September 16, 1997, I represented 3,000,000 songwriters on behalf of
BMI, addressing The House Judiciary Committee, Subcommittee On Courts
And Intellectual Property on artists' rights in cyberspace.
Statement On Copyright Law Revisions
by Allee Willis
My name is Allee Willis and I am a songwriter. My biographical sketch
is available to you. I would merely highlight that in 1995 I was nominated
for an Emmy for my Number 1 hit "I'll Be There For You" (theme
from the television program "Friends") by The Rembrandts,
one of the best selling themes of all time. In 1985, I won a Grammy
for Best Soundtrack for "Beverly Hills Cop." My songs have
sold over 40,000,000 records, including "Neutron Dance" by
the Pointer Sisters, and "September" and "Boogie Wonderland"
by Earth, Wind And Fire. I currently am designing "willisville",
a radically new approach to interactive entertainment communications
and transactions. A story-driven, interactive online experience, willisville
draws on and integrates multiple technologies, platforms and media
(online, television, music, books, CD-ROMs, etc) to create one cohesive
virtual world. The seed money for willisville was provided by Intel.
I have been a consultant to Microsoft and the Walt Disney Company,
have created virtual worlds for a variety of other technology and entertainment
companies, and have worked with at least one major online service provider.
Mr. Chairman, and
Members of the Subcommittee, I am honored to be here to testify before
the Subcommittee on two very important pieces of legislation: H.R.
2281, the "WIPO Copyright Treaties Implementation Act,"
and H.R. 2180, the "On-Line Copyright Liability Limitation Act." On
behalf of my fellow songwriters, I thank you for your leadership both
in introducing these two measures and conducting these hearings. As
a songwriter, I am pro-Internet. I have dedicated the past five years
of my life working with hundreds of different technologies to figure
out new mass media of entertainment and communication -- the hub of
which is the Internet -- as well as the business models that will allow
it to flourish. Speaking for all songwriters and composers, we welcome
the opportunity for the new medium to flourish. However, songwriters
and composers have some very serious concerns about the protection
of our artistic creativity in any form on the Internet. In my case,
my entire career is dependent on it.
The U.S. is the leader in Cyberspace -- from a technological, economic
and policy perspective. Seventy percent of Internet traffic starts and
stops within the U.S.
I appear before
you today on behalf of Broadcast Music, Inc. ("BMI").
I would like to submit into the hearing record a preliminary review
prepared by BMI of the two bills with specific drafting considerations
and constructive criticisms, and would ask that it be placed in the
record. BMI is one of this country's three performing rights organizations,
and it represents the public performing rights of over 180,000 songwriters,
composers and music publishers in all 50 states and throughout the
world. BMI also represents many thousands of works created by foreign
songwriters and composers when their works are performed in the United
States. There are over 3 million musical works in the BMI repertoire.
As this Subcommittee knows, BMI (under the leadership of its President
and CEO, Frances W. Preston) has testified on numerous occasions
about amendments to the copyright law to meet technological advances
in the distribution and performance of music.
In considering BMI's position, I would ask that you keep two over-arching
thoughts in mind:
First, songwriters' ideas are a part of the cultural fabric; our ideas
are infectious and speak of and to people's lives. Songs are among the
most all-pervasive forms of communication and information that exist.
Music is an integral part of all entertainment product.
Second, please do not deprive songwriters of an income for that which
we create. We are paid for our music through the Copyright Act, and
particularly the public performing right.
On a much broader
cultural and societal note, the finest minds must be encouraged to
be excited about and actively create the future. Legislation concerning
Cyberspace must be seen in the context of building a whole new world
that increasingly is becoming a part of each and every human being's
living space. Laws must contemplate this reality. We can breed brilliant,
creatively inspired civilizations to come or we can breed really
silly, robotic ones. Congress will provide the framework on which
future civilizations will be built. It is imperative that Congress
enact legislation that will attract and enable the "best of" artistic
brains to design and develop Cyberspace. And that will not happen
unless the financial incentives to creators of intellectual property
Congress should encourage and protect songwriters and composers, for
it is our music being danced to at your daughter's wedding; it is our
music that keeps running through your head and comforts and excites
you; it is our music that unites the world in mourning, as the deaths
of Princess Diana and Mother Teresa so emotionally portrayed. And it
is our music that has the power to lead the masses into Cyberspace and,
once and for all, turn it into the thriving economy that it must become
in order to survive as a new medium of entertainment and communication.
