Copyright lawyers have any number of challenges in the online world of the World Wide Web. The ability to copy and distribute digital media, including text, music and images, all of which may be copyright protected, allows for infringement to occur at a seemingly unstoppable rate. As is noted by so many commentators, however, copyright holders get the benefit of having their works seen in ways and in numbers that were simply not possible before the Internet.
Music has provided some interesting lessons. Some musicians and the RIAA (Recording Industry Association of America) have aggressively pursued end-users who download copyright protected music in ways few anticipated. It used to be believed that it was simply impossible to try and stem the tide of illegal music downloads. Why try? But some in the music industry took up the challenge and devoted tremendous financial resources to pursue music copyright infringers.
Others in the music industry saw the Internet as an opportunity. They encouraged the free downloading and sharing of their songs, essentially providing a limited (not for resale) license to virtually anyone that wanted to download their MP3 onto their iPod, cell phone or computer. As a result, they were able to achieve distribution levels that took them from obscurity to relative fame. These music copyright holders often saw their CD sales skyrocket to unprecedented levels. Moreover, many made multiples of what they would have otherwise made at lucrative concerts which brought attendance levels that could never have been achieved without encouraging viral MP3 downloads.
As a copyright lawyer watching the market from within and representing musicians at both ends of the spectrum, I would make these observations. Every musician needs to decide for themselves which approach works best for them, but they should do so based on information. Too often, music copyright issues are addressed without properly analyzing the opportunity. Money and resources are devoted to pursuing protection against just about everyone, without considering all the options.
The real scofflaws for many musicians will be those who are trying to profit off of their works on the Internet, not those fans who are downloading for free. By drafting their copyright notice in a way which precludes monetization of the copyrighted works, they are put in a position where they can go after those who are illegally profiting from their copyrighted works from their copyrighted music, while leaving their fans free to download, share and promote their music as part of the social networking phenomena on the web.