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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

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file sharing or music piracy
File Sharing or Music Piracy?

Legal and Ethical Issues of Downloading Music Illegally

Originally presented

by Charles Elftmann:

May 2, 2006

copyright the internet
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

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
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


arguments against continued
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
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
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
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
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:

shawn fanning creates napster
Shawn Fanning createsNAPSTER
  • Facilitated efficient sharing and copying of MP3 files
  • Started peer-to-peer revolution
  • Spawned new online communities
  • By July 2000 NAPSTER has 1 million customers per day
  • “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



  • 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
What is the RIAA?
  • “The Recording Industry of America (RIAA) is the lobbying organization for the five major record labels.” (
napster shuts down
NAPSTER shuts down
  • In 2001 NAPSTER shut down by 9th Court of Appeals ruling

Concise legal history of music copyright:

u s constitution article i section 8
U.S. Constitution: Article ISection 8.
  • Authorizes Congress to regulate Copyright, Patent, and other Intellectual Property matters
congress shall have power
“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”

copyright as a balancing act
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
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

January 6, 1897

Music protected against unauthorized public performance.

under the 1909 copyright law
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.<<


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:

sony corp of america v universal city studios 464 u s 417 1984
Sony Corp. of America v. Universal City Studios, 464 U.S. 417 (1984)


betamax case videorecorders
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

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
Justice Souter (writing the opinion for the court):

>>Neither company used filtering tools or other mechanisms to diminish the infringing activity.<<

key supreme findings34

>>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
SONY’s interpretation is narrowed

Can no longer serve as a safe harbor for businesses based on copyright infringement

justices on sony
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
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
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.

civil penalties for infringement
Civil penalties for infringement

minimum of $750 per song

…up to $150,000 per song

mindful internet use
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
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
MUSIC (Music United for Strong Internet Copyright)
  • equates illegally downloading music with “stealing”
denyce graves world renowned mezzo soprano opera singer
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?"
the pure songwriter s perspective
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
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
Janis Ian’s perspective
dexter holland lead singer with the offspring
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
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."
  • “How can a 14-year-old who has an allowance of $5 a week feel bad about downloading music produced by multimillionaire musicians and greedy record companies?”
harvard business school university of north carolina study
Harvard Business School & University of North Carolina study
  • “It might take 5,000 downloads to reduce the sales of an album by a single copy.”
  • “For albums with sales over 600,000 copies, every 150 downloads actually increases sales by one copy.”
  • O'Rourke, Morgan. "Setbacks in the music piracy war.(Risk Reporter)." Risk Management 51.6 (June 2004)
frequently cited study questions economic impact of file sharing
Frequently cited study questions economic impact of file sharing

Oberholzer-Gee, F; Strumpf, K. (2005) The effect of file sharing on record sales: an empirical analysis.

riaa calls oberholzer strumpf study flawed
RIAA calls Oberholzer-Strumpf study flawed
  • The RIAA also says the study is skewed because the team used the fourth quarter of 2002 as a basis for its findings.
  • "It is not possible to examine record sales and downloading for 17 weeks [including the Christmas season] and determine whether or not downloading has harmed sales over the last three years."

Billboard 116.16 (April 17, 2004)

jupiter research study finds that youth harm music sales in long term with p2p
Jupiter Research Study finds that youth harm music sales in long term with P2P

“Legal download services … require a credit card and most teenagers don't have one of these.”


orson scott card

<<The real gripe for the record companies is not these fictional ‘lost sales’.<<

orson scott card57
Orson Scott Card:

>>What’s keeping them up at night is the realization that musicians don’t need record companies anymore. . . .

Instead of turning file-sharers into martyred heroes . . .just educate people. IT’S OK TO SAMPLE but don’t give away whole albums of work you didn’t create.<<
positive outcome of illegal p2p
Positive outcome of Illegal P2P
  • paves the way for IPOD & ITunes
  • forces musicians and record companies to sell songs through legal online music services
riaa self help or dirty tricks
SPAM File Sharing Service with Bogus requests

Post booby traps, fake files, distorted or aborted songs

Post files that sends …file trader to a site where CDs are for sale

Send Copyright Infringement Warnings to KaZaa & Grokster users

RIAA “Self-Help” or Dirty Tricks?
legal tactic 1
Legal Tactic #1

Sue the P2P Networks or Software distributors: NAPSTER, GROKSTER, STEAMCAST, etc.

legal tactic 2
Legal Tactic #2

As of April 2006 the RIAA has filed 18,000 lawsuits against individual file sharers

riaa lawsuits
RIAA & Lawsuits

“The RIAA has struck again, this time suing a family that has no computer and no internet connection.  The federal lawsuit was filed in Rome, Georgia against a family in Rockmart, GA.” (ZDNet)

argues g richard shell
…argues G. Richard Shell

>>You will never win your market by suing your customers.<<

riaa negative pr

>>Perhaps the greatest casualty in the war on piracy has been the public’s perception of the music industry.<<

--Kristina Groenings

sony copy protection fiasco
SONY Copy Protection Fiasco
  • Compounding the PR problems of the recording industry was SONY/BMG’s introduction of Copy Protection software to Compact Discs.
sony bmg continued
SONY BMG continued
  • The software left PCs vulnerable to worms and viruses
  • “The XCP software installed silently before the EULA appeared [which] …illegal in various ways in various jurisdictions” (
is all fair in love and war
Illegal & morally suspect behavior of

music pirates

Ethically questionable tactics of recording industry

Is all fair in love and war?
file sharing trends
File Sharing trends
  • Decentralization: Most MP3 files live on individual hard drives
  • Use of Instant Messaging and Encryption to avoid detection
darknets and f2f
Darknets and F2F
  • In response to RIAA attacks:

Some music pirates have created private virtual networks

Often 10 or fewer people trade MP3 files Friend to Friend


for more information try www digitalmusicnews com o r






For more information trywww.digitalmusicnews.comor…