In a time of blinding
technological change, Congress -- acting through this Subcommittee
-- is attempting to pass legislation that will meet the needs of
the digital future. It seems trite to observe that the Internet has
moved from a military program in 1969 to approximately 9,400,000 "host" computers
in 1996. The number of Internet households is expected to increase
from 23.4 million in 1996 to 66.6 million by 2000.
However, H.R. 2281 and H.R. 2180 move in opposite directions. H.R.
2281 places copyright law on a firm foundation so that the United States
can ratify two important new copyright treaties protecting the rights
of creators of intellectual property in Cyberspace. H.R. 2180 strikes
at the heart of the current copyright liability standards that are so
important to enforcement of copyright rights in the digital era. Songwriters,
composers, and creators of all intellectual property will be the losers
and, on balance, that is a poor public policy for the United States
to assume from an artistic, cultural and economic perspective.
H.R. 2281 (WIPO Copyright Treaties Implementation Act)
Over the years, U.S. copyright law has been malleable in the face of
the many changing ways in which Americans share the expression of their
ideas: from photographs to motion pictures to radio to broadcast television
to cable television to high powered direct broadcast satellite television
to multimedia. The existing copyright law has provided protection for
American creativity and commerce, benefiting the public good and the
United States international trade position. Effective copyright laws
are the responsibility of this Subcommittee and, Mr. Chairman and Members
of the Subcommittee, thank you for a job well done.
Yet, copyright protection is under serious threat. Piracy, counterfeiting
and unauthorized public performances are rampant in the new digital
environment in which we must live. To create new, broad exemptions will
only compound and exacerbate this unacceptable situation.
You already know how important the creative industries are to our country's
economy and our leadership position in global trade. The U.S. copyright
industries: (1) represent more than 5 percent of the United States workforce
-- roughly equal to the U.S. auto industry; (2) are growing at 2 times
the growth of the U.S. economy; and (3) represent more than 6 percent
of Gross Domestic Product. Copyright industry foreign sales and exports
are only exceeded in their generation of revenues from foreign countries
by the automobile and automotive parts businesses and the agricultural
sector. If you contest these numbers, just come to Southern California
to dispel your doubts.
As part of a global economy, American music is the most popular in the
world. American music generates substantial revenues for the United
States through performances in foreign countries. Sales of CDs also
generate substantial revenues for the United States. We cannot afford
to undervalue performances via electronic transmissions in Cyberspace
and other uses of our intellectual property assets. If we do not provide
effective protection for copyrighted works in the United States, an
incentive will be created for the owners of these copyrights to move
their businesses offshore.
Public performances of musical works are valuable property. Songwriters,
composers and music publishers depend for their livelihoods on being
compensated for the use of their works. The core business -- moving
digital data across networks -- of Internet access providers, online
service providers, telephone companies, and soon, even cable television
operators ("service providers") is directly stimulated by
the quality and value of the content available. Content should be protected
by these parties to help drive traffic through their networks.
As a personal aside, I have extensive experience working with and consulting
for some of these service providers. Though they like to portray themselves
as content nurturers, from all perspectives -- technology to creative
and to business -- they by no means have our best interests in mind
and therefore actually discourage great works of art from inhabiting
A new technology should not dictate the creation of sweeping exemptions
from copyright liability that will change a working system of compensation
for the content community that has worked well for many years. For these
reasons, BMI believes that WIPO treaty ratification should not be held
hostage to service provider liability reform.
BMI supports ratification of the two new WIPO treaties. As the world's
primary producer of music, the United States has the most to gain from
the expeditious ratification of the treaties. If Congress enacted the
implementing legislation without delay, the United States could ratify
both treaties in short order and then could exert forceful leadership
worldwide to encourage every country to join the new treaties. And if
we were to enact strong implementing legislation, we would provide a
very powerful model for other countries to emulate in revising their
own national laws. With quick action, we can move to end piracy in Cyberspace
before it takes root, and the United States will be the big winner.
