MP3.com did not follow the usual process of

requesting licenses before making our songs available. MP3.com

submitted more than 600,000 license requests at one time, and

HFA typically processes about 250,000 licenses per year on behalf

of the entire recording community. But this can be done and we are

doing it.

Music publishers believe that users of music must compete in the

marketplace on a level playing field by following the rules of the

road. Congress clarified the rules of the road on the Internet by

confirming in the Digital Performance Right in Sound Recordings

Act of 1995 that songwriters and music publishers had exclusive

rights to make digital phono deliveries. In doing so, Congress gave

us the flexibility to license business models that no one could have

anticipated 6 years ago.

Unfortunately, many Internet music services, most notably

Napster and its imitators, are flaunting the rules established by

Congress. By refusing to obtain licenses to pay copyright owners required by Congress, Napster and its imitators are placing our li-
104

censees at a potential fatal competitive disadvantage. Many of our

licensees are feeling the squeeze and are under intense financial

pressure from Napster.

Mr. Chairman, the situation is frankly really outrageous. Businesses that respect the rules of the road should not be penalized

because a few irresponsible parties ignore the speed limit. The

music publishers’ lawsuit against Napster is all about restoring a

level playing field. We do not object to peer-to-peer technology, as

such. However, our members do object to Napster’s business practices.

Napster built services on the premise that music creators should

provide content for free. It is teaching an entire generation that

music has no value on the Internet. Two Federal courts have now

concluded that Napster is facilitating copyright infringement on a

scale that is without precedent.

While Napster has acted disreputably, those who seek to imitate

Napster truly have no excuse. Now, Napster wants music creators

and copyright owners to bear the expense of monitoring the

Napster service. While many are quick to jump on the Napster

bandwagon, if copyright owners are no longer to be compensated

for their creative efforts, they must not bear such a burden. In the

long run, far fewer songs will be written, and obviously we will all

be the lesser for that.

Finally, in the wake of the Ninth Circuit decision, Napster here

today suddenly sees compulsory licensing, whether established by

Congress or the courts, as a solution. Compulsory licenses, however, were available to Napster for our members’ songs before it

launched its service. Napster simply did not avail itself of them.

With due respect, Napster is being, I think, very disingenuous.

We remain cautiously optimistic that Napster will comply with

the district court order. We look forward to working with Napster

in this regard, and with MP3.com. It is conceivable that Napster

will choose to comply with its obligations and obtain licenses, but

we are not there yet.

In sum, Mr. Chairman, laws passed by Congress continue to

serve the intellectual property community, including music creators

and music users alike. There is no need to fix, as we say, what ain’t

broke.

I thank the Committee for this opportunity to testify. I am happy

to answer any questions in writing later. Thank you, Mr. Chairman.

[The prepared statement of Mr. Murphy follows:]

STATEMENT OF EDWARD P. MURPHY, PRESIDENT AND CHIEF EXECUTIVE OFFICER, NATIONAL MUSIC PUBLISHERS’ ASSOCIATION, INC.

Good morning, Mr. Chairman, Senator Leahy and members of the Committee. I

am Edward P. Murphy, President and Chief Executive Officer of the National Music

Publishers’ Association (‘‘NMPA ’’). On behalf of the more than 700 members of

NMPA that own or control the majority of the musical compositions licensed for

manufacture and distribution as phonorecords in the United States, I want to thank

you for inviting me to testify today about music publishers’ successful efforts to license their music on the Internet and to guarantee a level playing field for all of

our licensees. Songwriters and music publishers have long been enthusiastic about

the Internet’s potential, and are working hard to get their music to the millions who

log on to the Internet every day.

Nearly a century ago, a new technology emerged that changed the music industry

forever. The new technology was the piano roll—essentially long perforated sheets
105

that operated a player piano’s keys. One piano roll company attempted to acquire

exclusive rights to virtually every musical composition. To make sure that musical

compositions were widely available for reproduction as piano rolls and in other

media and technologies, Congress enacted a compulsory license. A compulsory license means that once a sound recording of a copyrighted musical work is made and

distributed with permission, anyone else can obtain a statutory license from the

copyright owner.

The Harry Fox Agency, Inc. (‘‘HFA ’’) was founded in 1927 and today operates as

an industry service subsidiary of NMPA. HFA acts as agent for more than 27,000

music publishers in licensing their musical compositions for reproduction as CDs,

cassette tapes, LPs and digital phonorecord deliveries, as well for use in motion pictures and other audiovisual productions. Over the years, Congress has repeatedly

recognized and affirmed HFA’s role in negotiating on behalf of its music publisherprincipals. HFA is the place everyone knows they can go to get a license to make

phonorecords. With HFA, songwriters and music publishers are poised to license

music for use on the Internet.

Thanks to Congress, the rules of the road for the use of music on the Internet

also have never been clearer. With passage of the Digital Performance Right in

Sound Recordings Act of 1995, Congress confirmed the exclusive right of song owners to transmit (or authorize others to transmit) phonorecords of their works over

the Internet known as digital phonorecord deliveries, or ‘‘DPDs.’’ Congress expressly

made DPDs subject to compulsory licensing in the same manner as CDs, cassettes

and LPs. If a record label or Internet music company follows the rules of the road,

the toll that must be paid is a fair and reasonable one: now just seven-and-a-half

cents per download.

In that connection, Mr. Chairman, you have asked whether online entertainment

will be ‘‘coming soon to a digital device near you.’’ For music, the question is not

whether it is coming—the music is here. Indeed, our members have licensed more

than thirty enterprises, most of them fledgling businesses less than five years old,

to distribute recordings of music over the Internet. Among them are Emusic and

MP3.com and Musicbank. These companies have chosen to respect the rules laid

down by Congress by obtaining licenses and paying compensation to the copyright

owners. These licenses demonstrate that music publishers are fully prepared and

poised to license any Internet music service if it observes the rules Congress has

set.

Unfortunately, many Internet music services, most notably Napster and its imitators, have flouted the law that Congress enacted and are making a mockery of

these rules. Two federal courts have now concluded that Napster is facilitating copyright infringement on a scale that is without precedent. And while Napster has

acted disreputably, those who seek to imitate Napster in the wake of those decisions

truly have no excuse. By refusing to obtain licenses and pay copyright owners as

required by Congress, Napster and its imitators are placing music publishers’ lawabiding licensees at a substantial competitive disadvantage. Many of our licensees

are feeling the squeeze and are under intense financial pressure from Napster. Mr.

Chairman, the situation is, frankly, outrageous. Why will anyone want to get a license, if that will only put the licensee at a potentially fatal competitive disadvantage? Businesses that respect the rules should not be penalized because a few irresponsible parties willfully ignore the speed limit.

The music publishers’ lawsuit against Napster is about restoring a level playing

field. We do not object to peer-to-peer technology as such; however, our members

do object to Napster’s parasitic business practices. Napster does not pay for content,

bandwidth or storage for its music service. Napster claims that it has the right to

make its shareholders Internet billionaires, but its service was built on the premise

that music creators should provide the content that draws consumers to Napster’s

service for free. Now Napster wants music creators and copyright owners to bear

the expense of monitoring the Napster service. While many are quick to jump on

the Napster bandwagon, if copyright owners are no longer to be compensated for

their creative efforts and must bear such burdens, in the long-run, far fewer songs

will be written. Consumers will be the ultimate losers.

Remarkably, in the wake of the Ninth Circuit’s affirmance of the District Court’s

issuance of a preliminary injunction, Napster now sees compulsory licenses whether

established by Congress or the courts—as the solution. Songwriters and music publishers find this to be disingenuous because Napster chose to flout the rules prescribed by Congress for obtaining a compulsory license in the first place.

There are precedents, of course, where companies have ceased their infringement

and moved to respect the rules established by Congress. The most notable, recent

example is MP3.com. MP3.com copied tens of thousands of CDs and placed copies

of the sound recording tracks on its computer servers to offer the MyMP3 inter-
106

active music service in January 2000 without first obtaining licenses. After litigation, the music publishers and MP3.com entered into a landmark settlement pursuant to the compulsory license provisions of the Copyright Act. The settlement provides for payment of compensation for past acts of copyright infringement and a forward-looking license for the MyMP3 service.

In this regard. MP3.com raises two issues relating to licensing musical compositions in connection with its MyMP3 service:

First, MP3.com has expressed its concern regarding the availability of a compulsory license for subscription music services because there is no current rate in effect.

The compulsory license provisions specifically contemplate that owners of musical

works will negotiate and reach private agreements as new business models arise.

Pursuant to those provisions, MP3.com has obtained a license with specified rates.

Representatives of the recording industry, the digital media companies and NMPA

are currently exploring a range of options for licensing these types of services. If

a resolution cannot be reached as to appropriate rates, Congress provided that such

matters will be addressed by arbitration before a Copyright Arbitration Royalty

Panel. If lower rates are agreed upon in a broader consensus or are determined by

a Copyright Royalty Arbitration Panel and are adopted by regulation, MP3 will receive the benefit of those terms under the ‘‘most favored nation’’ provision in its settlement agreement with the music publishers, thus preserving a level playing field.

Second, MP3.com has expressed its concern over the difficulty it has encountered

in preparing proper license requests. Accurate licensing information is necessary to

make sure the proper copyright owner is paid for the use of its musical work and

the legislative proposals suggested by MP3.com would not eliminate the need for accurate information. To help MP3.com identify the music MP3.com had already put

on its service, HFA has provided MP3.com with an electronic copy of its licensing

database, something HFA had never before provided to any record company or any

other licensee. And NMPA and HFA have provided MP3 written assurance they will

not support any litigation against the company while both work in good faith to address these problems.

Finally, we agree with MP3.com that HFA could better serve MP3.com and other

music service providers if the lag time between the release of a new recording and

the submission by the record company of its own license requests were substantially

shortened. We will continue to work with MP3.com and with the record companies

to make improvements in this area.

In sum, we believe that the compulsory license provisions already in existence for

musical compositions are sufficiently flexible to address the new business models

that crop up every day on the Internet. A level playing field, however, is essential

so that Internet music services have every incentive to obtain licenses and compensate songwriters, and so companies that do so are not penalized for following the

rules of the road.

I thank the Committee for this opportunity to testify.

Chairman HATCH. Thank you, Mr. Murphy.

Mr. Farrace?

STATEMENT OF MIKE FARRACE, SENIOR VICE PRESIDENT,

DIGITAL BUSINESS, TOWER RECORDS/BOOKS/VIDEO, MTS. INC.

Mr. FARRACE. Thank you, Mr. Chairman.

Along with its competitors, Tower Records plays an important

role in assuring that the consumer benefits from vigorous competition in the marketing and sale of recording audio and video products. Right now, we think the law provides a good balance between

copyrights and competition, but it may not in the future.

The law gives copyright owners incentive to create, but gives balance to the process by granting owners of copyrights broad rights

to distribute those creations after the first sale. It is these checks

and balances that keep competition keen. And as I will mention in

a moment, if intellectual property owners had the right to control

copyrights years ago the way they propose to do so now, there

would be no used books, no lending your records to a friend, no

video rentals, and no donations of recorded products, software, or

even books to libraries or schools.
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About 5 years ago, a friend sent me one digital song file which

took me about 3 hours to download, but it was still one of the most

exciting things I had ever done. A couple of years later, our company got T1 access and the resulting increase of download speed

convinced me that we were on the threshold of the most incredible

period in our history. The promise of instant access, portability like

never before imagined, rich multi-media add-ons and all the rest

was irresistible. This was the chance of a lifetime to provide our

customers with the best possible experience.

We did download experiments with our record company partners,

mostly free promotions. At the same time, we started working with

new digital companies like Liquid Audio to build digital retailing

tools and to integrate digital sound files into our business.

As a result, we can now add secure, watermarked digital files to

an Internet shopping basket that contains physical goods like CDs

or DVDs. We can accept virtually any form of payment. We can reconcile the charge, provide refunds, issue credits, replace defective

merchandise—all the stuff retailers do. So we have a system that

works.

We have been selling downloads for almost 4 years now, and

though the technology continues to evolve and improve, the rocket

science part is over. The members of the retail community know

how to send a secure digital sound file safely and securely without

running the customer through a gauntlet or invading their privacy.

We have made it clear to record companies that we are ready

and willing to go into business with them. We have demonstrated

that we are willing to work on solving any digital dilemmas, and

they know we want to play by the rules. But quite honestly, we are

puzzled by some of the rules which are unfriendly to customers and

retailers.

Particularly worrisome is that some companies require individual

personal data from the consumer in order to access the content.

Virtually all the companies interrupt the transaction process in

some way to gather customer information. Only one company does

not, and none of the others will promise not to use this information

to solicit our customers directly in the future.

So what is wrong with this picture? We market to and acquire

the customer, then are forced to violate their privacy and damage

our relationships, which are requirements just to get the merchandise we want to sell. So you may see why we are concerned.

We are a one hundred-percent permission-based company. We

never send e-mails to our customers without their permission. So,

naturally, we think requiring customers to submit their individual

personal data to access a recording they are paying for or enticing

them while we are trying to conduct business with them is unfair.

We have the same concerns about the rules our customers are

being asked to agree to. These end user license agreements which

aren’t even seen by the customer until after they have paid for the

music can be downright oppressive. Some have had outrageous restrictions written by lawyers who saw people as thieves instead of

customers. And although we deal with our fair share of theft, this

is not the way we choose to perceive our customers, nor is it the

way we want them to perceive us.
108

These click-through agreements are awkward, confusing, and

they create serious customer service issues for companies like

Tower. It is like someone else is standing behind our cash register,

free to create customer service policy on our behalf and even sell

to our customers directly. We must control this relationship that

we have spent so much time and energy and money cultivating and

which is at the core of our commitment.

So these barriers to broad access lead us to question sometimes

the motives of our suppliers. We worry that all this talk and activity about protecting the music is really about controlling lawful use

and cutting retailers out of the marketplace.

The deals record companies are pursuing are with each other or

with new or small companies that they may end up owning. They

say they want us in this business, but they don’t honor our privacy

policies or make systems simple enough for users. Instead,

Bertelsmann buys CDNow, which has a strategic relationship with

Time Warner, which is trying to cross-license with Sony, which is

building a subscription service with Universal, which has a joint

venture with BMG. That is four out of the five major suppliers, and

the fifth one, EMI, has been for sale all year. And similar announcements are coming from the movie studios.

Our suppliers have the right to get into retailing, and we recognize that and we are not afraid to compete with them. But it is not

fair to let these companies use their power over us to steal the customers and ultimately steal our business. Retailers need rules that

protect competition.

I am speaking just for Tower today, Mr. Chairman, but if you

ask Pam Horvitz at NARM, which is the association that represents music retailers, or Bo Anderson at VSDA, which represents

video retailers, they will tell you that all retailers just want a level

playing field that lets them do the marketing and the selling, and

I think that is what our Government wants also.

The bottom line, in conclusion, is that we are frustrated by the

progress that has been made so far. We are sympathetic to the

record companies’ worries about piracy in cyberspace. We understand their fear of losing control of assets. We understand that this

could endanger their profitable durable physical goods distribution

system. Believe me, we understand that, too, but it is time to get

out of each other’s way a little and go to work.

I thank you for inviting me to testify today and I am happy to

take any questions later. I have summarized this testimony here,

but I have submitted the written testimony to be put in the record.

Chairman HATCH. Without objection, we will put all full statements in the record. That is for sure.

[The prepared statement of Mr. Farrace follows:]

STATEMENT OF MIKE FARRACE, SENIOR VICE PRESIDENT, DIGITAL BUSINESS, TOWER

RECORDS/BOOKS/VIDEO, MTS., INC.

Good morning. My name is Mike Farrace, and, among other things, I’m responsible for digital business at Tower Records. Tower started out as a single store selling records in Sacramento, California in 1960. Today, we own and operate 189

stores in 17 countries not counting franchises, and we sell books and movies as well

as music.

We’re famous for a couple of things: great selection and knowing what we’re talking about. Every record in stock and every kid roaming the sales floor represent investments in customer satisfaction. We stock an amazing variety of recordings, and
109

the people we employ are there because they love records. We open early, stay up

late, make our stores beautiful and work our tails off to make music lovers happy.

We find out what people want, and we sell it to them the way they want it. Our

stores have been in the thick of every musical revolution since 1960. We’ve managed

at least 13 physical configurations of audio playback media and at least four video

formats during that period. We’ve sold vinyl albums and 45s, Eight Tracks, Four

Tracks, Reel to Reel, Cassettes, Compact Disks, Digital Compact Cassettes,

MiniDiscs, CDR, Enhanced CD, CD ROMs Mini CDs and probably a few formats

I’ve forgotten. We were the first U.S. music retailer in Japan, the first to publish

our own magazine, and the first traditional reseller with an online record store. We

were among the very first to embrace LaserDisk and later DVD. Sometimes these

investments turn out to be great. Sometimes they don’t. But we keep trying because

that’s what we do. We’ve never been shy.

We’re where the record labels turn when they’re trying to break new music, which

is the hardest job of all. We’ve done many thousands of promotions in support of

bands in almost every conceivable genre of recorded sound, including ones for Don

Henley and Alanis Morrisette. All the in-store performances, display contests we

run, and crazy things we’ve asked our stores to do have helped sell a lot of records,

and helped establish careers for these artists.

While, without a doubt, we are completely dependent on the artist and the customer for our livelihood, because of the way the record business works, we are also

dependent on labels and distributors. We’ve had many battles over all kinds of

things with our suppliers. We’ve gone toe to toe about terms and support. We’ve wrestled over more complex issues, like whether ‘‘12 CDs for a penny’’ record clubs

are really fair play, or whether embedding a hyperlink on a CD, which is a couple

of clicks from a reseller that isn’t us, and is sometimes the supplier, isn’t just a bit

devious, and unfair.

Of course, the record companies could probably add a few pet peeves about us.

But together, we manage. In the best of times, it’s a privilege to be a partner in

the chain to creative works that please so many people, and a pleasure to work with

the people that create and distribute it.

We’ve been a good partner so far in the music industry, and we want to continue

to be a good partner in the digital age.

Five years ago, someone I knew sent me a digital song file. I was convinced we

were on the threshold of one of the most invigorating and fulfilling periods in retailing history. The promise of instant access, portability like we never imagined, rich

multimedia addons and all the rest was irresistible. If our core values included giving the customer the best possible experience, this was the chance of a lifetime.

We started working with new digital companies, (one of which—Liquid Audio— is present here today), to integrate digital sound files into our physical goods systems. In the last five years, we’ve used over a dozen audio codecs and four digital

rights management systems. We have seen at least a half-dozen secure bonafide digital delivery mechanisms and have implemented two.

As a result, we can add secure, watermarked digital files to a shopping basket

containing physical goods and can accept a wide range of payment forms. We can

provide samples on virtually every song in our database. We provide reports ranging

from basic sales and traffic to incredibly detailed user behavior statistics where we

have our customer’s permission. We use digital special ordering and sampling in

some stores and will continue to roll out even more services in the coming months.

We have a system that works. We’ve been selling downloads for almost four years

and while the technology continues to improve, the rocket science part is over. We’ve

shown record companies that we’re willing to work with them on digital distribution. The only thing missing is a big press conference to announce we have all the

content.

So far we’ve had something around 100,000 downloads available for both sale or

promotion from a handful of companies including Liquid Audio, EMI, Warner and

Sony. But as a retailer, I don’t think my digital offering is very attractive. First of

all, there isn’t much of a selection. There are tens of millions of songs available on

compact disk around the world, and only a small percentage have been authorized

for digital sale. Our Internet experience has taught us that selection equals sales.

Our first online store in 1995 started with just 20,000 titles. All things being equal,

sales increased consistently with selection. Today, towerrecords.com offers well over

500,000 titles—something like 5 million songs. We want the digital equivalent of

that.

Second, the suppliers use disparate delivery systems, each one unique, requiring

the download of special software and the use of a specific digital rights management

provider. It’s like requiring the retailer to have a different cash register for each

distributor not to mention a plethora of separate steps and confirmation emails to
110

the unfortunate customer who actually wants multiple songs from more than one

company.

We’ve always played by the rules, but today we’re puzzled by the rules. Particularly worrisome is that some companies require personal data from our customers.

They insist on actually possessing the names, and only a few will promise not to

solicit these customers immediately or in the future. We’re trying it, but we’re worried about violating our own privacy policy, damaging our relationship with our customers, and maybe even result in Tower violating the law. Tower Records is a 100%

permission-based company. We never send emails to our customers without their

permission, and feel that either requiring customers to submit their personal data

to access the recording or enticing them while we are conducting a transaction is

unfair.

We have the same concerns about the rules our customers are being asked to

agree to. First off, these End User License Agreements aren’t even available to our

customers until after they’ve bought the music. Some of the first ones we saw were

pretty horrible, and had some outrageous restrictions that made customers feel like

untrustworthy thieves. These ‘‘click through’’ agreements are very awkward and

confusing to consumers and create service issues for resellers. This control over

usage is enforced by technological locks that are the digital equivalent of preventing

anyone from reading a book unless they make a payment to the copyright owner

every time they open it. It’s like having someone else standing behind our cash register, taking control of the customer relationship that we have cultivated, and which

is core to our commitment.

The bottom line is that we’re pretty frustrated by the progress that’s been made

so far. We’re sympathetic to the record company worries about piracy in cyberspace.

We understand their fear of losing control of assets. We think part is fear that it

will endanger their profitable and durable physical goods distribution system. And

believe me, we understand that too.

But many of the barriers that prevent access to an exhaustive inventory of sound

are perplexing, and frankly, lead us to question the motives of our suppliers. We’re

starting to worry that maybe all the talk and activity about protecting the music

is not just about controlling copyright infringement, but is really about controlling

lawful use and hiding plans for cutting retailers out of the marketplace. A lot of

the deals the record companies seem most interested in pursuing are with each

other, or with companies that they all buy a piece of—like MusicNet. They tell us

they want us in this business, but they don’t follow up with products that we would

want to sell or that our customers would want to buy. Instead, Bertelsman buys

CDNow which has a strategic relationship with Time Warner which wants to cross

license movies with Sony which has a subscription service project with Universal

(called Duet) which has a joint venture called ‘‘GetMusic’’ with BMG. That’s four

out of five of my major music suppliers, and the fifth one, no offense to Ken Berry

at EMI, has been for sale all year.

OK. My suppliers have the right to get into retailing. Tower isn’t afraid to compete with retailers. We think we’re pretty good. But we don’t think it’s fair to let

these companies use their power over us to steal our customers and ultimately steal

our business. Retailers need rules that protect competition. I’m speaking just for

Tower today, but if you ask

Pam Horovitz at NARM, which is the association that represents music retailers,

she’ll tell you that all retailers just want a level playing field that let’s them decide

how to market and sell music. That’s what I think our government wants also.

I would have liked to have been accompanied here today by representatives of two

trade associations Tower belongs to: National Association of Recording Merchandisers and Video Software Dealers Association. NARM and VSDA have been active

before the Copyright Office and Department of Commerce in presenting the legal

issues involved in this intersection of copyright law, antitrust law, and consumer

rights. Each has prepared a written statement on the topic of today’s hearing, and

I respectfully request that their statements be included in the record of this hearing.

I thank you for inviting me to testify here today.

Chairman HATCH. Ms. Greenberg, we will turn to you. Thank

you for being here.

STATEMENT OF SALLY GREENBERG, SENIOR PRODUCT

SAFETY COUNSEL, CONSUMERS UNION

Ms. GREENBERG. Thank you, Mr. Chairman. Consumers Union

appreciates the opportunity to represent the interests of consumers
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here today, consumers who haven’t always had a place at the table

in these ongoing discussions about consumers’ access to music online.

Consumers Union, as you know, no doubt, is the publisher of

both Consumer Reports, which is a print magazine with 4.5 million

subscribers, and also the publisher of a Web site with one of the

Internet’s largest paid subscriber bases. We understand the importance and value of copyright protection.

In our role as advocates for consumer and public interest, we also

understand that copyright law is a delicate balance between the

rights of those create, compile and distribute information, and the

ability of the public to get access to that information. We are, in

short, pro-consumer and pro-copyright.

We are here today because of our belief that while we must protect the rights of authors of creative works, we should not in the

name of copyright unduly burden consumers. Irrespective of the

merits or legality of Napster’s online music service, Napster has

popularized the power of peer-to-peer networking. We believe peerto-peer, which allows individuals users to share files with other

users without going to a central location, has the potential to revolutionize the way we communicate and learn, but it is a model that

is in its infancy. Actions that we take today can have the effect of

facilitating the development of peer-to-peer networking or chilling

its development.

When the VCR was introduced in the 1980’s, Jack Valenti, who

was with us this morning, lobbying for the motion picture industry

made the famous statement, or in retrospect perhaps the famous

overstatement that the VCR is to the motion picture industry and

the American public what the Boston strangler is to a woman

alone.

Of course, we now know the real end of the VCR story. Videocassettes and rentals are one of the most valuable and profitable

components of the entertainment industry. Had it not been for judicious policymakers and judges, the story of VCRs may have had a

very different ending. Consumers could just as easily been denied

the benefits of the VCR if the industry’s ‘‘Chicken Little’’ approach

had prevailed.

We are concerned that the recording industry’s opposition to

Napster and other peer-to-peer online systems may be more of the

same. Consumers Union understands the concern of the recording

industry that Napster users enjoy creative works without having to

pay the artist or recording company. This is a valid issue and we

firmly believe that creators of artistic works, be they musicians,

artists, authors, or others, must have financial incentives to continue their creative endeavors and should be fairly compensated for

their work. Those who add value to their work, like recording studios, have a right to fair compensation as well.

Unfortunately, we believe the Napster debate has been reduced

to the question of whether music should be free, and that is the

wrong question. Of course, music should not be free, but there is

an important point we shouldn’t lose sight of. In a very short period of time, there have been over 72 million installations of

Napster’s online service and the public has manifested a previously

unimaginable demand for music distribution online. At the same
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time, that public has demonstrated a previously unparalleled appetite for peer-to-peer information delivery.

So where do we go from here? Despite the recording industry’s

arguments that it has made and is making efforts to provide music

online, it appears to us at this moment that the recording companies that control the music business aren’t giving consumers what

they want. If ever there was a crystal-clear indicator that consumer

is there, Napster is there.

To reduce this to even simpler terms, what we have is a new

technology, we have a great consumer demand for that technology,

but we have an inefficient marketplace that prevents the new technology from operating in a way that appropriately balances the

competing needs of copyright owners and the public’s right to receive information.

Congress has before it an opportunity to redress this problem

and arrive at a fair and equitable balance between copyright owners, creative artists, and the public. Last July when this panel held

hearings, Senator Leahy and you, Senator Hatch, expressed hope

that the parties might work together toward a mutual agreement.

Otherwise, there would be pressure on Congress to create statutory

compulsory licenses.

Since that time, there has been a preliminary injunction against

Napster and an offer from Napster to pay the recording industry

$1 billion to license Napster to offer its users paid subscriptions.

To our knowledge, the industry, with the exception of Bertelsmann,

has flatly rejected that offer and has made no counter-offer. Meanwhile, consumers continue to be deprived of access for a reasonable

fee to the kind of online service that Napster was providing.

In that vein, Consumers Union believes the best approach would

be one that has been tested and proved successful for users of other

technologies. We would propose the establishment of a compulsory

licensing mechanism through which Napster and other online

music providers would have a legal avenue for the 72 million people who have installed Napster to share music online. We urge this

Committee to use the models that exist to authorize a Copyright

Arbitration Royalty Panel, or CARP, to resolve the disputes over

the issue of music royalties between Napster and other peer-to-peer

online services and the recording industry.

Compulsory licensing systems we know are not popular with the

labels; they are not perhaps popular with others involved in the

distribution and the production of CDs in this case. But they do

serve both owners and users by reducing the transaction costs involved in licensing through the private market system.

Consumers Union is on record supporting compulsory licensing

for both satellite and cable transmission. Compulsory licensing provides a fair profit to the owners of copyright, while ensuring that

the public has access to creative works. It has also provided consumers with greater choice.

Let me close by saying that Consumers Union fears that unless

Congress provides for compulsory licensing, which is a tried and

true system that has worked in the past to provide consumers with

access to emerging technologies, we will see a quashing of innovation and competition, and consumers will be the losers for it.

Thank you.
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[The prepared statement of Ms. Greenberg follows:]

STATEMENT OF SALLY GREENBERG, SENIOR PRODUCT SAFETY COUNSEL

Consumers Union, a publisher of both Consumer Reports-a print magazine with

4.5 million paid subscribers-and a Web site with one of the Internet’s largest paid

subscriber bases, understands the importance and value of copyright protections. In

our role as advocates for consumer and public interests, we also understand that

copyright law is a delicate balance between the rights of those who create, compile,

and distribute information and the ability of the public to get access to that information. We are, in a word, pro-consumer and pro-copyright. As Senator Hatch said last

July at hearings on this same subject, we must protect the rights of the creator but

we cannot in the name of copyright unduly burden consumers.

New technologies historically have challenged our system of protecting creative

works through copyright, and required a balancing between the public’s right to

know and the limited monopoly rights of authors. Whether it was the printing press,

the jukebox, the photocopier, cable television, or the Internet, these technologies

have forced us to continually revisit the balance between the rights of authors and

rights of users to have access to information and creative works. Promoting and fostering innovation is clearly the goal of intellectual property law, but with changing

technology we will continue to debate what will best accomplish that goal.

When the VCR was introduced in the early 1980s, Jack Valenti, lobbying for the

Motion Picture Industry Association of America, made the famous statement, or in

retrospect, perhaps, overstatement that ‘‘the VCR is to the motion picture industry

and the American public what the Boston strangler is to the woman alone.’’ Of

course, we now know the real end to the VCR story—videocassette sales and rentals

are now one of the most lucrative slices of the industry’s copyright pie. Had it not

been for judicious policymakers and judges, the story of VCRs might have had a

very different ending-consumers could just as easily have been denied the benefits

of the VCR if the industry’s ‘‘Chicken Little’’ approach had prevailed. We are concerned that the recording industry’s opposition to Napster and other peer-to-peer online systems may be more of the same.

While it is almost a cliche to speak of the Internet and information technologies

as revolutionary, it is nonetheless accurate to say that the Internet has completely

changed the way we gather and distribute information. I don’t think anyone here

would disagree that Internet and information technologies have been responsible for

tremendous gains in productivity and an unrivaled period of economic expansion.

As the Internet has developed, several milestones were responsible for huge increases in users on the network: the creation of HTML, the programming language

of the World Wide Web, enabling users of the network to exchange information in

a common format, and the creation of Mosaic, the world’s first generally accessible

Web browser. And we believe that peer to peer networking is a milestone on par

with these other developments.

Irrespective of the merits or legality of Napster’s service, Napster has popularized

the power of peer to peer networking. The first Web browser introduced to users

the idea that they could instantly get access to information anywhere on the planetwhat Napster has done is introduce millions of users to the idea that they can find

information by connecting directly with other users.

We believe peer to peer networking, which allows individual users to share files

with other users without going through a central location, has the potential to revolutionize the way we communicate and learn, but it is a model in its infancy. Actions that we take today can have the effect of facilitating the development of peer

to peer networking, or chilling its development.

CU understands the concern of the recording industry that Napster users enjoy

creative works without having to pay the artist or the recording company. This is

a valid issue. We firmly believe that creators of artistic works, be they musicians,

artists, authors, or others, must have financial incentives to continue their creative

endeavors and should be fairly compensated for their work. Those who add value

to their work, like recording studios, have a right to fair compensation, as well. Unfortunately, we believe the Napster debate has been reduced to the question of

whether music should be free, and we believe that is the wrong question. Of course

music should not be free.

But there is an important point we should not lose sight of: in a very short period

of time, over 72 million people have installed Napster’s online service and manifested a previously unimaginable demand for music distribution online. At the same

time, that public demonstrated a previously unparalled appetite for peer to peer information delivery.
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1Weber Thomas. ‘‘Why Gutting Napster Won’t Cure the Blues of the Music Industry.’’ Wall

Street Journal, March 26, 2001.

We are concerned that shutting down Napster, and thereby sending a chilling

message to other peer-to-peer online systems, will stifle the kind of innovation that

brought us the Internet in the first place. The direction taken in response to

Napster-like online music services will be instructive to every fledgling peer to peer

service, and their network architecture will be directly influenced by legislative actions taken—or not taken—by this panel.

In the aftermath of the Federal court’s preliminary injunction ordering Napster

to cease providing free downloads of copyrighted music, where do we go? Despite

the recording industry protestations that it has made and is making efforts to provide music online, it appears to us that at this moment, the recording companies

that control the music business aren’t giving consumers what they want. If ever

there were a crystal clear indicator that the consumer demand is there, Napster is

it. So why have the major labels not stepped up and given consumers what they

are asking for?

To boil it down in even simpler terms, we have new technology and we have great

consumer demand for that technology. But we have an inefficient marketplace and

that prevents the new technology from operating in a way that appropriately balances the competing needs of copyright owners and the public’s right to receive information.

We suspect that the recording industry is resistant to changing the status quo

and adapting to consumer demand for getting music online to protect current profit

margins. According to columnist Thomas Weber writing in the Wall Street Journal

last week, $1.50 or less of a CD priced at $15, goes to the artist.1 Add in composer’s

royalties, manufacturing, packaging, and distribution costs and you’re only talking

about $5 of the total price. $5 goes to the retailer, and the record company gets $5

for marketing costs and profit. But the record company also gets a portion of the

manufacturing, packaging and distribution costs through its subsidiaries, so each

‘‘cost item’’ in that chain also may generate profit for them.

Therein lies the problem for consumers. The public demand for online music cries

out for a transformation of the way music is delivered, but the recording industry

has strong disincentives from transforming their current distribution and marketing

system. With the courts ordering Napster to stop providing free downloads of copyrighted music, the recording industry failing to respond to Napster’s offers to set

up a subscriber service, for which they have offered to pay the recording industry

a lump sum of one billion dollars over five years, and the industry’s failure to offer

the same Napster-style service to consumers themselves, we appear to be at an impasse. And so consumers turn to Congress to properly balance the interests at stake.

We believe the recording industry also fears that online distribution of music

could result in total disintermediation. In other words, what if consumers have the

means to bypass the label entirely, connecting directly to an artist’s Web site and

cutting the recording company out of the transaction entirely?

Indeed, the recording industry has demonstrated through its actions that it is entirely aware of this possibility by waging a war on the technologies of online music

distribution, rather than going after uses of those technologies. Over the last few

years, Congress has already passed the No Electronic Theft Act of 1997 and the Digital Millennium Copyright Act in 1998, both of which would allow the Recording Industry Association of America (RIAA) to go after individuals who are illegally copying. But the recording industry seems not to be going after individual violators;

their real interest seems to be in going after the technology. They realize that with

72 million people installing Napster, they cannot all be made criminals. Regrettably,

the recording industry appears to be attacking innovation more than it is attacking

piracy.

Consumers are paying the price doubly: they are faced with fewer choices and are

paying higher prices for those choices. It also appears that the recording industry

may be using litigation as a strong-arm business tactic to freeze the status quo and

protect its profits. For instance, the Recording Industry Association of America

(RIAA) sued MP3.com, a service that merely allowed users to take a CD that they

legitimately bought and access it from any location through the Internet. As Michael

Robinson of MP3.com testified here last summer, when MP3.com attempted to abide

by a court order and get its system licensed, the company ran into a hornet’s nest

of different licensing agreements and spent large sums of money in the process. This

for a service that simply gave users the ability to get online access to music they

legitimately purchased and owned. MP3.com’s experience is hardly incentive for

other Internet innovations.
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2The first sale doctrine was incorporated into the 1909 Act in 17 U.S.C. Section 27 (1909 Act).

We have another concern that may contribute to the diminishment of rights consumers now have. In the offline world, once an individual purchases a copy of music,

that individual is allowed to give or sell that copy to anyone he or she pleases, otherwise known as the first sale doctrine.2 Yet in the online world, first sale is rapidly

disappearing. CU acknowledges that when the first sale doctrine was first contemplated, peer-to-peer online capability didn’t exist. That is why we think Congress

should take a look at this issue as well.

Congress has a model for addressing and balancing interests to arrive at a fair

and equitable balance between copyright owners, creative artists, and the public.

Last July, when this panel last held hearings on this issue, Senator Leahy expressed hope that the parties might work together toward some mutual agreement,

otherwise there will be pressure on Congress to create statutory compulsory licenses. That hearing happened before the preliminary injunction against Napster

was in place, and before Napster had offered to pay the recording industry $1 billion

to license Napster to offer its users paid subscriptions. To our knowledge, the industry, with the exception of Bertelsmann, has flatly rejected that offer and has made

no counteroffer. We have neither heard of nor seen any signs of progress. Meanwhile, consumers continue to be deprived of access, for a reasonable fee, to the kind

of online service that Napster was providing. We believe the need for Congressional

action is even more urgent today than it was last July.

In that vein, Consumers Union believes the best approach would be one that has

been tested and proved successful for other new technologies. We propose the establishment of a compulsory licensing mechanism through which Napster and other online music providers would have a legal avenue for the 72 million people who have

installed Napster. The compulsory licensing system supercedes the normal marketing mechanism for distributing copyrighted works and allows the prospective user

the right to obtain a compulsory license under which he or she can use the work

without the copyright owner’s permission. In this way, we believe that Congress

would help peer to peer networking to realize its full potential.

Congress has set up compulsory licensing systems in several instances (one repealed pertaining to jukebox licensing), each outlined below.

• The Mechanical License, Congress in 1909 created a right against the reproduction of musical compositions in mechanical forms (piano rolls). Congress limited

this right however, through the creation of a mechanical compulsory license for

musical works.

• The Cable License of Section 111 establishes a compulsory license for secondary

transmissions by cable television systems.

• The Satellite Retransmission License establishes a compulsory license for satellite

retransmissions to the public for private viewing.

• The Audio Home Recording Act, establishes compulsory licensing-like system by

proving immunity from liability for copyright infringement by manufacturers

and importers of digital recording devices, but imposes a levy on these devices,

the proceeds from which are to be distributed to copyright owners.

We urge this Committee use these models to authorize a Copyright Arbitration

Royalty Panel, or CARP, to resolve the disputes over the issue of music royalties

between Napster and other peer-to-peer online service, and the recording industry.

We also urge the panel to set a time limit in the law to finalize royalties, so that

the parties are not debating the issue 3 years down the road, with consumers still

left out in the cold.

While we realize fully that rights holders tend to dislike compulsory licensing systems, these systems are products of political compromise; they serve both owners

and users by reducing the transaction costs involved in licensing works through the

private market system. Compulsory licensing has worked well in other contexts

where we have supported it. For instance, CU is on record supporting compulsory

licensing for both cable and satellite transmission entities. CU’s Gene Kimmelman

told the Senate Commerce Committee in 1998 and 1999 that by ‘‘eliminating the

transaction costs associated with thousands of copyright clearing negotiations, the

compulsory license ensures fair compensation to copyright holders while also providing consumers greater opportunity to receive multichannel video programming from

a variety of vendors.’’ Those principles apply to music, as they do to cable and satellite. Indeed, without compulsory licensing mechanisms for satellite or cable systems, consumers would not have had access to a broad range of programming and

we don’t believe these technologies could have flourished. Compulsory licensing provides a fair profit to owners of the copyright while ensuring that the public has access to creative works.
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Compulsory licensing has not only provided consumers with greater choice, it also

spurred competition. Imagine if Congress had not acted to provide a compulsory license in the case of satellite retransmission of broadcast signals. The only truly viable potential competitor to cable monopolies direct broadcast satellite-would not be

in a position to offer consumers an alternative to cable.

We support compulsory licensing because we believe that ‘‘killer applications’’ like

Napster will encourage the rollout of broadband Internet services, just as email and

instant messaging were responsible for huge growth in the narrowband Internet.

Congressional action will be instrumental in greasing the wheels to facilitate this

process, thereby bringing users of Napster and other peer-to-peer technologies into

the sanctioned marketplace.

Consumers Union is concerned that unless Congress provides for compulsory licensing, a tried-and-true system that has worked in the past to provide the consumers with access to emerging technologies, we will see a chilling of innovation and

competition, and consumers will be the losers.

Chairman HATCH. Thank you, Ms. Greenberg. That was very interesting.

Mr. Fish?

STATEMENT OF EDMUND FISH, PRESIDENT, METATRUST

UTILITY DIVISION, INTERTRUST TECHNOLOGIES CORPORATION

Mr. FISH. Mr. Chairman, Senators Leahy, Feinstein, and the

other members of the Committee, I have the distinct honor today

of being the last, but hopefully not the least person to address this

Committee on the very important issues that are before it.

In sitting and listening to all of the other testimony, I had an observation. It strikes me each time I hear this debate how many diverse interests there are. You could think of it as a symphony.

Symphonies take practice or you have got a lot of discordant efforts. At the same time, symphonies need a framework, and I am

here to talk about that framework today.

I am here on behalf of our founder, Chairman and CEO, Mr. Victor Shear, and our organization that has grown from a handful a

few years back to more than 350 worldwide today. InterTrust has

been focusing on the issues before this Committee since its founding in 1990. We coined the expression ‘‘digital rights management’’ to describe the requisite mechanisms. It took 9 years and more than $100 million in capital to bring

this technology to market, and we have made many significant inventions along the way. We now provide technology to a number

of copyright owners, artists, device manufacturers, software providers, and online services bringing digital information to the Internet. These include Adobe, AOL, Bertelsmann, Blockbuster,

Compaq, Diamond Rio, Nokia, Philips—many, many different participants in this process.

Mr. Chairman, let me suggest that at the heart of the issue is

how do we bring civility to the post-Napster world without compromising our traditional cultural values or our leadership in technology, as was so poignantly pointed out this morning. We suggest

that the answer lies in the following two ideas: first, a balanced

partnership between technology and law, and, second, an understanding of what digital rights technology can do and how it should

do it.

One might say that technology created this problem, but technology can also help to solve it. To do that, however, it needs a

partnership between law and technology. Until now, we have had
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technology pitted against law. This technology is called digital

rights management, or DRM.

Sophisticated DRM technologies such as InterTrust can provide

the mechanism to help effect this partnership of law and technology. It facilitates a workable framework for the efforts of artists,

as well as the industries that bring their works to the public. This

framework must also satisfy law and the legitimate expectations of

consumers. The digital world should live up to the principles most

of us believe are the minimum standards we would demand in the

traditional analog world.

To be clear, when I am speaking about DRM technology, I am

not referring to mechanisms that simply deliver protected music

online in return for a payment and then lock it to a PC. Rather,

to create the partnership framework I have mentioned, it is critical

to create a zone, independent of time, place, or device, where music

is protected by technology and where rights-holders and consumers

are free to express and protect their rights through the freedom to

establish differing rules reflecting their own individual interests.

Robust business models such as download, streaming, subscription, pay-per-listen, or super-distribution are possible. DRM technology, however, can also allow special consumption rules to be created for particular consumers or classes of users, for schools and

universities, for libraries, and for consumers with special needs

such as the blind. InterTrust Technologies does this today.

Our experience tells us that there are three fundamental requirements in order to establish this framework. First, technology must

provide creators of digital information the secure ability to manage

and protect their rights throughout the life cycle of the content and

however that content may be exploited, and it must operate wherever music is played—personnel computer, to PDA, to cell phone,

and back again. We live in a connected world.

Second, it must provide copyright owners and value chain participants such as retailers the ability to offer consumers a wide

range of usage options.

Third, it must be unimpeachably neutral and a trusted environment in which technology assures these agreed-upon arrangements. It may not in any way advantage any interests, including

those of the technology provider. The trusted environment should

be open enough to permit multiple formats, multiple services, multiple applications, a true competitive ecosystem. That is why

InterTrust restricts itself to building a platform that solely supports third-party businesses. We run no other such services.

In closing, we should remember that the issue is about constructing a civil digital society in the Internet Age, where rules created

by citizens and for citizens can be implemented and respected

wherever and whenever legitimate interests are in play. InterTrust

is helping to make this a reality with a whole variety of partners,

many of whom you have heard from today.

Thank you very much.

[The prepared statement of Mr. Shear, as presented by Mr. Fish,

follows:]
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STATEMENT BY VICTOR SHEAR, FOUNDER AND CEO, INTERTRUST TECHNOLOGIES

CORPORATION

InterTrust Technologies Corporation is the leading provider of Digital Rights

Management (DRM) technologies, which in the field of copyright protection will secure four objectives: (i) give consumers new freedom to enjoy music and entertainment online; (ii) give copyright owners the means to manage and protect their rights

in the works they create and publish; (iii) give effect to elements of law, such as

copyright exceptions; and (iv) provide users with the means to manage legitimate

personal rights and interests.

Until now, the ability of the creative community to enforce rights in their copyrighted works has never really caught up with the technologies enabling anybody

to make and distribute unlawful digital copies. What has been urgently needed is

a partnership between technology and law to provide a workable economic framework for the vital efforts of our musicians, writers, actors and artists, and to accommodate and satisfy the legitimate expectations of consumers—including limitations

on exclusive rights to the extent they are sufficiently formulated. Sophisticated

DRM technology now provides the mechanism to effect this partnership.

InterTrust’s DRM technology is now capable of securely managing rights in copyrighted works in the context of peer-to-peer distribution, and can enable consumers

to listen, record, and distribute music online without compromising the rights of artists, record labels, and other copyright owners. It also makes it possible for the creative community to offer consumers a limitless range of ways to enjoy music and

entertainment: sale of downloads; subscriptions; payper-listen; superdistribution

(consumer A delivering material to consumer B and so on); file sharing. It can do

so because it associates the technical protection with the content regardless of the

channel through or platform upon which it is exploited.

But effective DRM solutions require more than sophisticated technology. They

also require credibility and trust. That is why InterTrust restricts itself to building

a platform that supports third party businesses. It is not itself a distributor of copyrighted works; a builder of consumer applications such as electronic music players;

or a credit card transaction processor. InterTrust’s business role and model is that

of a utility: it facilitates but strictly refrains from intruding into the business models

and distribution channels for copyrighted works. InterTrust’s function is not to dictate the arrangements for digital rights management, but to establish and maintain

a platform to ensure the neutrality, security, commercial reliability, and trusted

interoperability of services and software applications used for the protection and

management of rights in digital information of all kinds, including online entertainment. It is fundamental to our vision that this trusted, neutral infrastructure is essential to the long-term effectiveness of DRM solutions, and to their acceptance by

copyright owners, distributors, and consumers alike.

