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Edward B. Chansky, of Levett, Rockwood in Westport, Conn., has substantial experience with the music business — as legal advisor, copyright agent and performer. A trombonist with Orchestra New England in New Haven, he’s negotiated and drafted record contracts, signed them as its board chair, then headed into the studio to perform. More broadly, he knows the legal consequences of technological advances, which have repeatedly shaken up the intellectual property arena from Gutenberg to Gates. And Chansky knows enough not to predict how law and commerce will solve the IP threat of the moment. The music industry is scared of pirates, in the form of Internet music file-sharing programs, the best-known of which is Napster. “It’s very hard to have a good crystal ball,” says Chansky, who chairs the intellectual property section of the Connecticut Bar Association. Last month’s short-lived federal court order to shut down Napster, lifted by the 9th U.S. Circuit Court of Appeals July 27, highlights the quandary. Napster users can swap digital music from thousands of other peoples’ computers in the anonymous sharing “community.” No one pays. Napster argued this is protected under the Digital Audio Recording Act of 1992, which permits non-commercial copying. But distinctions abound, notes Chansky. Back in 1984, he said, the VCR was tarred (as Napster is today) as primarily a tool for infringers. The U.S. Supreme Court, Chansky says, found VCRs are “used, by and large, for time-shifting programs. You tape a show to watch later, and then re-record over it next week. You’re not creating a library of tapes, [just] making the viewing more convenient.” That 1984 ruling didn’t cover home audio taping, which came to a head with invention of the Digital Audio Tape recorder. The music industry was fearful enough to secure a moratorium on DAT imports. Congress placed a stiff tax on DAT tapes and machines before the ban was lifted. Now song owners split up the tax, based on music sales records. Napster isn’t much like a DAT tape recorder in the living room, Chansky explains, in part because there’s no system — tax, subscription, clearinghouse or pay-per-play — to compensate the piper. “There are probably a dozen other methods that none of us have thought of yet,” Chansky says. Determining who pays, and how, is a critical question whenever there’s a technological breakthrough like this, notes University of Connecticut Law Professor Lewis Kurlantzick. When radio was invented, a tax on tubes was considered. Advertisers pay broadcasters, who in turn pay for blanket licenses from clearinghouses, such as the American Society of Composers, Authors and Publishers (ASCAP). One persistent challenge is to find a fair and efficient collection system, so copyright owners don’t “pay dimes to collect nickels,” Kurlantzick says. The challenge of designing a new model is intriguing. Stanford Law professor Paul Goldstein sketches one view in “The Copyright Highway — from Gutenberg to the Celestial Jukebox.” He foresees technology combining telephones, video, audio and computers into a composite machine. By subscription, micro payments or some other mode, consumers would pay for and get easy access to their communication of choice. Technology’s great leaps are reminiscent of the days when canal builders were trying to open up the Midwest through the Great Lakes, right at the dawn of transcontinental rail networks, says Chansky. “Because we don’t know whether the canals will become useful or the railroads will trump them, there’s also a danger in moving too fast — to try to lock in legal rules to the technology du jour.”

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