On the other hand, weak implementing legislation would set a dangerous
precedent that would give comfort to our trade competitors and a big
boost to foreign pirates. We would also make it very unlikely that the
Internet will ever reach its full potential as an effective medium for
mass entertainment or a broad avenue for scholarly discourse. A legislative
framework that sanctions broad exemptions for key players will destroy
the fail-safe security that we need to encourage robust commerce on
the Net. If Congress builds a loose and open structure, we will: send
a signal against self-expression (the power of the song); reduce economic
investments in the creation of new works; promote piracy of American
music in Cyberspace; and prevent copyright owners from being compensated
for the exploitation of their works. The United States will be the big
As you know, Mr. Chairman, the WIPO treaties require signatory countries
to protect copyright owners against devices that defeat anti-copying
circuitry, and to safeguard the copyright management information that
the copyright owners embed in each work. The state of the art is advancing
every day. We should encourage emerging software technology to protect
the value of copyrights. BMI urges you to pass straightforward legislation
that clearly establishes broad liability, but allows the courts to apply
as appropriate well-established copyright principles of fair use, contributory
infringement, and vicarious liability.
However, the Subcommittee may want to respond to the wishes of the equipment
manufacturers and others for greater certainty on the question of liability
for violations of both the anti-circumvention provisions and the copyright
management information provisions of the legislation. The current draft
provides some of that clarification. Nonetheless, in BMI's view, the
legislation needs a bit more clarification to ensure that companies
or individuals who want to use the system cannot abuse the system.
H.R. 2180 (On-Line Copyright Liability Limitation Act)
Mr. Chairman, in your introductory statement for H.R. 2180, you stated
that it was a "starting point" to stimulate debate. That
goal has been achieved.
To highlight the negative consequences of H.R. 2180 to songwriters and
composers, consider the following four real-life scenarios (bearing
in mind that most service providers will qualify for the bill's liability
1. A bulletin board is created to retransmit music uploaded to it by
user-fans of a particular rock band. The public performances of the
music (both the uploading and the downloading) are unauthorized. Provided
that the bill's minimal conditions are met, neither the service provider
that hyper links to the bulletin board nor the bulletin board itself
will fear liability. How will a copyright owner or its representative
be able to protect intellectual property?
2. BMI licenses a web site. Provided that the bill's minimal conditions
are met, service providers are exempted from copyright liability for
promoting and hyper linking to the licensed site. In other words, a
licensed site will become available worldwide at no cost to service
providers yet the service providers will benefit from the intellectual
property located on the licensed site.
3. A pirate (unlicensed) web site devotes itself to transmission of
music. Provided that the bill's minimal conditions are met, hyper linking
to the pirate site by and through service providers is permitted without
fear of provider liability. How will a copyright owner or its representative
be able to protect intellectual property?
4. An e-mail distribution system is created to transmit music in compressed
or real-time to host computers. Because service providers are prohibited
by law from accessing e-mail accounts, no liability will arise even
if the service provider knows that the material is infringing and the
service provider contends that it has no obligation to tell anyone the
name or address of the sender of the infringing work without a court
order. By the time a court order is obtained and the information about
the sender is obtained, substantial damage will be done to the value
of the copyrighted work or works. [At the same time, if a virus was
contained in the e-mail, a service provider could remove the virus automatically
before delivery.] How will a copyright owner or its representative be
able to protect intellectual property?
H.R. 2180 substantially tilts towards the interests of service providers
(including the behemoth regional and long-distance telephone companies)
regarding their potential liability for copyright infringement when
infringing material is transmitted through their services. The bill
is far-reaching in its implications, not only in the digital realm,
but in the analog world as well.
BMI would like to set forth four concerns about the proposed treatment
of liability in digital transmissions as set forth in H.R. 2180.
1. First, and foremost, the bill simply does not work for effective
collective rights management entities that work on behalf of copyright
owners. It cuts to the heart of collective interests of music creators.