Ultimately, the reality of sophisticated DRM technology is about far more than

Napster, online entertainment and copyright law. It is about constructing a civil digital society in the Internet Age, where rules created for or by its citizens can be implemented and respected wherever and whenever their legitimate interests are in

play. It is this simple proposition that InterTrust is making a reality.

On behalf of InterTrust, I wish to thank Senators Hatch, Leahy, Feinstein, Thurmond, and all the members of the Committee for the opportunity to testify this

morning on the important issue of on-line entertainment and copyright law. I would

like to tell the Committee about how InterTrust Technologies Corporation has developed Digital Rights Management technologies that in the field of copyright protection will secure four objectives:

• give consumers new freedom to enjoy music and other forms of content,;

• give copyright owners and other value chain participants the means to manage

and protect their rights in published works;

• give effect to elements of law, such as copyright exceptions, for ensuring that

rights are managed in accordance with public interest;

• provide users with the means to manage their legitimate personal rights and interests.

InterTrust is the leading provider of peer-to-peer Digital Rights Management

(DRM) technology. This technology ensures the neutrality, security, commercial reliability, and trusted interoperability of applications and services used to protect and

manage rights in all forms of information, including the creative works under consideration here. Our enterprise is focused on the rapidly evolving area of digital

commerce in information; our aim is to provide a framework of commercial trust

comparable in scope, and at least as reliable, as the systems of trust that underpin

commerce in the physical world.
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The focus of this Committee extends beyond a simple re-examination of the particulars of the Napster case to the broader questions it raises. I respectfully submit

that, from that perspective, InterTrust has a particularly valuable contribution to

make. Given our unique position in the DRM arena, we believe we can assist the

Committee in considering the complex issues before it.

BACKGROUND ON INTERTRUST TECHNOLOGIES CORPORATION

I founded InterTrust in January 1990. The goal was to provide solutions to many

of the complexities involved in realizing the full potential of electronic commerce.

It seemed clear that digital commerce would require mechanisms enabling the dynamics of traditional commerce to be seamlessly translated into the electronic world.

My associates and I coined the expression Digital Rights Management to describe

the requisite mechanisms. In effect, we were looking towards a world in which,

where and as appropriate, commerce could be digitally ‘‘virtual] zed’’. Over the last

10 years, InterTrust has developed the concept of Digital Rights Management

(‘‘DRM ’’) and has grown from myself and a handful of researchers to a fully-fledged

commercial enterprise employing more than 350 people worldwide. Approximately

$340 million of working capital has been provided to InterTrust by its investors, and

all of this capital is dedicated to the creation of a digital rights management framework for digital commerce and participant conduct.

The impact of the Internet has meant that the initial and most visible applications of InterTrust’s technology have been for digital music, video, and publishing.

Literally any digital information that is shared or stored will ultimately be implicated, however. This includes, for example, medical records, enterprise workflow, financial interactions, and the policy management of any stored or communicated information—policies ranging from privacy rights to enforcing government regulations

to reliably automating commercial interests.

As concerns electronic distribution of entertainment products and services,

InterTrust has been a very active member of the Secure Digital Music Initiative

(SDMI) since its inception, and its employees have chaired SDMI’s Portable Device

Working Group and its Screening Group. We played the role of primary developer

of the Intellectual Property Management Protocol (IPMP), which became an MPEG–

4 standard for electronic devices. We have strategic alliances and partnerships with

a number of major enterprises including Adobe, AOL, Bertelsmann, Blockbuster,

Compaq, Diamond Rio, Enron, Mitsubishi, Nokia, Philips, Samsung, Texas Instruments, Universal Music and numerous others. They are all actively working with

InterTrust DRM technology to further the enjoyment of music, video, published text

and other information products on PCs, portable music players, cable systems and

mobile phones. InterTrust works with these and other companies to help establish

standards, and, through InterTrust’s MetaTrust Utility, to help ensure that consumers and commercial organizations can enjoy a consistent degree of reliability, integrity, and interoperability when they expose their interests through digital interaction. We pride ourselves on working with individuals and companies, large and

small, that have interests in, or rights related to, digital information that need

rights management.

ONLINE ENTERTAINMENT AND DIGITAL RIGHTS MANAGEMENT

Great creators are normally great communicators, their individual voices collectively embodying and expressing the values and passions of their culture. Using digital technology expedites the accurate dissemination and reception of creators’ works

and, when employed in the proper context, digital technology can also support the

universe of rights associated with most creative works—the rights of creators, value

chain members, users, and societal organizations. Although digital technology can

greatly enhance the communication of creators’ works, unless it is properly employed, its use creates severe problems. Digital technology, when improperly used,

can deny content creators and their successors the commercially essential return for

labor and right to manage and exploit property. The improper use of digital technology—when employed as a vehicle for the unfettered purloining of copyrighted

content—directly undermines the basic building blocks of modern society, the respect for the rights of others, as well as proper return for one’s creative output and

labor. Moreover, such improper use directly suborns the stable economic basis necessary for further development of art.

Ultimately society loses out as the basic ‘‘glue’’ of commerce and democracy, the

civil interaction between multi-party rights and interests and the maintenance of

a market for goods and services, is undermined in the service of convenience and

self-interest. At times it appears there’s a call to revolt, ‘‘free the content,’’ when
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such a call—if extended beyond fair use -obscures the real issues and would seek

to legitimize people taking for free whatever they want. Others’ rights be damned!

Although the impetus for this hearing may be ‘‘file-sharing’’ and the recent Court

of Appeals decision affecting it, it is not just about Napster. It is about the changes

that digital technology is bringing to the worlds of art, entertainment and information. It is also about the kind of society that electronic communities and digital technology, used in concert with copyright law, can create. Many people are just now

beginning to realize how profound those changes and possibilities are. In under two

years and with very little in the way of direct investment, an electronic community

of some 60 Napster million file sharers was created. Ordinary consumers used the

Napster system to obtain unauthorized copies of copyrighted music without payment

when most of them, at least previously, would never have considered buying pirated

CDs in the physical world. Other communities are springing up worldwide where

individuals communicate electronically and eschew any reference to traditional principles of commerce and property rights.

The Digital Millennium Copyright Act, which this Committee was instrumental

in enacting, was the first in the world to tackle the challenges of digital technology.

Yet for all its thoroughness, we are probably even now past the point where we

could claim that copyright law alone is sufficient to establish adequate mechanisms

for the protection and management of rights in creative works (though it is essential

that legislators continue to develop the body of digital copyright laws and regulation). Despite shorter revision cycles for law, the ability of the creative community

to enforce the rights in their works has never really caught up with the technologies

enabling anybody to make and distribute unlawful digital copies. The situation is

now being considered by some leading academics as one in which copyright law may

in practice become virtually irrelevant.

Society simply cannot afford to accept copyright law becoming irrelevant. And we

cannot afford to set the extraordinary example of dispensing with the rights of content providers because we are unwilling to develop a framework for proper commercial and civil behavior. There is therefore an urgent need for a partnership between

technology and law that effectively maintains the underlying commercial and social

principles of modern free society. With respect to online entertainment the partnership must provide a workable framework for the efforts of our musicians, writers,

actors and artists. We need a partnership between government and content commerce participants that accommodates and satisfies the legitimate expectations of

American citizens—including any limitations on exclusive rights appropriate for an

intelligent public policy.

Sophisticated DRM technology such as InterTrust’s can provide the mechanism to

help effect this partnership. While technical complexities and challenges abound,

the mission is achievable: to provide a combination of technical mechanisms and social compacts that allow the transfer of the basic features of traditional commerce

into the digital market place. The means to achieve this goal are now at hand, and

the means to continue developing a flexible, free, and safe commercial digital environment, are readily accessible. There are, of course, new and complex commercial,

economic and social issues to be addressed. But this cannot deflect us from the simple, basic responsibility that we all have, to not settle for over-simplifications that

result in distorting, unfair, and socially and commercially flawed solutions. Rather,

we must strive to allow the digital world to live up to the principles most all of us

believe are the minimum standards we would demand in the traditional, non-digital

world.

The basic principles of granting rights to creators to control the use of their work

and of maintaining trusted systems for commerce remain as valid as ever. We

should not ignore the opportunities as they arise of reviewing current copyright limitations and other accommodations that were made before the advent of effective

digital rights management to ensure they continue to serve these principles. We

should also be ready to reshape these limitations, where necessary, to fit the emerging digital marketplace. Above all we should be driven by a simple principle: to

maintain a free and effective commercial society that, in a balanced fashion, supports the rights of all participants.

DIGITAL RIGHTS MANAGEMENT TECHNOLOGY

It is important to understand from the outset that when talking about DRM technology we are not referring to simple mechanisms that, say, carry protected material from a server to a client in return for a payment, locking the material to a single device. Such a proposition offers nowhere near the degree of flexibility and coverage necessary to support either traditional or new business offerings. Post delivery, persistent protection of commercial interests, flexibility in use of content across
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devices and locations, and flexible interaction with content, are all priorities for content value chain participants. In the context of music as it relates to Napster, users

want to play music on-line or off-line, and they want the right and ability to combine music into playlists that are used to create a specific personal or group music

experience, for use wherever and whenever they wish.

The technology system that InterTrust has developed protects content, in the instance of this discussion music, on a persistent basis throughout its commercial

lifecycle. It does this by binding rules governing content use with governed content.

This tamper resistant association persists regardless of the channel through or platform upon which the music is played, and the number of handlers of the content,

the duration of time, or the physical location of the content. InterTrust technology

creates a zone—independent of time, place, or device—where music is governed by

technology and where rights-holders, including consumers, are free to express and

protect their rights through the freedom to establish differing rules reflecting their

individual interests.

Within this technical protection zone, digital information such as music can be offered to consumers via a virtually limitless range of models: sale of downloads; subscriptions; pay-perlisten; superdistribution (consumer A delivering material to consumer B and so on); and file sharing. This freedom is also available for the implementation of a richly diverse range of policies that govern usage, and any consequences of usage, in relation to groups of any nature, such as special interest

groups. To accommodate statutory limitations on copyright, special consumption

rules can be created, either through law or through accepted practice of

rightsholders, for particular consumers or classes of users: for schools and universities; for libraries and archival institutions; and for consumers with special needs

such as the blind. Whatever the needs, whatever the relationship between different

participants the digital information remains persistently protected while freely

available according to agreed rules of use.

If this protection is to remain effective throughout the lifecycle of the content then

it follows that it must be possible to change the rules relating to use. Material can

have a succession of different owners. It can change in value; it can be traded for

different purposes; it can be used on multiple, different devices; and it can be loaned

to other parties. Our system anticipates and accommodates all these possibilities.

In our system, digital information and the rules governing its use by a particular

user can exist and move independently of each other, coming together to give effect

to the agreement between supplier, distributor, and consumer, and respecting whatever rules may be applied by government, or, for example, by financial institutions.

An efficient system of protection must not only accommodate a wide variety of

business offerings. It must also support the complex value chains through which

many of the offerings are delivered. The architecture InterTrust has developed supports value chain relationships based on traditional commercial principles—we call

this digital enabling of value chains ‘‘chain of handling and control’’. This means

that each actor in the value chain is able to create the rules it wishes to apply to

the material in question within the scope of authority granted to the participant by

the previous or governing actors in the value chain. A publisher could establish the

commercial terms for a work within the authority granted by the author; the distributor could then set rules within the scope of authority granted by the publisher

and so on through the value chain, all in accordance with law and accepted practice.

REQUIREMENTS OF DIGITAL RIGHTS MANAGEMENT

We believe there are a number of precedent requirements for effective digital

rights management of content. First, it must provide creators of digital information

the ability to manage and protect their rights throughout content lifecycles and however content may be exploited. This means that a DRM system must be secure and

resilient to tampering, and certain elements of the protection system must accompany the copy of the work as it is passed from party to party, format to format, platform to platform.

Second, it must support commercial flexibility so that it can accommodate the arrangements struck between copyright owners, their customers, distributors, retailers

and other value-adding participants. This means that a rights management system

must provide content creators and/or publishers the means to allow consumers

choices appropriate to the commercial circumstance.

Consumers must be able to enjoy copyrighted works, and the system must permit

consumer arrangements to vary based on the terms agreed to by the content commerce participants.

Third, it must provide a neutral and trusted environment in which technology

assures these agreed upon arrangements. The rights management technology must
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be unimpeachably neutral, that is it may not in any way subtly or secretly advantage any hidden interests, and further, it is essential that the rights management

technology not advantage any out-of-context interests of the rights management

technology provider. Consequently, for example, neither a rights holder, nor a consumer, nor the rights technology provider should be able to alter or tamper with

any agreed upon commercial arrangements once agreed or impede the expression of

a parties’ rights or interest.

Unless a rights management system meets these requirements—that is, unless

the trust system is itself unimpeachably trustable—it will fail to satisfy the legitimate interests of businesses, consumers, and government. Further, unless a rights

management system is able to maintain its trust attributes regardless of the underlying digital commerce platform, device, or application, it will fail one of two tests.

Either the system will (A) lack reliability in protecting participant rights, since a

loosely coupled array of rights systems, without a unifying maintained rights environment, will readily succumb to hackers; or the system will (B) lack interoperability, and consumers and commercial participants alike will lose the convenience

and efficiency essential to content commerce, and risk having their interests suborned to the interests of a party controlling a narrow, proprietary environment.

In the domain of music, InterTrust DRM technology is now capable of permitting

consumers to listen, record, and distribute music online in ways that do not compromise the rights of artists, record labels, and other copyright owners. It is capable

of managing the rights in copyrighted works in a secure manner in the context of

peer-to-peer distribution. Its technology supports the ongoing effort of Digital World

Services (DWS), a Bertelsmann subsidiary, and the Universal Music Group, as well

as many other interests both large and small, enabling them to implement new

business models for the distribution of music on-line. A leading international music

group, Daft Punk, for example, recently accompanied the release of its latest album

with a novel application of InterTrust technology. The band is encouraging traditional retail relationships and creating digital economy value for its fans by enabling

those fans who have purchased the CD to access the group’s web site and to

download additional music—at no further cost, but protected with InterTrust DRM.

Effective DRM solutions require more than sophisticated technology. They also require credibility and trust. That is why InterTrust restricts itself to building a platform that supports third party businesses. It is not itself a distributor of copyrighted

works; a builder of commercial consumer applications, such as electronic music players; or a credit card transaction processor. InterTrust’s MetaTrust Utility, the core

of InterTrust’s business interests, functions as a utility. It facilitates—but refrains

from intruding into—the business models and distribution channels for copyrighted

works. Its function is not to dictate the arrangements for digital rights management, but to establish and maintain a platform that ensures the neutrality, security,

commercial reliability, and trusted interoperability of services, software applications, and devices used for the protection and management of rights in digital information of all kinds. A trusted, neutral infrastructure is essential to the long-term

effectiveness of DRM solutions, and to their acceptance by copyright owners, distributors, and consumers alike.

CONCLUSION

DRM technologies should give consumers new options for legitimately acquiring

and enjoying music and other forms of online entertainment, while ensuring that

copyright owners and other commercial participants have the means to manage and

protect their rights. Enabling peer-topeer distribution of music and other copyrighted works without compromising copyright is an obvious example. In our view,

sophisticated DRM solutions must support the fundamental principle of any effective copyright system: that of striking the correct balance between protecting the

rights and interests of copyright owners while promoting the interests of the wider

community and facilitating the efficient and flexible dissemination of, and greater

access to, music and other copyrighted works.

Ultimately, the reality of sophisticated DRM technology is about far more than

Napster, online entertainment and copyright law. Policy makers, consumers, and

busines globally will come to realize that the ‘‘Napster issue’’ isn’t just about music

and the Internet. It is about constructing a civil digital society in the Internet Age,

where rules created for and by its citizens can be implemented and respected

whereever and when ever legitimate interests are in play. It is this simple proposition that InterTrust is helping to make a reality.

In closing, InterTrust once again thanks the Committee for the opportunity to

present testimony on this important issue, and looks forward to working with mem-
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bers of the Committee as they onsider the important issues related to online entertainment and copyright.

STATEMENT OF TODD SLOSEK, INTERTRUST TECHNOLOGIES CORPORATION, SANTA

CLARA, CA

Washington, D.C., April 3, 2001—Victor Shear, the founder and CEO of

InterTrust Technologies Corporation, testified today before the United States Senate

on the critical role that Digital Rights Management (DRM) solutions will play in the

future of peer-to-peer file sharing technologies like Napster and other online entertainment.

At a hearing of the Senate Judiciary Committee on online entertainment and

copyright, Shear testified that the InterTrust DRM technology is now capable of securely managing rights in copyrighted works in the context of peer-to-peer distribution, and can enable consumers to listen, record, and distribute music online without compromising the rights of artists, record labels, and other copyright owners.

‘‘The ability of the creative community to enforce the rights in their works has

never really caught up with the technologies enabling anybody to make and distribute unlawful digital copies,’’ said Shear. ‘‘We urgently need a partnership between

technology and law to provide a workable economic framework for the vital efforts

of our musicians, writers, actors and artists, and to accommodate and satisfy the

legitimate expectations of consumers. InterTrust’s sophisticated DRM technology

now provides the mechanism to effect this partnership.’’

InterTrust DRM technology makes it possible for the creative community to offer

consumers a limitless range of ways to enjoy music and entertainment: sale of

downloads; subscriptions; pay-per-listen; superdistribution (consumer A delivering

material to consumer B and so on); file sharing. It can do so because it associates

the technical protection with the content regardless of the channel through or platform upon which it is exploited. For example, the leading international group, Daft

Punk, uses InterTrust DRM technology to enable fans who have purchased the

group’s latest CD to download additional music from its web site.

‘‘Ultimately, the reality of sophisticated DRM technology is about far more than

Napster, online entertainment and copyright law,’’ Shear told the Senate panel. ‘‘It

is about constructing a civil digital society in the Internet Age, where rules created

for or by its citizens can be implemented and respected wherever and whenever

their legitimate interests are in play. It is this simple proposition that InterTrust

is making a reality.’’

InterTrust [Ticker ITRU] is the leading provider of peer-to-peer Digital Rights

Management (DRM) technology to ensures the neutrality, security, commercial reliability, and trusted interoperability of online applications and services. InterTrust

has strategic alliances and partnerships with a number of major enterprises, including Adobe, AOL, Bertelsmann, Blockbuster, Compaq, Diamond Rio, Enron,

Mitsubishi, Nokia, Philips, Samsung, Texas Instruments, and Universal Music,

using InterTrust technology to enable consumers to enjoy music, video, published

text and other information products on PCs, portable music players, cable systems

and mobile phones. For more information, please visit the InterTrust website at

www.intertrLISt.COM.

Chairman HATCH. Well, thank you so much. This has been a particularly interesting panel to me. I am sorry I had to step out for

a minute or two, but I got most of the message here and it was

very good.

In closing, I appreciate the time and effort all of you have put

in for your testimony today, and the artistic efforts of those whom

you represent. We now have increased appreciation of the continual

evolution of Internet music and the legal and ethical complexities

that has generated. It seems to me this hearing has brought that

out.

As with any new technology, the scientific advancements often

outpace the necessary legal adjustments. We have recently seen

similar discussions in the current situation with molecular biology

and genetic research. The research has outpaced the law.

My goal has always been to respect the efforts of individual artists and associated intellectual property rights, but at the same
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time to allow a legal framework that does not stifle the technological innovation which is the foundation of our entertainment industry, which is, of course, the envy of the whole world.

Let me just say this: We will leave the record open until Friday,

and we will allow any member of this Committee to submit questions, which I hope you will answer within 2 weeks. It is important

that you get your answers back to us, because we are building a

record here that literally may determine the future for all of you

with regard to music, and I would like to do it the right way.

I don’t have any axes to grind here. I think I have expressed how

important every aspect of this business is, but I do have an axe to

grind in that I love the business and I love what it does. I love the

softening it brings to America. I love the good things about the

business that really mean so much to all of us.

I think Mr. Valenti’s comments today of how important this business is vis-a-vis the rest of the world and vis-a-vis our balance of

trade—this is the one industry, and I am talking about the whole

entertainment industry—movies, music, books, et cetera—it is the

one industry where we really have a great balance of trade surplus.

To me, it is an industry that brings a great deal of joy and satisfaction to millions and millions and millions of people out there,

and we want to keep it going. But it is also an industry which is

very tough to break into. I know a lot of really fine writers and artists who will never have a chance, in my eyes, because of the way

the industry is currently structured, and it is a sad thing.

I remember when I received my first royalty check from ASCAP

that they had collected. I was at an ASCAP annual meeting and

there were about 1,000 people there, all writers, and I raised my

check and said I just got my first royalty check. The whole place

went out of control; everybody stood and applauded and stomped

their feet.

When I sat down, Marilyn Bergman, who heads ASCAP, reached

over to me and said, ‘‘Senator, the reason they are so excited is because none of them will ever receive a royalty check. And yet there

is some real talent out there that ought to be compensated.’’

I think Napster understands that the court is right in determining that Napster needs to operate within the legal framework of

the law, and they are trying to do so. I said to the industry that

they ought to capture Napster, because it is a great peer-to-peer

system that literally people love, especially our young people, and

I think our young people are willing to pay something to be able

to use Napster.

I would hope that we could do this without having the compulsory licensing situation. I don’t know that we can, but I hope that

we can. That is my goal. We have come a long way since last summer, but in my opinion we haven’t gone anywhere near as far as

we should go, and we haven’t accomplished anywhere near what

we should accomplish. There is all too much litigation and in-fighting in this industry that ought to be resolved, it seems to me, by

good business plans and good, honest approaches inter-industries.

I hope that we can do that.

This has been a great hearing for me because I have learned a

lot from it, and I am not going to forget what I have learned here

today. I just want to thank all of you for being here.
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With that, we will adjourn until further notice.

[Whereupon, at 1:47 p.m., the Committee was adjourned.]

[Questions and answers and submissions for the record follow:]

QUESTIONS AND ANSWERS

Responses of the Recording Artists Coalition to questions submitted by

Senator Leahy

1. Compulsory licenses and licensing disputes—RAC believes that the content

owners and content users must be afforded a reasonable time period to develop a

licensing system without government intervention. A fair system might be created

if the parties engage in ‘‘good faith’’ negotiations. However, if an agreement cannot

be reached within a six month to one-year time period, then Congress should step

in and implement a compulsory license system that fairly compensates the recording

artist and the record label. Without a compulsory system or a functioning voluntary

licensing framework, there will be a disincentive to use music on the Internet and

that would harm all parties. The goal of Congress should be to provide incentives

to use music on the Internet, but only in the absence of a voluntary framework

should a compulsory license system be implemented to accomplish that objective.

RAC does not consider contract provisions requiring the artist’s approval to grant

rights for Internet delivery of music as a serious roadblock to increased Internet distribution of music. Most artists will agree to such a request from their record label,

so long as the record label acknowledges the label’s obligation to negotiate with the

recording artist as to the appropriate division of receipts, including advances on the

entire licensing deal, equity participation, etc. There are few provisions in artist contracts providing much negotiating leverage. Provisions such as ‘‘anti-coupling’’ provide artists with a modicum of control and rare negotiating power. It is a cause of

concern, however, that the ‘‘anti-coupling’’ clauses in some new artist contracts have

been eroded for some uses in the digital space.

2. Historical instances in which compulsories were created as raised by Mr.

Barry—Mr. Barry is right to point out that compulsory licenses have been used in

the past to license music. However, just because there have been compulsory license

systems created in the past does not mean that Congress should or must step in

immediately. In both instances cited by Mr. Barry, the impasse between the content

owners and content users was clear and intractable. A compulsory license system

was only implemented after extensive negotiations failed, and essentially all other

options were exhausted.

At this point in time, RAC does not believe that all options have been exhausted.

The key condition, however, must be open and fair ‘‘arms length’’ negotiations between the parties. If the record labels refuse to negotiate in ‘‘good faith’’ or simply

perpetuate the status quo, then Congress should strongly prod the record companies

and music publishers to enter into ‘‘good faith’’ negotiations with the independent

Internet companies. In the case of Napster, Congress should implore the record labels and music publishers to offer Napster license rates on essentially the same

terms as provided by them to other Internet content users so long as Napster follows through on its assurances of security. No one could have anticipated the

public’s tremendous demand for interactive music or out-ofprint recordings. Therefore, Napster’s effort to create a pay system to legitimately meet this consumer demand should be supported. As stated before, however, if the parties are unable to

independently develop a new system within six months to one year, then Congress

should intervene as a ‘‘last resort.’’ Congress can then rely on the precedents set

by the previous compulsory music license systems to craft a new Internet music

compulsory license system.

3. Digital Rights Management—RAC has no evidence either supporting or disputing the existence of adequate technology.

4. How soon is soon—Before Napster became so popular, the major record labels’

forays on the Internet market were apprehensive. The labels released a very limited

selection of cumbersome, encrypted downloads at exorbitant prices. The record labels simply did not listen to the fan’s demand or recording artist’s excitement for

music on the Internet. In particular, many recording artists have been pushing

record labels for years to take a more serious and comprehensive approach to the

Internet. The label’s inaction created a vacuum directly leading to the creation of

Napster. Napster simply responded to consumer demand while the labels did not.

As such, it is still in large part up to the record labels to determine in what fashion

and when digital content will be fully exploited. RAC hopes sooner rather than later

and with consideration for the artists’ concerns. With that stated, however, the most
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important element of an Internet music business model is the continued existence

and expansion of a viable independent distribution system on the Internet. Systems

like a fee-based Napster will not only provide an outlet for independent recording

artists and those recording artists signed to major labels who are not given the

major star promotional push, but these independent Internet music sites will challenge the major labels to continue on an aggressive course and timetable.

5. All other issues will be dealt with below.

WORK FOR HIRE

RAC believes strongly that Congress should reexamine the work for hire provisions in the 1976 Copyright Act with an eye toward clarifying authorship issues of

sound recordings. However, before any real progress can be made on the work for

hire issue, the record labels, represented by the RIAA, must fundamentally change

their relationship with recording artists and more importantly, with the organizations and groups representing recording artists. While paying great lip service to the

importance of the recording artist to their companies in testimony before Congress,

the record labels and the RIAA, have adopted a policy of indifference and confrontation regarding work for hire. The RIAA has made it very clear that they are not

interested in meeting or negotiating with the recording artists. Nor have they shown

a willingness to fulfill the strong desire of Congress (specifically this Committee) for

the parties to negotiate an acceptable work for hire amendment that would be supported by all factions in the music industry and Congress. Apparently, the RIAA has

taken the position that they will fight this issue in court, thereby taking full advantage of the immense difference in financial resources between the record labels,

owned and supported by multinational corporations, on the one hand, and the recording artists on the other. This record company posture is unacceptable to the recording artists, and should be unacceptable to Congress.

As the record labels have no intention of starting any kind of substantive dialogue

with the recording artists, it is imperative that Congress intercedes and calls for

hearings on this issue. All sides in this debate—there are many—must be heard in a ‘‘blue-sky’’ forum. Academics must offer their counsel, and even producers, backing

performers, and the unions must be given the opportunity to present their views.

Only when a full public airing of all viewpoints is made, can the parties and Congress fashion a fair and sensible amendment or, in the alternative, decide to refrain

from offering an amendment. This is how the Copyright Law has been amended in

the past. There is no reason to veer from this democratic and mutually respectful

tradition.

Seemingly, the record labels learned very little from the work for hire episode. At

the core of this conflict is the disconnect between the public perception of recording

artist/record company relations, and the reality. Record companies publicly portray

the recording artist as a partner in their enterprise. The record companies use this

image of a working ‘‘partnership’’ between recording artists and record companies

as a way to entice recording artists to sign with their companies. However, once the

record contract is signed, generally the record labels true goal, that of creating an

employer/employee relationship, quickly replaces the illusion of a partnership. Recording artists are not employees. We are not entitled to the benefits of employees

such as pensions and health care, and as such we do not create works for hire.

In fact, the working relationship between a recording artist and a record company

is that of a joint venture/partnership. Other than the standard boilerplate work for

hire language that is mandatory and non-negotiable in almost every record agreement with a major label, there are no contractual indicia of an employer/employee

relationship. So while the recording artist works with the record company as a functional partner, the record company treats the recording artist as an employee. The

record companies must treat recording artists more like partners, which in fact they

are. If the record labels would listen to and respect the recording artists’ collective

political and economic voice, tremendous progress could be made to resolve the lingering political and contractual differences between the recording artists and the labels, including work for hire.

COMPULSORY LICENSES AS A LAST RESORT

This issue is addressed above.

INTERACTIVE DIGITAL PERFORMANCE RIGHT

The Digital Performance Right in a Sound Recording Act of 1995 created the first

performance right for the performers of music. Congress mandated a royalty payment of 50% to the copyright holder (most often the record label), 45% to the fea-
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tured artist, and 5% to the non-featured musicians and vocalists. This royalty applies only to noninteractive webcasting as defined by the compulsory structure of

the Digital Millennium Copyright Act. The problem is that for an interactive service

such as Bertelsmann/Napster, My.Mp3.com, MusicNet, or Duet, the compulsory license does not apply: Artists lose their 45% and have to settle for whatever they

are promised in their label deal. This might range anywhere from 7% to 50%, but

more importantly would be recoupable against the artist’s outstanding balance. As

such, for most artists, there will be little revenue from interactive music services

under the licensing structure that exists today.

Writers of music share a performance right with publishers. The writer’s 50%

share is paid directly to the writer, and is not subject to recoupment. RAC believes

that digital performance rights for sound recordings should mirror the writer’s system.

The Digital Performance Right in a Sound Recording Act contains provisions for

labels to strike exclusive licenses with webcasters. Under an exclusive license, artists once again potentially lose the 45% afforded to them by the compulsory. The

difference between a direct payment to an artist and a recoupable payment is dramatic for both the artist and the label. For the artist, it may be the difference between some payment and none. Since the incentive is greater for the label to negotiate directly with webcasters, the labels could retain more money possibly at a

lower rate.

There is also the matter of equity stakes the labels have negotiated with digital

media companies. It is now common for the labels to take equity in digital media

companies as a precondition to licensing their content. For instance, AOL Time

Warner, Bertelsmann, and EMI hold equity in MusicNet, and Sony and Universal

in Duet—equity shares that will not be offered to recording artists. Perhaps one way

to level this inequity is to ensure direct, substantial, and non-recoupable payment

to artists from interactive music services.

INDEPENDENT ARTISTS

The answer to this question must be in two parts. First, the issue of new artists

signing major label agreements will be addressed, and second, the issue of independent artists will be addressed:

A. New Major Label Artists—A young recording artist signed to a major label has

many obstacles to overcome. The rate of success of new artists is incredibly low.

Most do not get past their first album release, and for those who do, the success

rate after that is still quite low. This is a very tough business. The Internet provides

a new artist with a valuable promotional tool that had never existed before. A new

artist can use the Internet to release promotional tracks and drive traffic their way.

New artists can create web sites that provide promotional information and develop

a degree of interactivity with their fans. In many instances bands communicate with

their fans by amassing an e-mail database. They can inform their fans when and

where they will be performing live, or when their new album is being released. They

can interact with their fans through chat rooms, and in some instances they receive

feedback from their fans about their music. In fact, the band Journey recently revised an unreleased album, including creating new tracks, based on feedback from

fans who heard the album after it was prematurely put on the Internet without the

band’s approval. The Internet undoubtedly provides the newly signed artist with an

unprecedented marketing and promotional tool. Furthermore, the Internet is, as of

yet, unproven as a primary distribution mechanism. New artists still rely on CD

sales and it remains difficult to obtain shelf space in the terrestrial retail outlets.

The promise of independent Internet distribution is unlimited ‘‘shelf space’’.

Unfortunately, many major labels are beginning to acquire more and more Internet rights from bands when they are signed. Some major labels now try to own and/

or control an artist’s web site, even if the site was created before the recording

agreement was signed. They are especially concerned about controlling data which

is stored on the web site, and in some instances, they have attempted to exclusively

control the artist’s trademarked name on a web site address even after the termination of the recording agreement. The newly signed artist must try to retain these

rights so the artist can take a substantive role in promotion during and after the

deal. Major labels are very shortsighted in this regard. By seeking to control an inordinate amount of Internet and digital rights of the newly signed recording artists;

they are unwittingly ensuring that the failure rate of new artists remains at the

same level or conceivably gets worse. Major labels have cut promotional budgets and

staffs across the board; especially those recently acquired by multinational corporations. The labels must apportion their shrinking promotional money and manpower

to a greater number of deserving bands. A new band might well find itself in the
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middle of this type of number crunching that ultimately may result in record label

neglect. At times the only player actually promoting a new band is the band itself.

A new act must retain as many Internet rights as possible so as to give itself a

fighting chance in the ever more constricted major label market.

B. Independent Artists—A viable independent Internet distribution system must

be allowed to survive. Otherwise, independent artists will not be able to take advantage of the wonderful promotional, marketing, and creative benefits of the Internet.

The Internet provides many independent recording artists with an outlet that was

simply not in existence before. The major record companies should not be allowed

to destroy or inhibit independent online distribution in the name of copyright

infifringement enforcement, when in fact, its destruction will only secure Internet

market dominance for the major labels. Will the major labels willingly allow for

competition with independent artists through an Internet system the majors control

such as MusicNet? There is reason to be concerned that the major labels will only

want their respective artists to be promoted via the Internet. This is the most compelling reason why the major labels should license their music to Napster and services like it, so that independent distribution will survive. Otherwise the independent

artist will be as isolated as ever.

CONTRACTUAL ISSUES

For years, recording artists and their representatives have recognized and vilified

the antiquated, but universally used, standard recording agreement. Some surmise

that the standard recording agreement, with all of its anti-artist provisions, arguably constitutes a restraint of trade under the laws of the United States. There is

some degree of support for this point of view. Courts in the United Kingdom have

at times ruled that certain standard music industry contracts constitute a restraint

of trade under the laws of the United Kingdom, and perhaps even under the laws

and regulations of the European Community, if the court determines that the contract in question is oppressive and against the public interest. In those instances

UK courts have rescinded or terminated contracts and at times awarded recording

artists with significant damages. Based on this precedent in the UK, this Committee

should examine the standard recording agreement as is used in the record industry

today in the United States to determine whether there is any basis to conclude that

this type of standard agreement also violates US law. The following are examples

of certain controversial provisions Congress may find troublesome:

1. A key issue in many of the United Kingdom restraint of trade cases is the inordinately long term of the standard contract. Most major label agreements require

a commitment for six to eight albums, with a term that could conceivably last well

over ten years. The United Kingdom and the State of California have tried to address this problem either through court intervention or through the legislature. (No

action has been taken elsewhere in the United States.) Courts in the United Kingdom have ruled at times, that as a matter of UK law an excessively long term recording agreement, as well as other types of similar agreements in the music industry, constitutes a restraint of trade. The State of California responded by enacting

Labor Code 2855 which prohibits, under certain circumstances, a term for entertainment industry personal service contracts longer than seven years. RAC believes a

legislative solution is desirable, and therefore Congress should seriously consider enacting a seven-year federal law similar to the law in California. While the California

law is not perfect, Congress should consider it as a guide. Free agency in the music

industry will help the established artists, the new artists, and the independent artists. Free agency in the movie industry has been a fantastic success, increasing the

economic viability of both the studios and the actors. In the music business, both

the record labels and the recording artists will benefit from a free agency system

that places a premium on success and gives artists a new degree of control over

their careers. This is why a federal seven-year rule would be good public policy. It

guarantees competition and innovation in the music industry.

2. The majority of recording artists will never achieve financial success or independence while the very onerous recoupment policy remains a staple of the standard

record agreement. As Chairman Hatch has stated in the past, this is the only industry in which, after you pay off the mortgage, the bank still owns the house. This

standard recoupment policy is also a very compelling reason why Congress and the

Courts should recognize that a recording artist is not an employee or independent

contractor of the record company. Congress should undertake a very close examination of this policy.

3. When a band signs a record contract with a major label there is almost always

a ‘‘leaving member’’ clause. This type of clause mandates that a recording label has

the right to retain the services of a leaving member of a band as a solo artist.
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4. The work for hire provision of the standard record agreement offers another

compelling example of a provision which raises anti-competitive concerns as it denies the creator of the work the right, otherwise granted to all other copyright creators in similar circumstances, to exercise termination rights. Essentially, the work

for hire provision tries to contractually deny the recording artist their termination

right, even though the Copyright Law clearly does not include sound recordings as

a qualifying category for work for hire status.

5. Recording artists who also write their own music often must waive the full,

statutory mechanical royalty rate as a precondition to signing a record contract (the

‘‘controlled compositions’’ clause).

In almost all record contracts, the standard royalty is drastically reduced for all

sorts of inappropriate and arbitrary reasons. For example, a recording artist will receive a reduced royalty if a record is sold in a foreign territory, if the record is sold

in a PX or a military base, if the record is released in a ‘‘new format or technology,’’ and if the record is sold through a record club. The major labels cross-license their

catalogs to record clubs, such as Columbia House and BMG Direct. The labels take

enormous advances that they do not share with recording artists and pay artists

based upon a 50% royalty rate. RAC is also concerned that this long-contended practice is extending to the online marketplace. With Mp3.com, for example, each of the

major labels took $20 million advances on blanket licenses—advances they have not

offered to share with artists. A certain amount of records will be distributed as ‘‘free

goods’’ when in many instances the recording agreement provides that the record

company may include these records in special merchandising programs. In these instances, the record company would still get paid for these records while the artist

would not. Some contracts actually charge a packaging deduction against the recording artist for sales of records via the Internet. In other words, the record company

does not create any packaging, but nevertheless charges the recording artist for the

non-existent packaging. Sometimes these packaging charges amount to 25% of the

standard list price of a record. RAC member, Tom Waits sums up the situation very

nicely with this prophetic line in his song ‘‘Step Right Up’’: when it comes to recording contracts, ‘‘the big print giveth, and the small print taketh away.’’ All in all, the

practices of the record industry relating to calculation of royalties warrant serious

attention.

All of the above are compelling reasons why Congress should investigate, understand, and hopefully act to change the very basic way that business is conducted

in the music industry. Even though the record companies will protest, this type of

intervention will help all concerned, including the record companies, as it will revitalize creativity and guarantee that the record industry will be a vital and important American treasure for many years to come.

Responses of Mike Farrace to questions submitted by Senators Hatch,

Leahy and Kohl

f I am pleased to provide these responses to the written questions asked subsequent to the April 3, 2001 hearing. I thank the Judiciary Committee for the attention it is giving to the need to encourage ample dissemination of creative works and

the importance of maintaining vigorous competition in the distribution of sound recordings.

RESPONSES TO WRITTEN QUESTIONS FROM SENATOR HATCH

Question: One argument we have heard in favor of a compulsory license is that

music has so many pieces to license and there have been substantial disputes between the record labels, the publishers and technology companies like MP3.com

about how to get the publishing rights cleared in the volume demanded by online

offerings. Some have suggested that a stumbling block to getting the labels to license sound recordings is that they may not have the rights from their artists to

grant these rights. I understand there may even be problems with the MusicNet offering to some degree because of these impediments. Would any of you be interested

in commenting on this particular problem and suggest ways to remedy it?

Answer: It is Tower’s understanding that while many artist contracts of the past

may not have included language providing for distribution via new configurations,

the language of most artist contracts today acknowledges that record companies will

face an ever-changing landscape of technological opportunities for distribution, and

therefore, contract language provides for the record companies’ ability to exploit

copyright via new configurations and channels of distribution which may not specifi-
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cally be identified by name. More importantly, however, if such a stumbling block

exists for a label, we believe it should preclude content availability for MusicNet or

Duet just as it would for a delivery system using an independent company such as

Tower. Conversely, if MusicNet and Duet can be licensed, so can Tower.

It may also be useful to note that disputes over ownership of copyrighted material

have existed in the past, and can logically be expected to exist in the future. A compulsory license would not address issues of ownership. We believe Congress is correct in hesitating to impose an extreme measure such as a compulsory license without giving the marketplace time to offer its own solutions. At the same time, we

urge the Committee of the Judiciary to view with caution claims of stumbling blocks

that appear to exist only for companies not owned or controlled by copyright owners.

Question: Mr. Hank Barry argues that we have created compulsory licenses in the

past, for publishing rights in music and in rebroadcast of television programming

because it was difficult to clear the rights to the myriad creative interests involved

in making up a broadcast day. Would anyone like to explain why that analogy does

or does not obtain in the online music and entertainment world?

Answer: The analogy appears to apply. A song can have more than one writer and

owner; an album can have multiple writers; a compilation album or soundtrack can

involve multiple labels and distributors. Ed Murphy, in his testimony on behalf of

NMPA, acknowledged that the size of the licensing demand placed on Harry Fox

by just MP3.com was far in excess of their current licensing capability. However,

Mr. Murphy also insisted that they were working hard to meet not only the needs

of MP3.com, but to anticipate the licensing needs of the industry as a whole. We

readily acknowledge that many in the industry have been working feverishly to address the myriad rights involved in creating a digital marketplace. We believe that

while current progress has been slower than we would like, a careful review of the

industry’s ability to solve the licensing issues identified at the hearing is necessary

before concluding that a compulsory license is required.

Tower supports the concept of Section 115, which allows anyone to obtain a compulsory license to make and distribute phonorecords of a copyrighted work once that

work has been distributed to the public, thereby encouraging more creative uses of

the work while insuring that the copyright owner receives a reasonable royalty payment. The public may benefit from similar tools applied online to eliminate the potential logjam created when an entity that controls a copyright frustrates the widespread distribution intended by the Constitution. Some conditions upon the licensee

may be warranted to insure that the right to a compulsory license to make a reproduction via a digital phonorecord delivery (DPD) be available only to those who can

demonstrate the ability to (a) be accountable for the number of DPDs actually distributed and (b) can deliver them in a reasonably secure format. (See, for example,

House Report No. 76–1476, noting the authority of the Register of Copyrights to

prescribe regulations pursuant to Section 115 containing ‘‘detailed provisions ensuring that the ultimate disposition of every phonorecord made under a compulsory license is accounted for.’’) These details are beyond the scope of this response. However, Congress should reasonably expect that a statutory framework for this could

be developed with the help of knowledgeable experts if compulsory licensing becomes warranted.

Question: I have heard a number of entertainment companies say that acceptable

protection for online content simply does not exist yet, that existing Digital Rights

Management and watermarks, wrappers, or encryption, is simply not good enough

to protect valuable content. Yet we have a number of technology companies here

today who believe that they have such a solution, and now we have announcements

of online initiatives from all five major labels, which suggests the technological protections have developed recently. Would any of you care to comment on the state

of technological protection for content?

Answer: Our belief is that the copyright management through watermarking and

encryption available through existing systems are suitable and more than adequate

for use in launching the sale of digital files online. Making an extensive selection

of audio content available for consumer use now would provide a convenient, genuine and legal alternative to piracy. Secure digital delivery systems will continue to

improve over time, just as loss control systems at retail have improved over the

years. Tower has long been a faithful partner in helping record companies combat

piracy of physical goods all over the world. We believe we have earned the right to

be trusted in the new digital distribution channel.

Tower can today offer downloads that are infinitely more secure than the music

published on CDs. Every time a record company refuses legal content to Tower and

other retailers, the result is that Tower and other retailers are prevented from competing with services like Napster. It seems illogical to us, and leads us to question
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the motives of our suppliers. We worry that their long-teen plans may be to confine

existing retailers to the ‘‘bricks and mortar’’ world while the record companies try

to establish stronger technological controls not only over electronic distribution, but

also over lawful use subsequent to the initial distribution.

Question: The premise of this hearing is that digital content is coming soon to digital devices to be enjoyed by consumers soon. Based on our discussion today, how

soon is soon, and when will the promise become reality?

Answer: There is no technological barrier preventing that from happening right

now. As I said in my testimony, robust technology exists to facilitate the portability

of song files to a variety of media and playback mechanisms. We do acknowledge

that there is the challenging issue of developing viable economic models for digital

distribution. However, we believe that the best way to test the viability of these economic models is to work with trusted partners like Tower who will provide real

feedback from real consumers about real products available in the marketplace.

Question: Is there any point you feel should be raised or that you would like to

further respond to for the completeness of our record?

Answer: We are concerned that what is happening today has less to do with controlling piracy, and more to do with copyright owners controlling the distribution

and use of copies and phonorecords beyond the limits imposed by Congress. The piracy rationale is not limited to music, but is being extended to motion pictures as

well. See, e.g., Alen Koebel, ‘‘Digital Video Interfaces And Consumer Displays,’’

Widescreen Review, April 2001, p. 102, at 106 (‘‘Digital technologies, for the first

time, make it possible to control where, when and in what manner content is

viewed. Digital content protection could be used simply to prevent copies, but is capable of much more . . . [and] the evidence suggests that Hollywood is actually

more concerned with controlling honest consumers—with the ultimate aim of extracting more money from their wallets—than stopping pirates’’).

Previously, when new technologies that ‘‘steal’’ copyrighted material have been introduced (like cable TV or video), Congress has sought solely to ensure compensation Congress has never sought to guarantee control. Copyright owners have never

been permitted to decide who gets to sell copies and phonorecords, or to whom or

at what price. Nor have copyright owners been permitted to decide who gets to read

a book, listen to a song, rent or watch a movie, or whether the owner of a lawfully

purchased copy can give it away. Today record companies and studios are attempting to claim the unlimited right to control these decisions. See ‘‘Report to Congress:

Study Examining 17 U.S.C. Sections 109 and 117 Pursuant to Section 104 of the

Digital Millennium Copyright Act,’’ U.S. Dept. of Commerce, National Telecommunications and Information Administration, March 2001, n.101.

Question: What are your concerns regarding the recently announced MusicNet

and Duet deals, and what issues in connection with these deals should the Judiciary

Committee, in your opinion, continue to watch?

Answer: Tower’s concerns are based in part on the fact that the details of these

deals have yet to be made clear. It appears that MusicNet intends to offer streams

and downloads. Their first customers will be AOL and Real Networks, both major

stakeholders in the MusicNet Company. Record companies tell us MusicNet is an

independent company that will be non-discriminatory. Tower expects that the terms

and conditions through which content is made available to us will allow us to compete just as aggressively against AOL and Real as we do against other retailers.

