The following materials are excerpted from Michelle Spaulding's "Copyright Protection for Music on the Move."




This Act, which amended sections 106 and 114 of the Copyright Act (17 U.S.C. §§ 106(6) and 114), represents the first time public performance rights in sound recordings have been offered protection. Copyright holders in sound recordings now have the exclusive right "to perform the copyrighted work publicly by means of a digital audio transmission." This allows the record companies who hold the rights in sound recordings to collect a royalty on digital "performances" of the sound recording (according to ASCAP, this applies to digital "transmissions" which are interpreted to include downloading, uploading, and streaming).



The NET, enacted in December 1997, attempted to crack down on computer-based piracy by instituting criminal penalties for copyright infringement by electronic means under 18 U.S.C. § 2319. A trader in illegal MP3s could get up to 6 years in prison (for a second offense -- up to 3 years for a first) and/or a hefty fine for distributing as little as $1000 worth of music. The law also amended the Copyright Act's definition of "financial gain" (17 U.S.C. § 101) stringently to include "receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works." This places under the Act's ambit the MP3 "ratio sites" which require a user to upload a file before they may download one, should the trading be in unauthorized copies.



First introduced in 1994, this statute (18 U.S.C. § 2319A) criminalizes the "unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances" -- what music fans have always referred to as "bootlegs," ostensibly after the practice of hiding a tape recorder somewhere on one's person at a concert, to later copy and distribute the tape. The statute was updated in 1997 as part of the No Electronic Theft Act to allow the offended copyright holder to submit a victim's impact statement of economic harm prior to sentencing the convicted infringer. The statute also authorizes U.S. Customs to seize bootlegs at the border, like any other contraband, to counteract importation from countries with little or no protection for taping of live performances.

Again, things are not as clear as they may seem from reading the law. Far from prohibiting bootlegging of their performances, there are many bands which actually encourage the practice as a promotional tool, a way of bonding with their fans. Included in this category are popular groups such as the Grateful Dead, Blues Travellers, and the Dave Mathews Band. If, however, you think it's OK to then encode your "authorized" bootleg of one of these bands and distribute it over the Web, think again. The RIAA, in its ever-present watchdog role, has worked hard to shut down bootleg sites as quickly as they arise. Upset fans are left to try to figure out just what they may or may not legally do, and post their musings, such as this FAQ file for the newsgroup