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Congressional Action on MOCA Unlikely This Session

The Justice Department’s announcement of its antitrust investigation into the recording industry’s online music ventures and the government’s 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 Amendment’s 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 one’s 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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