Our concerns also echo those of the Register of Copyrights, which offers that ‘‘any

one work will ordinarily be competing in the market with many others . . . [t]he

real danger of monopoly might arise when many works of the same kind are pooled

and controlled together.’’ Register’s Report on the General Revision of the U.S.

Copyright Law (1961), at 5. In the off-line world, the five major record companies

have already formed crosslicensing relationships with each other that disfavor competing retailers, in a manner very similar to what appear to be the MusicNet/Duet

deals. Record clubs like Columbia House and BMG Direct cross license audio content to companies owned by the record companies themselves, resulting in the ubiquitous ‘‘10 CDs for a penny’’ offers which not only dramatically reduce the perceived

value of music generally, but which foster a belief among consumers that recordings

retailers like Tower sell are overpriced. Online, MusicNet and Duet reflect the recognition of the record companies, voiced by Richard Parsons at the April 3, 2001

hearing and recently echoed in Time. ‘‘None of these services can survive without

content from all five major labels.’’ Dannielle Romano, music analyst at Jupiter

Media Metrix, as quoted in by Chris Taylor in ‘‘More Pain for Napster: The big

music labels spin plans go to the Net,’’ Time, April 16, 2001, p. 43. Retailers, likewise, must have content from at least each of the major companies to be competitive.
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Thus, the danger mentioned by the Register of Copyrights forty years ago has increased exponentially. Currently, five companies control 85% of all sound recordings.

So, MusicNet and Duet will together control 85% of the market. Moreover, since neither MusicNet nor Duet can succeed on the strength of their own collections, it

stands to reason that soon these two behemoths will follow the model they established with BMG Direct and Columbia House, cross license to each other, and each

be in a position to dispense with having to deal competitively with any other competing distribution entity. See Learmonth, ‘‘Universal and Sony in Napsterless Harmony,’’ The Industry Standard, visited at http://www.idg.net/crd—music— 450642—103.htm1 (‘‘. . . sources say, Duet development has been launched; the

staff is based in New York and its corporate structure will be much like the Columbia House record club, which is half-owned by Sony and half by Warner Music

Group. ’’) Independent record companies will be forced to accede to their terms if

they want an outlet, and no retailer would have any hope of offering competitive

terms to consumers because their wholesale costs will, as we have seen with the

record clubs, be several times higher than the wholesale prices the record companies

give each other.

As I mentioned in my testimony, many entities are ready to offer lawful digital

downloads. Thus, the creation of MusicNet and Duet was not really necessary to

achieve that objective. To the contrary, the evidence suggests that the reason these

record companies have denied others the opportunity to lawfully compete with

Napster by delaying secure digital downloads is that they hope to devise a network

by which they alone can control substantially all digital distribution.

There are, then, two issues that Tower would ask this Committee to continue to

watch. First, the degree to which companies that have amassed substantial collections of copyrighted works leverage the power of these monopoly collections into control over their competition. These companies have shown a historical predilection to

monopolize online entertainment in ways both subtle and overt, and therefore, examining the reciprocal relationship licensing used to favor their own companies and

joint ventures over those of their competitors, would be appropriate. See, for example, Six West Retail Acquisition, Inc. v. Sony Management Corp., No. 97 Civ. 5499

(DNE), 2000 U.S. Dist. LEXIS 2604, *60–*64 (S.D.N.Y. March 8, 2000).

Second, the Judiciary Committee should continue to watch the same issue that

was of concern to Congress nearly 100 years ago—striking the proper balance between content owners’ legitimate demands for compensation, and yielding to their

illegitimate demands for control. Today, there is every reason to stay the course explained by your colleagues in the House in 1909 when the House Judiciary Committee said: ‘‘Your committee feel that it would be most unwise to permit the copyright

proprietor to exercise any control whatever over the article which is the subject of

copyright after said proprietor has made the first sale.’’ In the online world, this

means that a copyright cartel must be prevented from controlling the retail-level authorization of downloads because the result of a digital download is the same as the

purchase of a DVD or CD: The consumer will become the ‘‘owner of a lawfully made

copy or phonorecord.’’ See Section 109. Just as Congress prevents copyright owners

from controlling distribution once having sold copies for distribution, so, too, should

they be prevented from controlling retail-level DPDs once they have licensed a merchant to offer the DPD to the public.

Just as in the sale pre-packaged copies and phonorecords, the public interest demands that retailers remain free to charge competing prices, offer competing levels

of customer support, and otherwise offer the public the benefit of vigorous competition. In the same manner, consumers must be free to give, sell or lend lawfully acquired songs. Congress should act swiftly in response to any use of new technology

to prevent the lawful use of lawfully made copies, and should take the additional

step of making sure that digital distribution of phonorecords made at home or in

a retail store remains just as free from copyright owner control as is the physical

distribution of pre-recorded phonorecords made in a factory.

Question: There have been calls for compulsory licensing of sound recordings, of

publishing rights, and of ‘‘most favored nation’’ protections for online distributors

not affiliated with record companies. Others argue that no one has rights to use

property other than the property owner and those property owner agrees with (with

fair use exceptions in the copyright context, of course). Could you each explain what

justification you see, if any, for such extreme legislative action, other than that your

business plans rely on using the major labels’ content to be successful? Please be

specific if you suggest such theories as misuse of copyright, etc.

Answer: While Tower does not favor compulsory licensing at this time, we believe

a careful review of industry practices up to this point is helpful in evaluating two

separate but related issues. One is whether the copyright owner should be obligated

to license the online reproduction of its works, and the other is whether such licens-
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ing, once authorized, should be given on a non-discriminatory basis. The effect of

the copyright owner’s decision upon freedom of competition is fundamentally different in an online or ‘‘postrecorded’’ distribution than it is for physical or ‘‘pre-recorded’’ distribution.

For the consuming public, the most important feature of physical distribution is

not whether or to whom the reproduction right or distribution right is licensed, because at some point the goods will reach a retailer of the customer’s choosing,

should that retailer choose to carry the product. Moreover, thanks to the RobinsonPatman Act, all retailers will have roughly the same acquisition cost, and thanks

to the first sale doctrine, all retailers will have a chance to buy the product and

compete on a relatively level playing field.

In the online world, the strictures of the Robinson-Patman Act can be avoided because the courts have interpreted it to apply to the sale of tangible goods, but not

to licenses. Free of the restrictions in the Robinson-Patman Act, copyright owners

have the power to license the reproduction right to only those companies of their

choosing and can also decide who will survive through the use of terms which favor

one competitor (such as a company which they own) over another.

In short, in the physical goods world, the copyright owner may strategically restrict who can manufacture (reproduce) copies and phonorecords of its works, and

who can make the initial distribution of its works, but the distributors must not discriminate in price and retailers to whom they refuse to sell will always have a way

of obtaining the product for resale. In the online distribution world, in contrast, the

copyright owner can both shut a retailer completely out of the market and/or license

the reproduction right on grossly discriminatory terms, to the same effect.

A case brought by NARM against Sony Corporation, on behalf of its music retail

members, challenges Sony’s cross-licensing wherein the record clubs can obtain

sound recordings identical to the ones retailers sell, but at a small fraction of the

price. Sony claims that it can do this because licenses are not subject to the Robinson-Patman Act. In this case, which is currently before Judge Sullivan in the U.S.

District Court for the District of Columbia, we allege that these licenses are in reality just sham licenses intended to cover up what are, in substance, sales of goods

of like kind and quality to similarly situated buyers but at grossly dissimilar prices.

The CDs are manufactured in the same manufacturing facilities and result in virtually identical copies. A CD Sony sells to Tower for $12.50 costs Columbia House

(the record club jointly owned by Sony and AOL/TW) only about $2.50. The result

is that Columbia House can make a $10 profit before retailers can break even. If

that same model is carried over to digital distribution (and every indication is that

the record companies intend precisely that), then the retailers favored by the copyright owners could offer downloads at a small fraction of the ‘‘wholesale’’ cost offered

to other retailers.

Do consumers benefit when two retailers are charged one wholesale price, and all

others are charged 500% more? Clearly, they would be better off if thousands of retailers like Tower were charged the lower wholesale price.

Congress should adopt the same policy restrictions for copyright owners in the

world of digital distribution as it did for physical distribution. ‘‘[W]here the copyright owner first consents to the sale or other distribution of copies or phonorecords

. . . continued control over distribution of copies is not so much a supplement to

the intangible copyright, but is rather primarily a device for controlling the disposition of the tangible personal property that embodies the copyrighted work. Therefore, at this point, the policy favoring a copyright monopoly for authors gives way

to the policy opposing restraints of trade and restraints on alienation.’’ 2 M. Nimmer

& D. Nimmer, NIMMER ON COPYRIGHT, § 8.12[A] (2000).

Your question notes that some ‘‘argue that no one has rights to use property other

than the property owner and those the property owner agrees with . . .’’ but such

argument fails following a quick reference to the Copyright Act. There is absolutely

nothing in the Copyright Act that creates any exclusive right of ‘‘use.’’ Anyone can

use a copyrighted work in any way they desire, so long as it does not infringe any

of the enumerated exclusive rights. If I were to sneak into a theater to watch a

movie without paying, I may be in trouble with the theater owner if I get caught,

but I’m not infringing copyright. Similarly, a record company has no power under

the Copyright Act to control who gets to listen to a recording.

There have been many business plans that have relied on using copyrighted content in ways that copyright owners may not have supported, but which have ultimately benefited them. Cable TV has provided thousands of additional outlets for

content. MTV created a market for selling music video in addition to promoting the

sale of millions of CDs. Independent video stores created both the video rental and

video sell-through markets. The notion that an independent business plan that uses

copyrighted material is somehow ‘‘tainted’’ should be treated with suspicion.
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Question: I assume you agree that ultimately online distribution of music, be it

downloads or streaming services, can be less costly than distribution in the physical

world where trucks, warehousing, damaged goods, and overstocks can run up costs.

Some have suggested that the labels cannot pass these cost savings on to consumers

because doing so would upset the record store retailers they rely on like Tower

Records by undercutting the record store sales price. Would you agree that brick

and mortar retailers are the reason online cost-savings cannot be passed on to consumers? Similarly, would you object to retailers using deep discounts on recorded

music as loss leaders to induce customers to visit the store, perhaps to buy stereo

equipment, etc., and if so, why?

Answer: We agree that online distribution of music may be less costly than distribution in the physical world. We do not agree that brick and mortar retailers are

the reason that online cost-savings would not be passed on to consumers. First, let

us clarify the use of the term ‘‘distribution,’’ which refers to the wholesaling of

music, and which is distinct from ‘‘retailing’’, which involves selling to the end user.

Today, if Tower buys 1,000 CDs, they would have to be manufactured, labeled, packaged and shipped to our stores. Tomorrow, Tower could obtain one digital file and

a license to sell 1000 Tower customers the rights to download a copy. For the record

company, the latter form of distribution is certainly cheaper because the costs of

manufacturing the components of a recording are being shifted downstream.

If lower wholesale prices result from economies realized in online distribution, and

if they are commensurate with the actual savings, we see no reason to be upset.

The cost of producing the recorded media, printing the booklet, inserting the CD and

booklet in a package, boxing, shipping and maintaining the necessary warehousing,

sales and inventory systems and personnel as well as any other physical-world-only

materials and activities could be reasonably deducted from the existing wholesale

cost. However, there are other activities which must reasonably replace them such

as storing and serving the content in a secure server, utilizing a copyright management system, verifying the completion of the download, and providing customer

service for incomplete or faulty downloads. Once these are added back in, along with

activities which do not change, such as advertising and promotion, we will be able

to determine the true savings that might be passed on.

As long as the cost-basis of merchandise is consistent and supported by reasonable volume requirements and other accepted marketing programs such as dating,

advertising support, and merchandising support, we would embrace lower costs online. What record companies are really describing when they say brick-and-mortar

retailers will object to passing on savings are the ‘‘savings’’ they intend to reap by

eliminating retailers from the distribution chain altogether.

We are concerned that record companies will create direct marketing strategies

that mirror those in the record clubs, where cross-licensing and sweetheart licenses

are granted only to affiliated companies. These arrangements in the past have eroded the perceived value of music and lead consumers to believe retailers are making

dramatically greater profits than they really are.

We define a ‘‘loss leader’’ as a product that is sold for less than its actual cost.

We do not object to low margin ‘‘deep discounting,’’ per se, as a means to induce

customers to visit a store to buy other, more profitable products, and while we think

pricing below cost is bad public policy and we don’t engage in it ourselves, we recognize that some of our competitors do. However, consumers as well as government

need to understand the true impact of loss leader programs on the ecosystem of

bringing, and keeping, music widely available to the public. Tower has always been

devoted to finding and stocking every piece of music offered to us, and to having

personnel who are knowledgeable about such a vast selection of music. The cost of

such an approach is substantial, and therefore we place less emphasis on having

the best price in our marketing. However, our concerns about the impact of widespread loss leader programs extend well past the impact on Tower’s marketplace

niche.

Particularly in this age of dot-coms, when the cost of new customer acquisition

may exceed the wholesale price of two or three CDs, it concerns us when CDs are

sold below wholesale because the company in question is not really in the business

of selling music at all, but in the business of selling advertising or in selling consumer data, in which case the lure of cheap music may be used as the bait to engage in lucrative consumer data mining, or to solicit for sales of unrelated consumer

goods. Such activities undermine the value of music, both real and perceived, and

tend to undermine what should be one of the primary sources of income for creative

artists.

Sometimes our issues dovetail with those of others in the value chain, like artists.

Why should an artist forgo regular royalty levels to enable a record club to use these

strategies to erode the value of their work? Why should a record company be per-
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mitted to reduce the artist’s compensation for an identical consumer product, just

to undercut the competing retailer? And, how does the consumer benefit when a

purported cost savings is made possible by shifting the cost from one retailer (the

one in which the record company has a financial interest) to another (that competes

independently)?

The short answer to your question, then, is that retailers fear the lack of true

competition more than we fear true competitors. The Copyright Act makes a careful

distinction between the copyright in the intellectual property, which grants a limited monopoly, and rights in the copies and phonorecords themselves, where the free

market and antitrust laws come into play. See Section 202 (‘‘Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership

of any material object in which the work is embodied’’). When the copyright monopoly in the intellectual property is used to restrict competition in the physical property (whether made in a factory, store or home), Congress should provide the tools

with which the courts can draw the line. In this, we echo the concern raised by Senator Hatch when he stated: ‘‘We will also need to review the increasing legal tension

in the high technology industry between intellectual property rights and antitrust

laws. There has always been a tension here, but in the Internet world, we need to

be careful that intellectual property or content power is not leveraged into distribution power, or otherwise used in anticompetitive ways.’’ 107 Cong. Rec. S 1376 et

seq., February 14, 2001).

RESPONSES TO WRITTEN QUESTIONS FROM SENATOR LEAHY

Question 1: Mike Farrace, Senior Vice President, at Tower Records testified that

some record companies are requiring personal data from and about Towers’ cus- tomers, prompting concerns by Tower Records about violating its own privacy policy,

damaging the relationship with the customer, and ‘‘maybe even result[ing] in Tower

violating the law.’’

Question 1(A): What sort of personal data are record companies requesting from

retail distributors, such as Tower Records, and other online distribution services to

provide from or about customers?

Answer: The customer’s e-mail address is the primary bit of data labels want, although some proposed systems require much more. Record companies have used

several strategies to acquire the email address and other information, which we outline in Question 1(B).

Question 1(B): Are record companies asking retail distributors to provide any personal data about customers who purchase CDs in brick-and-mortar stores, or have

the requests for collection of customer data been limited to online music purchases?

Answer: Record companies have solicited personal retail customer data in both

selling environments. They have long sought customer data through the use of ‘‘blow

in’’ cards which invite a CD purchaser to complete a form in order to join a fan club

or get additional information about a company’s catalog of releases. Some record

companies embed links on CDs sold at brick and mortar stores which link to record

company-owned artist web sites, which in turn link to record company-owned commerce sites, or to third party commerce sites. Manufacturers have not yet specifically requested or required that Tower provide personal data about brick and mortar customers who purchase CDs to them directly. However, they do routinely print

the URL’s of artist and label sites on the product, so we are forced to market their

data collection web site and, ultimately, their own or third-party commerce sites. It

is as though instead of requiring that we give them our best customer list, they simply forced us to send everyone on that list free advertising for their competing retail

site.

Online, record companies have variously proposed several systems that have inherent data collection, and/or systems which have ‘‘opt in’’ screens intermingled with

the transaction process, but email data can be gathered under a variety of circumstances.

In the first, the record company’s digital delivery system processes the transaction. In these systems, the label captures the consumer’s e-mail address, specifics

about the product purchased, the customer’s credit card number, dates, times, etc.

This information can then be combined with prior purchases to determine trends

and create user profiles. This is the most objectionable situation for retailers.

The second strategy is to insert an ‘‘opt-in’’ screen during the transaction process.

In some cases, this has been a simple screen that asks for the customer’s email address without explanation. In others, text below the entry field asks the user if they

would like more information about this artist. In some cases, the name is simply

gathered by the content owner and no particular use of the name is specified. In

others, the user is sent to a web site where they are presented with a large list of
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artist names with checkboxes, and told they will receive email about the artists they

checked.

The third strategy is one in which the record company partners with a technology

company to offer their own customer support function, and in which the technology

company will collect consumer data at the customer support level and share it with

the record company.

The fourth is one in which the record company limits the retailer to the role of

sales agent, wherein the online retailer’s only function is to promote links to the

record company itself and perhaps handle the customer support function if the

transaction fails. The consumer transaction is made directly with the record company (though the consumer may not be aware of it) in exchange for a commission

to the retailer/sales agent, and thus the record company can solicit whatever information it wishes without regard to the retailer’s wishes or privacy policies.

We do not object to opt-in opportunities generally. We do object to the use of these

names by record companies for marketing directly to Tower consumers. Only one

label that does not already require personal data as part of a proprietary transaction mechanism, EMI, has agreed to refrain from activities of this kind. Some

companies have offered to share the names under certain conditions, or agree to

mail only in conjunction with the primary retailer, or to allow the retailer to email,

provided the retailer does the mailings whenever the record company wants and/

or agrees to limit the content of the emails.

The problem with these scenarios is twofold: (1) Because there are multiple retailers and multiple content owners, customers could potentially be barraged by numerous indiscriminate mailings, which will create customer service burdens to retailers

and, as a result, undermine each retailer’s customer relationship. (2) Of equal concern is that we know that information about Tower customers will be used to eventually divert future purchases from our customers to retailers owned or operated by

the record companies. Other than EMI via the agreement with Liquid Audio, no

record company will promise never to use the data independently unless we agree

to conditions like the ones above.

Most labels also want recaps of sales, including artist, title and sales price. We

don’t object to sales recaps when they are used in aggregate to discern trends, identify ‘‘hot’’ records or for other purposes consistent with building marketing plans

that intelligently allocate resources to resellers. We do object when our own customer information is used to market to our customers, or is used by the recipients

to compete with us. It frustrates free market economics by using monopoly power

to raise the costs to a competitor.

(The use of embedded hyperlinks as described above is part of a lawsuit filed by

the National Association of Recording Merchandisers, the music retailer trade organization to which we belong, against Sony Corporation.)

Question 1(C): Are retail distributors and online distribution services formulating

or revising their privacy policies to accommodate requests from record companies to

provide personal data from or about customers?

Answer: Tower’s privacy policy requires explicit permission from our customer to

send email beyond order acknowledgements, confirmations and receipts. Opt-in opportunities exist on our site, and are included at the bottom of these transactional

mailings. We are concerned that we do not know exactly what information our suppliers or their agents may be collecting or what they may be doing with the data.

We have not revised our privacy policies to accommodate labels, preferring instead

to fight for our customers’ privacy as well as for the exclusive ownership of the existing retail relationship, including customer contact information. We are willing to

cooperate with record companies, as we always have, in marketing recordings. For

example, in return for dropping record company requirements to possess and use

our customer information, we have offered to feature their products in a guaranteed

number of periodic emails executed by mutual agreement on behalf of their artists.

On the video side of our business, we are fortunate that Congress enacted the

Video Privacy Protection Act, 18 U.S.C. § 2710, which prohibits such data mining

without the contemporaneous consent of the consumer. The courts have held that

third parties who obtain such information may also be liable for the disclosure. This

was the determination reached in Video Software Dealers Association, Inc. v. City

of Oklahoma City, No. CIV97–1150–T, 1998 U.S. Dist. LEXIS 22095 (W.D. Okla.

Dec. 18, 1998), a case brought on behalf of retailers such as Tower by our trade association. Because of this law, our customers’ private video sales and rental records

cannot be surreptitiously taken from us.

Question 1(D): Are record companies requiring as part of their licensing agreements for digital music that they be provided access to customers’ personal data?
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Answer: Yes. As described above, some licensing agreements include the use of delivery systems that automatically deliver customer data to record companies preempting the need to have ‘‘access.’’ They get the customer personal data as part of

the transaction, and do not pay for the information or even negotiate with us for

access. As in the case of hyperlinks on CDs, retailers simply do not have an alternative if they want the content.

Question 2: Jack Valenti testified that within four to six months, several movie

studios plan to use the Internet to transmit movies to American homes in encrypted

form, but that more protection may be needed, ‘‘some of which might require congressional legislation.’’ In the Digital Millennium Copyright Act (DMCA), the Congress has provided protection for technological measures that effectively control access to copyrighted works and barred the manufacture, import or sale of products

or services primarily designed to circumvent such technological measures. 17 U.S.C.

§ 1201(a)(1) & (2). Please describe the circumstances where additional protection

may be warranted and the areas not already covered by the DMCA where additional

legislation may be requested.

Answer: Mr. Valenti’s statement is open-ended. While we support all ongoing efforts to restrict the illegal copying and distribution of copyrighted works, we do as

long as they do not create onerous limits on fair use, or require that retail customer

data be turned over to copyright holders. That said, Tower does not foresee a future

need for additional legislative protection. Indeed, it appears that technological developments alone are now replacing the Copyright Act as the greatest source of power

for copyright owners, such that Congress may need to address restoring the appropriate public/private balance in copyright law rather than creating greater protections for copyright owners. As noted by Alen Koebel, supra, this may be more about

controlling lawful use than controlling piracy. The new prohibition on circumventing

effective access control technologies ‘‘must be weighed against the potential for misuse that content protection brings.’’ Koebel at 106.

Question 3: Concerns have been expressed that ‘‘copyright management’’ measures

being developed by copyright owners to control the distribution of their digital works

may erode the first sale doctrine. If a customer pays for the personal use of a copyrighted work, the rights holder may use technological means to ensure that the

work is not posted on a web site for use by others. Do you believe that the marketplace will sort out the scope of copyright management measures since customers

who believe they are not getting what they pay for will simply stop buying?

Answer: We support copyright management measures which limit illegal distribution of digital works while still providing an acceptable end-user experience and respecting the rights copyright law gives to owners. We object to the use of so-called

‘‘digital rights management’’ (or ‘‘DRM ’’) systems and other access control technologies which have little to do with copyright management, but are, instead, being

implemented in ways that prevent consumers from exercising Section 109 rights.

We believe that access control technologies are already proving to be unacceptable

to consumers because of the severe restrictions to legal use imposed after the sale.

Since resellers are being forced to pass on such restrictions (as we have no control

over them and it is unlawful to circumvent them), the record company restrictions

become unreasonable barriers for resellers in their efforts to market digital content.

The marketplace cannot sort out the use of restrictive measures because the copyright monopoly is being used in conjunction with the prohibitions in Section 1201

to prevent the normal market effects to sort this out. For example, copies of motion

pictures are being offered through digital download using DRM technology that prevents the owner of the lawfully made copy from renting, lending or selling it. That

is, the technology prevents owners of the download from exercising their rights

under Section 109. The download of the Miramax film Guinevere is one example.

The consumer who downloads the film becomes the owner of a lawfully made copy,

but can only enjoy the copy for a 24-hour period, after which access is denied unless

an additional payment is made. If consumers object to the terms contained at the

single retail site from which it is available (www.sightsound.com), there is no other

place to which the consumer can turn for better terms. Thus, the consumer only has

the choice of giving up their rights guaranteed by Section 109 or never owning the

download.

If we consider, however, how a competitive market might sort this out, the result

is completely different. Section 109 limits the right of copyright owners, not retailers. If a retailer were to offer the downloaded copy with similar restrictions, consumers who object to such terms could simply shop elsewhere, just as today, a consumer who objects to having to return a rented video the next day can shop with

a retailer who offers longer rental periods, or the consumer can purchase it outright.
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We believe customers will pay for reasonably secured content that is reasonably

priced. The question is, ‘‘Is what they want to buy being offered, and if not, why

not?’’ A competitive retail market would normally charge a lower price for a product

with added restrictions on use. What we are seeing in the digital music industry,

even in the prerecorded media, is added cost (that is, added restrictions) with no

countervailing price reduction. When Sony added a restrictive EULA to one of its

CDs, there was not a penny of price reduction. According to Sony, the consumer who

failed to return the CD to Sony within seven days of purchase agreed never to sell

it, lend it or give it away, and agreed never to play it on a different computer, yet

there was neither a price reduction in exchange nor an option to purchase the CD

elsewhere without the restrictions. (See Attachment A to my written testimony.) Retailers could not compete to offer the CD with or without the restrictions, and therefor the marketplace will never have the tools with which to sort out the most competitive scope of access control technologies. Only illegal distribution sites are in a

position to offer a competitive choice.

The only way for the market to sort out the appropriate scope of copyright management measures is for the use of such measures to be strictly limited to the management of the copyrights set forth in Section 106, as further limited by the Copyright Act and, in particular, Section 109. When copyright owners leverage their monopolies to ‘‘manage’’ rights they do not have (such as to control how the lawful

owner disposes of a lawfully made copy), the free market is subverted, competition

is suppressed, consumers lose out, and artists gain less exposure.

Question 4: Retailers of music, movies, video games and other copyrighted works

have expressed concern about whether copyright management measures and end

user licensing agreements will erode the ability of retailers and distributors to distinguish themselves from one another in meaningful ways with the potential of stifling competition among retailers, since those measures may set uniform prices,

policies and terms for the online distribution of digital works.

Question 4(A): Please explain whether you believe that uniform copyright management measures and user licensing agreements carry the potential risks for competition identified by retailers?

Answer: It is not just the uniformity, but also the oppressiveness of these measures that give rise to our concerns. We believe copyright management measures and

user licensing agreements, to the degree that they preserve first sale rights and provide resellers with opportunities to sell their customers digital works in the form

customers want, do not carry undue risks inherently. It is the degree to which copyright owners restrict access and use outside of the bounds of their copyrights, to fix

retail prices, suppress retail competition, or use such access controls to gather and

use our customer information, that present the risks. The uniformity itself is a

symptom of the lack of retail competition, and an element detrimental to consumers

(as it is any time all stores look alike), and to retailers, who have fewer significant

ways in which to compete. The need for us here at Tower to distinguish ourselves

from our competitors is not just a desire to maintain our unique personality, character and reputation, but is the essence of the way we compete. We can’t claim to

be better than the store down the street if we are prevented from being better.

Question 4(B): Would variation in the terms for pricing, use policies and terms

for the distribution of digital works provide flexibility for different distribution models and give the consumer the maximum number of choices?

Answer: Absolutely, provided that these variations are the result of retail competition and not the result of the copyright owners discriminating among competing retailers. Some of the most innovative business models giving consumers the most

choice are those that are beyond the control of the copyright owner. For example,

without (and indeed against) the consent of the copyright owner, consumers can obtain pre-recorded copies and phonorecords new from a store, free on loan from the

library or a friend, second-hand at a used goods store, a yard sale or flea market,

at a low-cost rental in the case of movies and video games, or as a gift. We at Tower

consider competing with these avenues part of doing business. The fact that our customers can re-sell, loan or give away what they buy from us adds value to that initial purchase transaction, even though neither we nor the copyright owner derive

any additional value from the myriad possible subsequent distributions.

The best business model we have today is where they sell us the copies at a price

of their choosing, and we in turn market them and develop all sorts of competing

ways of getting them into the hands of consumers, who are free, in turn, to legally

transfer title or possession to others. That’s how it should work for digital

downloads. Once someone else owns the downloaded copy, the copyright owner’s control over that copy should cease. Let others compete over the pricing and distribution terms, so consumers will have some real choices.
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Question 5: The Copyright Office issued a Notice of Inquiry on March 9, in response to a petition by the RIAA, stating that: ‘‘there is considerable uncertainty

as to interpretation and application of the copyright laws to certain kinds of digital

transmissions of prerecorded musical works. It is also apparent that the impasse

presented by these legal questions may impede the ability of copyright owners and

users to agree upon royalty rates under section 115. . .’’ 66 Fed. Reg. 14099, 141101

(2001).

Question 5(A): Do you agree with this statement and, if so, please explain how

the uncertainty over the legal questions presented in the petition are affecting voluntary licensing agreements for new online music services?

Answer: It appears to us that much of what passes for uncertainty is, in reality,

the result of an effort by various interest groups to advance a position which

stretches copyright law in a direction more favorable to them. Perhaps it is not so

much the uncertainty that is affecting voluntary licensing agreements, but the positions that are being staked out as part of a negotiating posture.

Question 5(B): In 1995, the Digital Performance Right in Sound Recordings Act

expanded the scope of the mechanical license, under 17 U.S.C. § 115, to include the

right to distribute, or authorize the distribution of, by digital transmission both

hard copy phonorecords and ‘‘digital phonorecord deliveries’’ or ‘‘DPDs.’’ DPDs are

defined in the Act but a subset of DPDs, called ‘‘incidental DPDs,’’ which are also

subject to the mechanical licensing process, are not defined. One of the issues before

the Copyright Office is to determine what is and what is not an ‘‘incidental DPD.’’

Is this a question that the Copyright Office or the Congress should determine in

the first instance?

Answer: To a large extent, this issue may have been addressed more effectively

than Congress realized back in 1976, when it revised the basis for calculating the

royalty rate to provide that ‘‘the royalty under a compulsory license shall be payable

for every phonorecord made and distributed in accordance with the license.’’ Section

115(c)(2) (emphasis added). House Report No. 94–1476 explained: ‘‘It is unjustified

to require a compulsory licensee to pay license fees on records which merely go into

inventory, which may later be destroyed, and from which the record producer gains

no economic benefit.’’ (Let’s call them ‘‘incidental phonorecords,’’ by analogy.) It was

Congress’ intent ‘‘that the Register of Copyrights will prescribe regulations insuring

that copyright owners will receive full and prompt payment for all phonorecords

made and distributed.’’ Id. (emphasis added). Moreover, as noted in said Report,

Section 115(c)(2) further provides that ‘‘a phonorecord is considered ‘distributed’ if

the person exercising the compulsory license has voluntarily and permanently parted with possession.’’ Finally, the Report stresses that the term ‘‘made’’ was used instead of ‘‘manufactured’’ so as to include ‘‘every possible manufacturing or other

process capable of reproducing a sound recording in phonorecords.’’

It appears to us, then, that Congress already determined this issue in the first

instance. Certainly DPDs are one possible ‘‘manufacturing or other process capable

of reproducing a sound recording in phonorecords.’’ (Even a computer hard drive can

be a ‘‘phonorecord,’’ as that term is defined in Section 101.) Further, Congress has

already empowered to Copyright Office to insure that prompt payment is made for

DPDs that are ‘‘made and distributed.’’ Just as no royalty obligation would be triggered by ‘‘incidental phonorecords’’ from which the producer gains no benefit, logic

would dictate that ‘‘incidental DPDs’’ which serve only to facilitate efficient distribution of the actual DPD would trigger no compulsory license royalty obligation. Congress has delegated to the Copyright Office responsibility for determining when the

royalty payable for actually distributed DPDs becomes due.

Question 5(C): The Copyright Office is currently considering the applicability of

the section 115 mechanical license to two new services for delivery of digital music:

‘‘On-Demand streaming’’ (which permits users to listen to real-time streamed music

they want when they want it) and ‘‘Limited Downloads’’ (which permits users to

download music for listening for only a limited time). According to the Notice of Inquiry, these types of services were not ‘‘anticipated’’ when the Congress expanded

the scope of section 115 to cover digital transmissions. Is legal uncertainty over the

applicability of section 115 to these new services having any effect on the deployment of such services and, if so, please explain what that effect is?

Answer: As for ‘‘On-Demand streaming,’’ we agree with the comments of the Consumer Electronics Association and Clear Channel Communications, Inc., filed on

April 23, 2001, in response to the Copyright Office’ Notice of Inquiry, 66 Fed. Reg.

14,099. We do not see how a public performance could possibly generate a mechanical royalty. A DPD could be made concurrent with a public performance, but in that

case, the mechanical license is triggered by the DPD, not the public performance.
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‘‘Limited Downloads’’ are not recognized under copyright law. What is being

sought by the RIAA from the Copyright Office is power to authorize the reproduction and distribution of a copy of a work, only to have the resulting copy time out

or otherwise be rendered useless to its owner. We can se no room for such an approach, particularly given the rights of owners of lawfully made copies to dispose

of them without the copyright owner’s consent. The proposal would allow the use

of access control technologies to effectively lock out the owner of a lawfully made

copy from continuing to enjoy the fruits of ownership.

The RIAA proposal may be consistent with the position of the Copyright Industry

Organizations, which maintain that Section 109 rights may be exercised only ‘‘in the

absence of licensing or technological restrictions to the contrary.’’ But surely Congress never intended the rights in Section 109, which specifically limit the copyright

monopoly, to be taken away by the copyright owner’s own use of technological access

controls. A logical extension of such concept would prevent the public from re-reading books, borrowing books, purchasing them used, or receiving previously read

books by gift, because they would be unreadable.

So the question is not whether legal uncertainty over the ‘‘Limited Download’’ is

having an effect on the deployment of such a ‘‘service.’’ The question is whether

Congress should make it even clearer that a Limited Download as a tool used at

the sole discretion of the copyright owner is not a ‘‘service’’ to consumers, but an

unauthorized extension of the copyright owner’s control over lawfully made copies

which are the property of others.

On the other hand, we are more than willing to explore how technology can be

used to extend the number of options available for disseminating works. Rep. Boucher introduced legislation during the last Congress to allow owners of lawfully

made copies to forward them to others if the original is deleted, but without infringing the right of reproduction. The use of ‘‘check-in/check-out’’ technology to allow

consumers to redistribute a digital file while ensuring that only one authorized copy

is accessible at a given time sounds very attractive, and we are pleased to be working with copyright owners and technology companies to support industry standards

for such actions. In the very near future, Congress should carefully consider how

copyright law should evolve to facilitate such business models, but now is not the

time to be fitting a square peg into a round hole.

In the motion picture industry, limited use is a service provided by your local

video store—not the copyright owner. (Videos can already be rented online, even

though the delivery is still through the mails.) In the event that Congress visits this

issue, we would suggest that the analogy be drawn from the physical distribution

world, where copyright owners are prevented from using their monopoly to control

distribution. For example, a library might have the right to ‘‘lend’’ an electronic copy

by letting a patron download the file to their computer while the original is rendered inaccessible. Or the library might ‘‘own’’ the virtual right to three copies, but

only have one actual copy, which could be downloaded by up to three patrons at a

time. The ‘‘check-in’’ technology would allow the patron to ‘‘return’’ the copy, in

which case the original is made accessible again and access is denied to the patron’s

copy. Such a model could be used for video rental as well. Under current law, each

copy made implicates the reproduction right, regardless whether it is accessible. If

copyright law were to be amended to support such functions without infringing the

reproduction right, we feel it would be imperative for the physical distribution

model to be followed. That is, just as selling, giving, library lending and video store

rentals do not require the copyright owner’s consent, so, too, should the virtual

equivalent remain outside of the control of the copyright owner.

If, indeed, an ‘‘online rental’’ model is to ever be recognized in copyright law, it

should be developed along the lines of the physical goods model by an Act of Congress, the principles of the first sale doctrine should be maintained, and the rental

terms should be determined by competing retailers rather than the copyright owner.

The Limited Download proposal also concerns us because one of the justifications

for it is a promotional use of consumer sampling—a use for which the Copyright

Act already makes ample provision. First, there is the in-store play exception contained in Section 110(7). This allows consumers to listen to an entire album in the

record store. Second, the fair use doctrine allows what has been the industry practice since the inception of electronic commerce, and that is to permit the merchant

to promote the sale of prerecorded works and downloads by offering song samples,

normally lasting only about thirty seconds, or representative excerpts of a motion

picture, commonly referred to as movie trailers, at the point of sale and without the

need to first obtain permission. Just as booksellers may display copies of books open

for perusal without fear of violating the copyright owners exclusive right of public

display, and just as the grocer may reproduce copyrighted labels of soup cans in the

Sunday newspaper to advertise the next week’s sale without violating the copyright
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owner’s exclusive right of reproduction, so, too, can music and video retailers copy

and make available cover artwork, a thirty-second sound clip sample, or a movie

trailer, to assist and encourage the consumer in making a purchasing decision

This is, in fact, very simple, and it concerns us that this effort to take what has

been a standard no-cost industry practice and convert it into a new exclusive copyright called a Limited Download is coming at the very same time that several copyright owners have, almost in unison, begun asking retailers to get a license from

them to promote the sale and rental of their works by use of such simple consumerfriendly devices. We can’t tell whether this is sheer coincidence or part of a carefully

orchestrated plan to further encroach into the domain beyond the reach of their

copyrights but, either way, it is making retailers very nervous. The legality of this

promotional activity in digital distribution should be affirmed in the law.

Question 5(D): Various music publishers filed suit in December, 2000, against

UMG for copyright infringement alleging that UMG was copying sound recordings

on servers for its new online music subscription service, Farmclub.com, and stating

that: ‘‘UMG recently obtained a judgment from this court that the operator of another Internet music service, MP3.com, Inc., had willfully infringed UMG’s sound

recording copyrights by placing copies of those sound recordings on its public servers—precisely what UMG has done here without plaintiffs permission.’’ Would clarifying the scope of the mechanical license under section 115 of the Copyright Act in

the context of such new online music services help avoid the undue delay and undue

distraction from litigation?

Answer: Yes. We believe that some clarification might be in order. It would appear

that reproducing a sound recording onto the hard drive of a file server for the purpose of offering digital performances to the public would be an act of infringement

unless some exception applies (such as in Section 107 or 114, for example). It should

be equally clear that reproductions incidental to the delivery of an audio stream or

digital downloads, but that have no independent value and cannot be perceived by

the consumer, should not trigger the mechanical royalty. (See Section 115.)

Somewhere between these two rather clear issues (though we concede that some

might debate them), are practices which may make perfect business and common

sense from the standpoint of creating greater efficiencies for the benefit of consumers and copyright owners, but where the law did not anticipate the many recent improvements in digital distribution technology which depend upon the creation of

multiple copies incidental to the actual public performance or DPD.

The best example I know of is the very practical need for making multiple copies

of a work just to have available the most popular formats and CODECs. A merchant

who is preparing a database of licensed song files for the purpose of offering lawful

downloads or licensed audio streams should not have to pay more just for the ability

to offer the consumer a choice of format, CODEC or transfer speed. That is like requiring a printer to pay extra for typesetting a large font version of a book for the

vision impaired.

Question 6: Hillary Rosen has testified that RIAA member companies have committed to licensing Napster once the service operates in a fashion that respects copyrights and Napster has an agreement with Bertelsmann to help develop this system.

What is the current status of Napster’s efforts to develop a technological upgrade

to digital rights management system that is secure and addresses the needs of artists and copyright owners addresses the rights of artists and copyright owners? Has

Napster been able to share a new technological approach with (a) the court; (b) with

artists or (c) with copyright owners? When does Napster expect to be able to introduce the new technological model?

Answer: I have no comment in response to this question.

Question 7: The record companies have announced new online music services, including MUSICNET and Duet, which will provide competing business-to-business

platforms for music subscription services that will cross-license music and offer the

services on a non-exclusive basis. As Hilary Rosen stated in her testimony, the

record companies recognize the need to ‘‘ensure that online distribution enhances

rather than undermines the commercial viability of our retail partners.’’ Thus, the

non-exclusive nature of these new platforms is important. Do you believe that it is

also important for the record companies to make digital music available to those

competing retailers capable of offering secure and accountable downloads, on a nondiscriminatory basis that does not price them out of any competitive opportunity or

give them substantially less attractive nonprice terms?

Answer: Yes, we do. We believe it is critically important for the record companies

to make digital music available to competing retailers capable of offering secure and

accountable downloads, on a non-discriminatory basis that does not price them out

of any competitive opportunity or give them substantially less attractive non-price
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terms. The same is true in the case of audiovisual works, and requires that we pay

special attention to similar ventures in the motion picture industry such as

MovieFly.

We also feel compelled to point out that we think non-discriminatory means offering these digital products equally on all levels, including at the same time, for the

same price, with equivalent terms and conditions (such as warranties and replacement policies), and with the same bonus features (such as free promotional tracks

or special added content).

To date, there have been announcements about the services, but no contact with

retailers that we know of by Duet, MusicNet or any record companies about the

planned new services. Nor have MovieFly or the motion picture studios been open

to retail competition. Instead, announcements concerning their non-retail partners

were made, with no mention of retail, which seems curious in light of Ms. Rosen’s

remarks about the importance of retailers to her member companies. The importance of retailers seems rather like that of a parasite to its live host, and reminds

me of the analogy NARM drew to witchweed in its case against Sony, where it explained that ‘‘Witchweed (STRIGA ASIATICA) is a parasitic plant that attacks some

of the most important crops in the U.S. . . . Unlike most weeds, which merely compete with crops, parasites like WW do their damage more directly. They rob nutrients and moisture by tapping directly into the host’s root system. Consequently, the

host spends energy supporting WW growth at is own expense.’’ Fact Sheet for

Witchweed (WW), FACT Sheet 07 PPQ, made available through the Cooperative Agriculture Pest Survey program, May 25, 1993, http://ceris.purdue.edu/napis/pests/

ww/facts.txt accessed April 21, 2000. According to ‘‘Parasite,’’ Microsoft Encarta Encyclopedia 2000, it eventually kills the host. And that is exactly how retailers are

beginning to feel. We are an integral part of the industry which has resulted in the

success of record companies, movie studios and computer game manufacturers, yet

our root system—which is our customer base—is being tapped in an effort to feed

off of it until we are no longer needed. They can’t live without us, just yet.

The last contact we had with MusicNet was a meeting where nothing remotely

similar to their press release the day before the Senate hearing was even mentioned. There has been no contact with Tower regarding details of the offers from

either MusicNet or Duet, much less any offer from the record companies to invite

us to compete with either of the two entities they jointly control.

RESPONSE TO WRITTEN QUESTION FROM SENATOR KOHL

Question: While all of the panelists are primarily concerned with access to online

entertainment marketplace, they must also understand that they have a responsibility to parents. The Internet makes it even more difficult for parents to police the

songs that their children hear, the images that they see and the games that they

play. I’d like the panelists to discuss what their company or industry plans to do

to help parents as online entertainment becomes more readily accessible to all consumers, especially children.

Answer: We are proud of what Tower is doing in this area. We met with the RIAA

in February at the NARM convention, agreed with their recommendations, and have

initiated a project with our online merchandising team which will improve the current notification which we implement online in the following ways:

1. Clearer language indicating parental advisory titles. We intend to use the

terms, ‘‘Unedited, Explicit Lyrics’’ to describe such titles in place of ‘‘PA,’’ or ‘‘explicit’’ to describe unedited recordings, and ‘‘Edited Lyrics’’ to describe edited versions.

2. Links to descriptions of what the language means. We intend to implement a

web page describing what the terminology above means.

3. Persistent notification throughout the transaction process. While we haven’t decided exactly how, we are working on methods to keep the Parental Advisory message ‘‘live’’ right through to the shopping basket.

You also asked about what our industry is doing. Tower is a member of two trade

associations that have taken leading roles in this area. The National Association of

Recording Merchandisers (‘‘NARM ’’) is the principal trade association for retailers

and distributors of sound recordings, and the Video Software Dealers Association

(‘‘VSDA ’’) is the principal trade association for retailers and distributors of home

video movies and video games. As an active member of each, Tower has had the

privilege of having a representative on the Board of each of these trade associations,

and has participated in the development of our industry’s programs in this area.

I must note, however, that despite challenging all members to be responsive to

public concerns, both trade associations have been careful to preserve the freedom

of each member to remain competitive with other members when it comes to dealing
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with their customers. Each retailer sees customer relationships as one of the key

areas in which we all compete with each other, and attempt to distinguish ourselves

as the retailer most responsive to consumers, including children and their parents.

How we do that is, ultimately, something we, at Tower, work very hard on independent of what any competing retailer may do. So, although industry-wide programs such as those NARM and VSDA have initiated have a very important function, we recognize that there are some areas in which freedom of competition is the

best solution. When push comes to shove, as it often does in the competitive retail

level of distribution, we want customers to choose our store over any competitor’s,

and if a younger customer needs their parent’s permission to shop with us, we certainly want every parent to feel confident that their permission should be granted.

That is one reason why we have so vigorously opposed proposals that would give

our suppliers permission to enter into agreements in unreasonable restraint of trade

against us. After all, as my responses to the previous questions make clear, they

are becoming our fiercest retail competitors, and we cannot afford to let them have

any additional control over retail distribution.

CONCLUDING STATEMENT

I respectfully ask the members of this Committee to consider whether you ever

became fans of a particular artist because someone shared their copy of the music

with you. I suspect that each of you can recall an occasion in which an artist’s work

touched you, even though someone else paid for the copy of the sound recording you

heard. All of you have probably enjoyed the freedom to rent a movie instead of buying it. Yet, these opportunities are currently being threatened by technology. This

debate should be more than about whether a record company may restrict distribution and redistribution to increase its profit from an artist’s work, or whether a

movie studio may use technology to prevent retailers from renting copies if their

profit margins will increase. Rather, this debate should be about how ‘‘the Progress

of Science and the Useful Arts’’ (U.S. Constitution, art. 8) can be promoted for the

public good. The profits of the Copyright Industry Organization members, retailers

and authors should be subservient to that end, and we think that end is best served

by preserving our freedom to aggressively and lawfully compete in disseminating

these treasures to the public.

Corporation, to questions submitted by Senators Hatch, Leahy and Kohl

Thank you for the opportunity to participate in this important debate.

