Journal of Intellectual Property Law


The Future of Music Coalition (FMC) has provided a voice in Washington, D.C. for musicians since 2000. One of our principal beliefs is that creation, both artistic and technological, is valuable and that artists deserve to be compensated for their work. The amount of this compensation and the mechanisms to facilitate payment are, of course, subject to contracts, market value, and other factors, some experimental or technological in nature. FMC also believes that music fans should be able to lawfully access the music they want without undue barriers or restrictions. Needless to say, finding the appropriate balance between creators' rights and public benefit in the digital age has been challenging. Yet, it's a discussion that must continue, and FMC is committed to facilitating these important conversations. In 2000, FMC took the position that the only antidote to an illegal Napster is a legal Napster. The events of the last decade have demonstrated this statement's truth. Terrestrial music sales have dropped, and digital sales have risen. Although digital sales have not increased enough to make up for falling physical album sales, it is increasingly clear that the future of music distribution is online. Since 2000, numerous new music business models have attempted to monetize music in the new digital marketplace. A few have succeeded, but many have failed. Some failures could be blamed on poorly constructed schemes. However, some workable business models have struggled not because their model is unworkable, but because of the law's inability to adapt to the internet age. Tensions between existing copyright law and current consumptive trends-facilitated by technological developments that were unimaginable even ten years ago-are hampering the effort to build new business models that compensate artists, meet consumer demand, and create an economically sustainable cultural community. Much of the problem stems from the lack of a stable legal framework governing the digital use of creative content. This Article will highlight some unresolved legal tensions surrounding the creation of new, viable digital music business models, effective artist compensation, and maximum public benefit. The authors believe Congress and the new administration should address these tensions in order to encourage the creation of a vibrant, viable digital music marketplace.