Copyright Law in the New Millennium: Digital Downloads and Performance Rights
Volume 81, No. 3, Fall 2008
By Jesse Rendell

Sales of music Cds at retailers such as Wal Mart . . . have dropped 19% while digital downloads on sites such as Apple’s . . . iTunes have risen 60% since last June. Retail sales of music have been declining for almost a decade as many consumers turn to new ways to get their songs such as from digital downloads.

The fact that more and more people are turning to the Internet to obtain music rather than purchasing music from traditional retailers is not really news to anyone at this point. It is also widely known that this change in the landscape of the retail side of the music industry has forced copyright law to adapt to the development of these new technologies. What most people do not know is that some of the more complex legal issues involving copyright owners’ specific legal rights in the Internet realm still remain relatively unaddressed. These issues are highly significant to copyright owners, as the level of compensation that they receive for the use of their works varies depending on the different rights such usage implicates. As the number of music consumers who use the Internet to obtain their music continues to increase, these issues, which once seemed trivial, have become increasingly problematic and now demand resolution.

The purpose of this Comment is to draw further attention to the issue of whether consumer downloads implicate performance rights under U.S. copyright law and to propose some potential solutions to this issue. The issue of downloads and public performance rights presents an all-too-familiar legal paradox that occurs when logic and a strict interpretation of the law do not necessarily provide the same result. This Comment asserts that although downloads do not implicate performance rights from a logical standpoint, under the broad statutory language of the Copyright Act, downloads may indeed implicate such rights. As a result of this conflict, legislative reform is needed to clarify the rights of copyright owners in this realm of the online marketplace.

This Comment proceeds as follows: Part II provides an overview of the present state of the law governing performance rights, including all relevant statutes, legislative history, and case law. Part III discusses the various statutory arguments and points out the weaknesses in the reasoning of the courts that have addressed the issue. Finally, Part IV suggests a common sense approach to the issue, including a call for new legislation to clarify the law in this realm.

Read Article…