Stream Capture: Returning Control of Digital Music to the Users
Anderson, Jay, Harvard Journal of Law & Technology
TABLE OF CONTENTS I. INTRODUCTION II. EXPERIENCING MUSIC A. The Service-Product Spectrum B. Music As a Service: Manual Notation and Performance 1. Notation and Composition 2. Mechanical Musical Instruments C. Music As a Product: Mechanical Recording and Playback 1. Analog Sound Recordings 2. Digital Sound Recordings D. Products As a Service: Digital Streaming Music 1. Digital Music Streams 2. Streams As Instruments III. STREAM CAPTURE: STREAMS AS PRODUCTS A. Streaming Technology and Capture Techniques 1. Streaming and Progressive Downloading 2. Stream Capture Services and Products B. Of Public and Private Goods C. Legality D. Industry Ramifications 1. Disrupting a DRM-Enforced Business Model 2. Statutory Licensing 3. Ease of Use and Pervasiveness IV. AN ALTERNATIVE COMPENSATION SYSTEM V. CONCLUSION
I wanna say a special welcome to everyone that's, uh, climbed into the Internet tonight and, uh, has got into the M-bone. And I hope it doesn't all collapse. --Mick Jagger (1)
A number of streaming Internet music services have popped up recently, both in the U.S. and abroad. These services come in many shapes: some function akin to radio stations, (2) some deliver on-demand streams a la jukeboxes, (3) and some even stream your own music back to you from the "cloud." (4) The multitude of companies attempting to cash in on streaming Internet music can in part be attributed to the excellent monetization properties of streams. Streaming services--whatever the overarching arrangement may be--essentially provide single use products (streams) that perish as they are consumed. In short, Internet music streams have the commercially desirable properties of private goods: rivalry and excludability. In addition, certain classes of streaming services may take advantage of a statutory licensing scheme, giving service providers a vast library of perishable goods to deliver to consumers at low expense. (5) However, companies attempting to monetize streaming Internet music might soon have to confront a technological development similar to one that previously threatened over-the-air video and cable: the ability to capture streaming content. For television, the threat was video stream recording devices, such as the VCR and TiVo. For Internet music streams, it comes from services like Dar.fm (6) and software like PandoraJam. (7) These tools can permanently capture transient music streams without any loss in quality, (8) allowing users to save media for playback whenever desired--in effect, transforming Internet music streams to locally stored MP3 files (9) and giving them the properties of public goods. Users can then access, duplicate, and share these copies outside the control of the originating streaming service, thus depriving the service provider of ad revenue and the content owners of royalties.
This Note discusses the nature of Internet streaming, the businesses rushing to embrace it, and the inevitably disruptive technologies seeking to displace it. Although of uncertain legality, stream capture tools threaten to undercut the economic incentives behind the burgeoning streaming music industry. In Part II, this Note introduces what I refer to as the "service-product spectrum," and explores the evolution of music through this analytical lens. I conclude that streams--through the imposition of a service layer--have just as much in common with mechanical musical instruments, such as player pianos, as they do with sound recordings. Part III discusses the emerging technologies that allow one to "capture" streaming media. I examine stream capture from a technological perspective and explain why streaming music is an artificial technological deviation from traditional digital music as a product, and thus can be considered a form of Digital Rights Management ("DRM"). …