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Pro Composer, PART A. Music Business and Law, STEP ONE: the DMCA

Yea, I understand it's a lot of legal jargon and our entire industry has been crafted over the last century to be completely confusing and to obfuscate paths to enlightenment for the layman, usually the composers, songwriters and musicians who slave away at this art and craft. But try. REALLY try hard to understand this stuff. Understanding the DMCA is the very first step to understanding what this new world is all about and understanding how you may or may not make a living from your music in the future. Do not make the mistake of feeling you have a niche and are safe in the niche you serve (like hollywood orchestrator or London sound designer or jazz record producer, whatever!). All niches are being redefined right now, many of them redefined a decade ago but the reality of those redefinitions are just starting to take shape and show their ugly faces.

 

There is soooooo much to learn and to know about the music business, music law, music politics, and I dont expect us to drop creating music to become lawyers (tho I have considered it!). But I want to give pointers in the right direction to become educated at least on the most basic levels. Our prosperity depends completely on our understanding of what the lawyers and bean counters are doing today to continue stuffing their pockets at our expense. I dont see much hope for composers to actually unite politically but if we can at least understand what the new playing field is and how the mechanics of it are changed it will go a long way to us making better decisions and choices in our careers moving forward.

 

So, I plan to begin a series of blog posts here relating to music business, technology business that relates to the arts, and the laws that govern us and are abused by many. I am not an "IP Maximalist" believing that staunch hard-arm strategy will ever work at this point to maintain copyright protection and the money related to it. The DRM concepts all failed out of greed of the various corporate players and as a result the entire population of music consumers will never have trust in DRM to a point where they would ever be willing to stop illegal downloading. And in itself it is such a monstrously huge technological problem to control, once you start looking at the nitty gritty, from the political, business and technology layers. So I personally rule out IP Maximalism. I also am very very against the opposite, the anarchists that are seeking to abolish copyright protection and basically make every piece of digital music a zero value and to be free and unlimitedly available to the entire universe without compensating the creators. The middle grounds are all tricky and there is SO MUCH heavyweight sludge being tossed on it by various interests in order to keep the wild west chaos continuing in hopes of filling their pockets while we the creators rot.

 

So the best way to start dialog among us about this phenomenon is to get some basic understanding of the laws that currently govern us in the digital age. There is a lot to talk about with traditional copyright law but I want to focus on the digital age for now, and the place to start is with the Digital Millennium Copyright Act (the DMCA) of 1998. I will post more on various related subject in the coming months, but lets start here.

 

Definition of the Digital Millennium Copyright Act (DMCA) of 1998

Divided in to five "titles," the DMCA is a complex act that addresses a number of issues that are of concern to libraries. Among its many provision, the Act:

  • imposes rules prohibiting the circumvention of technological protection measures
  • sets limitations on copyright infringement liability for online service providers (OSPs)
  • expands an existing exemption for making copies of computer programs
  • provides a significant updating of the rules and procedures regarding archival preservation
  • mandates a study of distance education activities in networked environments
  • mandates a study of the effects of anti-circumvention protection rules on the "first sale" doctrine

from the American Library Association website: http://www.ala.org/ala/issuesadvocacy/copyright/dmca/index.cfm

 

Basics of the Digital Millennium Copyright Act (DMCA) of 1998

"Anyone whose life or career is involved with intellectual property needs to know about and understand the Digital Millennium Copyright Act (DMCA). That means anyone from musicians to film makers; even ship vessel haul designers. In 1998 the DMCA was passed into law marking some of the most significant amendments to United States Copyright law since 1976. The recent inceptions of downloadable media, peer to peer file sharing and digital media copyright piracy on a massive scale, have also made the DMCA extremely significant in its time.

Congress didn’t decide to draft the DMCA just because of new technological advances affecting intellectual property – it was also compelled to act because of international treaty obligations. In 1996 the World Intellectual Property Organization (WIPO) drafted two amendments to the Berne Convention. WIPO is one of the specialized agencies of the United Nations dedicated to the protection and promotion of intellectual property throughout the world. The Berne Convention, first drafted in 1886, was the first treaty to create an international agreement on copyright law. The treaties passed in 1996 were the WIPO Copyright Treaty (WCT) and the WIPO Performance and Phonograms Treaty (WPPT). In order to comply with these treaties the US needed to amend its own copyright law. The DMCA was created to fulfill the needed amendments and included some additional changes to update the law."

from The Future Of Music Coalition website: http://futureofmusic.org/article/understanding-digital-millennium-c...

 

What is the DMCA from a user (university population) perspective:

"The distribution of copyrighted materials without permission (over the internet) can be a violation of federal law. The law is known as the Digital Millennium Copyright Act of 1998 ("DMCA"). Much of the music, movies, video, or games that are downloaded via file sharing networks like KaZaA, Gnutella, Napster, Blubster, and eDonkey, are distributed without the permission of the copyright owner, and thus these downloads are illegal. The federal government and various organizations (such as the Recording Industry Association of America, RIAA) are very serious about enforcing the provisions of the DMCA legislation, and violations can carry stiff fines and potential jail sentences."

from the U.C. Riverside website: http://dmca.ucr.edu/

 

Broadcasting terrestrial radio over the internet:

"With the passage of the DMCA, Congress amended sections 112 and 114 of the Copyright Act to clarify that the digital sound recording performance right applies to certain nonsubscription digital audio transmissions over the Internet. Specifically, the DMCA amended section 114 by creating a new statutory license for nonexempt eligible nonsubscription transmissions (e.g. webcasting), and nonexempt transmissions by preexisting satellite digital audio radio services, to perform the sound recordings publicly in accordance with the terms and conditions set forth in the new statutory license. The parties disagreed, however, over whether a broadcast transmission, a transmission made by a terrestrial broadcast station licensed as such by the FCC, is a nonsubscription transmission within the scope of exemptions provided in section 114(d) of the Copyright Act."

http://radiomagonline.com/IT_technology/streaming/radio_understandi...

 

DMCA Safe Harbors: how ISPs are legally not liable:

"Simply put, the safe harbors limit the liability of certain online service providers from copyright infringement claims. Protected service providers include ISPs, carriers, and websites that transmit or store user content. For instance, a website like youtube.com, which hosts user-generated video content, almost certainly falls under the DMCA safe harbor. Similarly your ISP or internet carrier, be it Comcast, Qwest, or Time Warner, would theoretically be protected under the safe harbor. The limitation of liability does not mean that absolutely no liability exists, but it does provide certain protections to those providers who exercise limited control over user content and the use of their services."

from Mona Ibrahim's "Under Development Law" blog: http://underdevelopmentlaw.com/understanding-dmca-safe-harbors/

 

Some nice videos to watch:

http://www.artistshousemusic.org/videos/why+does+the+digital+millen...

http://www.artistshousemusic.org/videos/the+dmca

 

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Comment by Mikolaj Holowko on June 18, 2011 at 3:21am
Thanks a lot! Great read!

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