Responses of Mark Traphagen, on behalf of InterTrust Technologies

f I have heard a number of entertainment companies say that acceptable protection

for online content simply does not exist yet, that existing Digital Rights Management and watermarks, wrappers, or encryption, is simply not good enough to protect

valuable content. Yet we have a number of technology companies here today who

believe that they have such a solution, and now we have announcements of online

initiatives from all five major labels, which suggests the technological protection

have developed recently. Would any of you care to comment on the state of technological protection for content?

RESPONSE BY INTERTRUST:

The DRM technology developed by InterTrust is now capable of securely managing rights in copyrighted works—music, video, text, and graphics—in the online environment without compromising the rights of artists, record labels, and other copyright owners. Indeed, a number of entertainment companies (including AOL Time

Warner, Bertelsman, and Universal Music Group), entertainment distributors (including Blockbuster), and entertainment device manufacturers (including Diamond

Rio, Samsung, Nokia, and Philips) are actively working with InterTrust DRM technology to make music video, published text and other information products available

for consumers to use on PCs, portable music players, cable systems and mobile

phones.

Unlike simple technological measures that carry copyrighted works from a server

to a client and lock the copy to a single device, the InterTrust DRM technology protects copyrighted works regardless of the channel through or platform upon which

the music is played, the number of intermediaries, the duration of time, or the physical location of the content. This post-delivery, persistent protection of copyrighted

works permits alternatives in making copyrighted works available, including sale of
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downloads, subscriptions, pay-per-use and peer-to-peer distribution. It also provides

flexibility for each actor in the distribution channel, meaning that a publisher can

establish the commercial terms for a work within the authority granted by the author; a distributor can set rules within the scope of authority granted by the publisher, and so on. Because the copyrighted works are persistently protected by the

InterTrust DRM technology, it also permits flexible use of these works by consumers

using different devices in different locations.

QUESTION FROM SENATOR LEAHY:

Concerns have heen expressed that ‘‘copyright management’’ measures heing developed by copyright owners to control the distrihution of their digital works may

erode the first sale doctrine. If a customer pays for the personal use of a copyrighted

work, the rights holder may use technological means to ensure that the work is not

posted on a weh site for use by others. Do you helieve that the marketplace will

sort out the scope of copyright management measures since customers who helieve

they are not getting what they pay for will simply stop huying?

RESPONSE BY INTERTRUST:

InterTrust believes that the advent of effective DRM technologies should launch

a period of lively marketplace experimentation in online delivery by the owners and

distributors of copyrighted works and that, as illustrated by the popularity of the

Napster service, consumers will make their preferences clearly known. To avoid stifling this lively experimentation, InterTrust believes that, until it is shown to be ineffective in reflecting the balance struck in the Copyright Act, the marketplace

should be where consumers, copyright owners, and distributors sort out the ways

in which DRM technologies are used to protect and manage rights in copyrighted

works.

Why does InterTrust believe this? Because DRM technologies give copyright owners new confidence that their works will be protected in the online environment,

DRM technologies also enable them to permit consumers to use copyrighted works

in new and more convenient ways, some of which may surpass the scope of copyright exceptions such as the first sale doctrine. For example, while the first sale doctrine exhausts the exclusive right to distribute a copy or a phonorecord of most copyrighted works to the public, it does not limit the other exclusive rights of the copyright owner—reproduction, adaptation, public display, and public performance. With

the protection of effective DRM technology, however, some copyright owners and distributors could choose to attract consumers by permitting them to make and display

copies.

Moreover, InterTrust’s DRM technology also enables copyright owners and distributors to accommodate a richly diverse range of policies arising through law or

through accepted practice (provided they are sufficiently detailed) for use of works

by particular groups of consumers, such as schools and universities, libraries and

archival institutions, and those with special needs, such as the blind. Consumers

are likely to respond favorably to copyright owners and distributors who use these

capabilities of DRM technologies to permit flexible use in the course of managing

their rights.

QUESTION FROM SENATOR KOHL:

While all of the panelists are primarily concerned with access to the online entertainment marketplace, they must also understand that they have a responsibility

to parents. The Internet makes it even more difificultfor parents to police the songs

that their children hear, the images that they see and the games that they play.

I’d like the panelists to discuss what their company or industry plans to do to help

parents as online entertainment becomes more readily accessible to all consumers,

especially children.

RESPONSE FROM INTERTRUST:

The InterTrust DRM technology includes features that enable entertainment producers and distributors to associate content advisories, such as ratings and labels,

with the digital material and to display such advisories when the digital material

is opened by consumers. The DRM technology also includes other features that enable parents to control or prohibit access to digital material incorporating such content advisories. Provided that these features are used by producers, distributors,

and parents, the content advisories would be persistently associated with the digital

material after delivery to the consumer.
f145

Responses of Gerald W. Kearby to questions submitted by Senators Hatch

and Leahy

I. INTRODUCTION

Thank you for the opportunity to respond to the written questions from the Chairman and the Ranking Minority Member of the Committee. I have only endeavored

to answer the questions that directly pertain to my testimony as supplemented on

April 5, 2001 (the Supplement).

Question. Acceptable Protection for Online Content:

Answer. Detailed answers to this question are contained both in my testimony and

in the Supplement. To reiterate, the basic points of that testimony, the technology

necessary to secure distribute online music has been available for several years. Liquid Audio commercially deployed such a system in 1997, and we are currently developing our 6th generation of products. Liquid Audio requests the opportunity to demonstrate its copy protection system to the Committee. One demonstration is worth

several thousand words and, we hope, would set this issue to rest.

Question. When Will Digital Music Come to A Device Near You?

Answer. Unfortunately, it appears as though billions of digital songs are now on

a large variety of devices today. I say unfortunately because the vast, vast majority

of those digital songs were downloaded from Napster without authorization from the

copyright holder. The question should be: when will there be a legitimate market

supplying digital music to those devices near you? That is entirely in the hands of

the major record labels. As discussed below, it appears that they have taken some

first steps towards entering the marketplace. Those steps, however, appear unclear

and do not seem to represent an adequate response to the demand in the market.

Question. Record Companies and Online Resellers. Senator Leahy asks: ‘‘Do you

believe that it is also important for the record companies to make digital music

available to those competing retailers capable of offering secure and accountable

downloads on a non-discriminatory basis that does not price them out of any competitive opportunity or give them substantially less attractive non-price terms? ’’ Answer. The answer is simple—yes! To attract the tens of millions of people away

from unauthorized distribution of digital music will require adding value to attract

them to the legitimate online music sites. Competing resellers of digital music are

far better positioned to respond to the market than would be a monolithic captive

reseller. Obviously price will be an important factor. But beyond that ease of user,

i.e., user interface and additional services such as playlist creation and distribution,

music news, personalized music search and delivery, custom CD creation, etc. will

need to be created to draw users from illegal services such as Napster.

There are lessons to be learned from the Napster experience beyond the fact that

many people will trade music for free. One significant factor is that consumers want

all of the music available in one place. A music buyer in the analog world won’t tolerate a record store that only carried three of the five major labels’ CDs. Unlike buying an automobile, the consumer doesn’t go into a record store to buy a brand. They

go to buy music by artist, or by song or by genre—few clerks are asked for a Sony

Music CD, rather the user would ask, for example, for music by the artist Billy Joel

or the song Piano Man. So it is in the digital world. At the moment there are two

nascent services: Duet with two labels and Music.Net with three labels. Online resellers must be able to offer one-stop shopping for all the music. Consumers demand

it.

Consumers also want an easy to use digital system. They don’t want to click

through fourteen steps before they can download their music. Competition among

resellers will result in the best interfaces succeeding in the market. In addition, to

attract customers resellers will have to add value beyond just having all the music.

The more legitimate resellers that have access to the music at reasonable nondiscriminatory prices, the more services will be developed. That in turn will lure

music fans away from unauthorized services.

Responses of Billy Pitts, Executive Vice President, MP3.com Inc., on behalf

of Robin Richards, to questions submitted by Senators Hatch and Leahy

f Question. For all panelists (especially Mr. Parsons, Mr. Ken Berry, Mr. Murphy,

and Mr. Richards, and Mr. Henley and Ms. Morissette): One argument we have
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heard in favor of a compulsory license is that music has so many pieces to license

and there have been substantial disputes between the record labels, the publishers

and technology companies like MP3.com about how to get the publishing rights

cleared in the volume demanded by online offerings. Some have suggested that a

stumbling block to getting the labels to license sound recordings is that they may

not have the rights from their artists to grant these rights. I understand there may

even be problems with the MusicNet offering to some degree because of these impediments. Would any of you be interested in commenting on this particular problem and suggest ways to remedy it?

Answer: As we discussed in our written testimony, the existing marketplace and

statutory mechanisms for licensing the use or music simply do not work m the digital environment. The My.MP3.com service allows consumers to ‘‘store’’ CDs that

they purchase in a digital ‘‘locker’’ and to use any Internet-enabled device to playback the songs on those CDs. There is no practicable way for MP3.com (or similar

service providers) to identify and obtain licenses from the copyright owners for each

and every song on the wide array of CDs that consumers might choose to store (assuming that it even is necessary to obtain licenses to offer consumers this tool).

These practical problems could be overcome by establishing a more streamlined

compulsory license, modeled on the satellite and cable licenses (Sections 119 and

Section 111). Under such a compulsory license, it would be sufficient for the user

of the work to submit to the Copyright Office information identifying the user and

the works being used along with semi-annual royalty payments (with rates set by

arbitration). The copyright owners whose works were used could then submit claims

for their respective shares of the royalty pool.

Question. For all panelists: Mr. Hank Barry argues that we have created compulsory licenses in the past, for publishing rights in music and in rebroadcast of television programming because it was difficult to clear the rights to the myriad creative interests involved in making up a broadcast day. Would anyone like to explain

why that analogy does or does not obtain in the online music and entertainment

world?

Answer: In the context of cable and satellite retransmissions of broadcast television programming, Congress has recognized that compulsory licensing is necessary

to overcome the logistical burdens that would otherwise arise. It is not possible for

cable operators and satellite carriers to identify and contact, either in advance or

after the fact, each of the copyright owners claiming an interest in each of the dozens of television programs broadcast daily on the broadcast channels that the cable

operator and satellite carrier retransmit. The situation presented by the on-line delivery of music, particularly by services that offer access to a vast library of CDs

containing hundreds of thousands of song titles, is directly analogous.

Question. For all panelists: I have heard a number of entertainment companies

say that acceptable protection for online content simply does not exist yet, that existing Digital Rights Management and watermarks, wrappers, or encryption, is simply not good enough to protect valuable content. Yet we have a number of technology companies here today who believe that they have such a solution, and now

we have announcements of online initiatives from all five major labels, which suggests the technological protections have developed recently. Would any of you care

to comment on the state of technological protection for content?

Answer: MP3.com’s server-side security system is designed to fulfill the needs of

the consumer, the rights-holder, and the emerging technology providers. Our first

goal is to provide the consumer with a satisfying experience where he or she may

access content already purchased and play that content back to themselves in a secure and transparent environment. Through the development of our Beam-It and Instant Listening programs, we are able to help consumers verify ownership of their

CDs and store those CDs in a matter of seconds as opposed to having to wait hours

to rip and encode the song themselves and then having to worry about the amount

of space the song is taking up on their hard drive. Our security mechanisms have

been independently evaluated by Adam Stubblefield and Dan Wallach at the Department of Computer Science at Rice University.

Our second goal is to ensure rights-holders that our system will replicate the protection of their content as well or better than the protection in place in the physical

world. Through our server-side DRM system we provide a number of levels of security that are not available in the physical world. For instance, CDs produced today

are created without copy protection and CD players are unable to keep users from

copying songs at will. Because music can be distributed quickly through the digital

space, we have put measures in place to monitor the behavior of an account to make

sure that the activity of that account is consistent with the guidelines set by the
147

content provider. If account sharing or song trading is detected then the account can

be disabled.

Finally, we strive to have a system that works independent of any current piece

of technology so that it can adapt to new Internet enabled devices (like cell phones

and set top boxes) or digital rights management protections without the consumer

having to take further action. All security systems are required to evolve over time.

Our server-side solution adapts itself to new requirements without incurring hardship on the user by forcing them to go through complex and cumbersome software

updates. Further, by managing protection at the server level, rather than the client

level, we are able to ensure that the system is ubiquitous.

Question. For all panelists: The premise of this hearing is that digital content is

coming soon to digital devices to be enjoyed by consumers soon. Based on our discussion today, how soon is soon, and when will the promise become reality?

Answer: With respect to music, the ‘‘promise’’ that digital content will be available

to consumers over a variety of digital devices already is a reality. The technical hurdles to streaming music to a variety of wired and wireless digital devices have largely been overcome. For example, MP3.com has sponsored demonstrations of the use

of streaming technology to deliver music to Internet-enabled devices in cars and to

phones. The principal obstacle to the full deployment of these and other technological developments is the uncertainty surrounding the status of digital music

under the copyright laws and the insistence by copyright owners that streaming of

audio over the Internet requires a multitude of separate performance and reproduction/distribution licenses for both the sound recording and the musical compositions

embodied in the sound recording.

Question. Mr. Barry, Mr. Richards, Mr. Kearby, and Mr. Farrace: There have been

calls for compulsory licensing of sound recordings, of publishing rights, and of ‘‘most

favored nation ‘‘protections for online distributors not affiliated with record companies. Others argue that no one has rights to use property other than the property

owner and those the property owner agrees with (with fair use exceptions in the

copyright context, of course). Could you each explain what justification you see, if

any, for such extreme legislative action, other than that your business plans rely

on using the major labels’ content to be successful? Please be specific if you suggest

such theories as misuse of copyright, etc.

Answer: MP3.com respectfully disagrees with the suggestion that compulsory licensing and ‘‘most favored nation’’ protections are ‘‘extreme’’ legislative measures.

The Section 115 compulsory license for the reproduction and distribution of

phonorecords dates back nearly 100 years and was recodified in 1976; in 1995, Congress sought to expressly extend Section 115 to the digital environment (albeit in

an imperfect manner that needs to be addressed administratively and/or legislatively as soon as possible). In addition, Congress has enacted compulsory licensing

mechanisms for the delivery of broadcast television signals by cable systems and

satellite carriers, for the public performance of sound recordings by digital audio

transmission, and for certain ephemeral copies. And Congress has recognized a right

of non-discriminatory access to vertically-integrated content, both in the Copyright

Act (Section 114(h)) and in the Communications Act (Section 628). The underlying

bases for these various legislative enactments include overcoming logistical problems in marketplace licensing, ensuring the public’s access to content, and protecting against anti-competitive behavior. Each of these same concerns is applicable to

the on-line music environment and justify the establishment of a functional compulsory licensing regime that gives copyright users—and consumers—access to a complete library of sound recordings and musical compositions, while ensuring that

copyright owners are fairly compensated. Finally, we note that there is a pressing

need for Congress to address and clarify the rights of music consumers with respect

to their ability to their use of new technologies. Whether through the application

of the concept of ‘‘fair use’’ or through the establishment of clarifying exemptions

and/or definitions, the law should distinguish those services that permit music consumers to store and playback the CDs that they purchase and that protect against

activities that would allow third parties to access the music without purchasing it

(such as file copying and sharing).

Question. Mr. Richards: Could you explain how MP3.com tracks each listen for

each song and accounts to the writers and artists whose music is accessed from your

service? And do you think you have a model that would be useful for the publishers

and recording artist representatives to adopt? Do you think this would afford artists

the sort of transparency Mr. Henley and Ms. Morissette seek?

Answer: MP3.com has made significant investments in the development and maintenance of a comprehensive infrastructure system that allows us to report activity

on a song-by-song basis. In order to track each ‘‘playback’’ of a particular song, we
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create a unique song ID which is affiliated with information relating to that song,

including song title, artist name, the associated CD title and the CD’s UPC, the

identity of the label claiming the master recording right in the recording, the publisher claiming and/or administering the mechanical rights, and all of the payment

terms associated with the song. MP3.com aggregates the activity log files at the

song ID level on a quarterly basis and reports certain information (such as how

many times the song was added to our servers, added to users’ accounts, and/or

streamed from users’ accounts).

MP3.com supports ‘‘transparency’’ in the form of disclosure of information to artists and writers and our tracking system permits us, with the rights-holders’ permission, to share key statistics with the public and/or with artists and writers. For

example, we currently post songplay and earnings information for those MP3.com

artists who participate in our ‘‘Payback-for-Playback’’ program (a program that compensates artists who make songs available on the MP3.com website). We encourage

you to visit our site and see the type of information made available. (Example: http:/

/artiststats.mp3.com/artist—stats/44/ernesto—cortazar.html).

Question. Mike Farrace, Senior Vice President, at Tower Records testified that

some record companies are requiring personal data from and about Towers’ customers, prompting concerns by Tower Records about violating its own privacy policy,

damaging the relationship with the customer, and ‘‘maybe even resultjing] in Tower

violating the law.’’

(A) What sort of personal data are record companies requesting from retail distributors, such as Tower Records, and other online distribution services to provide

from or about customers?

(B) Are record companies asking retail distributors to provide any personal data

about customers who purchase CDs in brick-and-mortar stores, or have the requests

for collection of customer data been limited to online music purchases?

(C) Are retail distributors and online distribution services formulating or revising

their privacy policies to accommodate requests from record companies to provide

personal data from or about customers?

(D) Are record companies requiring as part of their licensing agreements for digital music that they be provided access to customers’ personal data?

Answer: MP3.com is committed to protecting the privacy of its users. A copy of

our privacy policy can be found at http://www.mp3.com.privacy.Yhtml. While

MP3.com receives personal information provided voluntarily by its users in connection with certain activities (e.g., initial sign-up for service, on-line purchases, surveys, contests), we do not sell, rent, or trade personal information with others. Some

of our contracts with record labels request that we supply aggregate demographic

information (to the extent that we collect such information) to help the labels better

tailor their marketing messages. However, we have not been requested to share specific information about users and/or their accounts and we do not share such information.

Question. Concerns have been expressed that ‘‘copyright management’’ measures

being developed by copyright owners to control the distribution of their digital works

may erode the first sale doctrine. If a customer pays for the personal use of a copyrighted work, the rights holder may use technological means to ensure that the

work is not posted on a web site for use by others. Do you believe that the marketplace will sort out the scope of copyright management measures since customers

who believe they are not getting what they pay for will simply stop buying?

Answer: MP3.com shares concerns that consumers’ rights with respect to their

music purchases are being eroded. This concern goes beyond the erosion of the ‘‘first

sale doctrine′′; even the right of a consumer to listen to his or her music purchases

is being threatened. Specifically, the ‘‘My.MP3.com’’ service permits purchasers of

recorded music to ‘‘store’’ their purchases in digital ‘‘lockers’’ and then to play back

their purchases over any Internet-connected device. The owners of the sound recording and musical composition copyrights have argued, and one federal court has

agreed, that the storage of recorded music in such lockers and the ‘‘personal performances’’ of the recordings in those lockers, constitutes infringement. It is critical

that Congress clarify the rights of consumers to utilize new technologies to store and

play back the music that they purchase.

Question. The Copyright Office issued a Notice of Inquiry on March 9, in response

to a petition by the RIAA, stating that: ‘‘there is considerable uncertainty as to interpretation and application of the copyright laws to certain kinds of digital transmissions of prerecorded musical works. It is also apparent that the impasse presented by these legal questions may impede the ability of copyright owners and

users to agree upon royalty rates under section 115. . .’’ 66 Fed. Reg. 14099, 141101

(2001).
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(A) Do you agree with this statement and, if so, please explain how the uncertainty over the legal questions presented in the petition are affecting voluntary licensing agreements for new online music services?

Answer: We strongly agree that the uncertainty surrounding the interpretation

and application of the copyright law to streaming audio services in general, and to

‘‘personal’’ digital ‘‘locker’’ services such as My.MP3.com in particular, impedes the

ability of copyright owners and users to agree upon royalty rates under Section 115.

The music publishers cite the licensing agreement reached between MP3.com and

the Harry Fox Agency as evidence that the marketplace is working. In fact, however, that agreement was entered into only after MP3.com was sued by the publishers. This litigation alleged that the ‘‘server’’ and ‘‘buffer’’ copies that are a necessary

incident of the operation of the My.MP3.com streaming audio personal digital music

locker service infringed the publishers’ reproduction and distribution rights. Although it is unlikely that the publishers could have established that such ‘‘copying’’ had caused them any actual economic harm, the risk of crushing ‘‘statutory’’ damages forced My.MP3.com to enter into licensing agreements despite its disagreement

with the publishers’ interpretation of Section 115. The risk of statutory damages,

particularly where the underlying legal issues themselves are in dispute, skews the

‘‘negotiation’’ of royalty payments in favor of the copyright owners.

Question. (B) In 1995, the Digital Performance Right in Sound Recordings Act expanded the scope of the mechanical license, under 17 U.S.C. § 115, to include the

right to distribute,, or authorize the distribution of, by digital transmission both

hard copy phonorecords and ‘‘digital phonorecord deliveries’’ or ‘‘DPDs.’’ DPDs are

defined in the Act but a subset of DPDs, called ‘‘incidental DPDs,’’ which are also

subject to the mechanical licensing process, are not defined. One of the issues before

the Copyright Office is to determine what is and what is not an ‘‘incidental DPD.’’

Is this a question that the Copyright Office or the Congress should determine in

the first instance?

Answer: MP3.com believes that it may be appropriate for the Copyright Office, in

the first instance, to consider what is and what is not an ‘‘incidental DPD’’ and has

filed comments to that effect with the Copyright Office. (Copies of MP3.com’s filings

with the Copyright Office are attached hereto for your convenience). The outcome

of the Copyright Office’s consideration of this issue likely will help define whether,

and to what extent, further Congressional action is necessary. However, whatever

the outcome of the Office’s consideration of the ‘‘incidental DPW’’ issue, MP3.com

believes that Congressional action will be necessary to clarify the rights of consumers to use ‘‘personal’’ digital music locker services to enjoy their purchased music

over Internet-enabled listening devices.

Question. (C) The Copyright Office is currently considering the applicability of the

section 115 mechanical license to two new services for delivery of digital music: ‘‘OnDemand streaming’’ (which permits users to listen to real-time streamed music they

want when they want it) and ‘‘Limited Downloads’’ (which permits users to

download music for listening for only a limited time). According to the Notice of Inquiry, these types of services were not ‘‘anticipated’’ when the Congress expanded

the scope of section 115 to cover digital transmissions. Is legal uncertainty over the

applicability of section 115 to these new services having any effect on the deployment of such services and, if so, please explain what that effect is?

Answer: As noted above, MP3.com, which offers music purchasers ‘‘on-demand’’

streaming by means of a digital music ‘‘locker’’ service, was sued for copyright infringement by the music publishers. As a result of that litigation (and litigation

brought by sound recording copyright owners), MP3.com was forced to shut down

its service. As detailed in our written testimony submitted to the Committee,

MP3.com has not been able to fully relaunch its My.MP3.com service, despite having

agreed to pay tens of millions of dollars to various record labels and to the music

publishers represented by the Harry Fox Agency. In particular, our ability to provide consumers with access to all of the music in their purchased music lockers is

being frustrated both by the uncertainty surrounding the application of Section 115

and the absence of a practicable mechanism for invoking the Section 115 compulsory

license.

Question. (D) various music publishers filed suit in December, 2000, against UMG

for copyright infringement alleging that UMG was copying sound recordings on

servers for its new online music subscription service, Farmclub.com, and stating

that: ‘‘UMG recently obtained a judgment from this court that the operator of another Internet music service, MP3.com, Inc., had willfully infringed UMG’s sound

recording copyrights by placing copies of those sound recordings on its public servers—precisely what UMG has done here without plaintiff’s permission.’’ Would clarifying the scope of the mechanical license under section ll S of the Copyright Act in
150

the context of such new online music services help avoid the undue delay and undue

distraction from litigation?

Answer: The most important action that can be taken to avoid the undue delay

an undue distraction that results from litigation over the use of new on-line tools,

such as streaming audio digital music locker services, is for the Copyright Office to

clarify its rule (37 CFR Section 255.6) ‘‘deferring’’ the establishment of rates and

terms for ‘‘incidental DPDs.’’ Such clarification can and should provide a ‘‘safe harbor’’ mechanism whereby copyright users could obtain the protection of the statutory

license while the scope of Section 115 is being clarified. Again, however, MP3.com

wishes to note that, in the long run, Congress will have to clarify not only Section

115, but also other provisions of the Copyright Act that allegedly are implicated by

audio streaming services in general, and by ‘‘purchased’’ digital music locker services in particular.

Question. The record companies have announced new online music services, including MUSICNET and Duet, which will provide competing business-to-business

platforms for music subscription services that will cross-license music and offer the

services on a non exclusive basis. As Hilary Rosen stated in her testimony, the

record companies recognize the need to ‘‘ensure that online distribution enhances

rather than undermines the commercial viability of our retail partners. ‘‘Thus, the

non-exclusive nature of these new platforms is important. Do you believe that it is

also important for the record companies to make digital music available to those

competing retailers capable of offering secure and accountable downloads, on a nondiscriminatory basis that does not price them out of any competitive opportunity or

give them substantially less attractive non price terms?

Answer: The issue of non-discriminatory licensing arises not only with respect to ‘‘downloads,’’ but also with respect to ‘‘on-demand’’ streaming. Section 114(h) of the

Copyright Act should be extended to apply to all 

f‘‘interactive’’ services.

Responses of Richard D. Parsons to questions submitted by Senator Hatch

Question 1: For all panelists (especially Mr. Parsons, Mr. Ken Berry, Mr. Murphy

and Mr. Richards and Mr. Henley and Ms. Morissette): One argument we have

heard in favor of a compulsory license is that music has so many pieces to license

and there have been substantial disputes between the record labels, the publishers

and the technology companies like MP3. com about how to get the publishing rights

cleared in the volume demanded by online offerings. Some have suggested that a

stumbling block to getting the labels to license sound recordings is that they may

not have the rights from the artists to grant these rights. I understand there may

even be problems with the MusicNet offering to some degree because of these impediments. Would any of you be interested in commenting on this particular problem and suggest ways to remedy it?

Answer: As this question addresses two different copyrights, the copyright in musical compositions and the copyright in sound recordings, I will need to divide my

answer into two parts.

With respect to the copyright in sound recordings, the clearance issues are not

complicated and we do not expect that they will present any significant stumbling

block to the availability of music for use on subscription and other Internet-based

services.

With respect to the copyright in musical compositions, the resolution of issues to

allow the administratively convenient and economic licensing of music publishing

rights is well under way and does not require Congressional intervention at this

time. In particular, these matters should not prevent the timely launch of the

MusicNet service in the second half of this year. The clearance issues that have

arisen involve interpreting the Copyright Act. We are hopeful that the Copyright Office pursuant to a rulemaking proceeding will resolve them in due course. In this

regard, on March 9, the Copyright Office published a Notice of Inquiry and comments were submitted on April 23. Reply comments are due on May 23. The Copyright Office may very well decide that a compulsory license under Section 115 of

the Copyright Act already obtains. This would be the case if on-demand streaming

(‘‘On-Demand Streaming’’) is determined to be an incidental digital phonorecord delivery (‘‘iDPD’’) and time- or use-limited downloads (‘‘Limited Downloads’’) are determined to be iDPDs or rentals. It is also possible that mechanical compulsory licenses already secured by record companies for the manufacture and distribution of

physical records also cover On-Demand Streaming and Limited Downloads. This

matter maybe resolved in Mayor June by summary judgment in The Rodgers and
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Hammerstein Organization, et. al. v. UMG Recordings, Inc., et. al., a case pending

before the United States District Court, Southern District of New York. Thus, the

issues relating to On-Demand Streaming and Limited Downloads, which are the

services to be provided by MusicNet, are well on their way to being resolved and

any Congressional intervention would be premature.

Question 2: For all panelists: Mr. Hank Barry argues that we have created compulsory licenses in the past, for publishing rights in music and in rebroadcast of television programming because it was difficult to clear the rights to the myriad creative interests involved in making up a broadcast day. Would anyone like to explain

why that analogy does or does not obtain in the online music and entertainment

world?

Answer: Once again, I must make a distinction between musical compositions and

sound recordings.

We would have no problem with a mechanical compulsory license for use of musical compositions in On-Demand Streaming and Limited Downloads. As I pointed out

in my answer to Question 1 above, it may already exist under Section 115 of the

Copyright Act. The mechanical compulsory license for musical compositions is a bedrock concept in the U.S. music publishing business; indeed music publishers have

favored retaining it in the law. In fact, a mechanical compulsory license first appears in the Copyright Act as enacted in 1909.

On the other hand, in the U.S. record business a compulsory license for sound recordings has been the rare exception, not the norm, and is completely inappropriate

in this instance. There is no need for so drastic a remedy. First, the marketplace

is already working. In the last 18 months, Warner Music Group (‘‘WMG’’) has entered into content agreements with a subscription service, three digital locker services, seven streaming video services and five Internet radio services. Second, particularly in the Internet space, a sound recording copyright owner must have leave

to determine how and when his, her or its works are used. A sound recording, unlike a musical composition which is not enjoyed by itself except in printed form, is

a consumer product. The potential for cannibalization of physical sales and permanent downloads by subscription business models is high. Security is also a significant matter. Substitutability and copy protection issues endemic to the Internet

pose great risks for record companies. Accordingly, sound recording copyright owners must have the ability to structure their relationships with Internet-based music

services in order to take these essential concerns into account. Third, the worldwide

nature of the Internet makes a U.S. compulsory license impractical at best. Fourth,

commercial models are still evolving. Last year, permanent downloads were thought

to be the future of the music business. This year they look less promising and the

subscription model is in vogue. The ‘‘one size fits all’’ approach implicit in a compulsory license regime is manifestly unsuitable for a nascent and rapidly evolving marketplace.

Question 3: For all panelists: I have heard a number of entertainment companies

say acceptable protection for online content simply does not exist yet, that existing

Digital Rights Management and watermarks, wrappers, or encryption, is simply not

good enough to protect valuable content. Yet we have a number of technology companies here today who believe that they have struck a solution, and now we have

announcements of online initiatives from all five major labels, which suggests the

technological protections have developed recently. Would any of you care to comment on that state of technological protection for content?

Answer: Progress has been made in the development of copy-protection technologies and we have been working with technology providers for both online music

and film content. We no longer see the lack of reliable copy protection technologies

as a gating factor to the launch of Internet-based content businesses. That being

said, protecting content on the Internet poses several challenges. Among these are

the very structure of the Internet as a completely decentralized network with no

single ‘‘command center’’ or server and the fact that the computer environment is

designed to facilitate, not thwart, the reproduction and dissemination of data files.

It is clear that no single technology will provide a complete solution. Rather, it

is necessary to employ a combination of encryption and watermarking tools, coupled

with enforceable rules regarding copying and secondary transmissions. In addition,

hardware and computer companies must ultimately build support for protection

technologies into their products in order for these systems to be viable. While no

content protection technology will be ‘‘bullet proof’ and battling hackers will be an

ongoing reality, we are working with our technology suppliers to ensure that systems will be upgradeable and renewable so as to quickly address and frustrate such

attacks.
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Question 4: For all panelists: The premise of this hearing is that digital content

is coming soon to digital devices to be enjoyed by consumers soon. Based on our discussion today, how soon is soon, and when will the promise become reality?

Answer: As mentioned in my answer to Question 2, WMG has already provided

its content to many Internet-based music services, among them the MusicNet service. MusicNet is still on schedule for a public launch in the late summer/early fall

of this year. In fact my company has long been a leader in the introduction of new

digital devices. Although I may be accused of being too literal, I should point out

that WMG has been releasing digital devices (i.e., CDs) since 1983. In March of

1997, Warner Home Video was the first to release motion pictures in the U.S. in

DVD form, a digital device vastly superior to consumer videocassette. In fall of 2000,

WMG was the first to release sound recordings in the U.S. in DVD Audio form, an

exciting new digital device that improves on the CD by providing higher fidelity and

six-channel surround sound.

Question 5: For all panelists: Is there any point you feel should be raised or that

you would like to further respond to the completeness of our record?

Answer: No.

Question 6: Mr. Parsons, Mr. Ken Berry and Ms. Rosen: Do record companies

have problems granting blanket licenses to third parties for digital distribution of

an artist’s recordings or settling lawsuits because of agreements with artists, such as ‘‘coupling’’ restrictions in their recording agreements (coupling is compiling an

artist’s recording(s) together with master recordings by other artists) such that the

record companies would need the artist’s approval to do so? Does a record company

have the rights to distribute an artist’s recording absent the accompanying artwork

without an artist’s approval under most recording agreements? If they don’t, how

can they do so via digital distribution?

Answer: Because we sometimes have agreements with third parties that restrict

our rights, WMG cannot grant rights for digital distribution with respect to every

single sound recording that it owns and/or controls without exception. Nonetheless,

WMG can (and does) grant rights with respect to every single sound recording that

it owns and/or controls subject only to third-party restrictions. Typical recording

agreement provisions that restrict ‘‘coupling’’ or artwork use would not prohibit the

use of sound recordings or their associated artwork in current digital distribution

models. It would be rare for a recording agreement to prevent a record company

from settling lawsuits with copyright infringers.

Question 7: Mr. Parsons, Mr. Ken Berry, and Ms. Rosen: Has there been any discussion or consideration about the basis on which record companies will share with

artist monies they receive from blanket licensing, damage awards, or equity/stock

participations they receive from third party companies?

Answer: Every recording agreement is different, so there can be no fixed basis

upon which record companies compensate artists. WMG will, of course, abide by the

terms and conditions of its recording agreements. In particular, as we have previously announced, WMG will share with artists the monies received by WMG in

connection with its MP3.com settlement agreement in accordance with the terms of

the applicable artist agreements.

Question 8: Mr. Parsons and Mr. Ken Berry: At the April 3, 2001, Senate Judiciary Committee hearing on online entertainment, Napster’s CEO Hank Barry discussed the licensing complexities related to music webcasts and limited downloads.

According to Mr. Barry, the MusicNet music licensing deal, which is a joint venture

between AOL Time Warner, EMI, BMG, and RealNetworks, may not allow companies to offer the type of online music services consumers desire if the planned

MusicNet licenses do not include publishing rights. Mr. Barry queried whether

MusicNet license would include these publishing rights. In response to Mr. Barry’s

comments, Senator Feinstein asked Mr. Parsons to respond. Mr. Parsons responded

that, ‘‘the full complement of rights to enable the streaming or downloading of our

catalogues—EMI’s, Warner Music, BMG’s—is included in the license that we gave

the MusicNet. ‘‘Can you clarify for us whether the MusicNet licenses you have

granted include all of the required publishing rights, and the distinguish for us

whether you mean that you are granting all publishing rights your entities-control,

or all rights your entities control related to sound recordings your companies control, and whether you have cleared publishing licenses from outside publishers of

music on sound recordings you control or whether the new MusicNet entity will

have to clear these rights of third party publishers?

Answer: In essence, WMG’s Subscription Services Agreement with MusicNet includes all of the required publishing rights. The agreement requires WMG to obtain

mechanical licenses for musical compositions embodied in sound recordings owned

and/or controlled by WMG to the extent that such mechanical licenses can be ob-
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tained by compulsory means under Section 115 of the Copyright Act. Accordingly,

WMG has proceeded with the first wave of a large compulsory licensing program

pursuant to which, at the end of April, WMG sent Notices of Intention to approximately 3,000 music publishers in order to obtain approximately 17,000 licenses for

musical compositions embodied on approximately 13,000 sound recordings owned

and/or controlled by WMG. Our current plan is for this licensing effort to continue.

The Subscription Services Agreement does not grant MusicNet mechanical licenses

for musical compositions controlled by Warner/Chappell Music, Inc. These licenses

will also be obtained pursuant to WMG’s compulsory licensing program. The Subscription Services Agreement requires MusicNet to obtain performance licenses for

musical compositions embodied in sound recordings owned and/or controlled by

WMG. These rights are easily secured on a blanket basis in the U.S. from ASCAP,

BMI and SESAC.

Question 9: Mr. Parsons and Mr. Ken Berry: This week has seen a handful of announcements in the digital media space. While 1 have seen this a step forward, I

have heard some skepticism concerning these deals given the timing of the announcements in the relation to the committee’s hearing and the relative lack of

specificity. Accordingly, please answer the following questions with respect to the recently announced MusicNet deal.

Question a: Does the deal allow for the immediate licensing for subscription

download of EMI, Warner Music, and BMG’s entire music catalogs?

Answer: Yes, but not entire (see Question 6 above). WMG will be able to make

available a substantial portion of its repertoire to MusicNet.

Question b: At what specific date will the full MusicNet download service be made

available to the entire public, rather than on a beta, regional, or ISP membership

basis?

Answer: See Question 4 above. The beta version will be ready as early as May.

Question c: Will the MusicNet license include all necessary publishing rights and,

if not, on what date will all publishing rights be available?

Answer: See Question 8 above.

Question d: Will MusicNet be technology neutral, or will it require licensees to implement a particular proprietary technology?

Answer: There is nothing in the MusicNet transactional documents that ties

MusicNet to a particular DRM or CODEC. Technology decisions will be made by

MusicNet’s management in the best interests of MusicNet and will be overseen by

MusicNet’s board. MusicNet at present has a 7-member board (2 independent directors, 2 appointed by RealNetworks and 1 appointed by each of EMI, BMG and

WMG). Where there are interested directors, board decisions will be determined by

a majority of the disinterested directors. In addition, WMG’s Subscription Services

Agreement with MusicNet permits MusicNet to make WMG’s content available

using any of along list of DRMs or CODECs.

Question e: Will other ISPs enjoy the same licensing terms (including prices, catalog available, etc) as AOL and other ISPs with equity stakes in MusicNet enjoy, yes

or no?

Answer: Nothing in the MusicNet transaction would limit another ISP’s ability to

enjoy the same licensing terms as AOL. As described below, MusicNet will negotiate

all content and distribution relationships on an arm’s-length basis.

MusicNet’s deals with content companies (including EMI, BMG and WMG) will

be negotiated by the CEO of MusicNet or another officer of MusicNet designated by

the CEO (the ‘‘Licensing Negotiator’’). The Licensing Negotiator in the performance

of his/her duties will report only to MusicNet’s independent directors and the directors appointed to MusicNet’s board by RealNetworks. The terms of content licenses

are to be maintained in strict confidence by the Licensing Negotiator, MusicNet and

its officers and employees, the independent directors and the RealNetworks directors. They may not be divulged to any third party (including EMI, BMG and WMG).

MusicNet’s deals with distribution companies (including AOL and RealNetworks)

will be negotiated by the CEO of MusicNet or another officer of MusicNet designated by the CEO (the ‘‘Distribution Negotiator’’). The Distribution Negotiator in

the performance of his/her duties will report only to MusicNet’s independent directors and the directors appointed to MusicNet’s board by any stockholder that is not

a party to and does not have an affiliate that is party to a distribution agreement.

The terms of distribution agreements are to be maintained in strict confidence by

the Distribution Negotiator, MusicNet and its officers and employees, the independent directors and the directors appointed to MusicNet’s board by any stockholder

that is not a party to and does not have an affiliate that is party to a distribution
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agreement. They may not be divulged to any third party (including AOL and

RealNetworks).

Question 10: Your testimony made clear that you do not believe compulsory music

licensing for interactive services to be necessary or desirable, citing MusicNet and

other recent licensing initiatives by major record labels as evidence that product is

beginning to flow to the market. What is your reaction to the suggestion of a sort

of ‘‘Most Favored Nation ‘‘statute, similar to the program access rules for subscription television licensing, that required large copyright holder entities that engage

in cross-licensing of their catalogs to make the licensed materials available on essentially the same terms and conditions to, for example, similar internet-based music

distribution or ‘‘locker’’ services?

Answer: We do not believe that a regulatory mandate similar to the program access rules for subscription television licensing is either necessary or advisable for

licensing music to interactive services. Television delivery services are much more

uniform in their function of delivering programming to a consumer. The consumer

experience of receiving a particular program from a cable operator versus a satellite

operator, for example, is basically the same. In contrast, interactive digital music

delivery services vary greatly. Some services just stream music for consumer listening. Others involve a storage or locker service for music that a consumer already

owns. Still others offer consumers the ability to download music and keep a permanent copy. Furthermore, these services vary in the level of security that they offer

to content suppliers. Given the variety of business models and the speed at which

such models are changing and evolving, it would be impracticable and unwieldy to

apply a ‘‘Most Favored Nation’’—type approach. Moreover, applying a ‘‘Most Favored

Nation’’ concept to this arena would likely have the perverse consequence of discouraging music owners from licensing to start-up services, promotional services, or

niche-market-oriented services, with the result of a smaller array of choices for consumers.

Question 11: Mr. Parsons and Mr. Ken Berry (and perhaps Ms. Rosen): can any

of you explain what relevance traditional artist royalty reductions like those for

packaging, returns or free goods have in cyberspace, and why those are not savings

available in cyberspace that can be shared by consumers and artists as well as labels? What assurance can you give Mr. Henley and Ms. Morissette that the royalties

earned on interactive services granted in the Digital Performance Rights Act will

be passed on to them in a fair and equitable way rather than recouped against recording costs or otherwise kept by the labels? If you believe they should be recouped,

please explain why?

Answer: Some traditional royalty reductions found in recording agreements will

be relevant to the Internet space, although it is hard to predict at this time which

ones they will be. I don’t believe that returns will be a relevant concept in the Internet space. Free goods may be relevant, if, for example, we are actually giving away

permanent downloads to incentivize online retailers or to obtain positioning. Packaging deductions may be relevant to the extent that, as in the physical world, they

are employed to arrive at a royalty-per-unit that will be acceptable to both the artist

and the record company.

There appears to be a widespread public belief that a record company’s profit margins in the Internet world will be higher than in the physical world. It is far too

early to know this with any certainty. While we certainly hope the public is right,

there are a number of facts at our disposal which challenge that assumption. First,

a download is a less-fullyrealized consumer product than a CD as the CD includes

artwork and the physical medium that makes the product portable. Therefore, it is

highly likely that the price a consumer is prepared to pay for a download will be

less than the price he or she is prepared to pay for its physical analog. Second, while

there are no printing, manufacturing or physical distribution costs associated with

a download, the distribution of downloads will implicate a whole new series of expenses including hosting costs, bandwidth delivery costs, content preparation costs

and license fees attributable to security and digital rights management technologies.

These expenses are roughly equivalent to any savings achieved by not having to

print, manufacture and distribute a physical record. Perhaps, over time, the volume

of digital transactions may drive efficiencies that lower costs and increase record

company margins.

In general, our recording agreements, as negotiated, provide that royalties otherwise payable to artists are applied in recoupment of certain payments made to or

on behalf of artists such as recording costs, some video production costs, tour support and some independent promotion costs. This course of dealing, developed over

many years, reflects the marketplace realities and the large investments that a

record company makes in an artist’s career. In this regard, our recording agree-
155

ments don’t make a distinction between royalties accruing from physical and nonphysical distribution models.

Responses of Richard D. Parsons to questions submitted by Senator Leahy

f Question 1: Mike Farrace, Senior Vice President, at Tower Records testified that

some record companies are requiring personal data from and about Tower’s cus- tomers, prompting concerns by Tower Records about violation its own privacy policy,

damaging the relationship with the customer, and ‘‘maybe even resulting] in Tower

violating the law.’’

Question a: What sort of personal data are record companies requesting from retail distributors, such as Tower Record, and other online distribution services to provide from or about customers?

Answer: In general, WMG does not request personal data from retail distributors

and online distribution services with respectto their customers. In fact, as a practice, we do not request and have not received such data from any retail distributor

or online distribution service. (For the purposes of this question, I am assuming that

you mean ‘‘online distribution services’’ to be the Internet analog to ‘‘brick-and-mortar.’’)

Question b: Are record companies asking retail distributors to provide any personal data about customers who purchase CDs in brick-and-mortar stores, or have

the requests for collection of customer data been limited to online music purchases?

Answer: There is only one situation where WMG asks ‘‘brick-and-mortar’’ stores

to provide personal data about customers who purchase CDs. Certain chains such

as Newbury Comics and CD World have ‘‘frequent shopper card’’ programs that provide discounts to high-volume customers. In applying for such cards, the customers

provide certain personal data to the stores and agree to let the stores share some

of that data with record companies. WMG gets limited demographic data from these

stores with respect to such customers’ purchases (e.g., age and gender), but not the

names of the customers.

Question c: Are retail distributors and online distribution services formulating or

revising their privacy policies to accommodate requests from record companies to

provide

personal data from or about customers?

Answer: I don’t know. This question would best be addressed to Mr. Farrace.

Question d: Are record companies requiring as part of their licensing agreements

for digital music that they be provided access to customers’ personal data?

Answer: In some of WMG’s agreements with digital music services, WMG may be

provided with limited access to customers’ personal data provided that such data is

legally obtained by the relevant service and is in accord with such service’s ‘‘privacy

policy.’’ For example, in WMG’s digital download fulfillment agreements with companies such as Liquid Audio and RioPort, WMG may be provided with the names,

e-mail addresses and zip codes of purchasers of WMG content, provided, that the

customer has explicitly consented to have such information made available to WMG

via an ‘‘opt-in’’ process that informs such customer of how such information will be

used. In WMG’s typical music locker service agreements such as with MP3.com and

Echo, WMG may be granted the ability to solicit customers to purchase WMG products and may also be granted access by such services to general information pertaining to individual customers. In most, if not all, of WMG’s agreements with digital

music services, WMG is provided with aggregated customer demographic data on a

no-name basis and only so long as providing such information does not run awry

of the applicable service’s ‘‘privacy policy.’’ Finally, when WMG runs contests, e-mail

blasts and other promotions through Internet music services such as ARTISTdirect

or MP3.com, consumers may be given the option to learn more about a particular

WMG artist or another WMG artist by providing certain personal data (e.g., an email address) and clicking ‘‘ok.’’

Question 2: Jack Valenti testified that within four to six months, several movie

studios plan to use the Internet to transmit movies to American homes in encrypted

form, but that more protection may be needed, ‘‘some of which might require congressional legislation. ‘‘In the Digital Millennium Copyright Act (DMCA), the Congress has provided protection for technological measures that effectively control access to copyrighted works and barred the manufacture, import or sale of products

or services primarily designed to circumvent such technological measures. 17 U.S.C.

§ 1201 (a)(I) & (2). Please describe the circumstances where additional protection
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may be warranted and the areas not already covered by the DMCA where additional

legislation may be requested.

