File Sharing or Music Piracy? Legal and Ethical Issues of Downloading Music Illegally Originally presented by Charles Elftmann: May 2, 2006
Copyright & the Internet Internet content falls into 3 Categories: • Copyrighted materials • Content that infringes someone else’s copyright • Public Domain or Freeware
Most recorded music is protected by U.S. Copyright Law Posting or copying unauthorized sound files infringes someone else’s copyright
Arguments against file sharing • Unauthorized downloading is theft • Hurts songwriters & artists • Stifles careers of emerging bands/artists • Hurts working people in recording industry & retail music trade (http://www.riaa.org)
Arguments against continued • Weakens anti-piracy efforts of U.S. diplomats in foreign countries • Erodes Recording Industry profits • Many musicians are asking fans to respect their creativity
Arguments for file sharing • CDs cost too much • CDs only have a few good songs • Quality of music is declining • File sharing is “fair use”
Arguments for continued • Copyright law is corporate welfare • RIAA has no right to enforce US laws on the global Internet • Many artists support file sharing • File sharing promotes Music . . . leads to sales
Arguments for… • Internet is promotional avenue for artists ignored by radio & MTV • Pop music stars are rich and arrogant • Recording industry has been exploiting artists, songwriters, and fans for years
Early history of file sharing: A good summary and discussion of the pro’s and con’s of illegally downloading music can be found at: www.mredkj.com/other/sharing.html
Shawn Fanning createsNAPSTER • Facilitated efficient sharing and copying of MP3 files • Started peer-to-peer revolution • Spawned new online communities
January 1999 NAPSTER offers free downloadsOne Million songs are downloaded by the end of 1999
NAPSTER • By July 2000 NAPSTER has 1 million customers per day
NAPSTER • “At its zenith, Napster ruled the internet boasting 60million users swapping three billion MP3 music files.” New Scientist (13:02 20 July 2001)
NAPSTER REVOLUTION MP3 TECHNOLOGY + NAPSTER Software + BROADBAND INTERNET EXPLOSION = DRAMATIC GROWTH IN ILLEGAL FILE SHARING
RIAA • Files a Copyright Infringement Suit against NAPSTER • Illegal file sharing bogs down Internet traffic at colleges and universities • APRIL 2000 Metallica sues NAPSTER • DR DRE also sues NAPSTER
What is the RIAA? • “The Recording Industry of America (RIAA) is the lobbying organization for the five major record labels.” (http://www.downhillbattle.org)
NAPSTER shuts down • In 2001 NAPSTER shut down by 9th Court of Appeals ruling Concise legal history of music copyright:
U.S. Constitution: Article ISection 8. • Authorizes Congress to regulate Copyright, Patent, and other Intellectual Property matters
“Congress shall have Power. . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”
Protect the Rights of creators (for a limited time) Insure the Freedom to innovate Creative work to the public domain COPYRIGHT as a balancing act
Founder’s Intentions • “The original function of copyright was to encourage social advance by giving creators a financial stake in their work and by insisting that intellectual property become, after a reasonable period of time, public property.” –Philip A. Gunderson
February 3, 1831First general revision of the copyright law. Music added to works protected against unauthorized printing and vending.
January 6, 1897 Music protected against unauthorized public performance.
Under the 1909copyright law • >>The copyright owner of a musical composition had the exclusive right to make the first mechanical recording of the work. . . .The work could then be recorded by anyone for a fixed royalty fee or by negotiating a separate contract.<< (www.copyright.gov/circs/circ23.html)
Alverno’s TECHNOLOGY USE POLICY “Respect fair use of copyrighted material and intellectual property. . . . Note that unauthorized duplication or transmission of copyrighted or other proprietary content could subject you to criminal prosecution as well as personal liability in a civil suit.”
TECHNOLOGY USE POLICY continued “To minimize demands on Alverno’s technology resources and maximize the availability of those resources, you are expected to refrain from activities that generate excessive network traffic. These include but are not limited to:
Peer to Peer sharing of data using applications such as Morpheus, Kazaa and BearShare
Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984) LANDMARK SUPREME COURT CASE
BETAMAX Case (Videorecorders) • ruled that a company was not liable for creating a product that customers used for copyright-infringing purposes, so long as the product was capable of non-infringing use.
Supreme Court rules 9-0 against GROKSTER …in the case of MGM vs. Grokster & Streamcast (June 27, 2005)
KEY SUPREME Findings Grokster softwaremarketed as an infringement tool!
Justice Souter (writing the opinion for the court): >>Neither company used filtering tools or other mechanisms to diminish the infringing activity.<<
KEY SUPREME Findings >>StreamCast and Grokster make money by selling advertising space, by directing ads to the screens of computers employing their software. . . .the commercial sense of their enterprise turns on high-volume use, which the record shows is infringing.<< --Ernest Miller
SONY’s interpretation is narrowed Can no longer serve as a safe harbor for businesses based on copyright infringement
Justices on Sony: • "Where evidence goes beyond a product's characteristics or the knowledge that it may be put to infringing uses, and shows statements or actions directed to promoting infringement, Sony's staple-article rule will not preclude liability."
From Breyer's Concurrence: • "Here the record reveals a significant future market for noninfringing uses of Grokster-type peer-to-peer software.”
Plea not to outlaw P2P Breyer sees a future for non-infringing uses of peer-to-peer software and does not want to see the software outlawed. Only two of his colleagues shared his point of view.
Criminal penalties for copyright infringement • up to 5 years AND $250,000
Civil penalties for infringement minimum of $750 per song …up to $150,000 per song
Mindful Internet Use • Whether file sharing is right or wrong Netizens need to know the legal and financial consequences of commerce in unauthorized sound files.
RIAA arguments against • Stealing music is against the law • Betrays the songwriters and artists who make the music • Stifles careers of emerging bands or artists • Hurts working people from recording engineers to record-store clerks
MUSIC (Music United for Strong Internet Copyright) • equates illegally downloading music with “stealing”
Denyce Graves, World-Renowned Mezzo-Soprano Opera Singer: • "There are laws against piracy in this country, and unless we enforce them, how do we expect any other country to care about protecting our rights from piracy?" http://www.musicunited.org/3_artists.html
The Pure Songwriter’s Perspective • While musicians can earn a living by playing concerts, songwriters are only paid when people purchase the recorded versions of their songs • (or pay a royalty fee to play them on the radio). --Phil Galdston quoted in InternetPiracy (2005 Greenhaven Press)
Senator Orrin Hatch (R-Utah): • "I'm interested" [in technology that will destroy music pirates’ PCs] "may be the only way you can teach somebody about copyrights. . . . If that's the only way, then I'm all for destroying their machines."
Janis Ian’s perspective • FREE DOWNLOADS = • EXPOSURE FOR ARTIST • = GOOD FOR ARTISTS
Dexter Holland (Lead singer with The Offspring) • "We're not afraid of the Internet. We think it's a cool way to reach our fans. If a band sells 12 million albums, what are we supposed to say? Oh, maybe we could have sold 13 million if we had just been Internet Nazis. Frankly, at a certain point, you have to say. Hey, let the people have the music."
Rapper CHUCK D: • "We should think of (Napster) as a new kind of radio - a promotional tool that can help artists who don't have the opportunity to get their music played on mainstream radio or on MTV."