The Power of Music: Applying First Amendment Scrutiny to Copyright Regulation of Internet Radio

Abstract

The growing body of literature documenting the power of music — from promoting the well-being of individuals to fostering reconciliation of cross-cultural disputes — underscores the value of music as extending beyond the private interests of the copyright holders. The current dialogue about the First Amendment interests affected by modern copyright law has not fully acknowledged the research that supports the unique communicative potential of music. First Amendment protections for music encompass a listener’s right to hear it, as well as a speaker’s interest to play it. The ever-expanding copyright regulations of online music have been used by incumbents to maintain market dominance without consideration of the First Amendment interests of listeners or webcasters. Specifically, the Sound Recording Performance Complement provides that within any three-hour period, a Webcaster may play no more than two songs in a row from the same album, no more than three songs in a row by the same artist, and no more than four songs by the same artist or from the same box set. The built-in First Amendment accommodations, which generally shield copyright law from First Amendment scrutiny, afford no protection for a Webcaster’s expressive voice. The current copyright regulations, which circumscribe the number and arrangement of Webcasters’ playlists, cannot survive First Amendment scrutiny.

Keywords: First Amendment, Music, Online Radio, Webcast