Answer: The DMCA, along with the balance of U.S. copyright law, currently functions well in the Internet environment. The recent court decisions in the DeCSS and

the Napster cases recognize the importance of granting legal protections to copyrighted works and technical protection measures on the Internet. We do not believe

additional legislation is needed at this time. Nevertheless, as the technical and business digital landscape evolves, the law may need to change with it. In particular,

as we move to delivering more of our content online, including films, legislation may

be needed at some point in the future to supplement the cross-industry efforts

among the content, consumer electronics, computer and online service provider industries to ensure adequate security to support these new business models and delivery channels.

Question 3: Concerns have been expressed that ‘‘copyright management’’ measures being developed by copyright owners to control the distribution of their digital works

may erode the first sale doctrine. If a customer pays for the personal use of a copyrighted work the rights holder may use technological means to ensure that the work

is not posted on a web site for use by others. Do you believe that the marketplace

will sort out the scope of copyright management measure since customers who believe they are not getting what they pay for will simply stop buying?

Answer: Much confusion has surrounded the issue of the first sale doctrine and

its application to the online world. The first sale doctrine distinguishes possessory

personal property rights from copyrights. Under the first sale doctrine, the owner

of a tangible copy of a work may transfer possession of (e.g., sell, lend or give away)

that particular copy to another person. Two persons cannot have simultaneous possession of the particular copy and the first sale doctrine does not permit additional

copies of the work to be made. Thus, if someone buys a CD and then gives it to

a friend, the first sale doctrine applies to that activity. However, if the purchaser

buys the CD and then rips it into an MP3 file and e-mails that file to a friend, the

first sale doctrine has been exceeded. This is because the purchaser has made a copy

of the work, rather than simply transferring possession of an existing copy.

The question poses an example of a consumer who pays for the personal use of

a copyrighted work and the possibility that the owner of the copyright in the work

might apply technical measures to prevent the consumer from posting the copy of

the work to a website for use by others. In this example, the posting of the copy

by the consumer would, even in the absence of technical measures, not be permitted

under the first sale doctrine. Such a posting would involve unauthorized reproduction of the work and unauthorized distribution of the additional copies, enabling the

consumer to retain his or her copy while simultaneously giving copies away to many

others. Hence the application of copyright management measures to prevent or discourage this type of activity in no way erodes or undercuts the first sale doctrine.

We believe that the application of ‘‘copyright management’’ measures will actually

facilitate a wide array of content offerings to consumers at varying price points. And

we agree that the marketplace will sort out the scope of such measures based on

what consumers find acceptable. If consumers find that they are getting value for

what they pay for, then, they will accept technical measures. Indeed, the experience

of DVD—with its technical protections for motion picture content—bears out this

principle; consumers have embraced DVD faster and more enthusiastically than any

other format, including CD and VHS, both of which were unprotected.

Question 4: Retailers of music, movies, video games and other copyrighted works

have expressed concern about whether copyright management measures and end

user licensing agreements will erode the ability of retailers and distributors to distinguish themselves from one another in meaningful ways with the potential of stifling competition among retailers, since those measures may set uniform prices,

policies and terms for online distribution of digital works.

Question a: Please explain whether you believe that uniform copyright management measures and user licensing agreements carry the potential risks for competition identified by retailers?

Answer: Copyright management measures, in terms of technical protection measures, should have no detrimental impact on legitimate retailers and distributors and

their ability to compete. Measures employed to prevent unauthorized access or unauthorized reproduction or distribution operate so as to be transparent to all legitimate uses by a consumer. Thus, for example, the high-quality viewing experience

that the consumer gets with DVD is in no way impaired by the fact that the motion

picture content on DVD is encrypted. The application of this technical protection to

DVD has had no negative impact on retailers’ and distributors’ abilities to compete

and distinguish themselves in pricing and promotion.
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It is not entirely clear what that term ‘‘end user licensing agreements’’ is intended

to mean—whether (i) licensing agreements directly between record companies and

consumers or (ii) the terms that record companies may require retailers to abide by

in selling product to end consumers. In either case, such agreements would pose no

threat to competition.

As for the first scenario, consumers will naturally continue to buy records where

it is convenient to do so. That means they will continue to go to retailers that provide a full range of music (and can offer service and an attractive price), rather than

record companies that only have a limited selection. Moreover, record companies

have an interest- in the promoting and selling their product broadly, so they have

an on-going interest in maintaining a healthy network of retailers. Thus, retailers

should continue play a central role in making digital music available to consumers

(just as they have in sales of CDs whether in traditional stores or through websites),

and direct purchases from record companies are likely to remain a relatively small

portion of transactions.

As for the second scenario, retailers may need to abide by certain restrictions to

protect copyrights (for example, if the record company and music publishers have

been able to grant rights to a retailer only for a particular country—such as the

United States—then the retailer would need to take steps to assure that it does not

make the recording available outside of that territory). But just as such competition

has flourished among ‘‘brick-and-mortar’’ retailers while respecting such copyright

restrictions, it should do so among online retailers as well.

Question b: Would variation in the terms for pricing, use policies and terms for

the distribution of digital works provide flexibility for different distribution models

and give the consumer the maximum number of choices?

Answer: Certainly. Record companies have an interest in exploring a number of

different models for making digital music available to consumers—in terms of price,

format (stream versus download), and packaging. Ultimately, the range of choice

will be determined by consumer preferences, the extent of retailer ingenuity, and

practicality.

Question 5: The Copyright Office issued a Notice of Inquiry on March 9, in response to a petition by the RIAA, stating that: ‘‘there is considerable uncertainty

as to interpretation and application of the copyright laws to certain kinds of digital

transmissions of prerecorded musical works. It is also apparent that the impasse

presented by these legal questions may impede the ability of copyright owners and

users to agree upon royalty rates under section 115. . . ‘‘66Fed Reg. 14099, 141101

(2001).

Question a: Do you agree with this statement and, if so please explain how the

uncertainty over the legal questions presented in the petition are affecting voluntary

licensing agreements for new online music services?

Answer: Yes, I do agree with the statement. In order to give you some idea as

to the significance of the problem, I will focus on On-Demand Streaming alone and

set aside Limited Downloads, which may be even more complicated.

At present, a service that provides On-Demand Streaming to consumers doesn’t

know whether it needs to obtain mechanical licenses in musical compositions embodied on sound recordings. If the service fails to obtain mechanical licenses (even

though there is uncertainty as to whether it is required to do so), it risks being pursued as a copyright infringer. If the service wishes to cover itself by obtaining mechanical licenses (even though such licenses may be unnecessary), it is unclear

whether those mechanical licenses must be negotiated directly with a myriad of

publishers or whether the licenses can be secured under Section 115 of the Copyright Act. Either process—direct negotiation or invoking Section 115—is extremely

burdensome from an administrative point of view. In the case of direct negotiation,

the service may end up inadvertently committing to an uncommercially high rate.

By invoking Section 115, the service may obtain mechanical licenses but runs the

risk that the rate, as later determined, will be uneconomic.

Question b: In 1995, the Digital Performance Right in Sound Recordings Act expanded the scope of the mechanical license, under 17 U.SC Section 115, to include

the right to distribute, or authorize the distribution of, by digital transmission both

hard copy phonorecords and ‘‘digital phonorecords deliveries’’ or ‘‘DPDs. ‘‘DPDs are

defined in the Act but a subset of DPDs, called incidental DPDs, ‘‘which are also

subject to the mechanical licensing process, are not defined. One of the issues before

the Copyright Office is to determine what is and what is not an ‘‘incidental DPD.

‘‘Is this a question that the Copyright Office or the Congress should determine in

the first instance?

Answer: This is clearly a question for the Copyright Office. First, the question

falls squarely within the Copyright Office’s authority and proficiency. As long recog-
158

nized by Congress and the courts, it is the job of the Copyright Office to interpret

the Copyright Act and function as an expert advisor on issues of copyright law. Second, time is pressing and the Copyright Office rulemaking process that is already

underway will resolve this question more far more quickly than Congress or the

courts.

Question c: The Copyright Office is currently considering the applicability of the

section 115 mechanical license to two new services for delivery of digital music: ‘‘OnDemand Streaming’’ (which permits users to listen to real-time streamed music they

want when they want it) and ‘‘Limited Downloads’’ (which permits users to

download music for listening for only a limited time.) According to the Notice of Inquiry, these types of services were not ‘‘anticipated’’ when the Congress expanded

the scope of section 115 to cover digital transmissions. Is legal uncertainty over the

applicability of section 115 to these new services having any effect on the deployment of such services and, if so please explain what that effect is?

Answer: Given the ambiguities surrounding the mechanical licensing of musical

compositions, the administrative burdens and economic risks in launching an

Internetbased music service are extremely high., These ambiguities will dissuade all

but the mosthighly-motivated companies from attempting to develop or invest in the

development of such a service.: Even those that choose to proceed will be hampered

considerably by the enormity of the rights clearance process. This marketplace cannot thrive unless the Copyright Office resolves the uncertainties.

Question d: Various music publishers filed suit in December, 2000, against UMG

for copyright infringement alleging that UMG was copying sound recordings on

servers for its new online music subscription service, Farmclub.com, and stating

that ‘‘UMG recently obtained a judgment from this court that the operator of another Internet music service, MP3.com, Inc., had willfully infringed UMG’s sound

recording copyrights by placing copies of those sound recordings on its public servers—precisely what UMG has done here without plaintiffs permission.’’ Would clarifying the scope of the mechanical license under section 115 of the Copyright Act in

the context of such new online music services help avoid the undue delay and undue

distraction from litigation?

Answer: The effect of the Copyright Office’s commencing a rulemaking proceeding

regarding the application of the mechanical compulsory license of Section 115 to certain digital music services will be to reduce the potential for future litigation,

streamline the rights clearance process and accelerate the proliferation of digital

music services.

Question 6: Hillary Rosen has testified that RIAA member companies have committed to licensing Napster once the service operates in a fashion that respects copyrights and Napster has an agreement with Bertelsmann to help develop this system.

What is the current status of Napster’s efforts to develop a technological upgrade

to digital rights management system that is secure and addresses the needs of artists and copyright owners addresses the rights of artists and copyright owners? Has

Napster been able to share a new technological approach with (a) the court; (b) with

artists or (c) with copyright owners? When does Napster expect to be able to introduce the new technological model?

Answer: We don’t know the current status regarding Napster’s efforts to develop

a secure system, we are not aware whether Napster has shared any new technology

approach with the courts or artists and we don’t know when or if Napster will be

introducing a new technological model. Napster would best answer those questions.

In February and March of this year, Napster executives communicated on several

occasions with WMG executives concerning Napster’s intention to implement an

acoustic fingerprinting technology intended to ‘‘screen out’’ unauthorized sound recordings.

Question 7: The recording companies have announced new online music services,

including MusicNet and Duet, which will provide competing business-to-business

platforms for music subscription services that will cross-license music and offer the

services on a nonexclusive basis. As Hilary Rosen stated in her testimony, the

record companies recognize the need to ‘‘ensure that online distribution enhances

rather than undermines the commercial viability of our retail partners. ‘‘Thus, the

non-exclusive nature of these new platforms is important. Do you believe that it is

also important for the record companies to make digital music available to those

competing retailers capable of offering secure and accountable downloads, on a nondiscriminatory basis that does not price them out of any competitive opportunity or

give them substantially less attractive non price terms?

Answer: As stated above, the MusicNet service will be offered on a non-exclusive

basis to various distributors including portals and music portals and certainly to online retail sites. WMG’s Subscription Services Agreement with MusicNet is non-ex-
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clusive and WMG would be able to provide its content directly to any such distributor that itself wishes to build a subscription infrastructure. It is certainly important

for WMG to make its content widely available to those companies that are in a position to provide opportunities for the promotion or sale of such content. The price

or non-price terms relating thereto will be negotiated on an arm’s-length basis in

accordance with all applicable laws.

Responses of Hilary Rosen to questions submitted by Senator Hatch

f Question 1: One argument we have heard in favor of a compulsory license is that

music has so many pieces to license and there have been substantial disputes between the record labels, the publishers and technology companies like MP3.com

about how to get the publishing rights cleared in the volume demanded by online

offerings. Some have suggested that a stumbling block to getting the labels to license sound recordings is that they may not have the rights from their artists to

grant these rights. I understand there may even be problems with the MusicNet offering to some degree because of these impediments. Would any of you be interested

in commenting on this particular problem and suggest ways to remedy it?

Answer: It is true that licensing in the music business is complicated. This is especially true with respect to musical compositions, because music publishers and

songwriters have chosen to bifurcate the licensing of their rights, with performing

rights organizations like ASCAP, BMI and SESAC licensing performance rights and

The Harry Fox Agency licensing reproduction and distribution. There is of course,

already a compulsory license for the reproduction and distribution of musical works.

However, the Copyright Office regulations implementing that license prescribe procedures that are not well suited to Internet licensing. We have asked the Copyright

Office to simplify these procedures to facilitate the launch of subscription digital

music services, and we believe the Office has the ability to make significant improvements in these procedures within the existing statutory framework.

With respect to sound recordings, the recording industry is moving rapidly to

adapt to licensing at Internet speed. If any artist contracts limit the ability of labels

to make some recordings available electronically those issues will be worked out between the individual label and artists. To date, such limits have not prevented

record companies from making the vast majority of the songs in their catalogs available for licensing. If artists choose not to work with labels to make their songs available for electronic distribution, I respect their decision, however it is clear that if

consumers arc not offered legitimate versions, they will find pirate versions of the

music they want.

It is easy to launch an infringing service that makes no effort to see that creators

and copyright owners are compensated, and may even be consciously ignorant of the

recordings being distributed. Launching a legitimate service requires more effort

and infrastructure. Right now, record labels are moving as quickly as they can to

open new outlets for recordings by launching new services, partnering with distributors and licensing their catalogs for various kinds of Internet use. As part of this

effort, they are creating the infrastructure necessary to support legitimate Internet

music services, including libraries of encoded recordings, databases of rights information, and royalty distribution systems, as well as determining whether there are

limits on the electronic distribution of certain of their recordings. This effort cannot

be completed overnight, but once it has been done for one Internet licensing deal,

every subsequent deal, and the launch of every subsequent service, will be easier

and faster.

Question 2: Mr. Hank Barry argues that we have created compulsory licenses in

the past for publishing rights in music and in rebroadcast of television programming

because it was difficult to clear the rights to the myriad creative interests involved

in making up a broadcast day. Would anyone like to explain why that analogy does

or does not pertain in the online music and entertainment world?

Answer: The compulsory licenses identified in the question arose from situations

nothing like we have today in the case of Internet music services. The other compulsory licenses—for cable and satellite retransmission and mechanical reproduction—

arose not because it was difficult to obtain copyright ‘‘clearance,’’ but because copyright owners were granted new rights covering existing but peripheral uses of their

works, and there was a real concern that copyright owners would not make their

copyrighted works available to existing users.

The mechanical compulsory license came about at a time when the core business

of music publishers was selling sheet music, after the Supreme Court held that
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copyright owners had no right to exclude piano roll makers from manufacturing copies of their works in the form of piano rolls. Congress reversed that decision, but

having heard that music publishers might grant exclusive rights to one piano roll

manufacturer, Congress decided to limit the right to mechanical reproduction with

a compulsory license so that musical works would continue to be available to all potential users. Thus, music publishers never had an exclusive right to mechanically

reproduce their works and instead have developed their business around the compulsory license. Indeed, publishers have so embraced the compulsory license that

they insisted that the compulsory license be retained and extended to electronic

music delivery in 1995.

Similarly, the cable compulsory license came about at a time when cable . television was not nearly so commercially significant as broadcast television, after the

Supreme Court held that copyright owners had no right to stop cable retransmission

of broadcast signals. In granting copyright owners rights with respect to cable retransmissions, Congress limited those rights with a compulsory license, so that

cable systems would not need permission to continue to make broadcast signals

available to their subscribers. Once a cable compulsory license was in place, and satellite systems were denied the right to be considered ‘‘cable systems,’’ the satellite

compulsory license naturally followed.

By contrast, reproduction and distribution of sound recordings are the core rights

and core business of record companies. Unlike these other compulsory licenses, a

compulsory license to reproduce and distribute sound recordings would take away

the most important existing rights record companies have in their sound recordings

and threaten the core business of record companies—distributing copies of their recordings in whatever media consumers then demand. There is no problem with the

availability of sound recordings that would warrant this unprecedented action.

Record companies are licensing their sound recordings for use on the Internet regularly and have signed dozens of deals already. Recently, record companies have

formed two competing joint ventures, MusicNet and Duet, that intend to amass

catalogs of recordings as large as they can and make them available on a nonexclusive basis for Internet distribution. In short, there is no question that sound recordings are being made available.

Furthermore, a compulsory license might not be economically significant so long

as electronic distribution accounts for a miniscule percentage of record sales. However, if electronic music delivery becomes as commercially significant as we all hope

it will, a compulsory license could dramatically affect the economics of the industry

and the bargains between artists and record labels. Record companies make business decisions, and strike agreements with artists, based on the income record labels can expect to receive from selling recordings under exclusive rights of reproduction and distribution. If there were a compulsory license for electronic distribution,

as electronic distribution became more important, the royalty provisions of the compulsory license increasingly would determine the economics of the record business.

The government should not force any industry to have its profitability determined

every five years by three arbitrators. Doing so would be unfair, a dramatic departure from the precedents cited by Mr. Barry, and quite possibly a violation of the

Constitution or U. S. treaty obligations.

Finally, the American recording industry is the most vibrant national recording

industry in the world. A compulsory license on sound recordings would give away

our cultural heritage and one of America’s best trade assets.

Question 3: I have heard a number of entertainment companies say that acceptable protection for online content simply does not exist yet, that existing Digital

Rights Management and watermarks, wrappers, or encryption, is simply not good

enough to protect valuable content. Yet we have a number of technology companies

here today who believe that they have such a solution, and now we have announcements of online initiatives from all five major labels, which suggests the technological protections have developed recently. Would any of you care to comment on

the state of technological protection for content?

Answer: The technology for protecting copyrighted works is developing nicely. One

interesting development in the last year or two has been that the software and technology companies—responding to the demands of the marketplace—have started to

focus on developing methods of promoting legitimate commerce by protecting rights,

rather than methods of recklessly disseminating other people’s content without their

consent. RIAA is encouraged by this newfound enthusiasm for rights management

and protection technologies.

Record labels, among other copyright owners, have formed partnerships with technology companies to create and implement creative and flexible methods for enabling the electronic distribution of copyrighted works in ways that are easy for consumers to use, while providing appropriate protection to copyright owners. Content
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owners have a variety of technologies to choose from to meet their needs and offer

services that meet consumers’ needs, and we expect more and more progress in this area.

Question 4: The premise of this hearing is that digital content is coming soon to

digital devices to be enjoyed by consumers soon. Based on our discussion today, how

soon is soon, and when will the promise become reality?

Answer: The answer to the question of ‘‘How soon?’’ is that digital music content

is here now. All of the major record companies have made digital downloads available to consumers, and record companies have licensed streaming by interactive and

noninteractive webcasters. Record labels have made deals allowing Internet services

to construct compilation compact discs, and for ‘‘kiosks’’ that further the distribution

of digital music. Although not yet ‘‘here,’’ MusicNet and Duet subscription services

will be launched later this year, and more new and exciting services will follow as

record labels continue to seek new outlets for electronic distribution of their recordings.

Criticism of the industry for not making enough recordings available online

through enough different outlets faster is unfair. The recent economic downturn and

shakeout in the technology sector illustrate that very few companies have figured

out how to run profitable businesses distributing content online. Production and promotion of material that consumers want is expensive, and large scale online distribution is expensive too. Over the last few years, some companies were able to finance content production and distribution for a time through equity investment in

a superheated stock market, but for the production and distribution of content to

be sustainable, there has to be a profitable business model. Record companies

should not be blamed for not finding enough profitable ways to distribute recordings

online five years ago, when even today very few businesses have found sustainable

business models for online distribution.

Question 5: Is there any point you feel should be raised or that you would lie to

further respond to for the completeness of our record?

Answer: The marketplace is working to bring digital music to consumers now. And

the market forces that are bringing artists, record labels, technology companies and

online services together to satisfy consumer demand really are the ideal solution for

everyone involved. Only the marketplace provides the flexibility to experiment with

service offerings, business models and contractual arrangements to adapt to consumer demand. By contrast, regulation would make it more difficult to take advantage of opportunities offered by new technologies and to meet the evolving demands

of consumers. This is because any regulatory framework would create barriers to offering services other than those envisioned by the regulations and hamstring record

labels and online services in developing and offering innovative services in response

to consumer demand. It is for similar reasons that Congress has been reluctant to

regulate the Internet in general. Digital music services should not be the exception

to this wise rule. Because the market for digital music is nascent, it is critical that

digital music services develop and adapt while the market matures without the

heavy hand of government regulation.

Question 6: Do record companies have problems granting blanket licenses to third

parties for digital distribution of an artist’s recordings or settling lawsuits because

of agreements with artists, such as ‘‘coupling’’ restrictions in their recording agreements (coupling is compiling an artist’s recording(s) together with master recordings

by other artists) such that the record companies would need the artist’s approval

to do so? Does a record company have the right to distribute an artist’s recording

absent the accompanying artwork without an artist’s approval under most recording

agreements? If they don’t, how can they do so via digital distribution?

Answer: Artist contracts vary from label to label and artist to artist. My general

understanding is that the vast majority of artist contracts do not contain limitations

that would prevent record companies from licensing their recordings for digital distribution, with or without the associated cover art. And where such limitations exist,

we can all be certain that discussions are or will be taking place between those labels and individual artists. Such limits have not prevented record companies from

making the vast majority of the songs in their catalogs available for licensing, nor

from settling the major labels’ case against MP3.com.

Question 7: Has there been any discussion or consideration about the basis on

which record companies will share with artists monies they receive from blanket licensing, damage awards, or equity stock participations they receive from third party

companies?

Answer: Section 114 of the Copyright Act provides the answer to this question.

A record company’s receipts from the statutory license are to be allocated in accordance with the statute, and in other respects, artists are to be paid in accordance
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with their contracts. Moreover, record labels recognize that their relationships with

artists are critical to their success, and so sometimes renegotiate contracts or make

other payments to artists even when not required. For example, all ofthe major labels we represented in the MP3.com case have stated their intention to pay artists

their fair share of those damages. Universal has publicly announced that it will pay

its artists half of the damages it received from MP3.com.

Question 8: Hank Barry of Napster referred in his testimony to the RIAA’s pending petition before the Copyright Office that a compulsory license is precisely what’s needed in order to permit RIAA’s members secure necessary rights from music publishers. Could you elaborate on the meaning of your petition and explain why, in

your view, such relief should not be afforded to other parties seeking to obtain other

copyright rights from your member companies or clearing publishing rights in the

manner you suggest in your petition? Could you also further elaborate your point

about distinguishing the ‘‘core distribution right’’ from the other compulsory licenses

cited as precedent, including the mechanical license you seek to take advantage of?

Answer: The characterization of our Copyright Office petition in this question is

incorrect. A compulsory license is not needed; one has existed for almost a century

and been fully embraced by the copyright owners whose works are subject to it. Indeed, it is the music publishers, not the record companies, who insisted that the

compulsory license be extended to electronic delivery in 1995, because music publishers have structured their business practices around the compulsory license and

have consistently opposed efforts to eliminate the compulsory license in international treaty negotiations. The only question is how that license applies to certain

types of digital music services. RIAA’s petition asks that the Copyright Office initiate a rulemaking to clarify how the mechanical compulsory license applies to two

types of music delivery methods, ‘‘OnDemand Streams’’ and ‘‘Limited Downloads.’’ Uncertainty concerning that question has been a significant impediment to the

launch of subscription music services by record companies and their licensees. The

petition also asks the Office to promulgate interim rules with streamlined procedures for obtaining mechanical licenses, because the Office’s existing regulations require a procedure that is poorly suited to Internet licensing, and more cumbersome

than it needs to be given the authority Congress has given the Office to make rules

to implement the compulsory license. Whatever relief record companies might receive from this Copyright Office proceeding would apply to anyone seeking to clear

publishing rights by relying on the existing mechanical compulsory license. A more

complete statement of our views on these issues is set forth in RIAA’s attached comments on the Copyright Office’s Notice of Inquiry.

By contrast, we believe that a compulsory license for the reproduction and distribution of sound recordings is unnecessary and unwise. The marketplace is working to bring digital music to consumers now. Record companies are licensing their

sound recordings for use on the Internet regularly and have signed dozens of deals

already. A fundamental underpinning of the market for sound recordings is the

record companies’ exclusive reproduction and distribution rights. These are ‘‘core’’ rights because they are existing rights covering the core business of record companies—distributing copies of their recordings in whatever media consumers then demand. The industry has developed in reliance on the fact that record labels have

the exclusive right to reproduce and distribute their records. These rights have encouraged record labels to discover and promote new artists and take risks, knowing

that if they do discover an artist that the public likes, they can make creative and

business decisions about how to commercialize that artist’s recordings to make a fair

profit on their investment. Without exclusive rights, recordings would become a

commodity, and record companies would be far less willing to take chances and

record new material, and to make a promotional investment, if others could skim

the cream of their catalogs and sell the most popular recordings for the same compensation to the copyright owner as less popular recordings. Thus, taking away the

most important rights record companies have in their sound recordings would cause

great disruption to the recording industry, which could only limit the variety of new

music availabie to the public and reduce the opportunities available to artists.

Creation of a compulsory license for sound recordings now would be very different

from creation of the mechanical compulsory license in 1909. Music publishers never

had the exclusive right to reproduce and distribute recordings of their songs; the

grant of that right in 1909 was limited by the compulsory license. Before that time,

the core business of music publishers was publishing sheet music. Thus, in 1909,

creation of the mechanical compulsory license only provided incremental revenue to

publishers, and caused no disruption of the music publishing industry. As the sale

of records eclipsed the sale of sheet music, and the compulsory license has become

the dominant source of revenue for music publishers, the modern publishing industry has grown up around the compulsory license and fully embraced it. That is obvi-
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ously not true of the recording industry, which always has enjoyed exclusive rights

with respect to its recordings. Congress should not risk the vitality of the most vibrant national recording industry in the world by creating a compulsory license now

that goes to the heart of the industry’s existing rights and business.

Question 9: During your testimony you displayed for the Committee the home

pages of a number of current web-based music services, which your member companies, you testifed, have already licensed. The implication of your statement appeared

to be that such licensing activity has already gone on a long way to satisfy consumer

demand. Would you please, for the record, provide the Committee with details as

to which services your members have licensed, whether they had officially launched

by the date of your testimony and, if so, approximately how many ‘‘customers’’ they

each had at that point. Could you also detail, please, whether the licenses generally

provided these services required the service provider to furnish customer data to the

licensor and, if so, what kind of data?

Answer: Attached is the list of websites and services licensed by RIAA members,

as presented in Hilary Rosen’s testimony. All of these sites had launched before the

date of the hearing presentation. Please note that this is a list of just some of the

services and sites that our companies have licensed. The RIAA is not involved in

its members’ licensing deals because each company negotiates its agreements individually. We therefore do not have a comprehensive list of all licensed services and

do not possess specific information about what kind of data, if any, is provided

under such agreements.

Licensed Music Sites

www.2ksounds.com

www.akoo.com

www.aolmusic.com

www.artistdirect.com

www.clickradio.com

www.ecastinc.com

www.echo.com

www.e-qreetings.com

www.farmclub.com

www.hob.com

www.ichoosetv.com

www.intertainer.com

www.launch.com

www.liquidaudio.com

www.listen.com

www.loudeve.com

www.moontaxi.com

www.mp3.com

www.mtvi.com

www.musicbank.com

www.musicbrigade.com

www.musicchoice.com

www.net4music.com

www.oen.com

www.ondemanddistribution.com

www.radiowave.com

www.real.com

www.rioport.com

www.soundbuzz.com

www.starmedia.com

www.streamsaves.com

www.supertracks.com

www.touchtunes.com

www.vidnet.com

www.vahoomusic.com

Question 10: Your testimony made clear that you do not believe compulsory music

licensing for interactive services to be necessary or desirable, citing MusicNet and

other recent licensing initiatives by major record labels as evidence that product is

beginning to flow to the market. What is your reaction to the suggestion of a sort

of ‘‘Most Favored Nation’’ statute, similar to the program access rules for subscription television licensing, that required large copyright holder entities that engage

in cross-licensing of their catalogs to make the licensed materials available on essentially the same terms and conditions to, for example, similar internet-based music

distribution or ‘‘locker’’ services?

Answer: A government-mandated ‘‘most favored nation’’ (‘‘MFN ’’) requirement

would be a straightjacket on the marketplace for digital music. We also believe it

will stifle technology rather than encourage innovation. The Internet provides nearly limitless opportunities for digital music distribution, and with these opportunities

come a similarly limitless number of ways bargains may be struck among artists,

record labels, and digital music services. Deals might combine online licensing with

bricks and mortar retail opportunities. A transaction might take advantage of a particular consumer niche, involve a less popular musical genre, or launch an innovative strategy. And labels often strike special promotional deals. It would be very difficult to attempt to structure a government-mandated MFN requirement that recognized any of this complexity, and it would be a bad idea to try.

If an MFN requirement were imposed, record companies could never take

chances, experiment with new ideas, support new services, structure special deals,

or reach out to niche markets. Knowing that a concession in any one deal would

become the least common denominator for all other deals, record companies would

be forced to establish standard terms from which they could not deviate in individual instances without consequences across all their deals. Thus, the result of an un-
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precedented MFN requirement would be to stifle competition and business creativity; limit the flexibility of artists, record labels and service providers to offer consumers innovative digital music services; and ultimately, limit consumer choice.

Question 11: We all worked together on a return to the status quo on the status

of sound recordings as works-made-for-hire. Do any of you have any thoughts on

how we might further revise the law to avoid litigation on that issue in the future?

Answer: As hard as we worked to return the works-made-for-hire issue to the status quo, litigation over the issue may be unavoidable. Work for hire provisions have

been included in recording agreements, and in agreements between artists and their

producers and musicians, for decades. At the moment that recordings were created

pursuant to those agreements, authorship was determined, and certain rights vested, based on the law that existed at the time. Congress may not have the legal authority to change those rights, such as by determining that someone who had been

an author for decades no longer is, and indeed never was. Participants in the recording industry reached their agreements based on their understanding of the law as

it was when they made their deals. It would not be fair to upset their expectations

retroactively. (Notably, the 1999 amendment clarifying that sound recordings are eligible for work made for hire treatment did not purport to be retroactive.)

Each contract, and the circumstances surrounding the creation of each recording,

are unique. This means that, at least until there are some precedents in this area,

courts will likely have to make case-by-case determinations of who is the author of

a particular recording—whether it be the record label alone because of a work made

for hire agreement, the featured recording artist alone (either because of a work

made for hire agreement or an interpretation that the featured artist is the sole author), or some combination of the label, featured artist, producer, background musicians and vocalists, engineers and technicians. The desire to create a new provision

parsing out creative contributions among participants and determining a new definition of who the creator might be simply proves the point we made all along during

the dispute last year. Avoiding disputes among all these contributors to the creation

of a recording is exactly the reason we believed, and still believe that sound recordings are eligible for work made for hire treatment; any other result inevitably will

lead to litigation among claimants to rights in successful recordings. Since it would

be impossible in our view to develop a statutory definition of the rightful creator

(in some cases, it might be the producer, in some cases the musicians, in others the

featured artists and in others the royalty artist or artists, etc.) these issues are best

left to contract. The only thing the statute should articulate is whether or not sound

recordings are eligible to be considered works for hire. The decision to create a work

for hire has always been left to and should continue to be left to individual creative

participants. Creative participants may freely decide whether or not to agree that

their contribution is a work for hire or not. They have been making this decision

for decades already in their recording agreements.

SUBMISSIONS FOR THE RECORD

f Statement of American Federation of Musicians of the United States and

Canada, Steve Young, President

As the President of the nation’s largest organization representing musicians—the

American Federation of Musicians with over 100,000 members—I have one important message for the members of this distinguished Committee, the representatives

of the business community who will be speaking today, and all the fans of music,

on-line music services, and music file sharing who are gathering in Washington to

listen and to express their views:

PLEASE REMEMBER THE ARTISTS!

All the varied forms of music loved by ardent music fans, all the highly-successful

businesses created by the recording industry, and all the online music services that

are trying to emerge in this new digital era have one thing in common: they depend,

utterly, on the creative energy of the artists who make the music.

If those artists—including royalty artists, session musicians, and background vocalists—cannot make a decent living by making and recording music, this nation’s

staggeringly rich output of artistically varied, high-quality recorded music will not

be able to continue. There will be less music for fans and music lovers.
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Before we as a nation decide what the new models for music distribution should

be, it would be wise to examine the old models and consider how they can be improved to enhance the ability of artists to survive and create.

Most musicians who record music toil for many years but do not become rich celebrities known throughout the nation. Artistic talent, hard work, and loyal fans do

not guarantee great financial success. Many incredibly talented musicians may

make only a modest living.

Musicians who record under the industry-wide collective bargaining agreement

negotiated by the union receive scale wages for their time in the studio (including

pension contributions), and Special Payments Funds payments based on record company contributions and a formula tied to industry-wide sales. These Special Payments Fund payments are a critical part of the musicians’ compensation structure,

especially for those who do not have royalty contracts with a record label. If record

sales decline, they will decline also. Most musicians cannot afford such a loss.

Musicians who obtain royalty contracts from the record companies also derive important income from the sales of their records—if their records sell enough to recoup

the costs of making the record in accordance with the terms of their royalty contracts. Royalty artists should be able to choose whether or not they want to offer

their music via online services that may reduce the sales of their recordings.

One thing historically missing from the income of all musicians whether royalty

artists or session musicians—is compensation for the commercial broadcast of their

recorded works. Because historically there was no performance right in sound recordings, musicians received no income from that form of exploitation of their work.

The American Federation of Musicians always believed that to be a great injustice,

and lobbied for years for amendments to the law. At the dawn of the digital era,

the American Federation of Musicians fought for the creation of the Digital Performance Right in Sound Recordings Act, which became law in 1995. The union fought

for, and that Act established, the principal that musicians and vocalists should

share in any income streams that derived from the new digital performance right.

Artists must share in the revenue—that is the principal that the old and new

business forms must recognize. That is also the principal that music lovers and fans

must embrace—artists must have an income, if there is to be art.

Whatever old business models remain and whatever new business models emerge,

the future of our artists depends on their ability to earn a decent income, one that

shares in all the income streams their creative works generate. I hope and believe

that music fans will willingly pay for music in order to support the artists whose

work they love.

Please remember the artists!

Statement of American Federation of Television and Radio Artists, Ann

Chaitovitz, Director of Sound Recordings

fINTRODUCTION

My name is Ann Chaitovitz, and I am the Director of Sound Recordings for the

American Federation of Television and Radio Artists (AFTRA). On behalf of the over

80,000 performers and newspersons in AFTRA, I appreciate the opportunity to submit this testimony on behalf of performers because new technology presents many

challenges, as well as many opportunities, for performers. As a result of this Committee’s leadership and our country’s intellectual property laws, America creates the

pre-eminent entertainment in the world and entertainment product is our leading

export. In order to continue producing the finest and most sought after artistic creations in the world, the U.S. must ensure that artist incentives to create are nurtured, artists are fairly compensated for the exploitation of their work and that

present and future streams of income are shared with the creators.

Music, motion pictures and other entertainment products are marketed to the

world by major American industries with many contributors and participants. But

individual artists—singers, musicians, writers, actors and other creators—are at the

heart of the success of these major industries. It is the talent, training, dedication

and creative verve of these individuals that make the original works of art upon

which our successful industries are based. The artistic community now faces one of

its most serious challenges. New technological services enable people to obtain these

artistic creations without payment of any sort to the creators and owners of those

products. Should this trend continue, inevitably sales will decrease and the direct
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income earned by artists will be reduced significantly. That reduction in earnings

will also decrease or even eliminate performers’ health and pension benefits.

AFTRA supports the development of new technologies. Technology will allow our

members’ creative talents to be disseminated to an ever-increasing audience and

that, we believe, benefits everyone. AFTRA, however, also strongly believes that the

new technologies should not result in detriment to our members and that these new

methods of dissemination should provide compensation to copyright owners and creators of sound recordings.

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS

AFTRA is a national labor union representing over 80,000 performers and

newspersons that are employed in the news, entertainment, advertising and sound

recording industries. Our membership includes television and radio performers and

approximately 15,000 singers, rap artists, narrators and other vocalists on sound recordings (‘‘Singers ’’), including roughly 4,000 Singers who receive payments for the

sale/distribution of each recording pursuant to a royalty contract (‘‘Royalty Artists ’’) and 11,000 singers who are not signed to a royalty contract (‘‘Background Singers ’’). On behalf of the 15,000 Singers that it represents, AFTRA negotiates the AFTRA

National Code of Fair Practice for Sound Recordings (the ‘‘Sound Recordings Code ’’). The Sound Recordings Code has been signed by an approximately 1200 record

labels, including all of the major labels. Under the Sound Recordings Code, signatory record companies are required to contribute amounts to the AFTRA Health and

Retirement Funds on behalf of the Singers who perform on a recording. Those contributions are based upon a percentage of each individual Singer’s earnings. The

AFTRA Health Fund provides health benefits to Singers who reach certain threshold levels of earnings upon which contributions are made by the record labels. The

AFTRA Retirement Fund provides pension benefits to Singers based upon the

amount of the individual Singer’s earnings throughout his/her career. In short, the

health and pension benefits that each Singer receives are dependent upon the

amount of earnings on which employer contributions are made.

In addition to bargaining and administering the Sound Recordings Code, AFTRA

also actively participates in all facets of public policy development effecting our

membership, frequently pursuing national and international legislation and treaties

that protect Singers’ rights, as well as joining issues in litigation that are critical

to our memberships’ interests.

SINGER COMPENSATION

Many people harbor misconceptions about the music industry and performers and

how performers are paid. Basically, as the name implies, in addition to the small

session fee required by the Sound Recordings Code, Royalty Artists receive a royalty

for the sale or distribution of each recording and do not receive a fee for making

an album. In fact, the Royalty Artist must pay for all of the production costs of the

album, 50% of the independent promotion costs, 50% of the costs of videos and 50– 100% of the tour costs. Artists often pay these costs with the help of an advance

from the record company. However, artists must pay back their advances before

they receive any royalty shares earned by their albums. This is called ‘‘recoupment.’’ Taking into account all the deductions, royalty artists generally receive between

$0.80 and $2.40 for each recording sold, depending on the level of success of the artist when the royalty contract is signed. What often is not understood is that the artist does not receive any of this royalty money until the recording company has recouped these costs. It usually takes two or three years before even a successful artist receives his or her first royalty payment. As Sheryl Crow stated in a response

to a question from Congresswoman Bono at a May 2000 House Judiciary Committee

hearing, she did not receive any money until after her record had sold ‘‘three or four

million copies.’’ And, very few records ever sell this many units. As an example, in

1999, nearly 39,000 recordings were released, but only 3 singles and 135 albums— 0.35%—were certified as selling three million units, and notably, many of these

records had been selling over a number of years before finally reaching the three

million unit sales mark in 1999. And, 77% of the 39,000 recordings sold less than

1000 units.

Under the Sound Recordings Code, background singers receive a session fee for

their work in the recording studios and also additional payments if the records on

which they perform reach certain sales plateaus. However, most records never meet

any of these plateaus. Thus, all Singers are compensated based on the sales of their

recordings, and any decrease in record sales volume would directly and adversely

impact both Royalty Artists and Background Singers. The decrease in earnings that

would result from any decrease in recording sales volume will result in a cor-
167

responding decrease in the pension that a Singer would receive upon retirement

and, further, may jeopardize a Singer’s eligibility for individual and family health

coverage altogether.

THE FUTURE

In a society that treasures creative work, the artists’ incentives to create should

not be thwarted by the advent of new technologies. Many professional singers struggle to earn a living from their recorded performances. Even for those relatively few

singers who have successful careers, almost all spent years struggling economically

while they were honing their craft, building their careers and trying to obtain a recording contract. These singers deserve to have their work protected and be compensated whenever anyone exploits it by whatever means, analog or digital, new

technology or old. However, digital product and new technology presents a more serious threat to creators’ livelihood because millions of people may have free access

to a work. If Congress permits this piracy, American artists will suffer, and we risk

not only our ability to continue creating worldrenowned masterpieces but also our

balance of trade.

Again, we appreciate the opportunity to submit this testimony and look forward

to working with the Committee and its staff as it addresses these copyright issues

that are fundamental to our membership.

AMERICAN FEDERATION OF TELEVISION AND RADIO ARTISTS

AFTRA urges Congress to protect recording artists from piracy of their works

Washington, D.C., April 3, 2001—The artistic community now faces its most serious challenges as new technological services enable people to obtain their artistic

creations without payment to the creators and owners of these products. If this

trend continues, sales will decrease and the income earned by artists will be reduced

significantly, also decreasing or even eliminating performers’ health and retirement

benefits, according to testimony by the American Federation of Television and Radio

Artists at today’s hearings before the Senate Judiciary Committee in Washington.

In its testimony before the Committee, which is considering Online Entertainment

and Copyright Law, AFTRA, which represents 80,000 performers and broadcasters,

including 15,000 singers, addressed the many misconceptions about the music industry and performers, and how they are paid. In addition to the small session fee

required by the AFTRA Contract, Royalty Artists receive a royalty for the sale of

each recording, but they ‘‘do not receive a fee for making an album,’’ said Ann

Chaitovitz, AFTRA’s Director of Sound Recordings.

‘‘In fact,’’ said Ms. Chaitovitz, ‘‘the Royalty Artist must pay for all of the production costs of the album, 50% of the independent promotion costs, 50% of the costs

of videos and from 50% to 100% of the tour costs. Artists often pay these costs with

the help of an advance from the record company. However,’’ Ms. Chaitovitz said,

‘‘artists must pay back their advances before they receive any royalty shares earned

by their albums.’’ Sheryl Crow has stated that she did not receive any money until

after a recording had sold ‘‘three or four million copies.’’

‘‘Few records ever sell this many units,’’ Ms. Chaitovitz told the Committee. ‘‘In

fact 77% of the 39,000 recordings released in 1999, for example, sold less than 1,000

units.’’

‘‘While AFTRA supports the development of new technologies,’’ Ms. Chaitovitz

said, ‘‘digital product and new technology presents a serious threat to creators’ livelihood because millions of people have free access to a work. If Congress permits

this piracy, American artists will suffer, and we risk not only our ability to continue

creating world-renowned masterpieces but also our balance of trade.’’

AFTRA has contracts with 1,200 recording companies, including all of the major

labels.
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April 2, 2001

Jim Griffin

CEO, Cherry Lane Digital

Museum Square

5757 Wilshire Blvd., Suite 401

Los Angeles, CA 90036

Dear Jim:

We have reviewed your White Paper ‘‘IMPASSE: TECHNOLOGY, POPULAR DEMAND, and TODAY’S COPYRIGHT REGIME.’’ We are two professional economists

expert in markets, organization, strategic behavior and growth. Central to our research is the role of innovation in fostering growth and prosperity. Our current endeavor focuses on the determination of the system of property rights most favorable

to production and diffusion of intellectual innovations. This has lead us to support

a strong protection of the right of creators to sell their work, because this is crucial

to provide the financial incentives needed to assure a continued flow of artistic creations and innovations. However, we are highly skeptical about the need for restrictive copyright protection after the first sale. The points you make in your paper are

similar to those we have made in our own research: we endorse the recommendations you make. If implemented, they would open the way to a more efficient and

socially useful system for copyrights protection and distribution of artistic products.

Allow us to elaborate briefly on the most relevant issues.

CURTAILMENT OF THE DIGITAL DELIVERY OF MUSIC

You argue persuasively that the current copyright law, as applied by the courts,

will lead to the curtailment of digital delivery of music. You also argue, and we find

this crucial, that the current situation of impasse is not sustainable, that it is damaging both to American consumers and the overall economy, and that, due to continuous technological advances in this area, a substantial reconsideration of copyright

legislation is urgently needed. We also agree with you in calling attention to the

anti-trust problems generated by the ongoing attempt of the ‘‘majors’’ to coordinate

in establishing a music-delivery business and to collude in preventing the entry of

independent competitors. Vigorous competition, especially following major technological breakthroughs such as the Internet is crucial in stimulating innovation and

in providing better products at lower prices. In the long run the new delivery technology should lower barriers to entry and lead to cheaper and more varied music

(and arts) accessible to a wider audience. Current efforts by the majors, if successful, may severely tilt the playing field in their own favor. This would prevent new

companies from providing such services and stop superior delivery technologies from

being adopted. Encouraging innovation by new companies such as Napster instead

strengthens the technological leadership upon which the increasing wealth of American households is built.

TRANSACTIONS COSTS

Quite correctly, you compare the reduction of transaction costs achievable through

peer-to-peer networking to the increase in such costs caused by ongoing byzantine

attempts to control, monitor and neutralize the economic impact of the Internet

technology upon established monopolies. Economists widely recognize the effort by

incumbents to suppress new technology as one of the most significant social costs

of market concentration. In the long run, such efforts are seldom successful. Still,

they delay the social benefits of new technology in the meanwhile, and lead to the

development of wasteful and undesirable black markets. Incumbents’ efforts not

only increase current transaction costs but also paralyze future progress: newer

products and techniques are always fed by the ongoing adoption and experimentation of previous ones.
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FAIR USE

You observe that efforts to prevent piracy also prevent fair use. This is one of the

most insidious consequences of overprotecting intellectual property. Fair use constitutes the core of consumer sovereignty. Producers of any kind, and those of intellectual property in particular, always profit from greater market power, and for this

reason have always argued against fair use. Congress and the Supreme Court have

wisely resisted this pressure, recognizing that eliminating fair use serves no broad

economic purpose and thwarts the copyright laws’ goal of maximizing the use and

enjoyment of protected work. Given that Napster and related technologies have had

little impact on the profits of the majors, it is hard for us to avoid the conclusion

that much of what is being sold as an effort to prevent piracy is in fact an effort

to prevent fair use and so increase future monopoly power. We are especially concerned about the economic consequences of adding copy protection to multi-use devices such as computers. Complex software and hardware invariably have bugs.