It is unclear how the proposed legislation would work for the public
performance of music, and whether a collective licensing organization
would be able to file notice of its entire repertory of works on behalf
of the songwriters and music publishers that it represents. It is clear
that a "notice" of infringement under H.R. 2180, as drafted,
would not include a "take down" of BMI's entire repertory.
2. Second, we believe that adopting a blanket immunity for online service
providers from civil damages for vicarious liability and contributory
infringement (as H.R. 2180 would do) would be a catastrophe for protection
of copyrighted works in the U.S. given the rapid development of the
Internet as a transmission medium. It benefits the huge entities, such
as telephone companies and access providers, and takes away from protection
which was needed in the analog world and is certainly needed, to an
even greater extent, in Cyberspace.
3. Third, it seems unwise to attempt to fashion a more limited, technology-based
exemption at this time due to the rapid evolution of the technology
and the business models of online services. Any such technology-based
exemption would spawn decades of litigation about who qualifies.
4. Finally, there should continue to be no knowledge requirement for
either direct or vicarious liability of service providers. Nothing that
they do is so fundamentally different from traditional media as to warrant
overturning the bedrock strict liability principle of U.S. copyright
In BMI's more than 57 years of experience, there have been a long line
of businesses that have attempted to evade vicarious liability while
profiting from others' infringements. In BMI's view, online services
are not unlike the swap meet organizers found liable by the Ninth Circuit
in Fonovisa v. Cherry Auction, 76 F.3d 259 (9th Cir. 1996). In this
case, a corporation leased space where pirated records were swapped
without the corporation's direct knowledge. It was liable nevertheless.
In U.S. law, the lower limitation on statutory damages for "innocent
infringement" is the way for courts to handle situations where
related parties are truly ignorant of the infringements.
In your deliberations on this matter, BMI, as a collective rights organization
that licenses the public performing right, can offer a perspective
that others may not have made. The Copyright Act defines public performances
as transmissions to the public "by any device or process." Whenever
an entity transmits or facilitates the transmission of a musical work
to a member of the public from point A to point B, regardless of the
number of transitory reproductions that may occur in packet switched
networks, the resulting transmission can be viewed as a public performance
requiring the permission of the songwriter or copyright holder. In
this regard, BMI views online transmissions as not unlike broadcast
and cable transmissions. Audience measurement data suggest that television
is losing audience to the Internet. If the vast majority of the transmissions
on the Internet would effectively be exempt (as the proposed legislation
contemplates), without these revenues there would be no incentive for
creators of intellectual property to permit their works to be transmitted
over the Internet. Revenues currently being received by songwriters
and publishers would be greatly diminished. Why should all public media
that play the same song all compensate the songwriter, except for the
Cable systems are at the forefront of offering high speed modem access
to the Internet. Imagine, if you will, that the cable industry signs
each of its 60+ million subscribers to a $20 to $40 per month service.
We are talking about over $12.5 to $25 billion per year in potential
annual revenues that could be all but entirely exempt from licensing
under H.R. 2180. This system will result in a windfall to cable television
and other service providers at the expense of creators of intellectual
Furthermore, the liability law Congress enacts will be copied almost
immediately, but with bigger loopholes, in China and other developing
countries that are havens for piracy. Why send the wrong signal to our
trading partners overseas when we have made so much progress in protecting
our national treasure, American creativity and artistic expression?
Finally, the bottom line is if you want private copyright owners to
continue to shoulder the burden of enforcing their copyrights, including
collective rights licensing, we need strong civil damages and strong
Mr. Chairman, and Members of the Committee, for the people to enter
Cyberspace and successful business models to evolve, it must grow beyond
the bland, corporately designed, inferior-level-of-artist designed world
that exists now, doomed to forever elude the imagination of the public
at large, never to reach its true potential. The Subcommittee, legislating
at a time in history where the biggest changes that have ever happened
to the human species are upon us, really needs to think about the 21st
Century in 21st Century ways. Innovative ideas about the future are
at the base of all our successes -- mine, yours, everyone's. Don't keep
creative genius in a cage. Please ensure that the new world is constructed
in the most innovative, inspiring and beneficial way possible and that
means compensating the true visionaries, the creators of art and song,