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INTERNET
FREQUENTLY ASKED QUESTIONS
What
is MP3?
MP3 is an abbreviation for "MPEG 1 Layer 3." MPEG, in turn, is a compression
technology that underlies a variety of other consumer electronic formats,
including DVD. The MP3 format allows for compression of sound files down
to one-tenth of their normal size, with very little noticeable degradation
in sound quality. Because compressed audio takes up far less storage space,
songs may be transmitted using far less bandwidth than standard uncompressed
digital audio, such as that stored on a compact disc or digital audio
tape. Compression allows for quicker uploads and downloads of audio files,
making it less time-consuming and more realistic to transmit music files
over the Internet.
Computer users can
create their own MP3 files by placing any audio CD into their computer's
CD-ROM drive. Using software known as "ripping" software, CD tracks may
be converted rather easily into MP3 files. In addition, MP3 files may
be downloaded from sites on the world wide web. Upon downloading, the
files are stored on a user's hard drive, and may be transferred to other
storage media, such as floppy disks and CD-ROMs. Until recently, however,
the only way to listen to MP3 was via a computer, with whatever speakers
were attached. However, new portable devices, including the Diamond "Rio"
player and the "MP-Man" have changed the rules, allowing MP3 files to
become portable.
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How
is MP3 treated differently from audio "streaming" under the law?
MP3 technology allows consumers to download an audio recording for storage
and playback on command at near-CD quality. Audio streaming, on the other
hand, is more akin to a radio broadcast (or, legally, a "public performance")
than a distribution. With streaming, audio information is transmitted
for listening in real-time, and it generally is not possible to store
the streamed audio information. Also, at least currently, the quality
of streamed audio is significantly inferior to that of MP3.
The Recording Industry
Association of America has taken the position that streamed audio is not
only a "public performance," but also a distribution, in that a copy of
the streamed information is actually buffered (and, thus, copied) in the
memory of the listener's computer, at least temporarily. As a result of
a compromise on this issue, Congress enacted legislation last year providing
that webcasters that send audio streams via the Internet are required
to pay compulsory license fees for the transmission of master recordings
included in the webcast. This license is in addition to any fees for performance
licenses from BMI, ASCAP and SESAC.
On the other hand,
there is no compulsory license available for distributing sound recordings
via MP3. Without direct authority from the copyright owner, users may
not upload MP3 files to a web site, and web site operators may not post
MP3 files for download by others.
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Am
I allowed to upload music from CDs I lawfully purchase onto Internet web
sites?
No. When you purchase a legitimate CD from a store, you do not acquire
the right to make copies for other people. While you are allowed to give
away or sell (but not rent) your single copy of the CD to others, you
are not allowed to copy the musical information contained on the CD for
further distribution. The uploading of music to a web site without the
express authorization of the copyright owner, using MP3 technology or
any other mechanism, is a violation of the copyright laws and may subject
you to monetary damages, an injunction and even criminal penalties.
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Am
I allowed to download MP3 music files from Internet web sites?
Maybe. Some music available on the Internet is authorized for free
download. Generally, the legitimate recordings available for free download
are from unsigned artists or groups who have not had significant radio
exposure and whose material is not available at most major record stores.
At this point, it is extremely unusual for recordings from major artists
to be available for download, and those major artist recordings that are
available in MP3 format are rarely distributed free of charge.
When you come across
a web site offering MP3 files featuring current (or past) major radio
hits for free download, the chances are that such recordings are pirated.
The downloading of an unauthorized MP3 file constitutes copyright infringement.
It is equivalent to going into a record store and taking a copy of a single
(or album) without paying. This deprives artists, writers and producers,
among others, of compensation for their creations.
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Is
MP3, itself, illegal?
No. MP3 is simply a compression technology that allows for more efficient
file transmission via the Internet. As with any recording format (including
audio cassette, mini-disc, recordable compact disc, and digital audio
tape)), MP3 can be used both for lawful and unlawful purposes. The use
of MP3 to record and post on your personal web site your own original
recordings of your own original songs is completely legal (so long as
you are not signed to an exclusive recording or song writing agreement!).
