Whose Music is it Anyway? How We Came to View Musical Expression as a Form of Property

Many participants in the music industry consider unauthorized downloading of music files over the Internet to be “theft” of their “property.” Many Internet users who exchange music files reject that characterization. Prompted by this dispute, this Article explores how those who create and distribute music first came to look upon music as their property and when in Western history the law first supported this view. By analyzing the economic and legal structures governing musicmaking in Western Europe from the classical period in Greece through the Renaissance, the Article shows that the law first granted some exclusive rights in the Middle Ages, when musicians’ guilds enjoyed the exclusive right to perform music in medieval cities, but that the concept of music as a form of property was not established until early music publishers received exclusive rights in their publications during the Renaissance. The Article concludes with thoughts about how this history should influence the way we address the current controversy concerning uses of music on the Internet. * Assistant Professor of Law, Villanova University School of Law. Thanks to Oren Bracha, Douglas Galbi, Jacqueline Lipton, Jessica Litman, and Michael Madison for insightful comments. I also received helpful comments on oral presentations of this Article at the Cyberlaw Retreat convened by Harvard Law School’s Berkman Center for Internet and Society and at the June 2003 Law and Society Annual Meeting. I thank the participants in both fora for their thoughts. The Villanova community has done much to support this project. For helpful and supportive comments, I thank my colleagues Michelle Anderson, Leslie Book, Ann Juliano, Greg Magarian, and Michele Pistone. For enthusiastic research assistance, I thank Christopher Nickels and Elizabeth Pulbratek; for unswerving administrative support, I thank Joan Delong; and for cheerful and efficient processing of numerous inter-library loan requests, I thank the reference librarians at the Villanova University School of Law. Finally, I gratefully acknowledge Villanova University School of Law’s financial support for this research. As ever, my family has been a source of inspiration and support, and I thank Kristy, Madeleine, and Vivian Carroll for that. 1. The technology underlying the explosive growth of the Internet certainly is far older than a decade. Digital technology dates back to the 1930s, computing technology dates back to the 1940s (unless one wants to count the abacus), and much of the research on packet-switched digital networks began in the early 1960s. See, e.g., JOHN NAUGHTON, A BRIEF HISTORY OF THE FUTURE: THE ORIGINS OF THE INTERNET 92, 118-19 (1999); see also LEONARD KLEINROCK, COMMUNICATION NETS: STOCHASTIC MESSAGE FLOW AND DELAY (1964). But 1993 approximates the time at which those outside the computing community began to get wind of the Internet and the future that it might portend. In September 1993, the Commerce Department released its “Agenda for Action” for the “National Information Infrastructure,” heralding the new technology in glowing terms. Administration Policy Statement, 58 Fed. Reg. 49,025 (Sept. 21, 1993); see also John Perry Barlow, A Declaration of Independence for Cyberspace, in CRYPTO ANARCHY, CYBERSTATES AND PIRATE UTOPIAS 27 (Peter Ludlow ed., 2001). In that same year, the first issue of Wired magazine, devoted to the brave new wired world, hit the newsstands. Since then, expansion of the physical infrastructure, supported by adoption of open technical standards, has indeed led to some substantial changes in how we communicate. Significant portions of business communication and the personal communications of the upper and middle classes in the United States are channeled across the packet-switched network as electronic mail or instant messages. See, e.g., Ariana Eunjung Cha, ‘Digital Divide’ Less Clear, As Internet Use Spreads, Policy Debated Anew, WASH. POST, June 29, 2002, at E1 (reporting on study showing that less than half of the residents of the United States with incomes between $15,000 and $25,000 have Internet access at home or at work, compared to the 90% of residents with incomes of more than $75,000). Two developments in particular threaten revolution. The first development has been the digitization of the sights and sounds (and smells?)—the texts—that make up our popular culture. See, e.g., Michael W. Carroll, Disruptive Technology and Common Law Lawmaking: A Brief Analysis of A&M Records, Inc. v. Napster, Inc., 9 VILL. SPORTS & ENT. L.J. 5 (2002) (describing process by which popular music has been digitized). The second has been the deployment of digital networks featuring an architecture that disperses control and power over communication largely to end users of the network. Exploiting these developments, manufacturers of socalled “peer-to-peer” software have enabled end users to form virtual private networks through which each end user’s machine is a “peer” with all other machines insofar as the machine is both a “client,” which requests data, and a “server,” which sends data. Users of these networks serve and receive digital renderings of sight and 1405 WHOSE MUSIC IS IT ANYWAY?: HOW WE CAME TO VIEW MUSICAL EXPRESSION AS A FORM OF PROPERTY