While buggy VCRs and DATs pose little threat to economic growth, the loss of data

and time from buggy hardware and software in computers can lead to significant

economic harm.

STATUTORY LICENSING

Your paper supports consideration of statutory licensing, correctly pointing out

that these schemes are already widespread under circumstances similar to those involving Napster. Indeed, the music industry itself is arguing for statutory licensing

for music broadcast over internet radio. Statutory licensing seems to us a sensible

middle ground between the extreme copyright protection demanded by the currently

dominant firms and a competitive system based only on the right of first sale.

While, in our view, it will not be the final answer to the momentous problems generated by ongoing technological innovation, it does constitute an important step in

the correct direction. We want to emphasize that mandatory licensing will reduce

incentives to piracy and the black market generated by the current, unsustainable,

status quo.

Overall then, we support your effort and that of Napster to improve existing copyright law to better ‘‘promote the progress of science and the useful arts.’’

Best Regards,

MICHELE BOLDRIN

Professor of Economics

DAVID K. LEVINE

fArmen Alchian Professor of Economics

Statement of Broadcast Music, Inc.

Broadcast Music, Inc. (‘‘BMI’’) is a music performing rights licensing organization

(‘‘PRO’’) that represents approximately 350,000 affiliated songwriters, composers

and publishers, in licensing the public performing right in approximately 4.5 million

musical works, including many thousands of foreign works through BMI’s affiliations with over 60 foreign PROs. BMI has been a proponent of strong copyright

protection for the rights of authors and creators for decades. BMI believes that copyright must be protected on the Internet in order to foster the creation of music. To

this end, BMI participated in the negotiations that led to the U.S. signing of the

WIPO Copyright Treaty and the subsequent enactment of the Digital Millennium

Copyright Act of 1998. These laws adopted new technological protections for copyrighted works online and clarified the copyright responsibilities of Internet service

providers in order to make a more stable environment for the commercial delivery

of music and other copyright content in the online world.

BMI has been a pioneer in licensing copyrights on the Internet and in digital

transmission technologies. In April 1995 BMI announced the first commercial copyright license for music on the Internet, a blanket public performing right license

with On Ramp, Inc. Since that time, BMI has entered into license agreements with

over 1,000 web sites, including such well known sites as Yahoo!broadcast.com,

NetRadio, Spinner.com, MP3.com, Emusic.com, GetMusic.com and FarmClub.com.

Since the beginning BMI’s Internet license has covered the public performing right

involved in both the downloading of music files as well as the streaming of music

either on demand or as part of archived or regularly scheduled programming. BMI’s
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licensing experience has proven that licensing is an effective solution to the problem

of protecting creators’ and copyright owners’ rights and ensuring copyright owners

obtain commercial reward for the widespread exploitation of their works by online

music users.

BMI has embraced new digital technologies that facilitate the licensing of online

transmissions of musical works. Last year BMI announced a new ‘‘Digital Licensing

Center’’ that allows users to obtain BMI licenses through a simple click-through system available on BMI’s award-winning web site, BMI.com. These efforts will make

licensing particularly accessible and easy for small webcasters. BMI is also utilizing

digital technologies to enable its licensees to submit reports and statements online,

permitting faster processing of information that will permit a dramatic increase in

the speed of payment of royalties to writers and publishers.

One of the most compelling aspects of the Internet is its international scope. BMI

has responded to the challenges posed by the dimensionless nature of cyberspace by

negotiating pioneering global rights agreements with over 20 foreign PROs, including the major European societies. As a result of these agreements, BMI now can

offer users seamless licenses that cover transmissions of BMI’s repertoire of works

that cross national boundaries.

Peer-to-peer file sharing services like Napster are only the latest in a long line

of challenges presented to the music industry and the copyright community by the

Internet. BMI is pleased that the courts have recognized that unauthorized peerto-peer file sharing constitutes copyright infringement. Unregulated by law, the

Internet has the potential to become the largest ‘‘swap meet’’ for piracy of copyrighted works in history. Napster has announced its intention to reformulate its

service as a licensed subscription music transmission service. BMI has been engaged

in good faith negotiations with Napster over the terms of a BMI blanket license for

peer-to-peer file sharing.

BMI has a long history of licensing both free over the air broadcast and subscription cable music transmission services. For example, BMI has successfully concluded

industry-wide negotiations with the television industry for promotional use web site

licenses for hundreds of television broadcast stations, and with the radio industry

for interim licenses for radio signal streaming online. In BMI’s view Napster’s service shares numerous characteristics of broadcasting and cable transmissions, and if

peer-to-peer music transmissions online are allowed to be ‘‘free’’ on the basis of a

misguided notion of ‘‘fair use,’’ in the long run established markets for public performance of music will be jeopardized. BMI is hopeful that its negotiations with

Napster will bear fruit, and does not believe that a compulsory license for the public

performance of copyright musical works is necessary or appropriate.

Peer-to-peer transmissions of music involve a number of different copyright rights

for which Napster must seek licensing. For example, in addition to the public performing right in the musical work, such transmissions also involve the public performance right in pre-recorded sound recordings that contain those musical works.

The reproduction and distribution rights in Section 106(1) and (3) in copyrighted

musical works and sound recordings (so-called ‘‘mechanical rights’’) are also implicated by transmissions that result in copies, as the Ninth Circuit found. The recording industry has taken steps to license necessary rights to webcasters, generally,

and the music publishers have as well with respect to mechanical rights.

It takes time for licensing practices to be developed. This is especially so in an

environment where the business models are changing as often as the technology improves. The Berne Convention requires that copyright owners be given adequate

time to develop mechanisms for licensing before exemptions or compulsory licenses

are legislated, particularly where substantial vested commercial interests are at

stake. BMI supports the Committee’s interest in the oversight of the e-commerce in

copyrighted works, and believes that the proper approach is to allow the market

place to work under the auspices of the DMCA to foster a wealth of entertainment

product for consumers in the 21st century.

Statement of Hon. Maria Cantwell, a U.S. Senator from the State of

fWashington

I want to thank Chairman Hatch and Senator Leahy for calling this hearing. The

delivery of online music has become the testing ground for how the marketplace and

the law can work to bring new entertainment services to the consumer.

The business of distributing music online is quite young. There is little history

guiding its development.
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What we can learn from history is that as every new medium developed—the

printing press, radio, television—industries touched by new media were rocked—and

ultimately revolutionized.

Legitimate secure online music services will be fantastic for consumers and good

for the economy. Unfortunately, the public discourse has been diverted from where

I believe the discussion should occur: rather than identifying ways to bring the

music industry, online distributors and others with technological solutions together

to resolve legal and practical questions of rights, licensing and distribution, many

are focused on only one approach: Napster.

Clearly, Napster is evidence that there is extremely high consumer demand for

online music delivery. But in focusing on Napster, we see the battle lines—without

any sense of the productive lines of communication.

Indeed, there are significant concerns on both sides of the debate. But this doesn’t

mean that there have to be winners and losers. It means simply that there are

issues that we need to work through in a thoughtful way. We will all benefit from

the growth in the market that will result.

From the perspective of the entertainment industry, in the earlier days of online

music it looked as though a few new companies were coming into the economy, taking the entertainment industry’s ‘‘goods,’’ and building businesses at their expense.

Indeed, many of these claims are legitimate. I respect the importance of intellectual

property rights and recognize the risk digital delivery poses. Issues of copyright and

security are of utmost importance in this discussion. The threat to the music industry will become a threat to the viability of the Internet, if copyright is not respected.

From the point of view of some in the online community, the entertainment industry is simply entrenched and afraid of new technologies. This is a vigorous young

industry developing extraordinarily exciting new ways to bring entertainment and

information to consumers. And although the public discourse may reflect otherwise,

most of those in this space are legitimate businesses trying to develop new markets

in this new medium. And we must encourage an environment in which these businesses will flourish.

I would observe, that when compared with other policy arising as a result of the

creation of the Internet, substantial progress has been made in the past few years.

There are substantial inroads being made in bringing legitimate music distribution

online.

But all of these businesses need to be building relationships. We need to be getting people to work together. Right now, it simply looks like everybody is in the ‘‘online music sandbox,’’ a lot of sand is flying, but there is not much of an effort to

play together.

There are legitimate business and technological issues that we collectively need

to consider. Without question, some of the issues are arcane or technical. But we

need to continue to work our way through them.

There are three ways we can approach this: (1) everybody makes the effort to

work it out; (2) keep holding hearings such as this one in the hope that hearings

will pressure the parties to compromise and work together; or (3) legislate the

framework.

From my perspective, we need to keep moving forward to find the solutions that

will bring music to consumers in a manner that will allow them to listen to music

where they want, when they want. The environment should be secure, so the artists

and other copyright holders are paid for their work, and the costs to the consumer

should be reasonable.

Our job is to preserve the profitability that the entertainment industry has built—

and take advantage of new business models and new media. We need to create a

competitive environment that will give the consumers the flexibility they want in

obtaining their entertainment.

We need to work together to build on the successes of each of these industries.

I hope we can focus on how we can encourage solutions that bring to consumers the

services that they want, and continue the enormous contribution to our economy

that entertainment brings.

The differences I hear here seem to be marginal when I think of the alternatives

to working together—there are such sites as BearShare, a Gnutella service, ready

to compete with Napster. I know that when creative minds decide to accomplish

something, they can. I hope that you will all sit down, set a realistic time-line, and

work to achieving ubiquitous music delivery through legitimate channels.

I look forward to your testimony.
f172

Statement of CenterSpan Communications Corporation, Frank G.

Hausmann, Chairman and CEO, Portland, OR

Chairman Hatch and Members of the Committee, CenterSpan Communications is

pleased to be able to provide its views regarding the important focus of today’s hearing. Today’s technology, as well as new technologies that will undoubtedly be created over the next few years, will indeed enable all individuals to have access to

high-quality digital culture, media, and entertainment on-demand 24/7 from nearly

any location through a variety of wired and wireless digital devices. The challenge

that confronts the Committee is to determine whether the current state of copyright

law empowers or detracts from our ability to fulfill that potential. The question that

faces you is whether statutory change is required - and, if change is to be made,

how to balance the maintenance of incentives that ‘‘promote the Progress of Science

and the useful Arts’’, the goal set forth in Article I of the Constitution, against the

technological developments that can undermine the ‘‘exclusive Right to their respective Writings and Discoveries’’ envisioned by that founding document.

EXECUTIVE SUMMARY

• CenterSpan’s Scour Exchange is the first secure and legal service for peer-to-peer

(P2P) distribution of interactive audio and video entertainment.

• P2P is both the origin and the future of the Internet.

• Contrary to the impressions generated by the Napster controversy, P2P systems

are not inherently infringing or non-secure. P2P offers ‘‘viral marketing’’ benefits far beyond those available in central server systems. In addition, a P2P distributed environment offers substantial cost savings with respect to storage and

bandwidth requirements necessary to support games, music and video.

• Existing digital rights management (DRM) technologies provide sufficient security

to address the legitimate concerns of copyright owners.

• A legislated fair use ‘‘safe harbor’’ may be desirable in the future, but in the nearterm the marketplace should be permitted to let DRM technologies provide the

optimal balance between affected parties.

• New or expanded compulsory licenses for interactive media may be appropriate

for ‘‘streaming’’ distribution that is analogous to commercial

• broadcasting, but not for ‘‘downloading’’ which enables the provisioning of permanent copies and represents the entire future of how digital content will be sold

and distributed.

• The first sale doctrine is not meaningful or applicable in the digital environment.

• Consumers may require enhanced legal protections to assure that when they participate in beneficial P2P systems their legitimate privacy expectations are respected. They should not be subjected to unsolicited marketing and spamming

from third party commercial entities.

• We look forward to working with the Committee as it addresses critical copyright

and related public policy issues for digital media in the twenty-first century.

COMPANY BACKGROUND

My name is Frank G. Hausmann. I serve as President, CEO, and Chairman of

the Board of CenterSpan Communications Corporation, headquartered in Portland,

Oregon. CenterSpan is a NASDAQ-listed (stock symbol: CSCC) company as well as

an Intel Capital Portfolio Company. CenterSpan is a developer and marketer of secure peer-to-peer Internet software solutions for communication and collaborative

information sharing. My professional background consists of extensive computer industry experience.

Our major focus is the delivery of interactive digital entertainment. In May 2000

we launched Socket, a P2P Internet gaming application. In December 2000 we purchased the 4.5 million-customer list and other assets of Scour Exchange (SX) at

bankruptcy auction for $9 million in cash and stock. SX was a pioneering P2P system for the delivery of audio and video, but its failure to comply with copyright law

resulted in a barrage of litigation and subsequent bankruptcy.

Just last week, we launched the Beta test version of the new Scour Exchange

service. SX is now the first secure and legal P2P ‘‘digital distribution channel’’ supporting the delivery of audio and video entertainment. To date, more than 370,000

people have pre-registered to participate in the free Beta test. We intend to use the

Beta test to finetune SX’s offerings and technology, and anticipate the rollout of a

tiered-price subscription service during the second half of this year. We plan to offer
173

different service options depending on the type, quantity, and ‘‘use rules’’ of content

that subscribers wish to access. Eventually, SX will also support e-books, photos and

graphics. Our proprietary market research, as well as extensive conversations with

all segments of the digital entertainment world, convinces us that there will be substantial consumer demand for such a service—provided that it offers the right combination of ease of use and content.

In February 2001, CenterSpan established a Digital Media and Entertainment

Group. The joint executive team of Michael Kassan and Howard Weitzman runs this

Los Angeles-based unit. Mr. Kassan formerly served as President and Chief Operating Officer of Western Initiative Media Worldwide, a division of the Interpublic

Group; in 1997 he was named by Advertising Age as one of the top media executives

in the United States. Mr. Weitzman was formerly a senior executive with Universal

Studios and a wellrespected entertainment attorney for over 30 years. Both of these

accomplished executives came to CenterSpan from Massive Media Group, a developer of digital rights management (DRM) based applications and services for the entertainment and advertising markets. Together, they bring to CenterSpan an understanding of DRM technologies, and of the entertainment, media, and advertising

sectors that is invaluable to our future growth. SX has already acquired licensed

audio and video content from a variety of sources for use in the Beta test, and is

currently in discussions and negotiations with record labels, movie studios, and

other content owners to obtain top content for the launch of the fee-based service

later this year. We are very optimistic that we will be able to secure a depth and

variety of entertainment offerings sufficient to provide a compelling and rewarding

experience for SX subscribers.

P2P: ORIGIN AND FUTURE OF THE INTERNET

CenterSpan embraced the P2P marketplace out of our belief that peer-to-peer networks and applications are both the origin and the future of the Internet. The Internet’s fundamental support of a widely dispersed and virtually limitless number of

participants, coupled with the transmission of digital information through packet

switching that breaks up messages and content and sends it between users via multiple routes, was chosen to assure the maintenance of communication regardless of

attacks on any single component of the system. The result is the most robust, resilient, and useful communications system in history.

CenterSpan believes that Internet media business models that rely solely on content distribution from central servers, and do not support or further dispersal by

individual users, will not be as successful in the marketplace. Most such systems

are unable to take advantage of the ‘‘viral marketing’’ that occurs when fans enthusiastically promote and share their secure digital entertainment files with others.

Where video and gaming content is concerned, the significant storage and bandwidth requirements are best and most efficiently met through the dispersal of content to end-users within a P2P environment. In effect, P2P systems enable consumers to choose to make a portion of their hard drive storage and bandwidth available

for other users to share.

It is unfortunate that Napster has created the public impression that P2P networks only support illegal distribution of inherently non-secure content. Nothing

could be further from the truth. The courts have determined that Napster’s original

design is in substantial violation of our copyright laws, and it is under mandate to

comply with the Ninth Circuit’s injunction and cease its infringing activities.

Napster has publicly stated its intent to develop a legal, subscription-based P2P system. On February 13, 2001, when the Ninth Circuit Court of Appeals issued its decision, I applauded that ruling and stated, ‘‘The rights of copyright holders must be

protected in the new digital distribution paradigm. . .. The new Scour Exchange respects and protects copyrights and provides content owners with mechanisms to control the distribution and use of their material while profiting from it.’’ The Committee can rest assured that SX will demonstrate that respect for copyrights through

required licensing and the utilization of advanced DRM technologies are completely

compatible with the distributional and cost advantages of P2P systems.

PUBLIC POLICY VIEWS

The Committee is now engaged in a dual enterprise. Your first objective is to determine the current state of digital entertainment technology and applicable law.

Your task is to determine whether near-term legislative intervention is required to

protect the goals of copyright law and the rights of copyright holders while promoting the further development of digital distribution of music, movies, and other genre

of entertainment and culture. As so often before, you must balance traditional legal
174

values with new technology that, depending on its use or misuse, may promote or

undermine the progress of science and the useful arts.

CenterSpan welcomes the opportunity to contribute to that process going forward.

We believe that what we have already learned in developing the first legal and secure P2P system, as well as what we expect to learn from SX’s Beta test and transformation into a fee-based subscription service, can be of substantial value to your

deliberations.

We find ourselves in substantial agreement with the sentiments expressed in the

February 14 Senate floor remarks of Chairman Hatch and Senator Leahy in response to the Ninth Circuit’s Napster decision. We concur with Chairman Hatch’s

call for ‘‘an open and competitive environment in the production and distribution of

content on the Internet’’, as well as for ‘‘a marketplace resolution to. . .digital music

controversies’’. And we are in concert with Senator Leahy’s observations that ‘‘the

availability of new music and other creative works. . .depends on clearly understood and adequately enforced copyright protection. . .. copyrights may not be ignored when new online services are deployed. The Internet can and must serve the

needs not only of Internet users and innovators of new technologies, but also of artists, songwriters, performers and copyright holders’’. Each day, CenterSpan/Scour

Exchange is fully engaged in the digital marketplace as we seek to legally obtain,

and technologically secure, diverse content to offer to the public. We are confident

that we can effectively compete and provide new benefits for consumers, creators,

and copyright owners, so long as we have a supportive legal framework that sets

forth nondiscriminatory and clearly understood principles for all market participants.

WE ARE THEREFORE PLEASED TO SHARE OUR VIEWS ON SOME OF THE KEY PUBLIC

POLICY AND TECHNICAL QUESTIONS THAT CONFRONT YOU:

• Security: We believe that current DRM technologies do provide sufficient protection to satisfy the legitimate concerns of copyright holders. CenterSpan has designed its system to eventually support a variety of DRM solutions.

• Fair Use: CenterSpan would support the consideration of legislation to carve out

a fair use ‘‘safe harbor’’, should it become apparent that the marketplace is not

sufficiently sensitive to this key protection of informed discussion, criticism, and

debate. For the time being, the marketplace is the best place to determine the

reuse limitations supported by DRM technologies and is most likely to set the

optimal balance between the desires of consumers, the needs of scholars and

commentators, and the legitimate concerns of content owners.

• Compulsory licenses: CenterSpan believes it is worthwhile for Congress to consider the establishment of new or expanded compulsory licenses to facilitate the

digital distribution of interactive media content over the Internet. If you take

this path, it may be useful to distinguish between those forms of ‘‘digital distribution’’ that are analogous to broadcasting, versus those that are more akin

to ownership of a CD or DVD. Digital content may be distributed via ‘‘streaming’’ or ‘‘downloading’’. CenterSpan’s view is that streaming is analogous to

radio and broadcast television, while downloading represents the next generation distribution channel of digital copies. This distribution channel facilitates

the sale or use of permanent or quasi-permanent content, subject to the consumer’s fair use transfer to other devices, be they in the home or auto, or a

portable device that may be carried on their person. In our view, compulsory

licensing may be more appropriate for streaming media that allows for listening

or viewing but does not provide for the retention of a permanent copy.

• First sale doctrine: It is our view that the first sale doctrine is not meaningful

or applicable in the digital environment. The doctrine makes sense for analog

media, such as used books or records. But there is simply no way to adequately

assure that an individual selling a ‘‘used’’ digital file has not retained a perfect

digital copy for continued use. Whatever loss may occur from the absence of a

first sale right in the digital environment should be more than offset by the lowered costs and vastly broader selection of content made possible by Internet distribution.

• Privacy: We applaud the continuing efforts of Chairman Hatch, Senator Leahy,

and other members of the Committee to assure that citizens’ concerns about online privacy are adequately addressed. If consumers believe that the use of online technologies and services is at odds with their expectations of personal privacy, then the growth of Internet commerce will suffer. While one’s listening

and viewing habits may not raise the same level of concern as medical and financial data, we note nonetheless that Congress saw fit to make it illegal for

video rental stores to reveal the records of individual consumers.
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P2P systems inherently raise unique privacy questions and challenges. A consumer who subscribes to any P2P entertainment service agrees to make a portion

of their computer’s hard drive viewable by and accessible to other subscribers. Thus,

they have a clear expectation that their collection of digital media will be revealed

to third parties, even if their identity is safeguarded. However, they may not contemplate that unauthorized commercial third parties can gain similar access and

can use the information they obtain for a variety of marketing, promotional and

other purposes. Even where such activities violate the P2P provider’s terms of service, as they would CenterSpan’s, they are difficult for the P2P service to detect and

deter.

CenterSpan’s own privacy policy prohibits the sharing of personally identifiable

customer information with third parties, except for that information required to facilitate payment transactions. We will not allow our customers to be subjected to

unwanted solicitation and spamming from unauthorized commercial third parties.

Therefore, we encourage the Committee to consider whether new legal protections

should be put in place to assure that the privacy expectations of P2P system users

are fully respected.

CONCLUSION

CenterSpan appreciates this opportunity to share its views, market experience,

and plans for the P2P future with the Committee. We look forward to working with

you in the months ahead as you strive to assure that the legal and policy structure

for digital media in the twenty-first century is fully relevant and strikes the proper

balance between the rights and interests of all participants in this exciting and rapidly evolving sector.

Statement of Lawrence E. Feldman, Esquire, Jenkintown, PA

fI. VANTAGE POINT:

I am a lawyer from Pennsylvania with over twenty years experience in general

civil litigation. I also represent ‘‘catalog artists’’ (that is, artists no longer under contract to the record companies) in two class actions against the record industry

Chambers v. MP3.com, UMG el. al., SDNY 2000 (involving current internet use of

old recordings of the 1950’s through 1995 by music industry without payment; on

appeal after dismissal by Judge Rakoff;) and Moore a AFTRA, Time Warner, et. al.

(ND.ALA 1993); (on-going RICO and ERISA suit against the record industry for illegal pension reporting practices in connection with the AFTRA health plan ). I am

also one of many firms involved in In Re COMPACT DISC MINIMUM ADVERTISED PRICE ANTITRUST LITIGATION MDL Docket No. 1361, and other litigation, including copyright and trademark litigation. I also assist musicians in running and maintaining internet websites, and I own several internet webservers. I

am a former professional performing and recording musician (electric violin, guitar,

banjo, mandolin, keyboards). My on-line resume is at http.//leflaw.com/leflawnet/

firmresume.htmll; there is an on-line article on digital music and record companies

at http://mp3.com/news/227.html; on-line article on AFTRA class action at http://

www.addicted.com.au/MNOTW/lofi/970821/970821—971.shtml.

I am not an entertainment lawyer or music industry lawyer per se. I consider myself a self-funded public interest lawyer and litigator. I represent no music or record

companies, although I do represent webcasters.

Among the artists I represent, several have specifically endorsed the positions

taken herein. They are:

• Carl Gardner of the Coasters (‘‘Yakety Yak’’, ‘‘Charlie Brown’’, ‘‘Love Potion Number 9’’)

• Bill Pinkney of the Original Drifters (co-founder of the Drifters in 1953; voice of

‘‘White Christmas’’ in Home Alone (1991); Bill is a veteran of the Normandy invasion, and a Bronze star recipient.

• Damon Harris (Temptations 1971–75) (‘‘Papa was a Rolling Stone’’)

• Lester Chambers of the Chambers Brothers (‘‘Time Has Come Today’’, ‘‘People Get

Ready’’)

• Tony Silvester of the Main Ingredient (‘‘Everybody plays the fool’’).

Others have expressed support for the general notion of copyright reform and mistrust of the record industry, as outlined below. I will supplement this list prior to

the April 3, 2001 hearing.
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II. REASON FOR SPEAKING TO COMMITTEE:

A. Lack of a voice in copyright legislation for the recording artist who must depend on sale of recorded music to survive; specifically records, tapes and compact

discs, since their contracts obviously provide no compensation for digital performances. B. Continual misrepresentation by the RIAA to this committee and elsewhere that

1) they represent the interest of recording artists 2) they represent the interest of

the ‘‘American’’ recording industry, since they represent mostly foreign corporations

who do business in this country, and should have no voice in matters involving U.S.

legislation or the U.S. Constitution.

C. Alarm that the Congress has given the RIAA an official role in fiscal and fiduciary matters involving webcasting royalties, because of their historical indifference

to the plights of artists and consumers, their demonstrated inability to accurately

account for their copyright registrations as well as their royalties due thereon, their

recently exposed conduct in the Work for Hire lobbying effort, and their historical

abuse and lack of concern for older artists, and their historical connection to organized crime.

D. Alarm that the Copyright Act is now, because of the two major RJAA - driven

revisions of 1995 and 1998, one of the single biggest threats to privacy and freedom

from searches and seizures, as evidenced by recent ‘‘Napster raids’’ in U.S. and Belgium, and prosecution of Jeff Levy in 1999 for running a music server. The RIAA

says that the artists support this conduct. The artists at large do not.

III. MESSAGE:

Most authors and artists who you have heard of don’t own the copyright registration certificate to their works. Usually the copyrights are held by a record label or

publisher instead, since the artists’ contract have historically contained a clause requiring them to assign all rights to the company. So when you hear a song by your

favorite band being used to sell beer and cars on television, chances are that they

didn’t have anything to do with the endorsement: they don’t own or control their

own songs, or even get compensated at all, because the record company does.

Juxtaposed against this reality is the constitutional provision ‘‘Congress shall

have power. . . .to promote the progress of science and useful arts, by securing for

limited times to authors and inventors the exclusive right to their respective

writings and discoveries.’’ Article I, section I Clause 8 is not merely a grant of power

to congress. It is also a limitation of that power. The Framers, who had just fought

a war with England, were mistrustful of government sponsored monopolies like the

Statute of Anne, which they saw as a limitation of the common law perpetual rights

of authors, so they made it a constitutional drafting priority to make sure that Congress’ intrusion to secure such perpetual rights of authors and inventors be limited

in time, and be for the benefit of authors and inventors. It was not, as the RIAA

says at their website, because copyright is more important than the First Amendment. It was that the limitation of copyright was more important than the First

Amendment. Wheaton a Peters 8 Pet. 591 1834, <http://press-pubs.uchicago.edu/

founders/documents/al—8—8s15.html>

In 1995 Congress enacted a statute, the Digital Performing Rights in Sound Recording Act, that gives exclusive rights in digital performances to the legal copyright

owner, without providing any concomitant i ight of payment to the equitable owner

(the artist is the equitable owner of the copyright under 17 USC 501(b), ) who has

no royalty provision in his contract to cover such uses, especially if his contract predates 1996, which most do.

Copyright is a bundle of rights. Congress created a new right and gave it to the

copyright holder in 1995’without even stopping to think that the artist will no

longer benefit because of prior assignments. The record industry’s institutionalized

greed and callousness is illustrated by the recent payment of ‘‘statutory copyright

infringement damages’’ in excess of 200 million dollars, plus stock and warrants and

future license fees from Mp3.com, a well known website, to the record companies,

in litigation spearheaded by the RIAA for on-line use of my clients names, music,

and likenesses with no payment to the artists thus far. When the artists try to sue

for a declaration of rights and royalties involving the same conduct, we were

unceremoniously shown the door in Chambers v. Mp3.com, et. al., currently on appeal.

I believe that, as a start, the following amendments are needed:

1. The Copyright Act, 17 USC 5O1b should be amended to (a) give the artist rights

to sue copyright holders in federal court for an accounting of profits or to determine

title to copyright; (b) with the rebuttal presumption that a 45% split, the rate already in the statute for webcasting, was per se reasonable for uses not set out spe-
177

cifically in the artist contract. Present law of New York is that there is no federal

jurisdiction for such an action (Keith v Scruggs, SDNY 1981), and many courts seem

willing to let the prior assignment of copyright stand, without any compensation for

new uses; (c) that any action for statutory infingement damages use the same 45%

split to the artists, whether the suit be on the compilation copyright or the underlying copyrights; (d) provide that fiduciary standards control the relationship of copyright holder and artists, and that breach of fiduciary duty is a ground for recission

of the assignment.

2. Artist Fair Use—An artist may use a copyrighted work on which he performed

or contributed copyrightable material, in any manner listed in section 106, so long

as its primary purpose is to promote the career or reputation of the artist. Automatic fee shift against any copyright holder who sues an artist for infringing a work

in which he performed or contributed and does not prevail. Record companies have

threated action against artists who use their own material on the internet.

3. That digital internet performance rights do not apply to any pre-1996 recordings. The industry should go back and renegotiate with the catalogue artists. Otherwise, it is tantamount to a taking without just compensation.

4. Provide for automatic termination of transfer of sound recording copyrights,

without formalities. The Work for Hire controversy is not yet settled. Artists should

have the masters back. .Artists need this protection. Its like a trust for their old

age, since the pension system is so flawed up because of collective bargaining agreement provisions regardinw, health and welfare by the AFTRA Llnion which couples

health coverage with royalty payments.

5. The RIAA (or Soundexchange or AARC or other incarnations) should not he collecting money for artists under the DCMA or the Audio Home Recording Act. Appoint a reputable accounting firm, without specific music industry ties, or someone

the musicians trust.

6. Enact a FEDERAL RECISSION OF COPYRIGHT ASSIGNMENT ACT as

amendment to 17 USC 501. The United States District Courts should have original

jurisdiction over actions to rescind an assignment or license of copyright, or any of

the bundle of rights within the purview of 17 U.S.C. 106, in which a plaintiff is a

creator of the copyright whose assignment or license is sought to be rescinded, and

it is claimed that any conduct of the assignee towards the creator renders the assignee unfit to be a registrant of a federal copyright, within the standards of Article

I section 1 Clause 8 of the United States Constitution. It should also be part of the

Copyright Act that failure to publish or distribute copyrighted material for at least

two years shall be a prima facie case of abandonment of copyright, resulting in a

reversion to the artists/grantors.

I would be honored to submit drafts of this and other related proposed legislation,

if the committee requests.

Statement of the Future of Music Coalition, Jenny Toomey, Executive

fDirector

SUMMARY

The Future of Music Coalition is a not-for-profit think tank that advocates for new

business models, technologies or policies that will advance the cause of artists. We

firmly believe that the music industry as it exists today is, at a very basic level,

anti-artist, and that any serious examination of a digital future must take into account the structures in place in our analog present. While the final solutions to the

challenges in this space will be driven in many ways by technology and the market,

there are a number of critical policy decisions in front of Congress that could make

a significant difference in the lives of artists. These include:

1. Competition for collection and distribution of the digital royalty

2. Direct payment of the digital royalty to the artist

3. Fostering of non-commercial space on the radio and on the Internet

4. Ensuring artists have the right to keep their recordings in print

The Future of Music Coalition remains eager to work with any organization that

shares our concern for improving the conditions for artists in these exciting times.

INTRODUCTION

More often than not, the debate over digital music distribution has left artists and

their representatives sitting on the sidelines. Even today’s hearing has omitted

many of the organizations that have been driving the debate and have stood alone
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1 11David Segal, ‘‘They Sell Songs the Whole World Sings: Mass Merchants Offer Convenience,

Less Choice,’’ Washington Post, February 21, 2001, Page Al. 2 Eric Boehlert ‘‘Pay for Play,’’ Salon, March 14, 2001. 3Stephen Labaton, ‘‘Congress Curtails a Plan for Low-Power Radio Stations,’’ New York

Times, December 19, 2000, A1.

in proposing concrete and coherent solutions to the questions that the Senate is posing. The Future of Music Coalition (FMC), for example, took the unique step of

bringing together more than 600 hundred music industry leaders, technologists, consumers, musicians, academics and composers (including Senator Hatch) to discuss

these very issues this past January at Georgetown University. Unless the Senate

and other governmental organizations include artist organizations, like the FMC, in

public discussions about the future of digital music, the public cynicism that has

made peer to peer a phenomenon will continue to grow.

Increasingly, the public believes that artists are not compensated fairly. This perspective is then used as a justification for file sharing of copyrighted materials. If

the average teenager believes that their favorite artists will not receive compensation for their creations, it gives them the excuse to use peer to peer file-sharing

services that have no mechanism in place to compensate the artist. This is the crux

of an enormous problem.

The Recording Industry Association of America (RIAA) has a confusing track

record. It has publicly stated that the organization does not represent the interests

of artists, but rather the interests of the major record companies. It has also stated

that it is trying to protect recording artists and their creations through litigation

against Napster and MP3.com. Still there has been no public explanation as to how

the recording artists will participate in the large sums that have been generated by

the settlements and/or judgements from these cases.

The Senate must ask the difficult questions: how are the artists being paid now

and how will they be paid in the future? In other words, each time that a settlement

is reached or a new lawsuit is filed, the Senate must ask: how will the artists be

compensated when there is a final adjudication? Prospectively, the Senate should

look at each of the digital music distribution issues and conflicts through this prism

of artistic compensation.

THE SYSTEM IS BROKEN

Any serious examination of the digital future of downloadable music needs to take

into account the fact that the music industry in America is fundamentally broken.

In 1999, less than 1 percent of the total number of albums released sold more than

10,000 copies.1 Commercial radio airplay is often sold to the highest bidder through

a shadowy network of ‘‘independent radio promoters,’’ 2 while attempts to create new

non-commercial Low Power FM stations have been gutted by Congress.3 The dreams

of stardom chased by many are met head on with the sad reality that an estimated

75 percent of releases from major labels are not even currently in print, leaving artists with a huge debt to the record companies that they have no means to pay back.

Meanwhile, technology companies seem content to roll out new business models and

technologies without giving serious thought to how these technologies will impact

artists’ traditional revenue streams.

ELEVATING THE ARTISTS

The Future of Music Coalition is a not-for-profit think tank whose sole mission

is to elevate artists into the middle of this debate. The FMC aims to increase knowledge about the current industry and advocate in favor of specific solutions—including policy solutions and business models—that will improve artists’ ability to succeed in a notoriously (if not artificially) constrained industry. We strongly believe

that an artists’ agenda and a consumers’ agenda are one and the same.

Ultimately, the new music industry will be defined in relation to innovations in

technology and the marketplace. It is important to recognize that neither of these

forces are neutral ones. There are a number of critical policy decisions that will determine how the market evolves and artists need to participate in those decisions.

The FMC proposes four simple steps that will not only increase artist compensation

but will also grow the size of the music market thereby creating new jobs and new

sources of capital for investment. Each of these proposals will not only effectively

create new opportunities in our industry but they will also enhance the shareholder

value of each of the publicly traded major record labels. This is truly an opportunity

to nurture and to grow the recording industry and the performing artists that make

it all possible.
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1. COMPETITION IN COLLECTION OF DIGITAL ROYALTY

SoundExchange is the name of an organization created by the Recording Industry

Association of America (RIAA) that is poised to become the sole mechanism by

which all webcasting royalties will be collected and dispersed to all musicians. The

Future of Music Coalition believes that artists must have the right to choose between competing collection agencies, similar to the robust competition between

ASCAP, BMI and SESAC for analog performance royalties.

The Future of Music Coalition has stated a number of reasons why

SoundExchange should not be the sole collector:

A. It is partisan.

It is clearly inappropriate to force independent musicians who have consciously

worked outside of the major label system, and who compete with that system daily,

to now go to an organization that was created by the major labels in order to collect

their independently generated royalties.

B. The data is too valuable.

It is also our opinion that the transfer data (i.e. who is playing what songs, how

many times, etc.) is valuable and should not be owned or controlled by the RIAA.

C. The RIAA cannot be trusted to represent artists’ interests.

We believe that if the major labels are allowed any discretion in the manner by

which webcasting royalties are collected, divided and paid out they will certainly

exert influence in a way that benefits themselves and their constituents. Here it

might be wise to remember the recent ‘‘work for hire’’ controversy which implicated

the RIAA for requesting (and getting passed) a ‘‘technical amendment’’ which

changed the substance of the Copyright Act to the detriment of recording artists.

This change allowed record companies to claim ownership of sound recording copyrights FOREVER when previously these copyrights reverted to the creators after 35

years.

Thankfully the ‘‘work for hire’’ clause was identified, fought and ultimately repealed due to the efforts of a coalition of recording artists and musicians’ rights

groups. Still we think it would be unwise to allow such recently identified ‘‘foxes’’

as the RIAA or their agents at SoundExchange to be the sole guardian of the newly

established ‘‘hen house’’ of digital royalties.

2. DIRECT PAYMENT OF ARTISTS’ 45 PERCENT OF WEBCASTING ROYALTIES THROUGH THE

DMCA

The language of the Digital Millennium Copyright Act needs clarification to ensure artists are paid their royalties directly.

The Problem:

As it stands now, some parties believe the DMCA language states that the entire

100 percent of any webcasting royalty should be paid first to the copyright owner

(usually the label) who is then required to pay 45 percent to the performer and 5

percent to the unions.

Other parties suggest that ambiguity in the language of the DMCA implies that

artists should be paid their 45 percent directly.

The Solution:

To eliminate further confusion and to guard the artists’ right to their 45 percent

share of the webcasting royalty, the FMC proposes an amendment to the Digital

Millennium Copyright Act (DMCA). Modeled after the so-called writers’ share paid

by ASCAP, BMI and SESAC, the FMC amendment would establish that recording

artists be paid directly their 45 percent share of all Digital Performance Royalties

for Sound Recordings (DPRSR). The FMC believes that this is the first step in acknowledging recording artists as stakeholders in the use of music on the Internet.

Why should this be done?

As it stands the digital webcasting royalties are set to be administered exclusively

by SoundExchange, a partisan collective created by the labels. Recently

SoundExchange offered to pay the artists their 45 percent share directly—but only

for the first year.

The FMC believes this is a smoke screen of false generosity. It is hardly a foregone conclusion that the money is currently controllable by the labels. If the law

was meant to state that the artists get paid their 45 percent directly in perpetuity,

who are SoundExchange to offer the same deal for a diminished period of only one

year?
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What is at stake?

A. Fear of Cross Collatoralization.

If these royalties go first to the copyright owner, the labels may then attempt to

cross collatoralize this new money against any of the artists’ accumulated label debt.

If royalties are diverted in this manner, the overwhelming majority of major label

artists would not see any webcasting royalties whatsoever.

B. Fear of Obfuscation.

As it stands very few artists who work through the major label system pay off

their ‘‘expenses’’ and earn royalties. Oftentimes those artists that do recoup only

learn of that fact after auditing the label. It would be dangerous to subject

webcasting royalties to the same non-transparent formula that already underserves

musicians in the terrestrial world.

C. The Future is Interactive—we should plan for that now.

FMC believes that it is critical that the stakeholders work together to attempt to

make these statutory licenses apply to both interactive and non-interactive web

uses. Impending technological advances (Tivo, etc.) already allow for interactive uses

of non-interactive streams on the back end. Thus it is fair to suggest that the future

of music and all ‘‘innovative’’ business models will be interactive.

If we do not address the issue of a fair statutory rate for interactivity now, we

run the risk of a future where only non-interactive and dated business models pay

the fair 45 percent statutory rate to creators. While all other interactive and forward-thinking business models pay artists in a manner that is subject to the same

nebulous contractual rate that pays artists far less.

Here it is important to remember that artists’ contract royalty rate is not statutory, transparent nor is it public. Traditional contract royalties begin at a much

smaller ‘‘11–13 percent’’ and allow for that royalty amount to be further diminished

through a process of unfair deductions that are standardized within the industry.

To understand this royalty reduction, multiply an I 1 percent royalty rate by 85

percent for a ‘‘free goods’’ deduction. Then multiply it by 75 percent for a ‘‘packaging’’ deduction. Then multiply it again by 75 percent for a ‘‘new media’’ deduction.

After this process of deduction, an 11 percent royalty is effectively reduced to less

than 6 percent.

Non-interactive webcasting royalties pay artists 45 percent. Interactive

webcasting royalties are subject to contracts. They pay artists 6 percent. At a difference of 39 percentage points, clearly, artists stand to fare far better under a statutory rate than one that is contractual. Therefore FMC suggests that it would greatly benefit the majority of artists if the statutory rate were applied to both interactive and non-interactive webcasting licenses.

3. SUPPORT FOR NON-COMMERCIAL SPEECH IN BROADCASTING AND ON THE INTERNET

In general, music is programmed for one of two reasons: to aggregate the largest

possible audience in hopes of charging larger rates to advertisers (the commercial

model) or because a piece of music is important enough that a broadcaster thinks

it should be shared with its audience (the non-commercial model). Obviously, artists

and consumers benefit from the widest number of possible outlets for their music.

Therefore, beyond taking a look at potentially illegal ‘‘pay for play’’ practices in

commercial radio, or creating new community-based platforms like Low Power FM,

there needs to be a means by which less expensive (or graduated) licenses can be

granted to community based webcasters in the same manner that the performing

rights organizations—BMI, ASCAP, SESAC—license community based terrestrial

stations at a less expensive rate.

While it is critical that webcasters compensate creators for the value of their

music, we should recognize the important contribution that community based stations make in exposing music fans to a broader variety of music.

Why is this important?

In order to webcast legally, a majority of independent Internet radio programmers

have signed the Statutory Licensing Agreement and agreed to back pay royalties at

the ‘‘statutory rate’’ from the date of that signature, once the rate is established.

It has been over two years since some of these webcasters have signed the agreement yet the rate is still undecided! There are obvious and grave concerns among

independent and community based webcasters that they will be forced out of business on the day that they are presented with a back-dated bill that is beyond their

means.
181

4Lydia Polgreen, ‘‘The Death of Local Radio’’, Washington Monthly, April 1999. 5Danny Goldberg, ‘‘The Ballad of the Mid-Level Artist,’’ Inside, 2000, http://www.tonos.com/

appl/connect/commentary/jsp)/danny—goldbery—1.jsp 6Segal, ‘‘They Sell Songs.’’

If this happens the FMC fears we will soon find the infinite space of the World

Wide Web dominated by the same hit-driven, bottom-line mentality that currently

dominates the finite terrestrial bankwidth and underserves the majority of musicians and consumers.

Consolidation of the Terrestrial Bandwidth

The commercial radio bandwidth is no fiend to the majority of musicians, nor, for

that matter, the majority of consumers. In 2001, the overwhelming consolidation of

the commercial radio ownership has concentrated control of terrestrial radio into

very few dominant hands.4 The predominance of supper-duopolies (more than 7

radio stations in a market owned by one company) and the resulting drive to create

additional super-duopolies, has resulted in reductive, consolidated, market-driven

programming and far less bankwidth space for niche or independent broadcasting

on the radio dial. Both of these factors have had a grave impact on the ability for

musicians to get their music in front of a listening audience.

Concentration of radio playlists

Commercial radio playlists seem dominated by a ‘‘once-removed’’ process of independent radio promotion that requires overwhelming investment to place songs on

commercial radio. If this is true, then over 80 percent of musicians who do not

choose to release records through the major label system are effectively locked out

of the publicly owned but commercially licensed airwaves. It would be a disservice

to artists and consumers to see this same unfair structure replicated on the web

through a process of prohibitively expensive webcasting and licensing fees.

4. ‘‘AUTOMATIC’’ LICENSE FOR OUT-OF-PRINT RECORDINGS

Major labels commonly acknowledge that a majority of their back catalog is currently out of print. This phenomenon harms both musicians, who lose potential

record sales, and consumers who find their variety of musical choices artificially diminished.

In order to address this problem, record contracts in some countries contain ‘‘re- version clauses’’ which allow for the return the copyright to the creator (musician)

if a title has remained out of print for an established period of time. Reversion

clauses frame the relationship between artist and label as an equal one where both

sides have responsibilities and accountability.

In the United States there is no such reversion clause and, therefore, very little

recourse for musicians who have signed away their copyrights to a label that is unwilling to keep those records in print.

In order to address this problem FMC is advocating for the creation of a compulsory or ‘‘automatic’’ license to enable musician signatories (or their heirs) the unquestionable legal right to license their back catalog sound recordings (at a fair statutory rate) from labels that have allowed these recordings to go out of print.

Copyright as Ante

It is standard industry practice to require musicians to sign away the rights to

their copyrights in order to participate in the major label system. This means that

ultimately musicians will have little to no control over the availability of their

records for sale. Since mechanical royalties paid to artists from record sales make

up a large portion of musicians’ income, it seems wholly unfair that they would have

no recourse when their records are purposefully allowed to remain out of print.

Artists and Recoupment

Danny Goldberg of Artemis Records recently indicated that most major label artists need to sell more than 200,000 copies in order to pay back their debt to the

label.5 However, according to Soundscan data, only 1 percent of records released in

1999 sold more than 10,000 copies,6 a number far short of Mr. Goldberg’s projection.

Using these statistics we can assume that the overwhelming majority of major label

musicians are in debt to their labels. Understanding that major labels routinely let

artists’ material fall out of print, as noted above, there are even fewer opportunities

for artists to recoup.

Napster’s Newest Fans

In the physical world, record store and warehouse shelf-space is finite and valuable but the virtual marketplace does not have the same physical limitations.
182

The fastest growing demographic segment using Napster are adults over the age

of 24. Research reports have confirmed that one of the major reasons that they are

doing so is to access commercial recordings that are no longer commercially available. The FMC believes that allowing recording artists to make all of their recordings available to the public will lessen the public dpendence on Napster, stimulate

new record sales, and help achieve our goal of putting more money into the pockets

of both recording artists and record labels.

CONCLUSION

Clearly, the music technology space is a difficult area for policy makers to negotiate, with evolving technologies and market forces shifting constantly. That being

said, the future of Music Coalition has identified four specific areas of concern that

Congress should address:

1. Competition for collection and distribution of the digital royalty

2. Direct payment of the digital royalty to the artist

3. Fostering of non-commercial space on the radio and on the Internet

4. Ensuring artists to have the right to keep their recordings in print

We firmly believe these four major items will make a tremendous difference to

the lives of artists nationwide, and we look forward to collaborating with other interested parties to help build the structure that will sustain a middle class of musicians in America.