However, the use of MP3 to create pirated or bootleg recordings of copyrighted
material is, of course, illegal.
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How
do I know whether MP3 files available over the Internet are legal or illegal
copies?
If you locate MP3 versions of major hit recordings, or recordings
from well-known artists available for free via web sites that are not
operated by that artist or the artist's record label, then, more likely
than not, such recordings are illegal copies. Although a few sites, such
as mp3.com, goodnoise.com and others, occasionally offer free downloads
of recordings from well-known artists, the overwhelming majority of authorized
MP3s currently are ones featuring unsigned and lesser-known artists. If
you have doubts about the legality of particular recordings you encounter,
you should contact the Recording Industry Association of America. Information
can be obtained at www.riaa.com.
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Is
it a "fair use" to send MP3 files to my friends as long as I don't charge
a fee?
No. Many people frequently confuse the concept of '"fair use" and
believe that as long as they are not profiting from copies of copyrighted
material, their conduct is legal. This is not accurate. Although it is
true that the unauthorized copying, public performance and distribution
of copyrighted musical material for profit is almost always an infringement,
it is not true that the absence of a profit motive eliminates the possibility
of infringement. The "free of charge" copying and distribution of music
by consumers comes at a significant cost to artists, writers and musicians
-- namely, lost sales based on the dissemination of free copies. It is
almost always the case that the distribution of unauthorized copies of
musical recordings -- even if to your friends and even if for free --
constitutes copyright infringement and is not a "fair use."
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If
I place MP3 files incorporating my band's music on my web site for download
free of charge, have I given up my copyright in this music?
Not automatically. The fact that you choose to make available free copies
of your musical recordings does not necessarily mean that you abandon
your copyright and that others are free to exploit your work in any manner
they choose. Although a statement included on your site such as, "The
MP3 files available on this site are in the public domain and are free
for your use in any way you deem appropriate" likely would preclude a
later claim of copyright infringement, the simple placement of MP3 files
on a web site for free download does not invalidate the copyright. It
is advisable to include the proper copyright notice on your site (and
to embed such information in the MP3 files themselves, if possible). Such
notice consists of the symbol © or the word "Copyright," the name of the
copyright owner and the year of publication.
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What
is "Webcasting"?
Webcasting is the term used for the real-time streaming of audio content
over the Internet in a manner similar to radio broadcasting. Although
in many ways webcasting seems to be similar to traditional radio broadcasting,
it differs in various respects. Thus, the recently enacted rules that
apply to webcasting differ from those that apply to conventional radio
broadcasting.
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How
is webcasting different from radio broadcasting?
The primary distinctions between webcasting and traditional radio
broadcasting include the following:
- When music is
webcast via the Internet, a "copy" of the musical recording being transmitted
is stored (or "buffered" or "cached"), at least temporarily, in the
memory of the listener's computer. This copy is technically unauthorized
under U.S. copyright laws. No such copy is made in the case of conventional
radio broadcasting .
- Webcasting may
be "interactive," whereas radio broadcasting generally is not. For example,
listeners are often able to start a webcast program from the beginning
at any time they desire, whereas with radio, listeners have no ability
to choose what they will hear at any particular time (short of calling
a station and requesting a song!).
- The fact that
listeners use computers and the Internet to tune into webcasts allows
for the simultaneous transmission of textual and/or visual information
(including advertising, play lists, album artwork, artist photos, etc.)
- Listeners can
tune into webcasts from anywhere in the world, whereas radio broadcasting
is generally local.
- Many webcast
channels on the Internet are highly specialized, often even focusing
on a very narrow style of music, or even on music by a single recording
artist.
Although many other
distinctions between webcasting and radio broadcasting can be drawn, those
identified above underlie the new rules recently enacted related to webcasting.
On October 28, 1998,
Congress passed a new law known as the Digital Millennium Copyright Act.
Among the various areas covered in this Act are new guidelines and restrictions
for webcasters of copyrighted musical recordings. As you will see, the
new rules related to webcasting are targeted toward, or drawn from, the
aspects of webcasting that are different from radio broadcasting.
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Do
I need a license to webcast?
