right (upon paying two cents per copy) to make subsequent recordings of
the same music -- _whether_or_not_the_original_author_granted_permission._
This was a "compulsory licensing right," which Congress granted copiers of
copyrighted music to assure that the original owners of the copyrighted
works would not acquire too much control over subsequent innovation with
that work.[7-16]

The effect of this compromise, though limiting the rights of original au-
thors, was to expand the creative opportunity of others. New performers had
the right to break into the market, by taking music made famous by others
and rerecording it, after the payment of a small compulsory fee. Again, the
amount of this fee was set by the statute, not by the market power of the au-
thor. It therefore was a far less powerful "exclusive right" than the exclusive
right granted to other authors.[7-17]

This balance is the rule, not the exception, when Congress has con-
fronted a new technology affecting creative rights. It did the same thing with
the first real "Napster" in our history -- cable television. Cable TV was born
by stealing the content of others and reselling that content to consumers.
Suppliers of cable services would set up an antenna, capture the commer-
cial broadcasts made by television stations, and then resell those broadcasts
to their customers.

The copyright holders did not like this "theft." Twice they asked the
Supreme Court to shut cable TV down. Twice the Court said no.[7-18] So it fell
to Congress to strike a balance between cable TV and copyright holders.
Congress in turn followed the model set by player pianos: cable TV had to
pay for the content it broadcast, but the content holders did not have an ab-
solute right to grant or deny the right to broadcast its content. Instead, cable
TV got a compulsory licensing system to guarantee that cable operators
would be able to get permission to broadcast content at a relatively modest
level. Thus content holders, or broadcasters, couldn't leverage their power
in the television broadcasting market into power in the cable services mar-
ket. Innovation in the latter field was protected from power in the former.[7-19]

These are not the only examples of Congress striking a balance between
compensation and control. For a time there was a compulsory license for
jukeboxes; there is a compulsory license for music and certain pictorial
works in noncommercial television and radio broadcasts; there is a compul-
sory licensing scheme governing satellite television systems, digital audio
home recorders, and digital audio transmissions.[7-20]

These "compromises" give the copyright holder a guarantee of compen-
sation without giving the copyright holder perfect control over the use of its

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