The Copyright Act has not kept pace with the times, and the next revolution is going full stream ahead. Rather than adapt, entrenched interests at the Copyright table push for more protection, while new technologies are demonized and underrepresented. The resulting Copyright Act’s provisions relating to internet-based radio, ranging from passive over-the-air broadcasts to fully interactive music hosting sites, are a patchwork of accommodations and concessions to these interests. For all non-interactive services, licensing music typically occurs within the Copyright Act’s compulsory licensing system. For interactive webcasters, licensing negotiations take place with the copyright holders directly. These negotiations have proven disastrous for all but the biggest of interactive broadcasters, and neither Pandora nor Spotify has posted a profitable quarter to date. The February 2014 In re Pandora Media decision in the Southern District of New York illustrates the lack of a free market for recorded music. The unique market for recorded music, the antiquated regulatory framework and the sheer volume of copyrighted works suggests that no satisfactory alternative to licensing through copyright exist. The article proposes that with legislative changes meant to withstand time and technological revolutions, the Copyright Act can once again harmonize with its original, explicit goals.
Patrick Koncel, Did Copyright Kill the Radio Star? Why the Recorded Music Industry and Copyright Act Should Welcome Webcasters Into the Fold, 14 J. Marshall Rev. Intell. Prop. L. 292 (2015)