Under the copyright law, webcasters must obtain licenses for each of the
two different copyrights incorporated in recorded musical works:
First, a webcaster,
like a radio broadcaster, must obtain a license to perform the underlying
musical composition. Generally, the musical composition is owned or controlled
by the songwriter and/or a music publisher. Licenses to perform via the
Internet most songs authored by U.S. (and most foreign) compositions may
be obtained by obtaining a "blanket license" from each of the three U.S.
performing right organizations -- BMI, ASCAP and SESAC. Information regarding
Internet licensing terms and procedures may be obtained at www.bmi.com,
www.ascap.com and www.sesac.com,
respectively.
Unlike radio broadcasting,
the new laws further specify that webcasting requires a license to perform
an artist's copyrighted recorded performance. Whereas BMI, ASCAP and SESAC
serve as "clearinghouses" for performances of most musical composition
copyrights, no such organization currently exists with respect to performances
of copyrighted recordings. In most cases, an individual license must be
negotiated with the owner of each recording. Recognizing that, for webcasters,
this would be almost impossible, a compromise arrangement under the newly
enacted laws establishes a quasi-blanket license whereby webcasters can
obtain a "statutory license" to webcast musical recordings for payment
of a prescribed fee. However, the statutory license is available only
if certain strict guidelines are followed.
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What
do you mean by a "statutory license"?
A statutory license is one that is provided for explicitly by the
copyright law and that does not require permission or negotiations with
the owner of the copyright, so long as certain conditions are met and
certain pre-determined fees are paid. For webcasters, obtaining a statutory
license is critical, as it is cost-prohibitive to negotiate individual
licenses with the owner of each sound recording (generally, record labels).
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What
do I do if I want to take advantage of the statutory license?
In order to even be eligible for a statutory license, it is required
that you be a webcaster whose primary function is to provide audio programming
and not to sell or promote other non-music related goods or services.
If this fundamental criterion is met, then a set of additional rules comes
into play. The following is a brief summary of the primary rules with
which you must comply in order to take advantage of the statutory license:
- Your website
must not be part of an "interactive service". An interactive service
is one in which an end-user may receive a copy of a program created
specially for that end-user, or may request the transmission of a particular
sound recording selected by that individual end user. Essentially, your
service will be considered interactive if sound recordings are performed
within 1 hour of a request by an end-user or are transmitted at a time
designated by the end-user. If an entity offers both interactive and
noninteractive services, the noninteractive service will not be treated
as part of the interactive service.
- You may not automatically
or intentionally cause a device receiving a transmission from your website
to switch from one channel to another.
- You should provide
a means for an end user to identify the song, artist and album title
of the recording as it is being played (e.g., on the real audio window).
- In any three-hour
period, you should not intentionally program more than three songs (and
not more than two songs in a row) from the same recording; you should
not intentionally program more than four songs (and not more than three
songs in a row) from the same recording artist or anthology/box set.
- Archived programs
(that is, non-live webcasts that users may "click" on to start at any
time) may not be less than 5 hours long and should not be available
for more than two weeks at a time.
- Continuous looped
programs may not be less than three hours long.
- Rebroadcasts of
programs may be performed at scheduled times as follows:
- Programs of less than one-hour (no more than three times in a two-week
period);
- Programs longer than one hour (no more than four times in any two-week
period).
- You should not
publish advance program guides or use other means to pre-announce when
particular sound recordings will be played.
- You generally
should not perform the sound recording as part of a service that offers
transmissions of visual images (including advertisements) along with
sound recordings.
- You should only
broadcast sound recordings that are authorized for performance in the
United States.
- To the extent
technically feasible, you should take steps to prevent end-users from
scanning your transmissions to select particular recordings.
- You should pass
through identification or technological protection information included
in the sound recording (if any). It would also be advisable to set transmissions
in order to inhibit direct digital copying of the sound recordings by
the end user.
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How
much do I have to pay for the statutory license to perform copyrighted
recordings?
