Congressional
Action on MOCA Unlikely This Session
The
Justice Departments announcement of its antitrust investigation
into the recording industrys online music ventures and the
governments focus on significant legislative priorities resulting
from September 11 have eliminated the prospects for Congressional
consideration of H.R. 2724, the Music Online Competition Act (MOCA).
H.R.
2724, sponsored by Representatives Rick Boucher (R-VA) and Chris
Cannon (R-UT), seeks to compel record labels to license their content
through "equal terms" to all online music distribution
services beyond those they enter into partnerships and cross-licensing
agreements with. MOCA represents compulsory licensing of music copyrights,
triggered by business agreements and marketplace solutions to consumer
demands for convenient and affordable online distribution of music.
Under
the guise of antitrust, MOCA is intended to bail out file sharing
services like Napster, which have been shut down by the courts for
violation of copyright law. Napster CEO Konrad Hilbers is on record
as advocating for compulsory licensing of online music, and vehemently
supports the Boucher-Cannon bill.
The
Center for Individual Freedom is adamantly opposed to MOCA and the
notion of compulsory licensing of online music. In a paper published
earlier this year, "Taking" Away Music Copyrights,
the Center examines the question: Does compulsory licensing
of music on the Internet violate the Fifth Amendments Takings
Clause? We believe a substantive argument can be made that it does.
While the Constitution grants to Congress the authority to protect
copyrights as a property right through Article I and the Fifth Amendment,
compulsory licensing, although providing compensation to copyright
holders, destroys ones right to negotiate terms for others
to use his or her intellectual property. In addition, Congress should
resist its temptation to intervene in the private marketplace for
intellectual property rights by imposing such compulsory licensing
that discourages private negotiation and inhibits the development
of marketplace solutions.
To
read "Taking" Away Music Copyrights, click
here.
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