Statement of Jim Griffin, Founder and CEO, Cherry Lane Digital &

OneHouse LLC, Los Angeles, California

f AT IMPASSE: TECHNOLOGY, POPULAR DEMAND, AND TODAY’S COPYRIGHT REGIME

The Internet has fostered the creation of new music delivery services that provide

Americans with unprecedented access to a broad catalogue of music. Consumers

have responded enthusiastically. Continuing to meet this popular demand is clearly

in the public interest, yet the future availability of these services is now in jeopardy.

It would be unfortunate both for the American public as well as for copyright holders if peer-to-peer delivery of music were to be suppressed. If encouraged by appropriate legislation, these services can be configured in a manner that fully protects

the interests of rights holders by ensuring them a steady stream of royalties. Moreover, consistent with the goals of the Copyright Act, these popular delivery services

offer the potential for unprecedented growth in the creation and enjoyment of music.

In effect, the Internet is shifting the music marketplace from one for products to

one for delivery services. Technological advances have fostered similar transitions

in other markets in the past, and each time, the nation has opted to adjust its copyright laws as needed in order to enable competitive delivery services to face off

against one another in the marketplace. Each time, consumers and copyright holders alike have benefited from the resulting expansion in the production and enjoyment of original works.

In passing the Digital Millennium Copyright Act in 1998, Congress recognized the

need for legislation to foster the Internet’s potential for broad dissemination, at the

time and place chosen by the user, of all forms of original work. But the existing

scheme for protecting and encouraging the dissemination of copyrighted material is

inadequate for the changed market environment wrought by the new online world.

Legislation enabling the continued development of online music delivery services,

while fully protecting the interests of copyholders, is now needed.

The earlier statutes intended to encourage the use of prior generations of new delivery services should guide the way. Some of these statutes were designed to address problems created by high transactions costs when new technology offered the

potential to deliver original works to multitudes of users. Some were intended to

promote a nascent technology that might not, without statutory encouragement,

have taken hold. Some were designed to help identify a reasonable price when the

marketplace was inefficient at doing so. All were intended to promote the underlying goals of our copyright regime—to encourage the creation and broad dissemination of original works. These statutes provide a variety of examples of solutions that

serve the interests of both rights holders and the public.
183

1 A&MRecords, Inc. v. Napster, Inc., Complaints § 35 (N.D. Cal. 1999). 2 July 11, 2000, Testimony of Hank Barry, CEO of Napster, Inc., before the Senate Judiciary

Committee. 3See Niels en/NetRating service report for week ending 3/18/01.

4Pay to play, PC MAGAZINE at 67, April 24, 2001.

5See, e.g., A&M Records, Inc. v. Napster, 239 F.3d 1004 (9th Cir. 2001) (finding a prima facie

case of direct copyright infringement); UMG Recordings, Inc. v. MP3.Com, Inc., 56 U.S.P.Q.2d

1376 (S.D.N.Y. 2000) (holding MP3 infringed copyright owners’ rights). 6See, e.g., Federal Trade Commission, Press Release, Record Companies Settle FTC Charges

of Restraining Competition in CD Music Market, (May 10, 2000) available at http://

www.fte.gov/opa/2000/05/dcpres.htm (‘‘The Federal Trade Commission announced today that

it has reached separate settlement agreements with . . . the five largest distributors of recorded

music who sell approximately 85 percent of all compact discs (CDs) purchased in the United

States to end their allegedly illegal advertising policies that affected prices for CDs. The proposed agreements would settle FTC charges that all five companies illegally modified their existing cooperative advertising programs to induce retailers into charging consumers higher prices

for CDs, allowing the distributors to raise their own prices. ’’); Federal Trade Comnussion, Analysis to Aid Public Comment on the Proposed Consent Order; In the Matter of Sony Music Entertainment, Inc., In the Matter of Time Warner, Inc.,—In the Matter of BMG Music, d. b. a. ‘‘BMG

Continued

1. PUBLIC DEMAND FOR DIGITAL MUSIC DELIVERY SERVICES IS STRONG AND GROWING.

‘‘Music has been at the forefront of the Internet explosion, and for good reason:

The Internet offers tremendous opportunities for the music business as well as for

everyone who loves music.’’ 1 Because music is easily transmitted in digital form, the

Internet has promoted the development of new music delivery services, bringing the

American public convenient access to much more, and more varied, music than has

ever been possible before. The public response has been overwhelming.

Napster has grown with unprecedented speed. First available in 1999, its software

has now been downloaded over 71 million times. Its appeal is broad—though designed by a college student and popular with teenagers, half of its users are over

30 years old, and they are evenly divided between men and women.2 Its peak of 1.8

million simultaneous users is within striking range of AOL’s reported peak of 2.2

million simultaneous users. And its more than 10 million hits from unique addresses per day is significantly greater than the fewer than 7 million unique address visits that eBay and the Walt Disney Internet Group attract per week.3

Another software program for distribution of music and other digital files was

originally posted on a website affiliated with AOL in the spring of 2000. It was removed after a single afternoon, but in just those few hours, 10,000 copies were

downloaded, and today the decentralized file-sharing Gnutella software is enjoying

ever-widening usage. It is also rapidly becoming more user-friendly. And there are

many other means of obtaining access to music through the Internet, including

Aimster, Bearshare, iMesh, and Spinfrenzy.

The advent of online music delivery services has and will fuel sales of music both

as a new delivery service and in ‘‘hard copy’’ form. Many Napster users are willing

to pay a monthly fee for continued access to the service.4 And many online music

listeners report sampling new music using Napster or another such service, and

then purchasing a CD of the music they liked.

Napster and similar services are racing to fill an entirely new market for services

offering the customized delivery of music, a market just recently enabled by technological innovation. As with the invention decades ago of radio service for delivering

plays and music, and then of television service by means of broadcast and later

cable and satellite delivery, for delivering video performances and events, digital

music service has transformed the nature of the market for the underlying copyrighted content. This transformation can be suppressed only at enormous cost to

consumers and to copyright holders, who should benefit from the greatly expanded

delivery of their works that the services promise. The American public’s demand for

music delivery services will continue to grow. It is in the public interest, and in the

interests of rights holders, to satisfy that demand. But the demand cannot effectively be met under the current statutory scheme.

2. DIGITAL MUSIC DELIVERY SERVICES MAY BE SHARPLY CURTAILED DESPITE

WIDESPREAD POPULAR DEMAND.

Adverse court decisions now threaten the continued availability of digital music

delivery services.5 Moreover, market forces, which might be expected to engender

a new means of meeting the popular demand, are being thwarted by a variety of

obstacles. Legislation is needed to resolve the impasse.

For two reasons, the marketplace cannot and will not provide a solution. First,

the music industry, long known for close coordination among its major players,6 has
184

Entertainment’’; In the Matter of Universal Music &c Video Distribution Corp. and UMG Recordings, Inc.,—and In the Matter of Capitol Records, Inc., d.b.a. ‘‘EMI Music Distribution’’ et al., (Sept. 2000) available at http://www.ftc.gov/os/2000/09/musicstatement.htm (‘‘The market

structure in which the distributors’ MAP provisions have operated also gives us reason to believe that these programs violate Section 5 of the FTC Act as practices which materially facilitate interdependent conduct. The MAP programs were implemented with an anticompetitive intent and they had significant anticompetitive effects. In addition, there was no plausible business justification for these programs. ’’) (hereinafter ‘‘Analysis To Aid Public Comment ’’). The

individual FTC complaints and agreements containing consent orders, as well as additional materials, are available at http://www.ftc.gov/os/2000/05/index.htm. See also United States v.

Time Warner Inc., et al., 1997 WL 118413 (D.D.C. 1997) (Justice Department investigation into

a series of joint ventures and other coordinated conduct among producers of prerecorded music

both domestically and abroad; no antitrust challenge brought). 7With the exception of Bertelsmann AG, the majors have refused to license their copyrighted

music to Napster. Bertelsmann has conditioned its willingness to license on Napster’s developing

a technology that would ensure payment of royalties every time a song is shared. Until Napster

introduces that technology, as it plans to do this summer, Bertelsmann remains a plaintiff in

the infringement suit. See Record label settles out of court with Napster, San Jose Mercury

News, January 26, 2001, at http://www.mercurycenter.com/svtech/news/indepth/docs/

napster012601.htm/; Kevin Featherly, Major Indie Label TVT Records Buries Napster Hatchet,

BizReport, January 26, 2001, at http://www.bizreport.com/daily/2001/01/20010126–7.htm. Universal’s CEO has said that his company would license a royalty-paying peer-to-peer service,

but Universal has not negotiated any such arrangement with Napster to date. 8See Analysis To Aid Public Comment, supra n.6 (‘‘The five distributors together account for

over 85 percent of the market . . . ’’). 9See Analysis To Aid Public Comment, supra n.6 (the five major music companies ‘‘collectively

dominate this market ’’); R. SCHULENBERG, LEGAL ASPECTS OF THE MUSIC INDUSTRY

3 (1999) (‘‘[T]he music industry is dominated by a small number of entertainment/communications conglomerates. At the end of 1998, these were Bertelsmann, EMI–Capitol, Universal Music

Group, Sony, and Time Warner, and only one, Time Warner, was U.S. owned. ’’). 10Warner/Chappell Music, Inc.: A Company Profile, http://www.warnerchappell.com/cgi-bin/

WebObjects/wcmusic/awc/About.woa/wa/ArticlePage.wo?articleId=443. (‘‘From perennial

favories such as ‘Happy Birthday,’ ‘Rhapsody In Blue,’ ‘Winter Wonderland’ and the ballads of

Cole Porter to the hottest hits of recent years by such megastars as: R.E.M., Michael Jackson,

Elton John, Sheryl Crow, Jewel and Madonna, Los Angeles-headquartered Warner/Chappell

Music, Inc. now ranks as the premiere music publishing company in the world.’’ and ‘‘The company’s exhaustive catalog of songs spans the classical, standard, pop, country, Broadway, foreign, movie and television score and current hit categories . . .. ’’); Warner/Chappell—Song

Search, http://www.wamerchappell.com/WebObjects/wcmusic/ss/index.html. ‘‘Warner/Chappell

is home to more than a million songs ....’’; Seagram Muisc Unit, Universal, Makes Pact to

Acquire Rondor, 2000 WL–WSJ 3038939 (Aug.3, 2000). 11 John Sutton-Smith, Easy Bider, Hits Magazine (July 18, 1997), at http://

www.warnerchappell.com/cgi-bin/WebObjects/wcmusic/awc/About.woa/wa/

ArticlePage.wo?articleId=281. ‘‘Certainly we can always afford not to go for an act, because

when you’re the size of the major music publishers, no one act has a material impact on the

bottom line.’’ Les Bider is the Chairman and CEO of Warner/Chappel Music Publishing.

with one notable exception chosen to work to retain control of music distribution,

refusing to deal with entities that threaten that control even if in the process substantial popular demand for music is left unsatisfied.7 Five companies—AOL-Time

Warner, EMI, Sony, BMG, and Universal—control about 85% of the market for prerecorded music.8 These companies are collectively known as the ‘‘majors.’’ The remainder of the music industry is made up of much smaller companies referred to

as ‘‘independents’’ or ‘‘Indies.’’ As reflected by their collective market share, the majors dominate the distribution of prerecorded music and have done so for decades.9

The majors’ dominance extends beyond the distribution of pre-recorded music into

both music publishing and the signing and promotion of new artists. While music

publishing is less concentrated than sales of pre-recorded music, the music publishing businesses owned by the five majors control a high percentage of the most valuable song copyrights. Indeed, the two largest music publishing companies, those

owned by AOL–Time Warner and EMI, alone control the rights to millions of

songs.10 Although literally thousands of musical copyright owners are not affiliated

with any of the major music publishing companies—including a number of independent music publishing companies—the catalogues of song copyrights owned by

these entities pale in comparison to those of the major music publishing companies.

Similarly, the labels owned by the major music companies are capable of offering

the most lucrative recording deals and, therefore, typically sign the most promising

new artists to recording contracts. Few artists succeed in a big way without the

backing of a major label, since the majors’ expansive resources and high market

shares give them considerable influence over the primary promotional vehicles in

the music industry, including radio and cable television channels like MTV and

VH1.11 For artists, the majors collectively control the gateway to the top.
185

12See Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127

(1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965). 13 Jeffrey Benner, Record Industry Plays Both Sides, WIRED NEWS, March 16, 2001, at

www.wired.com/business/ 0,1367,42426,OO.htm1(March 16, 2001) at 13.

Where a small number of large firms comprise an industry their interests will frequently align and, very often, so will their business decisions and strategy. And parallel, and even interdependent, decision making has long been a hallmark of the

music industry. Such behavior can be a natural outgrowth of market concentration

and may occur even without what might be deemed collusive activity in violation

of the antitrust laws. Even if it is not illegal, however, such ‘‘non-competitive’’ behavior still harms consumers, because it enables each of the majors to safely ignore

consumer demand, confident that its competitors will do the same.

The ongoing litigation against Napster allows the music companies to watch one

another’s business plans even more closely than usual. Their joint participation in

the litigation, although likely shielded from antitrust challenge by the Noerr-Pennington defense,12 provides each company with a picture window on the others’

strategies for dealing with the online world. Each time they consider and discuss

the relief they are seeking in the litigation, and as they evaluate Napster’s billiondollar settlement offer, each firm necessarily reveals its own plans and goals for the

digital marketplace.

The majors know that the public wants the ability to access the full range of

music, not just the music of one or two companies, from a single source. As they

are reported to have written in another context, ‘‘[t]o be compelling to consumers

. . . a service must offers tens or hundreds of thousands of songs . . .’’ 13 They cannot themselves offer a single joint site for antitrust reasons. But as long as most

of them remain united, they can prevent the success of any unaffiliated service by

refusing to license their songs. They are insulated from market pressures by virtue

of their coordinated behavior. Only if several were to defect would the others have

to follow in order to remain competitive.

Why would the majors choose to prevent the development of popular digital delivery services, despite the demonstrated ability of such sources to increase public demand for music? Napster, as the innovator of peer-to-peer music file sharing technology, has earned a ‘‘first-mover’’ advantage over other companies in the digital delivery of music. As a threshold matter, the majors do not want to enable Napster

to earn a financial reward for this innovation, but would rather try to recapture the

advantage for themselves. More importantly, they fear increasing competition from

independent labels. Napster does not have an interest in what, or whose, music is

shared on its service—with Napster’s service, independent music is as readily available as the majors’ music. And Napster is not only a vehicle for the delivery of

music, but also an open venue for the exchange of opinions and recommendations

about music, entirely free of the majors’ control. For the major music companies,

which dominate older music promotional channels, this would be a dramatic change.

They do not want to lose their historical influence and concomitant ability to direct

consumers’ attention, and purchases, to their own artists and labels.

Thus, it is in the majors’ collective interest to regain control of music distribution

from upstart entities such as Napster, even after it transitions to a royalty-generating service. The concentrated structure of the music industry and the increased coordination facilitated by their joint participation in litigation enable them to assure

themselves that most are pursuing a strategy that protects them all. Absent intervention by Congress, adverse court decisions and the coordinated resistance of four

of the leading record companies will deprive consumers of digital distribution technology in the future. A unique opportunity for consumers to enjoy a fantastic range

of original work, in a context that ensures full compensation to rights holders, will

be lost.

Another reason that the unassisted marketplace will not meet the public demand

for digital music delivery services is uncertainty over pricing. Customized music delivery is a wholly new service-based approach to content delivery, and it does not

fit neatly into the current copyright regime. If the various legal issues are not soon

addressed by legislation, considerable additional litigation is likely to ensue, regarding fair use, first amendment rights, and more; as a result, absent legislation, the

pricing picture is not likely be clarified anytime soon. In this environment, it will

be difficult if not impossible for new services to succeed, and their failure would

leave public demand for these services unmet.

3. When faced with similar problems in the past, Congress has enacted legislation

to foster development of new delivery services while ensuring that the interests of

copyright holders are protected.
186

14Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 430–31 (1984). In a

footnote, the Court gave examples of technological changes that resulted in Congress passing

new copyright rules, including a number of statutory licenses:

Thus, for example, the development and marketing of player pianos and perforated rolls of

music, see White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1, 28 S.Ct. 319, 52 L.Ed.

655 (1908), preceded the enactment of the Copyright Act in 1909 . . . the development of the

technology that made it possible to retransmit television programs by cable or by microwave systems, see Fortnightly Corp. v. United Artists, 392 U.S. 390, 88 S.Ct. 2084, 20 L.Ed. 2d 1176

(1968), and Teleprompter Corp. v. CBS, 415 U.S. 394, 94 S.Ct. 1129, 39 L.Ed.2d 415 (1974),

prompted the enactment of the complex provisions set forth in 17 U.S.C. § 111 (d)(2)(B) and

§ 111(d)(5). . ..’’

Id at n.11. Notably, in both of these instances Congress’ response was the creation of statutory

licensing systems rather than merely the creation of new rights. 15 In Sony Corp. the Supreme Court explained that:

The judiciary’s reluctance to expand the protections afforded by the copyright without explicit

legislative guidance is a recurring theme. Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted

materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such

new technology. In a case like this, in which Congress has not plainly marked our course, we

must be circumspect in construing the scope of rights created by a legislative enactment which

never contemplated such a calculus of interests. In doing so, we are guided by Justice Stewart’s exposition of the correct approach to ambiguities in the law of copyright: ‘The limited scope of

the copyright holder’s statutory monopoly, like the limited copyright duration required by the

Constitution, reflects a balance of competing claims upon the public interest: Creative work is

to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect

of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate

aim is, by the incentive, to stimulate artistic creativity for the general public good. ‘‘The sole

interest of the United States and the primary object in conferring the monopoly,’’ this Court has

said, ‘‘lie in the general benefits derived by the public from the labors of authors.’’ When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed

in light of this basic purpose.’’

Id. at 431 (citations omitted, emphasis added). 16T3Id. 17 U.S.C. § 1001 et seg.; H.R. Rep. No. 873 (1), 102nd Cong., 2d Sess. 13 (1992). 18 17 U.S.C. § 1001(11), 1102.

With some frequency over the past century, new technology has enabled the creation of new delivery services for copyrighted works, while at the same time creating new inconsistencies and inefficiencies in the existing copyright regime. Each

time,

Congress has responded by enacting legislation that encourages the maximum development of the new delivery services, but also protects the interests of rights holders.

Each of these examples can be best understood as a Congressional response to the

transformation, through new technology, of a market for protected works sold in the

form of products into a market for the sale of services delivering those works to consumers. Each time, Congress has acted to protect the rights of copyholders in the

works themselves, while ensuring competition among services that deliver those

works.

The Supreme Court has written, ‘‘[f]rom its beginning, the law of copyright has

developed in response to significant changes in technology. . . . Repeatedly, as new

developments have occurred in this country, it has been the Congress that has fashioned the new rules that new technology made necessary.’’ 14 Not every technological

change, of course, necessitates a corresponding change in the copyright laws. Indeed, were this the case, Congress would get very little accomplished other than

amending the copyright laws. When, however, in light of new technology, the boundaries of existing copyright law are inadequate to promote the widespread distribution of works that the copyright regime encourages, Congress fashions an appropriate legislative solution.15 ‘‘Sound policy, as well as history, supports . . . [the

courts’] deference to Congress when major technological innovations alter the market for copyrighted materials. Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology.’’ 16

One example of an earlier Congressional compromise designed to encourage maximum use of a new technology for delivery of copyrighted work is the Audio Home

Recording Act of 1992.17 Under the AHRA, manufacturers of ‘‘digital audio recording devices’’ are required to include technology that prevents serial copying.18 Manufacturers of these devices and of ‘‘digital audio recording media’’ must pay predetermined royalties into a general fund that is, in turn, distributed to holders of certain
187

19 Id. at §§ 1003–07. 20See 17 U.S.C. § 1008.

21See generally H.R. Rep. No. 873(1), 102nd Cong., 2d Sess. 11–13 (1992) (‘‘House Report’’),

reprinted in, 1992 U.S. Code Cong. & Admin. News (U.S.C.C.A.N.) 3581–3583; S. Rep. No. 294,

102d Cong., 2d Sess. 30–45 (1992) (‘‘Senate Report’’).

22 Brief for the United States as Amicus Curiae, at 5, A&M Records, Inc. v. Napster (9th Cir.

Mar. 21, 2001), available at http://www.loc.gov/corpright/docs/napsteramicus.html (Nos. 00–

16401 & 00–16403). 23 17 U.S.C. § 1001(11), 1102. 24 17 U.S.C. at §§ 1003–07. 25 17 U.S.C. § 1008. 26 17 U.S.C. § 1 et seg., and as amended.

copyright interests in music.19 The quid pro quo under the AHRA is that manufacturers and consumers are granted statutory immunity from suits for copyright infringement.20 The AHRA provides for full use of consumer audio tape recording

technology, while ensuring a royalty stream for rights holders.

The legislation grew out of litigation filed by music publishers and songwriters in

1990 against Sony Corporation, which had begun marketing DAT recorders. Negotiations aimed at achieving a non-judicial solution soon followed, and ultimately a

proposal was presented to Congress as the basis for legislation. The AHRA is the

embodiment of the compromise reached among the interested parties.21

As explained by the U.S. Copyright Office in its amicus brief in the Napster case:

Beginning in the 1980s, consumer electronics firms began to develop tape recorders

and other consumer recording devices that employ digital audio recording technology. Unlike traditional analog recording technology, which results in perceptible differences between the source material and the copy, digital recording

technology permits consumers to make copies of recorded music that are identical to the original recording. Moreover, a digital copy can itself be copied without any degradation of sound quality, opening the door to so-called ‘serial copying’—making multiple generations of copies, each identical to the original

source. The capability of digital audio recording technology to produce perfect

copies of recorded music made the technology attractive to the consumer electronics industry, which anticipated substantial consumer demand for tape recorders and other recording devices equipped with digital recording technology.

However, the same capability was a source of concern to the music industry,

which feared that the introduction of digital audio recording technology would

lead to a vast expansion of ‘home taping’ of copyrighted sound recordings and

a corresponding loss of sales.22

Two main benefits flow to the music industry from the AHRA. First, manufacturers of ‘‘digital audio recording devices’’ are required to incorporate into their products technology that prevents serial copying.23 Second, manufacturers of ‘‘digital

audio recording devices’’ and ‘‘digital audio recording media’’ must pay predetermined royalties into a general fund to be distributed to copyright holders.24 The

quid pro quo under the Act is that manufacturers and consumers are granted statutory immunity from suits for copyright infringement, and consumers are granted immunity for the ‘‘noncommercial use’’ of digital audio recording technology.25

The AHRA does not create a statutory license, but it achieves a parallel outcome.

The interests of copyright holders are served through a system of royalty payments,

and the public interest is served by giving consumers the greater access to delivery

of protected work that the new technology has enabled. Under the statutory scheme,

there is competition in the production of players and tapes by means of which consumers can customize their music listening. Each copyholder is assured of royalties

from distribution of the music delivery service—the sales of tape players and blank

tapes. Copyholders cannot, however, thwart the delivery process.

In addressing different new delivery services, Congress has adopted varying solutions. In these cases, the marketplace did not provide a complete answer, and Congress acted to establish a government sponsored or facilitated licensing or royalty

scheme, or to foster development of the new delivery service in some other way.

In 1909, in recognizing for the first time the right of a copyright owner to authorize mechanical productions of music, such as piano rolls, Congress also acted to prevent creation of a threatened monopoly by a piano roll firm that had entered into

exclusive agreements with a number of leading music companies.26 The 1909 statute

provides that if the copyright holder has allowed mechnical reporductions. Payment

of royalties is required. The statutory procedures required by thelicense provision

are fairly time-consuming and burdensome, so most mechanical licenses are now negotiated privately and directly between the rights holder and the licensees. While

these agreements often do not conformexactly to the statutory provisions, the stat-
188

27See A. KOHN AND B. KOHN, ON MUSIC LICENSING 656–68 (2nd ed. 1996). 28Shubha Ghosh, MP3 v. the Law: How the Internet Could (But Won’t) Become Your Personal

Jukebox, Gigalaw.com (July 2000), at http://www.gigalaw.con/articles/ghosh-2000–07-p3.htm1. 29Fortnightly Corp. v. United Artists Television, Inc., 392 U.S. 390 (1968); Telepromtper Corp. v. CBS, 415 U.S. 394, 409 (1974). 30 H.R. Rep. No. 1476, 94th Cong., 2d Sess. 89, reprinted in 1976 U.S.C.C.A.N. 5659, 5704. 31 18 U.S.C. § 2318 (1996). 32See 2 M. B. NIMMER AND D. NIMMER, NIMMER ON COPYRIGHT § 8.18[A1, 8–197

(1994). 33 H.R. Rep. No. 887(1), 100th Cong., 2nd Sess. 1988, 1988 U.S.C.C.A.N.5577). 34See H.R. Rep. No. 887(1), 100th Cong., 2nd Sess. 1988, 1988 U.S.C.C.A.N.5577. 35David Wittenstein and M. Lorraine Ford, ‘‘The Webcasting Wars’’ JOURNAL of INTERNET

LAW (Feb. 1999), available at http://www.gcwf.com/articles/journal/jil—feb99—2.html.

ute generally provides an outline for the negotiated license and the statutory rate

imposes an upper limit on fees that copyright holders are able to charge.27

There are many other examples of legislation designed to solve licensing issues

arising from a new form of delivery. For over a decade, jukebox operators had a

statutory license for the songs their machines played. Earlier, jukebox operators had

enjoyed immunity from infringement claims, in part as a result of an early court

ruling. The 1976 Copyright Act removed this immunity and replaced it with a statutory license and minimum royalty per performance, both of which were administered by the Copyright Office. Congress later amended the statute to replace the

statutory license/royalty scheme with a requirement that the copyright holders and

jukebox operators negotiate a private license in good faith, under the oversight of

the Copyright Office.28

Also in 1976, Congress enacted a statutory license for cable services that retransmit broadcast television signals. This legislation was an effort to forge a compromise

between copyright owners of television programming and operators of cable companies. Beginning in the 1950s, cable companies picked up transmission signals from

broadcasters and retransmitted them, initially to local homes and later, with improved technology, to distant locations. This practice undermined the exclusive

agreements between broadcasters and copyright holders, arguably to the detriment

of the latter. In two cases, nonetheless, the Supreme Court refused to find that the

cable companies were infringing upon the copyright holders’ rights.29 Congress responded with a compromise embodied in the 1976 Copyright Act’s cable license provision. Congress acknowledged the copyright owners’ interests in their broadcasts

and determined that the cable companies should pay royalties for their use.30 In addition, Congress determined that transactions costs would be onerous if the cable

companies were required to negotiate separately with each rights holder. Congress

resolved both issues by means of a statutory license, found in section 111 of the

1976 Copyright Act.31 As leading authorities on copyright law have explained, one

of Congress’ initial reasons for implementing the cable compulsory license was to

foster the growth of the thennascent cable industry,32 a purpose that has been very

effectively accomplished.

In 1988, Congress enacted the Satellite Home Viewer Act (‘‘SVHA ’’) to enable secondary transmissions by satellite carriers of primary transmissions for private home

viewing by owners of satellite dishes. The SVHA created a statutory temporary license for this purpose.

Satellite carriers had began to market dishes to home users as the cost of dish

technology came down. Home users were able to receive unauthorized signals directly from satellites, avoiding copyright fees. Although the courts did not find that

satellite carriers were infringing copyright owners’ rights—they were, instead, ‘‘passive carriers’’—Congress responded by creating a system of statutory licensing. This

legislation follows the same rationale as the cable compulsory license: it allows a

new delivery technology to grow and supports a new industry.33 The statutory license extended only to home users who would not have access to programming if

they could not use the satellite dish to pick up a signal; serving the interests of

these otherwise unserved consumers was a major purpose of the legislation.34

The advent of webcasting services created a series of new copyright issues. Prior

to the passage of the Digital Performance Rights in Sounds Recordings Act of 1995

(‘‘DPRSRA ’’) there had been no recognition in the U.S. copyright laws of an exclusive right of public performance for owners of sound recording copyrights. ‘‘While

composers of music are given the right to publicly perform their work, owners of

sound recording copyrights generally are not. Therefore, when a song is played by

a radio station—and, until now, when it was played on Internet radio or via

webcast—the composer of the song receives a royalty payment from the radio station, while the owners of the actual recording receive nothing.’’ 35 The DPRSRA cre-
189

36 17 U.S.C. § 115 (1996). 37 Id. There are limitations on this right. The DPRSRA granted the new license for subscription transmissions only, and exempted regular radio broadcasts and other nonsubscription

transmissions. Wittenstein and Ford, supra n.35. It also excluded any ‘interactive service,’ that

is, any service that enables a member of the public to receive, on request, any particular sound

recording of his or her choice. Such a service must negotiate a voluntary license directly with

the rights holder, which is free to refuse a license.

38S. Rep. 105–190, 105th Cong., 2nd Sess. 1998 at 2. (The Digital Millennium Copyright Act

of 1998) (footnotes omitted). 39 Id. 40Title 11, § 512.

ated the first limited public performance right in sound recordings.36 It also amended the 1976 Copyright Act to provide a statutory right to perform a sound recording

publicly by means of a digital audio transmission.37

All of these statutory schemes fostered the development of new delivery services,

all of which have since proved successful in the marketplace. In the early days of

many of them, however, there were sharp disputes about whether the new services

should be permitted, and claims were made that copyright holders should be empowered to suppress them. It should be remembered that in Sony, supra n.14, the

Supreme Court came within one vote of effectively outlawing video cassette recorders, which in the end have increased the viewing of movies substantially and have

generated billions of dollars for the holders of movie copyrights.

4. Congress then enacted the Digital Millennium Copyright Act of 1998, which,

among other things, protects the American public’s ability to customize delivery of

original work, while again protecting the interests of rights holders

Three years ago, Congress recognized that the copyright laws needed amendment

if the full potential of the Internet was to be realized. Congress enacted the Digital

Millenium Copyright Act (‘‘DMCA ’’) of 1998 in part to foster the public’s ability to

obtain protected content over the Internet, when and wherever it wishes. To achieve

this end, Congress granted Internet Service Providers some protection from liability

for the unauthorized transmission of protected content by means of their services.

A Senate Committee summarized the purpose of these provisions:

Copyright laws have struggled through the years to keep pace with emerging technology from the struggle over music played on a player piano roll in the 1900’s

to the introduction of the VCR in the 1980’s. With this constant evolution in

technology, the law must adapt in order to make digital networks safe places

to disseminate and exploit copyrighted materials. The legislation implementing

the treaties, Title I of this bill, provides this protection and creates the legal

platform for launching the global digital online marketplace for copyrighted

works. It will also make available via the Internet the movies, music, software,

and literary works that are the fruit of American creative genius. Title II clarifies the liability faced by service providers to transmit potentially infringing material over their networks. In short, Title II ensures that the efficiency of the

Internet will continue to improve and that the variety and quality of services

on the Internet will expand.38

In order to protect the ability to customize delivery of content—to maximize its

‘‘option value’’—the DMCA ‘‘provide[d] certainty for copyright owners and Internet

service providers with respect to copyright infringement on-line.’’ 39

The DMCA contains four distinct safe harbors, which under certain conditions

protect Internet Service Providers, including services such as Napster, from liability

for copyright infringement.40 The centerpiece of three of the safe harbors is a notice

and takedown scheme that provides for the Internet Service Provider to block access

to or distribution of infringing content upon receiving notice from a copyright holder

that access and distribution are unauthorized. Unless the Internet Service Provider

has independent knowledge of infringing content on its system (as defined by the

statute), it is entitled to rely upon the notice provisions.

With limited exceptions, the DMCA places the duty to police infringement upon

the copyright holder. This policy is essential to prevent imposition of private restraints on content by Internet Service Providers, the entities generally least

equipped to decide which content should be permitted to flow through the Internet.

Placing the responsibility on the copyright holder is also justified because the copyright holder often may not object to the sharing of its copyrighted content online,

and indeed may benefit from the wide and inexpensive dissemination of its content

to the public over the Internet.

In the peer-to-peer environment, the Internet Service Provider, such as Napster,

does not maintain a copy of any content, but only provides the means for sharing

the content directly among its users. Napster itself does not upload or download con-
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41 United States Copyright Office: A Brief History and Overview, available at www.loc.gov/

copyright/docs/circla.html4.

tent, but rather any sharing of files occurs directly, peer-to-peer, at the user level.

The peer-to-peer service provider does not even see the content being shared among

its users. The technology provides the Internet Service Provider with only a transitory, real-time, catalogue of file names, written by its users, that can be accessed

by anyone logged on to the service at that moment. Napster’s real-time catalogue

is maintained automatically, without human intervention, and changes from

minute-to-minute depending on who is logged on and what files these users have

labeled for sharing.

The DMCA expands the public performance right in sound recordings to include

digital audio transmissions in webcast services that resemble traditional ‘‘terrestrial’’ radio broadcasts. It also grants a statutory license for the use of sound recordings in connection with Internet services under certain circumstances. As with the

DPRSRA, one of the criteria for receiving a statutory license under the DMCA is

that the webcasting service be ‘‘noninteractive.’’

5. In enacting each of these statutes described, Congress addressed pricing problems unsolved by the marketplace, including among other problems transactions

costs issues and the need to encourage nascent technologies, while at the same time

furthering the underlying goals of the copyright laws.

One of the foremost reasons Congress has amended copyright legislation in the

ways just described has been to eliminate, or at least diminish, the transactions

costs associated with the introduction of new services. Through Napster’s technology, for example, millions of consumers now can have access to a service providing a virtually limitless number and variety of songs. But the rights holders number

in the thousands, if not the tens of thousands, for they include not only the record

companies, which hold the rights to most of the sound recordings, but also the music

publishers, which hold the rights to use the underlying words and music. While the

majors all have affiliated publishing houses that own substantial catalogues of

songs, ownership of publishing rights is substantially less concentrated than ownership of the rights to sound recordings. Individual licensing each time a song is

accessed would necessitate a preposterous number of individual transactions. This

is exactly the type of problem that statutory licensing can help solve.

Congress has also adopted legislation where necessary to ensure that a newly developing industry will have an opportunity to flourish. Napster and other peer-topeer technologies are in their infancy, and their full potential for music delivery is

not yet known. They certainly hold substantial promise. Absent Congressional intervention, however, the problems currently plaguing development of online music delivery may never be fully resolved. In that event, the growth of digital music delivery services will be stunted if not smothered altogether, and the enormous popular

demand for these services will be frustrated. Congressional action is needed to enable this new technology to realize its potential.

Finally, the copyright laws are ultimately intended to serve the interests of the

public in the dissemination of original work. All of the statutes described here were

intended to foster that goal. In each case, the statutory scheme provided for more

distribution rather than less, while preserving the interests of the rights holders.

The list of services for which licenses and royalty payments are regulated or facilitated by the government is long. The manufacturer and the distributor of a phonograph record pay a statutory rate that is set not by the marketplace but by the Licensing Division of the Copyright Office. This office also issues licenses for the secondary transmission of cable signals, for secondary transmissions by satellite carriers of network and superstation signals for home viewing, and for the distribution

of digital audio recording devices and media.41 A similar scheme could solve some

of the problems presented today. It would address transactions costs problems and

pricing uncertainties. It would encourage further development of the new services,

while also protecting the interests of copyright holders.

Technology like Napster’s presents a unique opportunity for consumers to participate in what is, essentially, a vast music library containing an incredible variety

and number of songs. Peer-to-peer technology puts consumers in charge, since the

service’s musical content is determined by the tastes of its constituents—there is no

filter blocking works that are less ‘‘popular’’ or less ‘‘commercial.’’ A service like

Napster’s, moreover, presents a platform from which artists who are not affiliated

with a major label may become successful. Contrast this model with the controlled

and limited digital distribution services that the majors have proposed, and it is

clear that the public will be the loser if use of technology like Napster’s is restricted.
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42 Committee on Intellectual Property Rights and the Emerging Information Infrastructure,

THE DIGITAL DILEMMA: INTELLECTUAL PROPERTY IN THE INFORMATION AGE 215

(2000). 43 Jeffrey Garten, Intellectual Property: New Answers to New Problems, Business Week Online,

April 2, 2001. 44 U.S. Const., art. l § 8, cl. 8. 45See Hal Varian, Economic Scene: The Internet Carries Profound Implications for Providers

of Information, New York Times, July 27, 2000.

6. While protection against piracy is more difficult in the online world, online

technology also threatens consumers’ ability to enjoy traditional ‘fair use ‘‘ rights

and privileges.

Much has been made of the difficulty rights holders face in preventing piracy of

protected works in the digital world, where copying is easy and cheap, and produces

copies of the same quality as the original. Massive efforts are now underway to develop new protections for copyrighted work, both through software and hardware devices.

The online universe differs in important ways from the old one for consumers as

well. In the ‘‘old media’’ universe, purchasers of copyrighted works were able to

share, use, and copy for certain personal purposes some or all of the works they had

purchased. In a recent examination of the impact of digital technology on the

present copyright regime, a distinguished panel of experts concluded:

Fair use and other exceptions to copyright law derive from the fundamental purpose

of copyright law and the concomitant balancing of competing interests among

stakeholder groups. Although the evolving information infrastructure changes

the processes by which fair use and other exceptions to copyright are achieved,

it does not challenge the underlying public policy motivations. Thus, fair use

and other exceptions to copyright law should continue to play a role in the digital environment.42

In the online universe, it may become possible for providers of copyrighted material to track the delivery of every copy, and possibly to block the types of personal

use of copyrighted materials that consumers have always enjoyed. Unless statutory

protections are put in place, fair use rights and privileges may not survive in the

digital environment. As leading commentators have recognized, consumers’ loss of

the traditional rights and privileges of fair use would be significant.43 It would constitute a sharp diminution of the benefits consumers receive when they purchase

copyrighted work today.

The copyright laws, as authorized by the Copyright Clause in the Constitution,44

are intended to foster the creation and distribution of original works. Copyright

holders are to be compensated for licenses because awarding compensation encourages them to create and disseminate their work. It is this goal of promoting the enjoyment and distribution of original work that has led to the various statutes described above, as well as to exceptions to the copyright law, such as fair use. Considered pursuit of a balanced copyright regime has served the nation well, fostering

continuing creativity over the centuries. The underlying purpose of the nation’s

copyright regime should guide analysis of the action needed to adapt the nation’s

copyright regime to today’s technology.

7. The current system of copyright protection needs to be adapted to reflect the

transformation of the music marketplace, in the same way that Congress has adapted the laws in the past to reflect marketplace changes effected by new technology.

Americans love music. Technology like Napster’s offers music in a new form, as

a service the consumer can adapt to his needs and tastes. Yet this technology may

be suppressed. This is not what the copyright laws were intended to do. Rather,

they are designed to accomplish the opposite result—to foster the wider creation and

dissemination of original work.

Moreover, technology is rapidly evolving. The music industry’s current strategy of

trying use the courts to chase down each new service is doomed to failure, although

in the process substantial moneys will be spent and the potential for wider delivery

of music will be largely unrealized. In the end, a new legal environment will have

to be devised.45 If it is done sooner rather than later, millions of dollars in litigation

expenses will be saved, copyright holders will receive more compensation, and the

public will benefit from access to new music delivery services.

The issue for Congress is how to ensure that Internet technology is fully harnessed in the public interest, while the interests of copyright holders are protected.

Many times in the past Congress has successfully addressed technological change,

each time adapting and amending the copyright laws to best achieve their underlying goals in the changed circumstances that the new technology has created. It now

faces the challenge again.
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8. Conclusion: statutory licensing is fair and needed to enable new music services

to meet public demand.

Public demand for new digital music delivery services is powerful and growing

daily. These services will be difficult to suppress entirely, but without Congressional

action they will be tightly restricted. Millions, perhaps billions, of dollars will be

spent in the struggle over their future. Market forces will not resolve the problem,

just as they have not resolved problems arising from earlier transformational technological developments in the delivery of copyrighted material. The large music companies, with one exception, have chosen to stand together against the new music

services, knowing that they can thereby maintain, at least for a time, their control

over the distribution of music products and the selection of new talent. While the

new services have to negotiate with each major independently, the majors have

worked together against the new services, filing a joint lawsuit through their trade

association, jointly working on new security technology, and jointly presenting their

viewpoint to the public. Through their joint efforts, they have been in a position to

observe one another closely and retain confidence that most of them, at least, will

remain in the traditional alliance.

In addition, market problems obstruct the continued development of the new

music services as they transition to a fee-based structure. High transactions costs

associated with individual licensing of each service subscriber and each sharing of

a song, as well as pricing uncertainties associated with a wholly new technology,

will make survival difficult for the new services in the absence of a clear and known

legal framework. Congressional assistance, along the lines of prior legislation, is

thus essential.

I recommend a licensing regime requiring that songs released for public distribution be licensed to the new digital music services as well. Consumers subscribing

to these services would pay fees, from which royalty payments would be remitted

to rights holders. Such a compromise mirrors multiple prior compromises, in legislation spanning most of the twentieth century. The interests of copyright holders

would be fully protected. The interests of consumers would be protected. And the

outcome would be consistent with the primary goal of our copyright regime since

its inception

Statement of National Association of Recording Merchandisers

—the greater production and wider enjoyment of original works.

f The topic of this hearing: ‘‘Coming Soon to a Digital Device Near You’’ should

have been old news by now. Music retailers and wholesalers have been ready, willing and able to deliver secure online entertainment since 1999. It should have come

already, and if it had, frustrated consumers would not have given Napster and other

such peer-to-peer music copying services the popularity they enjoy today.

The members of the National Association of Recording Merchandisers (‘‘NARM’’)

are retailers and distributors of sound recordings. We have played a central role in

building the modern music business by partnering with record companies to advertise, merchandise and sell their products, by promoting new artists, by helping fight

sound recording piracy, and most of all, by listening to consumers. Each of our retail

members strive to be responsive to consumers in terms of price, service, selection,

and many other areas that serve to draw customers and distinguish one retailer

from another. Retailers bring these competitive urges to the Internet where new

competitive elements are introduced, such as ease of site navigation and responsiveness to consumer privacy.

Our members are responsible for the vast majority of all sales of pre-recorded

music, and thus are well positioned to provide lawful access to music by

downloading or streaming. Over 80% of our retail members have websites, and they

are eager to be a part of digital distribution. The question this hearing has been

called to ask is important: why isn’t it happening?

The short answer is because record companies, in their zeal to stop Napster-type

file sharing, have taken the position that they can trust no one except other copyright owners. They have, therefore, ignored the opportunity which sits right in front

of them.

The greatest Napster-related problem retailers have is not the free music on

Napster. Retailers have a long history of competing successfully with free goods. We

compete with (but welcome) free music over the radio, with libraries, used CDs, and

personal-use copying. We recognize that these secondary channels have their place

in society, as not everyone is willing or able to pay full price for a new CD. Our
193

national interest in the widest possible dissemination of creative works is the only

basis for Congress to have conferred copyright protection in the first place.

Retailers also compete with the free music coming from the record companies

themselves: their record clubs routinely offer ‘‘12 CDs for a penny’’ promotions. With

8 million members per club, that’s over 160 million albums—over 1.6 billion song

files given away just to gain market share.

So if we are that good at competing with free music why are we here? We are

here because the careful balance copyright law struck as part of the public bargain

to encourage creation and dissemination of these works has been upset, and it must

be restored as soon as possible.

THE COPYRIGHT MONOPOLY

This balance been upset in several ways, all of which depend on the unique characteristics of the copyright monopolies enjoyed by the major record companies. Copyright law secures to authors or artists, for limited times, certain exclusive rights.

For purposes of this hearing, the most important exclusive rights are the right of

reproduction, distribution and public performance. When exercised by individual recording artists, each of these rights will encourage broad reproduction, distribution

and public performance of their works because such are the avenues by which artists can be compensated, and thereby encouraged to continue their creative endeavors. Because each author depends heavily upon the willingness of others to reproduce and distribute their works, each author has an incentive to offer reasonable

terms. For example, music retailers would simply refuse to carry the works of an

individual recording artist if that artist demanded an unreasonable price, or imposed unreasonable terms and conditions on how the sound recording could be merchandised or sold. However, when artists assign these rights to corporations that

have amassed multi-billion dollar collections of these rights, so that just 5 corporations control 80% percent of all of the sound recordings in the world, the ability of

retailers to resist unreasonable terms is greatly diminished. No retailer can refuse

to carry Destiny’s Child, Yo Yo Ma or Ricky Martin for long—even if Sony Music

embeds them with advertising and links to its own online store.

Until recently, record companies could not control the distribution of copies of

their sound recordings once title passed to another. Retailers and consumers were

free to sell, lend or even give away lawfully made copies. Today, copyright owners

have the power to make a sound recording ‘‘time out’’ after a certain number of

plays or after a certain amount or time, the power to prevent a sound recording

from playing on one device if it was first played on another, the power to make inoperable a sound recording received by gift, unless the person receiving it pays for it

again. In short, thanks to digital technology, copyright owners today enjoy such a

high level of control over their works that they hardly need copyright law at all.

NARM contends, however, that copyright law never permitted such a high level

of control because it was against the national interest to confer it. Doctrines of ‘‘fair

use’’ and ‘‘first sale,’’ which have been codified into law should not be done away

with unilaterally through technology. Rather, they should be viewed as the embodiment of important legal principles intended to protect the public welfare and further

the national interest.

The following are the matters we consider to be of greatest concern:

ACCESS

Every retailer need not stock every sound recording, but because the five major

record companies account for over 85% of all sound recordings, every retailer must

at least offer some sound recordings from every major record company or go out of

business. In the past, record companies needed access to virtually every retailer,

since 90% of all sound recordings are sold through retailers. The digital future will

turn bleak, however, if record companies can control who will get to compete in digital delivery, and reserve this market for themselves. Thus far, record companies

have shown the most interest in cross-licensing digital rights to each other, or to

companies they control or in which they have invested. They have withheld rights

from retailers who are perfectly capable of offering secure, compensated digital

downloads, but who they no longer see as partners, but as competitors. We estimate

that over 99% of the repertoire owned by copyright holders today remains off limits

to legitimate retailers who are trying to compete with peer-to-peer file sharing.