The new law does not set forth an explicit amount or rate for the
statutory license. Rather, it provides owners of sound recording copyrights
with the opportunity to negotiate with webcasters to set the rate. If
no rate is agreed upon, an arbitration proceeding will be instituted to
establish the rate. Once established, the rate will apply retroactively
to all webcasting that took place since October 28, 1998, and webcasters
will have to pay royalties for all such transmissions of recordings. The
rates that are set will apply through December 31, 2000. It must be emphasized
that this statutory license fee for performances of copyrighted recordings
is in addition to the above-mentioned fees that must be paid to BMI, ASCAP
and SESAC for the public performance of the underlying musical compositions
via Internet transmissions.
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So
what do I do now?
If you are a webcaster and you meet all of the above eligibility criteria
for the statutory performance license, you must file an "Initial Notice"
with the U.S. Copyright Office providing your company's full legal name,
mailing address, phone and fax numbers, and the date of your first webcast
that qualifies for the statutory license. You should send this notice
along with a fee of $20 to: Library of Congress Copyright Office, Licensing
Division 101 Independence Avenue, S.E. Washington, D.C. 20557-6400 If
you do not meet the eligibility criteria for the statutory performance
license for sound recordings, you will have no choice but to negotiate
with each copyright owner individually for the required license.
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What
is linking?
The World Wide Web's appeal rests largely on its unique ability to
create connections between otherwise disparate sources of information.
These links occur when a user clicks on text or graphics that automatically
moves the user to another location without the user having to know the
address of the site or executing complex keyboard commands. These days,
most Web pages contain multiple links to other sources. Some pages are
little more than compendiums of links. But hypertext links, as popular
as they are, pose complicated, and for the most part, untested, legal
problems. In the realm of copyright, legal questions cluster around the
question of whether a "copy" has been made. This involves examining how
the user, or the information, moves from one site to another.
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How
Do Hypertext Links Work?
The simplest form of linking, the HREF (hypertext reference) link, completely
moves the user from one point to another, permitting the viewing of only
one site at a time. By clicking on a certain word or phrase, you may be
sent to a different point on the same page, to a different page in the
same site, or to a completely separate site (linking out). You will clearly
recognize that you have been "transported" to a new location, because
the entire screen is redrawn, replaced with new text and graphics, and
a new URL address is displayed. Many commentators argue that HREF linking
is no different from listing a phone number or street address in a book
or magazine article. Such information is not protected by copyright. Others
contend that such linking may produce a "derivative work" or lead to "contributory
copyright infringement." Because the law is still evolving, Web site owners
must proceed cautiously and consider the following issues:
Consent: Many argue
that the act of placing content on a Web page constitutes implicit permission
to link to the site, and that explicit consent is not needed. Others advise
seeking consent, particularly for commercial sites. A linking agreement
may be appropriate in some circumstances. Such agreements resolve the
consent issue and offer the additional benefits of ensuring quality standards,
performance criteria, site availability and, in some cases, a consensual
agreement as to the distribution of revenues
Linking Policies:
Many organizations, such as The New York Times, for example, have established
linking/framing policies. Such policies usually identify restrictions
and limitations on linking or framing to the site.
Copyright Liability:
URLs serving simply as site addresses are not copyrightable because they
are purely functional and contain no original "expression." However, collections
of URLs may possess some thin copyright protection by the original expression
embodied in their organization. Copying of such collections may give rise
to copyright infringement liability.
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What
is Deep Linking?
Ordinary hypertext linking commonly leads a user to the "home page" of
a Web site. This front door usually contains information about the site
or its sponsor, includes links to other sections of the site, and, increasingly,
displays advertisements. Web site owners have been sued for by-passing
a target site's home page to link to content deeper within the site.
Ticketmaster sued
Microsoft for doing just that with Microsoft's "Seattle Sidewalk" Web
page. Microsoft users were sent deep into the Ticketmaster site to a listing
of events where they could make ticket purchases without having viewed
Ticketmaster's policies and services. Ticketmaster alleged dilution of
its trademark, false designation of origin, and unfair competition. It
claimed that the Seattle Sidewalk site illegally used the Ticketmaster
trademark by providing links that "circumvented the beginning pages of
Ticketmaster's Web site, which display advertisements, products and services
of entities with which Ticketmaster contracts, and have linked directly
to the subsidiary pages of the website."
Before establishing
the link, Ticketmaster and Microsoft had attempted to negotiate an agreement
where Microsoft would pay for access to Ticketmaster's online ticketing
service. That effort failed and Microsoft went ahead with establishing
a link to Ticketmaster, anyway. The dispute has now settled without a
court opinion.
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What
Are InLine Links?
An IMG (image) link pulls graphic images contained in a separate file
into the main body of the page being viewed (linking in), much like photographs
are arranged with text in newspaper articles. The graphical images can
originate in files stored on the document's host server or at any other
location on the Internet. The browsing computer automatically retrieves
the image from the original source by connecting with the URL containing
the image, copying the image to the browser's cache and inserting the
image at the programmed place in the original document, to create a fully
integrated display.
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What
is Framing?
Framing allows a page to be parceled into multiple, scrolled "windows"
that are independent of each other and can include text, graphics, hypertext
links, IMG links and other embedded links. These frames, unlike HREF or
IMG links, may import entire remote Web sites. The URL displayed in the
browser remains that of the framing site and not the remote site being
imported. Thorny legal disputes have emerged when the imported site is
surrounded, juxtaposed or framed by another's advertising, logos or promotional
material.
The Washington Post,
Time, Inc., Cable News Network, Inc. Time Mirror Co., and Reuters sued
TotalNews, Inc. for retaining a border containing its logo and commercial
advertisements around screens that were activated links to these news
sources. The news organizations alleged trademark dilution, consumer confusion
as to the origin or sponsorship of TotalNews' services, unfair competition,
misappropriation of intellectual property, and interference with the plaintiffs'
relationships with their advertisers. The plaintiffs sold and displayed
advertising on their sites and charged TotalNews with engaging in "the
Internet equivalent of pirating copyrighted material...packaging those
stories to advertisers as part of a competitive publication or program
produced by [Total News] and pocketing the advertising revenue generated
by their unauthorized use of the material."
The case settled
in June 1997 with an agreement that TotalNews could continue to link to
the other news organizations' sites, but could not frame content gathered
from the news organizations on its own Website display.
In January 1998,
the Ninth Circuit court upheld a California district court's refusal to
grant a preliminary injunction against a framed link. In Futuredontics,
Inc. v. Applied Anagramic, Inc., the plaintiff alleged that a framed link
falsely tied the defendant to plaintiff's referral service. The court
concluded that even if this claim were true, the plaintiff had not demonstrated
any loss of business or customer goodwill and therefore had not presented
evidence of tangible or irreparable harm to support enjoining the activity.
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Is
There a First Amendment Right to Link?
A Georgia federal district court in 1997 ruled that a state statute, dubbed
the "Internet Police" law, was unconstitutional, but in the process suggested
that there might be a First Amendment "right to link" defense to infringement
claims. In 1996, the Georgia State Legislature amended its Computer Systems
Protection Act to criminalize the use of any trade name, registered trademark,
logo, legal or official seal or any copyrighted symbol on the Internet
in a manner that falsely implies that the user had permission to do so.
The plaintiffs, a
coalition of 14 entities, including the American Civil Liberties Union
and the electronic Frontier Foundation, sued for injunctive and declaratory
relief, asserting that the statute violated constitutional rights to free
expression, and was vague and overboard. The plaintiffs argued that the
statute frustrated "one of the Internet's unique features -- the 'links'
that connect web pages on the World Wide Web."
The district court
found the statute unconstitutional on First and Fifth Amendment grounds,
and unconstitutionally vague and overbroad, sweeping "innocent, protected
speech within its scope...regardless of whether the speaker has any intent
to deceive or whether deception actually occurs."
Specifically addressing
hyperlinking, the court said:
A fair reading of the clause, as written, is that it prohibits the current
use of web page links. The linking function requires publishers of web
pages to include symbols designating other web pages which may be of interest
to a user. This means that an entity or person's seal may appear on hundreds
or thousands of other web pages, just for the purpose of enabling the
linking system. The appearance of the seal, although completely innocuous,
would definitely "imply" to many users that permission for use had been
obtained. Defendants have articulated no compelling state interest that
would be furthered by restricting the linking functions in this way.
Whether other courts
will recognize this "right to link" on First Amendment grounds remains
to be seen.
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