CONSUMER PRIVACY

Today anyone can walk into a record store, pay with cash, and not have to reveal

their identity to the store. If a retailer is too nosy, a consumer can simply take their
194

business elsewhere. Online, because a credit card and other personal information

are required, most retailers have created privacy policies which let consumers know,

in advance, what happens to the information the store collects. Of concern to us is

that, thanks to digital technology, record companies are routinely engineering ways

to learn the identity of the consumer, even without the knowledge or consent of the

retailer who delivers the download. The data can be sold or used by the record company to market directly to the retailer’s own customer. The retailer’s own privacy

policy will be meaningless. The consumer will wonder why a particular company

with which they do no business seems to know so much about their music tastes.

As Congress debates whether to impose minimum consumer privacy regulations

upon online merchants, one thing should be non-negotiable: No online merchant

should be forced to give up its customers to its suppliers. There is no question that

secure digital distribution can prevent piracy without destroying privacy. There is

absolutely no reason to allow copyright owners to leverage their copyrights into data

mining.

ANTITRUST CONCERNS: VERTICAL RESTRAINTS

Never before have we seen the kinds of vertical restraints on music retailers that

are today being thrust upon them by copyright owners. Retailers are being asked

to sign license agreements that would effectively extend the copyright monopoly to

every aspect of the retail channel. One popular approach, referred to as ‘‘agent retailing,’’ allows the retailer to offer the record company’s music for consumer

download, but the record company—not the retailer—sets the price, determines the

warranty, dictates the replacement policy for defective downloads, selects which

sound recordings will be offered, specifies how the download will be marketed and

advertised, and even determines what it will look like on the retailer’s web page.

Such models raise serious antitrust concern because the retail level of distribution

is the only place where true competition for copyrighted materials takes place.

ANTITRUST CONCERNS: HORIZONTAL RESTRAINTS

After efforts to operate retail stores offering their own products exclusively failed,

the record companies learned what retailers have known all along: Consumers do

not go shopping by record label, but by artist and genre. The music business is not

like selling batteries. You can’t sell Ricky Nelson to someone who wants Ricky Martin.

Since they could not compete with retailers individually, record companies are increasingly operating in concert, setting up joint ventures among themselves and

seeking cross-licenses with each other—to the exclusion of competitors. The likely

framework for such ventures can be predicted by taking a look at record club licenses. The two existing record clubs are owned and operated by the major record

companies, who crosslicense to each other the right to make each other’s records.

The licenses are on extremely favorable terms, and penalize artists by treating a

large percentage of the licensed copies as ‘‘promotional’’ copies. The $2.50 licensed

copy looks and sounds just like the $12.50 copy sold to the retailer because it is

manufactured in the same factory using the same masters. The only significant difference is that by selling a ‘‘license’’ to reproduce, record companies hope to avoid

their obligation under the Robinson-Patman Act to not discriminate in their ‘‘sales’’

of like products to similarly situated retailers.

Today, in the online world, a similar web of interrelationships among the major

record companies is being spun which guarantees that no retailer can do business

online without competing with an entity jointly owned and controlled by the major

record companies. Consider the following: Bertelsman owns CDNow, which has strategic relationships with Sony and Time Warner. Sony and Time Warner are in negotiations to cross license films for digital distribution. Sony has also announced a

joint venture with UMVD for a music subscription service called Duet. AOL Time

Warner, EMI, BMG all own a piece of MusicNet. Bertelsman and UMVD have a

joint venture site called ‘‘Get Music’’. All five major music companies became major

shareholders in ArtistDirect. The major home video companies are working together

on video-on-demand projects like MovieFly.

COPYRIGHT LAW: THE RIGHT TO ADVERTISE

It has long been understood that retailers of copyrighted goods enjoy the right to

reasonably copy portions of the works, display them, and publicly perform them,

where the purpose is to promote the sale of the works in question. Notwithstanding

the copyright owner’s exclusive right to publicly display a work, there is no question

that booksellers can publicly display the books and magazines offered for sale. Just
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1 Report to Congress: Study Examining 17 U. S. C. Sections 109 and 117 Pursuant to Section

104 of the Digital Millennium Copyright Act, U.S. Department of Commerce, National Telecommunications and Information Administration, March 2001, Part IV. 2 Id., n. 101. 3The Sony Music Entertainment License Agreement is contained in the readme.txt file that

accompanies the music files on the same CD. An excerpt showing the pertinent language is attached to this Statement. Another company’s license agreement used for a download is also attached.

as the bookseller may allow patrons to leaf through and read books in the store

without purchasing them, so too may a music retailer allow patrons to listen to the

music in the store. Just as the bookseller may post a sample of a book’s text on the

Internet, so, too, may a retailer post a sound clip.

Today, all of that is changing. Our members are reporting efforts by copyright

owners to prohibit these forms of advertising without a license. The only effective

way for retailers to advertise even pre-recorded sound recordings over the Internet,

for physical distribution, is to post an image of the artwork and offer a 30-second

or so sound clip as a sample. BMI has taken the novel position that a 30-second

sound clip, considered the industry norm within the bounds of fair and sensible use,

is illegal absent authorization from the copyright owner. Some record companies are

demanding that retailers get their permission even to post the graphics of the CD

itself. There cannot possibly be any diminution in value to the copyright owner

when retailers promote the lawful sales of the copyright owner’s own works. The

sole purpose for this seemingly irrational behavior appears to be to gain greater control over distribution. Indeed, at least one record company has offered to license

these uses at virtually no cost, yet requiring a written acknowledgment that a license is required, and reserving for itself the right to withhold authorization to

show graphics or offer 30-second samples of any songs it chooses. Absolute and total

control over distribution appears to be the sole objective.

COPYRIGHT LAW: PRESERVATION OF FIRST SALE DOCTRINE

Such total control over distribution is something Congress has historically insisted

must never fall into the hands of copyright owners, because ‘‘the policy favoring a

copyright monopoly for authors gives way to the policy opposing restraints of trade

and restraints on alienation.’’ M. Nimmer, D. Nimmer, Nimmer on Copyright,

§ 8.12[A]. Congress has provided that notwithstanding the distribution right, the

owner of a lawfully made copy or phonorecord is entitled, without the consent of the

copyright owner, to sell or otherwise transfer title or possession of that copy. 17

U.S.C. § 109(a).

Initially, copyright owners resisted the notion that Section 109(a) applied to digital works. They eventually acknowledged that the first sale doctrine continues to

apply in the digital world,1 but now add the caveat ‘‘in the absence of licensing or

technological restrictions to the contrary.’’ 2 In other words, this federal right will

exist in the digital world only as long as they permit it. NARM believes that it is

preposterous to contend that a federal right as important as the first sale doctrine,

established first by the courts and later codified by Congress, can disappear at the

whim of the copyright owner either by use of licensing restrictions or a line or two

of computer code. Yet, that is exactly what they intend to do: nullify a federal statutory right. Sony has decreed that anyone who purchases The Writing’s On the Wall,

a CD by Destiny’s Child, installs it in their computer’s CD-ROM drive and fails to

return it to Sony within seven days after buying it from a record store, has lost their

federal right to sell it or otherwise transfer title.3

COPYRIGHT LAW: SELLING WHAT YOU DON’T OWN

At bottom, technology is allowing copyright owners to enforce ‘‘licenses’’ of rights

they do not own, and to use rights they do own as leverage to require members of

the public to give up their statutory rights.

We have already heard one recording industry speaker talk about a future in

which a consumer can select from a number of choices, and ‘‘maybe just choose to

buy a license to listen to the music.’’ On its face, such a statement may sound like

consumers would be given more choices, but in reality, choice is being taken away.

Copyright owners have never had the exclusive right to listen to music, and therefore have no right to sell licenses to listen. For example:

The reproduction right: A copyright owner may license the right of reproduction, but

it is an abuse of that right to demand payment in the form of consumer data,

to license it discriminatorily so as to insure that some retailers fail while others
196

succeed, or to cross-license it among the other copyright monopoly holders to the

exclusion of retail competitors.

The distribution right: A copyright owner may license another person to distribute

copies and phonorecords of its works, but it is an abuse of that right to require

that those who obtain lawful ownership in the chain of distribution give up

their statutory right under 17 U.S.C. δ 109(a) to sell or otherwise transfer title

or possession without the copyright owner’s consent, or to license the distribution subject to technological restrictions that prevent the owners from exercising

those rights.

The right of public performance: For a copyright owner to sell someone permission

to listen to the copyright owner’s music is like selling a license to read a book

separate from the book itself. Even when a copyright owner licenses to someone

the exclusive right of public performance, the copyright owner has no right to

dictate who can watch the performance. There is no exclusive right of private

performance of a work, much less an exclusive right to listen to a private performance.

Congress should stand firmly in favor of confining exploitation of copyrights strictly to the those rights conferred by Congress, and subject to the limitations imposed

by Congress. It must not allow copyright owners to use technology and contracts of

adhesion to limit consumer and retailer rights, nor to simply take control where

Congress has clearly denied it.

Retailers do not need the permission of record companies to sell pre-recorded

sound recordings. They have the right to set their own prices, choose their customers, play the sound recordings in the store and stream short samples online, all

without the authorization of the copyrights owners. Those rules should apply equally in the online world, but instead, copyright owners are licensing what they don’t

own, and enforcing those licenses by use of technological restrictions. If they are unwilling to abide by the Copyright Act in letter and spirit, it may be up to Congress

or the courts to tell them, like the Fourth Circuit did in Lasercomb America, Inc.

v. Reynolds, 911 F.2d 970 (4th Cir. 1990), that they will lose their power to enforce

their copyrights until they stop leveraging their copyright power into areas beyond

the limits set by Congress.

CONCLUSION

Today, we are asking that the first sale doctrine be respected for digital

downloads just as it is for pre-recorded copies; that all retailers be allowed equal

access to retail each record company’s music library; that each retailer be allowed

to compete on price, service, and privacy; that no retailer be required to get the

copyright owner’s permission to advertise the products they sell; and that no consumer be required to become part of the copyright owner’s data mine as part of the

price for listening to music. If our demands to the copyright community for freedom

to compete, for freedom to advertise what we sell, and for freedom to protect our

customers’ privacy are not met, tomorrow we may be asking Congress for something

more: We may be asking for antitrust investigations of these unfair trade practices,

and for fair but compulsory licenses to make secure downloads and digital transmissions.

NARM’s retail members are confident that, given half a chance, they could offer

the public a superior product and service to that offered by free peer-to-peer file

copying. Although some record companies are beginning to respond to the concerns

of retailers, the record companies, as a whole, are giving them no chance at all.

NARM is the principal trade association for retailers and distributors of sound recordings. Its approximately 1,000 members are engaged in all aspects of music distribution to the consumer. For further information, please contact Pamela Horovitz,

NARM’s President, at (856) 596–2221.

SONY MUSIC ENTERTAINMENT INC. LICENSE AGREEMENT

This legal agreement between you as end user and Sony Music Entertainment

Inc. concerns this product, hereafter referred to as Software. By using and installing

this disc, you agree to be bound by the terms of this agreement. If you do not agree

with this licensing agreement, please return the CD in its original packaging with

register receipt within 7 days from time of purchase to: Sony Music Entertainment

Inc., Radio City Station, P.O. Box 844, New York, NY 10101–0844, for a full refund.
197

SOURCE: Destiny’s Child CD, The Writing’s On The Wall, readme.txt file

1. LICENSE; COPYRIGHT; RESTRICTIONS.

You may install and use your copy of the Software on a single computer. You may

not network the Software or otherwise use or install it on more than one computer

or terminal at the same time. The Software (including any images, text, photographs, animations, video, audio, and music) is owned by Sony Music Entertainment

Inc. or its suppliers and is protected by United States copyright laws and its international treaty provisions. You may not rent, distribute, transfer or lease the Software. You may not reverse engineer, disassemble, decompile or translate the Software.

SCHEDULE A—Business Rules

In the absence of contrary Business Rules provided with a Content offer, the following default Business Rules shall apply to all UMG Content:

1. You may only download Content to a portable device that is (i) compatible with

the InterTrust Technologies Corp. digital rights management system, (ii) compliant

with the requirements of the Secure Digital Music Initiative (SDMI), and (iii) compliant with UMG’s content security requirements.

2. You may not copy or ‘‘burn’’ Content onto CDs, DVDs, flash memory, or other

storage devices (other than the hard drive of the computer upon which you installed

the Software). In the future, UMG may permit you to make these types of copies

of UMG Content to certain SDMI-compliant storage media.

3. You may not transfer your rights to use any particular copy of Content to another. For example, you may not transfer your rights to another at death, in divorce,

or in bankruptcy. This is not an exclusive listing; it is only a set of examples. Notwithstanding this Business Rule, you may email a Content Reference to another

consumer to enable that consumer to purchase his or her own rights in Content.

4. You may not transfer or copy Content (with the rights you have purchased) to

another computer, even if both computers are owned by you. You will be able to

copy locked Content to another computer, whether that computer is owned by you

or not, but the rights you have purchased to use that Content will not travel with

the copy. In the future, UMG may permit you to make these types of transfer of

UMG Content along with the rights you have purchased.

5. You may not print the photographic images, lyrics, and other non-music elements that are distributed with Content.

6. When you purchase the right to unlimited use of Content, the use rights associated with that Content terminate upon your death.

7. There is currently no free UMG Content. All rights must be purchased. The

only exception to this rule is that 30 second audio clips may sometimes be made

available by UMG without charge.

8. UMG may revoke your rights to use Content pursuant to the terms of the foregoing License Agreement; in the case of a violation by you of the License Agreement;

in cases of suspected fraud by you or another; in cases of a suspected security

breach by you or another; in order to forestall or remedy any legal exposure to UMG

or its affiliated companies; and in other situations in which UMG in its judgment

believes it advisable to do so in order to protect Content, the Software, and/or UMG

and its affiliated companies.

Statement of NWEZ.NET, Gloria Hylton, President

f Thank you for the opportunity to address this committee. I appreciate the chance

to speak on behalf of the small independent webcaster. I feel our interests have not

been represented in prior hearings on these issues of vital importance to our survival. I am not a lawyer and apologize in advance for any lapse in protocol in the

following document and ask your indulgence and understanding as I try to enumerate our concerns and arguments.

Here is an outline of the areas to be addressed in the body of this statement:

I. An overall concern with the DMCA

The inherent problems of allowing the RIAA and vested interests to frame and

dominate copyright regulations on the Internet including discussion regarding:

(1) ‘Individually’ negotiated licenses; ‘Retroactive’ royalty fees; Qualifications for

a compulsory license; The illusion of ‘non-interactivity’; Indirectly subsidizing

engrained industries; Legislating technological discrimination; Determining appro-
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priate sound recording copyright performance royalties (hereinafter referred to as sr

royalties); The collection and distribution of sr royalties; DiMA and the DMCA;

II. A brief historical overview of traditional business practices within the music industry and how this relates to the current state of affairs with copyright licensing

on the Internet Background on NWEZ.NET and our mission/vision

SUMMARY

I. In 1998, with the passage of the DMCA, laws were enacted with serious ramifications for the emergent online entertainment marketplace. While I have no doubt

Congress intended these laws ‘‘. . .to promote the progress of science and useful

arts. . .’’ and that there are provisions within the act that do so, I argue that many

provisions within this act have accomplished the exact opposite. I further argue that

the provisions dealing with sound recording performance rights lobbied for by the

RIAA were drafted so that the major labels could position themselves in a manner

that would insure their continued control of the music industry and thwart companies posing any threat to that status. I believe the RIAA arguments offered to members of Congress in the DMCA hearings were intentionally misleading in much the

same way the arguments for the now overturned ‘work for hire’ amendment were

misleading. I believe the ensuing actions taken by the labels in the digital arena

have spoken much louder than their 1998 rhetoric.

II. Areas in the DMCA or resultant of the DMCA that we believe should be addressed in regards to webcasting:

(1) First and foremost, if webcasters are forced to pay sr royalties for the first

time in the history of U.S. broadcasting, all webcasters should be assessed these

rates on a fair and equitable basis. The RIAA should not be granted an anti trust

exemption to negotiate ‘individual’ webcasting licenses. While it is true that a blanket license to webcast is needed, the RIAA should not be able to grant these licenses

on an ‘individual’ basis. Standard blanket license guidelines with provisions for

varying business models should be established and enacted. The current performance rights organizations ASCAP, BMI and SESAC have such licenses in place for

songwriter/publisher copyrights. These organizations have guidelines that are out in

the open for anyone to examine, offering some insurance against preferential and

biased licensing. On the other hand, the RIAA has been negotiating webcasting licenses in private, without public disclosure of the terms being reached. This arrangement has allowed a great deal of power to be wielded by the labels in the nascent webcasting field. Webcasters looking to secure investment capitol are desperate

for a figure to place in their ‘RIAA Royalty’ column. This puts them at a distinct

disadvantage when negotiating deals. Most disturbing under the current arrangement, the labels can cut more favorable deals with companies they have equity stakes

in (essentially making preferential deals with themselves) to the detriment of an

open, fair and competitive marketplace. They can also negotiate to obtain equity

stakes and/or promotional considerations from webcasters in exchange for licensing.

The RIAA, for obtaining such advantages can in turn offer said webcasters lower up

front royalty rates, excuse payment of upcoming ‘retroactive’ royalty fees, and/or offer

lenient application of the rules governing compulsory licensing. The labels can refuse

to grant individual’ licenses to those companies whose business models they dislike,

creating a scenario whereby webcasters choosing not to ‘play ball’ with the RIAA will

find themselves competing against webcasters who have obtained unfair advantage

in exchange for concessions they’ve yielded to the labels—concessions which may

never be openly disclosed. You can see the inherent latitude for corruption within

this arrangement. It is true that once the CARP panel sets general sr royalty rates

(which coincidentally keeps getting pushed back) that all webcasters not making

prior ‘individual’ deals with the RIAA will be assessed these rates equally; however,

we have no guarantee that there will be latitude within these rates for varying business models. I approached the copyright office with a desire to participate in the

CARP proceedings and represent the interests of small, independent webcasters. I

was informed that registering to participate in the CARP proceedings would make

me financially responsible for paying the arbitrators a ‘yet to be determined and

they could give me no idea of how much it would be’ fee. Not having unlimited financial resources at my disposal I decided not to participate. I find it disheartening

that in a government founded to represent ‘the people’ the only people whose voices

will be represented at the upcoming CARP proceeding will be those who can afford

an undetermined entrance fee to be ‘in the room’. This naturally doesn’t instill confidence in the fairness of the upcoming proceeding. Especially given such market

deals’ being offered for consideration by the RIAA as the one negotiated with the

now defunct Soundbreak.com. Lisa Crane, the CEO who negotiated Soundbreak’s licensing agreement was let go following the deal. She subsequently became a paid
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consultant, with the RIAA on her roster of clients. This is disconcerting to

webcasters in the same way it was disconcerting to NARAS when Mitch Glazier,

who authored the ‘work for hire’ amendment was later hired by the RIAA. The inference is that the ‘market rate deals’ being presented to the CARP panel are dubious at best. Nonetheless, once the CARP sets the standard rates for webcasters not

negotiating individual’ deals, these webcasters will be responsible for these fees retroactively back to the passage of the DMCA in 1998. This is particularly devastating

to a nascent industry struggling to find profitability. I believe it is a deliberate attempt by the labels to control the entire webcasting industry. Perhaps this is what

prompted Mark Cuban, founder of Broadcast.com, to sell his company and state on

kurthanson.com, ‘‘What’s the best business in the webcasting industry? Prepackaged

bankruptcies to avoid the RIAA fees!’’ Since ‘individual’ webcasting deals are already in place, in lieu of adopting this suggestion I offer the following redress to

this grossly prejudicial and industry crippling situation:

SR Royalties should be applied from the time they’re determined, not assessed

retroactively. These royalties should begin when they are determined and be applied

equally to all webcasting companies. Otherwise, those webcasters making ‘individual’ deals may be excused from the ‘retroactive’ charges, while those not making deals are

forced to pay them. This effectively puts webcasters who do not deal with the major

labels or whose business models are unappealing to the major labels out of business

or at a distinct disadvantage. This goes against the very premise of our ‘free market’ economy and gives the major labels mandated monopoly control over the entire

webcasting industry. Arbitron statistics coming out of the NAB Convention show

that households with broadband split their entertainment time equally between television, traditional radio, and the Internet. They also show that these households

are equally likely to tune into a webcast-only station as a traditional radio station

being rebroadcast on the Internet. They derive the conclusion that Internet radio

will soon be able to sell advertising in the same way traditional radio does. Many

players in this marketplace with oversized egos, budgets and spending patterns

have come and gone. Those of us that have survived have done so through hard

work and frugal spending. Do not punish us when the promise of profitability is

only now on the horizon. It would be unfortunate if those building this business were

forced out of business and webcasting were only viable for the huge corporate interests currently controlling the traditional music industry (and their ‘partners’). The above commentary doesn’t address the inherent problems of qualifying for a

compulsory license to begin with. The variety of hoops a webcaster is required to

jump through to be compliant for a compulsory license is arbitrary and unreasonable. Anyone conversant with webcasting realizes these regulations are onerous and

a webcaster will most likely be unable to abide by these regulations in some way.

This once again gives the RIAA negotiating power in the webcasting realm, as they

are unlikely to monitor those webcasters making deals with them as closely as they

will others. The threat of selective enforcement of these regulations is real. An argument could even be made that these regulations were intentionally drafted in a manner that makes compliance next to impossible. The most serious of these restrictions

involves the limitation on the number of ephemeral copies’ a webcaster can make

to conduct webcasting operations. These restrictions are in stark contrast to landbased broadcasters, who are allowed to make as many ephemeral (digital!) copies

as necessary to conduct normal broadcasting operations. I have a difficult time understanding the reasoning behind limiting a webcasters ability to do the same.

These are copies strictly used by the webcaster themselves and are arguably ‘fair

use’. Webcasters compliant for compulsory licenses are subject to many seemingly

impossible regulations. For example, compliant webcasters are prevented under the

‘sound recording performance complement’ from playing any four songs from a boxed

set in a three-hour period. Does this mean every webcaster is responsible for knowing every combination of songs on every box set ever made and that their show

hosts are responsible for memorizing these song combinations so they don’t play

them during any three-hour time span? Compliant webcasters cannot announce

song titles prior to playing them, although their counterparts in traditional broadcasting regularly do so. Compliant webcasters are required to give the song title/

artist name/cd title while the song is being played, although their counterparts in

traditional broadcasting are not. Compliant webcasters cannot even engage in the

time-honored tradition of taking ‘requests’ from their listeners. To do so would be

considered ‘interactive’. Traditional broadcasters are not expected to abide by the

same rules of operations as ‘compliant’ webcasters. This not only favors the old technology for streaming music over the new technology for streaming music, but also

completely ignores the true potential of the webcasting experience—where fans can

interact directly with show hosts and even artists. To be compliant, a webcaster

must essentially ignore those attributes of interaction inherent to the Internet that
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would attract and hold an audience and make his business successful. One could

argue this is the intent of compulsory regulations to begin with, especially given

that labels are gaining equity stakes in many webcasting companies which they conveniently then write ‘individual’ licensing agreements for. (The fact that labels are

able to obtain equity interest in webcasting companies at all is disconcerting to a layman like myself and smacks of conflict of interest—given the labels also license these

entities and have a vested interest in what content is disseminated through them).

The stranglehold definition of ‘interactive’ being applied by the RIAA to webcasting

not only unfairly discriminates against new technology but also completely disregards the reality of the digital realm. At this point in time if you tune into a

webcasting station like NWEZ.NET you will find that your‘stream’ cuts out periodically due to ‘buffering’ due to ‘net congestion’. It is therefore highly unlikely anyone

would attempt to capture digital copies of current webcasts, no matter how ‘interactive’ or ‘non-interactive’ they were. If they did they would get some pretty awful

copies. Copies made from your traditional broadcasting stations would be much better quality and easier to obtain. Having said that, however, I recognize that the

coming prevalence of broadband connections combined with the continual advent of

tivo-like consumer devices will eventually make it so any Internet programming anywhere will face potential capture and copy. This will be true for both interactive and

non-interactive webcasts. Non-interactive webcasts could easily be saved in their

entireties and later edited to get rid of unwanted material, essentially allowing the

consumer to make them ‘interactive’. Given this certainty it is my belief that all

blanket webcasting licenses should be considered to be ‘interactive.’ No matter what

you want to believe, the reality is that for all intents and purposes all broadcasts

have the potential to be stolen, even in the analog world. HBO has no way of knowing if they are streaming a ‘performance’ or a ‘copy’ of a movie into a home. Whether

they stream a performance or a copy is totally dependent on how the person receiving it behaves. If they hit record on their VCR then HBO just streamed them a copy

even though they intended to stream them a performance. In much the same manner you can’t legislate away drug use or prostitution, a thief will always find a way

to steal if that’s what they truly want to do.

It’s interesting to note, however, that just like the videocassette recorder brought

about new revenue and actually benefited the industry that feared and fought it, the

Internet has actually increased consumer demand and interest in music. In a related

aside, Cd Baby, the largest retailer of unsigned artist cds on the Internet, reports that

1 in 20 purchasers at Cd Baby buys a cd after hearing the band on Napster. This

information is gathered in the section of the order form asking why the customer

is buying the cd. This statistic surprised me because I would have imagined most

Napster users were only interested in known major label acts. It seems to support

the theory that many people use Napster more as a listening’ and ‘pre-screening’ device.

If file sharing can be argued to potentially benefit recording artists it is difficult

to imagine webcasting, interactive or not, hurting them. On the contrary,

webcasting, like traditional broadcasting, offers recording artists and copyright holders beneficial promotional opportunities. Labels have traditionally paid to insure

their products are heard over the airwaves. Cyberwaves are the airwaves of the future. We are all familiar with the previous payola’ scandals in the music industry.

It can be argued that ‘payola’ still exists in the mainstream marketplace but has

been officially removed by the advent of the independent promoter’ who is paid to

solicit label offerings to broadcasters and in turn pays broadcasters to secure spins.

Why should webcasters now pay labels to offer them these same promotional opportunities? I believe the labels recognized the Internet as a way to continue to control

what musical content is promoted, but without paying a middleman. In fact, now

the promotional channels will have to pay them! At NWEZ.NET we frequently get

grateful e-mails from unsigned artists receiving ‘cyberplay’. I just received an e-mail

from a talented band based in London who sold a cd to a NWEZ.NET listener directed to their website after hearing their song on our station. This is the kind of

activity I feel the RIAA fears. Artists currently have the ability to record and manufacture professional sounding product. The Internet offers them the opportunity to

sell that product to a global market. Distributors like Cd Baby can ship and warehouse product. The missing link is promotion.

If the Internet offers promotional opportunities to all artists via webcasting stations, without regard to their affiliation with a major label, this threatens the longterm existence of intermediaries like record labels. The ability of fans to directly contact recording artists and/or buy their product without the necessity of that artist

going through the major label system is what I believe the industry is trying to

avoid. Already we’re seeing artists begin to organize via the Internet and reject traditional record label practices. The Rosenbergs are a wonderful example of this. This
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unsigned power pop band received notoriety for turning down the opportunity to go

on farmclub (a major label and Internet cooperative venture) and perform alongside

the well-known band The Counting Crows. They took exception to the 23 page, onesided binding ‘potential’ record label deal given to them prior to the appearance

which gave the label many options to tie up the band if they chose to do so (including laying claim to their website!) The Rosenbergs shared this contract with fellow

unsigned artists, warning them about the potential consequences of appearing on

the show. Farmclub then changed their appearance stipulations as a result of the

following publicity, to the benefit of all future unsigned artists appearing on the

show. The Rosenbergs went on to sign a groundbreaking new record deal with a

small UK-based label, Discipline Global Mobile, where they retain the rights to their

sound recording copyrights and enjoy a band/label arrangement that is a fair partnership. Another example of an Internet success story is Emily Richards, who has

made a good name for herself via MP3.Com. Richards had a more extensive tour last

summer as an unsigned artist than No Doubt did on their first major label tour.

MP3.Com is a prime example of an Internet company offering many advantages to

artists previously excluded by the mainstream music industry. The labels have aggressively pursued lawsuits against MP3.Com and other innovative Internet music

services. By garnering equity stakes in webcasting companies and making it prohibitive for companies not licensed by them to operate, the record labels are insuring

their long-term existence and continued dominance in the music industry. Accordingly, copyright legislation that allows the established industry giants to bully their

way to dominance in the new marketplace indirectly subsidizes those corporate interests and perpetuates their essentially monopolistic powers to the detriment of

Internet entrepreneurs, recording artists, and the public at large.

Along similar lines, it is blatantly unfair to assess sr copyrights to webcasters and

not to traditional broadcasters. Why should the new medium for streaming music

pay these royalties when the established medium for streaming music never has and

is not slated to do so in the future? Simply because the NAB is a more powerful

lobbying organization than the RIAA? This inequity illustrates the unfortunate influence huge corporations and their ‘collective’ lobbying groups possess in affecting public policy. Sr royalties only apply to webcasters. Webcasters are essentially penalized

for enabling the ‘progress of the arts through the new science of Internet technology’, or, in effect, embodying the very intent of copyright. This, to spite the fact

traditional broadcasters operate at a healthy profit and most webcasters have yet

to break even. This gives traditional broadcasters yet another advantage over

webcasters and allows them once again to play by different rules, essentially legalizing technological discrimination. I was happy to see the recent copyright office decision requiring traditional broadcasters to pay sr royalties when rebroadcasting their

signals over the Internet. Naturally, if these fees are to be assessed in the digital

realm at all they should be assessed to every webcaster, whether or not that

webcaster also has a land-based station.

Also along similar lines, sr royalty rates should be equitable to the royalty rates

for songwriting/publishing. Rumor has it the RIAA will try to obtain 3–10 times

the rate collected for songwriting/publishing royalties for sr royalties. Why should

the recording of a song be worth more than the creation of that song in royalty fees?

Simply because the owners of the vast majority of sound recording copyrights have

a large lobbying organization? The argument that labels invest a lot of money into

recordings doesn’t follow. Many new bands are signed on the basis of cds they’ve

already recorded. My friend Bobby Gaylor was picked up by Atlantic after recording

his own cd. Atlantic did not rerecord the cd but went with the recording ‘as is’. I

guarantee you that unsigned artists aren’t spending hundreds of thousands of dollars on cd production and many are ending up with product as radio ready as major

label artists. I state this to illustrate that recording a professional quality cd doesn’t

have to cost hundreds of thousands of dollars.

Another point of contention is who will collect and distribute these new digital royalties. I suggest the major labels should not be allowed to be the sole organization

doing so. I would go further and suggest an independent accounting agency be put

in charge of collection and distribution of these royalties to insure fair and open

bookkeeping. Major label artists already complain of improper accounting of their

artist royalties and difficulty in attempting to examine record label’s books. It would

therefore seem appropriate that labels not even be allowed to enter this marketplace. They have inherent conflicts of interest. I would also strongly suggest that the

legislated artist cut of the sr royalty be further defined to insure artists receive direct

payments in perpetuity. Otherwise, following a staged public relations year by the

RIAA where artists are paid directly, artists may never see these monies due to the

nature of record label recoupable’ clauses.
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In another example of improper representation, DiMA, the organization meant to

represent webcasters at the congressional committee hearing regarding the DMCA

amendments, was ill prepared for the hearing at which it spoke. The organization

had hastily organized only days prior to the event. While their intentions may have

been good, this gave them a distinct disadvantage when arguing these issues with

a wellresearched, well-established and extremely powerful lobbying organization, the

RIAA. DiMA represented only 7 Internet companies at the time of the hearing, none

of which were small independent webcasters. DiMA represented only 2 large

webcasters, one of them being Broadcast.com, which had yet to have it’s IPO. Seth

Greenstein, the lawyer speaking on behalf of DiMA at the hearing, explained that

DiMA could not afford the RIAA’s threatened litigation should the DMCA amendments not pass. Both webcasters in DiMA were looking to attract investors and worried that potential problems with the RIAA might scare them off. I submit that

DiMA was therefore unable to adequately represent the majority of webcasters at the

time they spoke at the hearing and ceded these amendments be added to the DMCA. I was also told off the record (and therefore cannot confirm) by another party involved with the proceedings that the DiMA members involved in the hearing all secured certain allowances in exchange for not challenging the DMCA amendments.

It is interesting to note that an attorney observing the negotiations taking place between the RIAA and DiMA (in regards to the DMCA) commented in a CNET article:

‘‘It’s a victory for the RIAA that the webcasters were willing to concede that the digital performance right does apply to them. I think the law weighed a little more heavily on the side of the webcasters, but the RIAA leveraged its commercial position to

gain the concession by the webcasters.’’ III. The RIAA leveraged its commercial position to gain the concession by the

webcasters at the hearings dealing with the DMCA amendments. It’s to be expected.

The RIAA continues to leverage their position in the digital marketplace.

The major labels have always operated in a manner meant to control and manipulate the music industry to their advantage and to the detriment of the artists they

supposedly represent and the public they supposedly serve. Recently they were found

guilty of price fixing cds with their ‘minimum advertised pricing’ policies with retailers, gouging consumers out of millions of dollars. We have all seen the VH1 ‘Behind

the Music’ stories which chronicle the lives of recording artists who have little

money to spite selling millions of records. We have read Courtney Love’s rundown

of major label math, which shows how a recording artist selling over a million

records ends up owing their label money. Record label contracts are notoriously onesided and difficult to break. While the RIAA claims to be representing recording artists, the majority of recording artists do not own their own sound recording copyrights. The RIAA tried to further extend their grasp over these particular copyrights

with the ‘work for hire’ amendment. This amendment was deceptively described to

Congress as a means of protecting artist websites. The DMCA amendments were deceptively described as a means to facilitate webcasting. The major label rhetoric obviously cannot be trusted. The reasons they offer for the regulations they request are

often far removed from their true goals. Major labels have historically dealt in unfair business practices such as ‘payola’, with ties to organized crime. I beseech you

to treat their arguments with the appropriate skepticism and remember that the

RIAA’s sole purpose for existence is to manipulate public policy to the advantage of

the oligopoly that is the major label system.

Recently, the RIAA has broken new ground in invading the privacy of our home

computers to prosecute copyright offenders like the college student from Oklahoma

whose computer was seized for file sharing violations. As a private citizen I request

that you not lose sight of the importance of privacy issues when the RIAA requests

more copyright controls. I also request that you consider the importance of fair use

to the public good. I further request that you not allow a grasping and greedy industry to reign in the development of exciting technological advances. There are many

rights in the balance of these copyright issues besides those of control.

IV. NWEZ.NET is a mom and pop webcasting station based in California. We specialize in live shows that go out with both audio and visual streams and include

an interactive chatroom. We are proud to offer programming outside the mainstream media box, giving opportunities to unsigned and specialty artists excluded

from most traditional airwaves. All the show hosts at NWEZ.NET are allowed to

choose their own musical programming. If you’d like more information on our station please visit us at http://nwez.net and click on the ‘About NWEZ’ link.

V. In conclusion, I call upon the sense of justice and fair play of the honorable

Senators of the Judiciary Committee and ask you to provide a way for NWEZ.NET

and stations like us to survive. Reexamine and revise webcasting provisions lobbied

for by the RIAA and provide allowances for the reality of Internet webcasting. Do

not allow current unreasonable compulsory licensing restrictions or punitive ‘retro-
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active’ royalty payments to squash the promise of a more open, artist-friendly, and

consumer-responsive marketplace. Do not allow the Goliath to slay the Davids.

Thank you for your time and consideration.

Statement of Video Software Dealers Association

f The Video Software Dealers Association (VSDA) submits this statement for the

record of the hearing on online entertainment and copyright law. We wish to make

the committee aware of our concerns about business models for online entertainment that could undermine the first sale doctrine of copyright law and the public

policies it serves, harm retail competition, and erode consumer privacy.

VIDEO SOFTWARE DEALERS ASSOCIATION

Established in 1981, VSDA is a not-for-profit international trade association for the $19 billion home entertainment industry. VSDA represents more than 2,000

companies throughout the United States, Canada, and 22 other countries. Membership comprises the full spectrum of video retailers (both independents and large

chains). VSDA also includes the home video divisions of all major and independent

motion picture studios, video game and multimedia producers, and other related

businesses which constitute and support the home video entertainment industry.

COPYRIGHT LAW AND HOME VIDEO

Copyright law, and particularly the first sale doctrine (codified at 17 U.S.C.

109(a)), provides the legal foundation that has facilitated the phenomenal growth

of the home video industry over the past two decades. Section 109(a) provides that,

notwithstanding a copyright owner’s distribution right, the owner of a particular

copy or phonorecord lawfully made under U.S. copyright law ‘‘is entitled, without

the authority of the copyright owner, to sell or otherwise dispose of that copy or phonorecord.’’ The first sale doctrine gives retailers the right to rent and sell videos and

video games without restriction by the copyright owner, and benefits society by promoting retail competition and maximizing distribution of copyrighted works.

When videocassette recorders (VCRs) first emerged as a consumer electronics

product in the late 1970s, few imagined how ubiquitous they would become in America’s homes and how popular watching a prerecorded video of a motion picture

would become. For an overwhelming majority of America’s 250 million plus consumers, renting and buying prerecorded videocassettes, digital versatile discs (DVDs),

and video games is an integral component of their entertainment options. More than

90% of the households in the U.S. own at least one VCR. And although the DVD

is a relatively new format, approximately 15 million households already own a DVD

player. It is estimated that almost 2.8 billion videotapes and DVDs were rented in

2000. Approximately onethird of all video-equipped households rent a videotape or

DVD weekly, while 50% rent at least once a month. More than 60% of videoequipped homes have a video library of some sort. The average videotape library

contains 75 titles, while the average DVD collection contains 19 titles. Consumer

spending on video rentals in 2000 was a record $8.25 billion. An additional estimated $10.8 billion was spent purchasing videotapes and DVDs, with DVDs representing 32% of the total dollars spent.

Although the motion picture studios strenuously resisted the emergence of the

VCR and the creation of the video rental industry, even going so far as petitioning

Congress to eliminate the first sale doctrine for prerecorded videos of movies, the

home video industry today is an enormously profitable enterprise for the motion picture studios. Total revenue to the studios from video sales and rentals totaled $10.7

billion in 2000. Over the past several years, revenue from home video has accounted

for more than half of the studios’ gross domestic film revenue.

Video retailing, while experiencing some of the consolidation and slowing of

growth of a maturing industry, remains a vibrant enterprise. As of early 2000, there

were 20,000 video rental specialty stores in the U.S. These stores included the major

public chains such as Blockbuster, Hollywood Video, Movie Gallery, and a significant number of independent retailers. It is estimated that more than 40% of video

specialty stores currently are single-store operations. Another 8,000 non-specialists,

primarily supermarkets and drugstores, also rent video as a regular part of their

business, and numerous other retail outlets sell prerecorded videos.

Thus, the freedom to rent and resell videos guaranteed by the first sale doctrine

has provided consumers with access to affordable, quality entertainment that they
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can enjoy in their homes, generated a tremendous revenue stream for the copyright

owners, and created a thriving industry of primarily small, community-based businesses.

THREATS TO THE FIRST SALE DOCTRINE

The benefits of the first sale doctrine to society, consumers, copyright owners, and

video retailers are threatened by some of the trends in online entertainment. Unfortunately, the very same characteristics of digital formats that enable copyright owners to prevent the making of illegal copies and phonorecords can also unintentionally limit or purposefully suppress retail competition and prevent the owners of lawfully made copies from exercising rights Congress and the courts have granted to

them.

For example, access control technology can be used to prevent or control lawful

use as easily as it can be used to deter copyright infringement. The use of such technological locks on lawful use are the digital equivalent of preventing anyone from

reading a book unless they make a payment to the copyright owner every time they

wish to do so. In addition, some contracts of adhesion (such as ‘‘click-through’’ end

user license agreements) incant that a sale is not a ‘‘sale’’ but a ‘‘license’’ that restricts the purchaser’s ability to use and transfer ownership of the product. In a digital environment, ‘‘click here to agree’’ is a non-negotiable step in an automated

transaction, leaving no opportunity to object.

These concerns about the erosion of copyright law in online entertainment are not

theoretical. Miramax is currently licensing the reproduction of the movie ‘‘Guinevere.’’ Despite the fact that anyone who downloads the movie is the owner of a lawfully made copy, and enjoys the federal right to transfer title or possession of their

legal copy by sale, lease, or gift, the technology employed with the download ensures

that the owner must watch the movie within 24 hours of unlocking it, after which

the movie is rendered an inaccessible 500 megabytes of code. The person who

downloaded it still owns that copy, and still has the right to sell it or give it away,

but no one can ever watch it again without paying the copyright owner again for

that privilege.

VSDA is opposed to any erosion in the rights provided by the first sale doctrine.

We believe these mechanisms are not legitimate uses of technology but rather attempts to use technology to create heretofore unrecognized ‘‘rights’’ and to provide

copyright owners’ unprecedented control over the lawful use and distribution of

copyrighted works-control Congress has expressly denied to them in the Copyright

Act.

Video retailers recognize and support the rights of copyright owners to prevent

infringement of copyrighted works. VSDA actively supported the enactment of the

Digital Millennium Copyright Act (DMCA) and specifically the anti circumvention

provisions in the understanding that these provisions were intended to deter piracy.

We have supported the positions of copyright owners in Napster, Inc. v. A&M

Records, D VD Copy Control Ass ’n, Inc. v. Bunner, and similar cases. VSDA also

actively works with the Motion Picture Association of America to identify individuals that are infringing the copyrighted works of its members. Thus, we do not align

ourselves with those whose apparent goal is to make meaningless the legal protections that copyright law provides to prevent piracy of covered works.

At the same time, we cannot support those in the copyright owner community

who apparently seek to disable the protections that copyright law provides to legal

owners of lawfully made copies of copyrighted works. Copyright owners have taken

the position that they are free to make the first sale doctrine inoperative through

access control technology and end-user license agreements. Because the first sale

doctrine furthers the important public policies of promoting competition and maximizing dissemination of copyrighted works, the rights it confers cannot be extinguished either by unilaterally imposed technological controls or agreement between

the parties. To conclude otherwise would make the rights granted by the first sale

doctrine merely contingent on the technological prowess or goodwill of copyright

owners.

A digital copy authorized by the copyright owner that is delivered by downloading

onto a consumer’s computer or portable storage medium (such as a writeable compact disc or DVD) is no different from a digital copy authorized by the copyright

owner that is delivered in the form of packaged media (such as a prerecorded videocassette or DVD). Both are lawfully made copies and are fixed in tangible media.

The first sale doctrine applies to both.

Allowing consumers to exercise their right to rent or resell lawfully acquired

digitally delivered works will not facilitate unlawful exhibition, reproduction, or distribution of copyrighted works.
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The technology exists today, through digital rights management, to facilitate the

lawful distribution of such works while respecting the first sale doctrine and deterring piracy. In addition, the Ninth Circuit’s decision in Napster, Inc. v. A&M

Records demonstrates that copyright owners have adequate legal remedies at their

disposal to address online piracy.

ANTITRUST CONCERNS

Access control technology and end-user license agreements can also be abused to

suppress retail competition by concentrating greater control over distribution in the

hands of a small number of entertainment conglomerates, to the detriment of consumers and small businesses. It must be understood that entertainment products

are not fungible. A consumer that seeks to view ‘‘Gladiator’’ will not be fully satisfied by substituting ‘‘Traffic.’’ Rather, for motion pictures, the retail competition occurs not between products, but between retailers, who compete on price, selection,

terms, location, customer service, and other factors.

The proliferation of excessive access control technology and hidden or ‘‘clickthrough’’ end-user license agreements would deprive consumers of the value and

flexibility that they currently receive from packaged entertainment. It could eliminate retail competition and substitute uniform pricing and other uniform terms and

conditions on the sale of movies, effectively extending the carefully delineated rights

contained sections 106 and 106A of the Copyright Act into wholesale controls over

distribution to the ultimate consumer. Such technologies are also capable of being

used to obliterate the lawful secondary market for used entertainment. Consumers

could then be prevented from loaning movies to a family member or friend, reselling

them, donating them to charitable organizations, or even, according to some of the

current business models, bequeathing them in their wills.

Competition in the distribution of copyrighted works is largely non-existent until

the product passes to distributors and retailers. If video retailers cannot participate

in the distribution of digitally downloaded movies, either as a lawful reseller or a

rental outlet, the neighborhood video store will rapidly fade from the scene. They

would be replaced by direct distribution by copyright owners. Consumer choice and

competition would be further eroded.

More than 50 years ago, the Supreme Court in United States v. Paramount Pictures, 334 U.S. 131 (1948), struck down pooling arrangements and joint ownership

agreements designed to give movie studios control over the distribution of motion

pictures in theaters. It also struck down the ‘‘block booking’’ practices in which the

motion picture studios refused to license one or more copyrighted movies unless another undesired copyrighted movie was accepted. In United States v. Loew’s, Inc.,

371 U.S. 38 (1962), the Supreme Court once again condemned block booking and

related efforts to suppress independent distributor decisions. Online distribution of

entertainment by copyright owners armed with restrictive technologies raises the

potential for the types of anticompetitive behavior that the Supreme Court forbade

in Paramount and Loew’s.

PRIVACY CONCERNS

Digital download systems that require consumers to surrender personally identifiable information or require retailers to provide information about their customers

to copyright owners also raise concern. Such data mining mechanisms may violate

the Video Privacy Protection Act (18 U.S.C. § 2710) and force retailers to share their

customer lists with potential competitors. Knowledge of which movies a consumer

chooses to rent or buy from their local retailer, whether in a brick and mortar store

or online, should remain off limits to third parties, including the owners of the copyrights in those movies.

CONCLUSION

While VSDA is deeply concerned about the overreaching that appears to be part

of some emerging business models for online entertainment, we do not call upon

Congress to resolve this dispute at this time. Copyright law is a balance between

the protection of intellectual creations and the promotion of broad public dissemination of these creations in a manner that benefits society as a whole. We must proceed carefully lest we upset this well-crafted, time-tested balance. Accordingly, we

do not currently support any revision of the first sale doctrine. The doctrine has

proven itself and facilitated the best system for delivering movies and video games

to the home available anywhere in the world-and greatly favored copyright owners

along the way. Although congressional action may provide much-desired clarity, we

believe that our differences with copyright owners should be resolved in industry-
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to-industry discussions, if at all possible. However, should copyright owners seek to

eliminate effective competition from retailers and thereby deny consumers the

widest access to movies and games at the lowest possible prices, we will seek

prompt and decisive congressional action.

Thank you for the opportunity to submit our views.

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