Copyright Law And The Music Industry There example essay topic

INTRODUCTION Nietzsche once said, "Without music life would be a mistake". With this eloquent statement, he expresses the magnitude of what lies at the core of every human being and that is simply our inherent love for music. It is a human necessity that strikes a chord (no pun intended) with all of us and always seems to mark every emotion, experience, event, and time period. Music has no boundaries with its interpretations, evolutions and expressions being limitless. Though little could Nietzsche have ever imagined, a world-wide communication network allowing for the consumption of downloadable music from cyber networks by internet explorers on personal computers. In this paper, I will briefly explore the world of music swapping over the internet and how this new phenomenon has sparked one of the largest quandaries of legal episodes to ever hit the modern era.

Millions of people are illegally downloading copyrighted songs from the Internet causing the music industry to be caught in a downward spiral as it continues to lose exponential amounts of revenue every year. There is no doubt that this is piracy from a legal standpoint, but who wants to see twelve-year old girls and young college students being dragged into courts because they downloaded Britney Spears singing "Oops! I Did It Again?" No one does. But this paper does not answer the ethical issue of whether or not people have the right to download music from the internet instead of paying $19.95 for a CD. Instead, it analyzes how the music industry, under the umbrella of the Recording Industry Association of America (RIAA), has been legally enabled to do so because of the Digital Millennium Copyright Act (DMCA) of 1998. This paper is separated into five different segments that provide: A) a brief background on and current status of internet music swapping; B) a general description of copyright law which is at the center of this issue; C) a summation of what the DMCA is and two landmark cases that evolved from it and D) a discussion of possible future legal implications this dispute could have.

INTERNET MUSIC SWAPPING Ricardo Morgan is the kind of person who petrifies entertainment executives. The twenty-nine year old Atlanta, Georgia resident, who is a General Manager at a restaurant, rarely patron's record stores anymore. He downloads most music he wants, such as songs from rapper 50 cents, from the Web without paying music companies nor the rapper, one red cent. Ricardo is an honest working man and he is committing piracy without probably even knowing it. How did this come to be and what does it mean for the music industry? FACTS ABOUT THE MUSIC INDUSTRY The music industry in 2002 was estimated to be worth $40 billion globally (RIAA, 2002) with the U.S. recording industry accounting for close to one-third of that world market.

Hundreds of thousands of people are currently employed either directly or indirectly by the music industry. It has now lost a substantial amount of revenues with sales falling 8.2% in 2002, losing $1.1 billion. Looking at the total music market, shipments fell to 335.6 million units, a decline of 15.8%. Total value was down 12% to approximately $4.8 billion. TYPES OF INTERNET PIRACY At its simplest, internet piracy involves the copying of files containing recorded music from the web or FTP (file transfer protocol) servers, or making available such files from Internet Relay Chat (IRC) channels or newsgroups for immediate access and download by any of the half-billion users. Links and hacking sites also facilitate unauthorized copying.

Links sites contain long lists of hyperlinked file names that, when clicked, commence direct or indirect downloads of infringing files from other servers. Hacking sites provide access codes, serial numbers, software or other means to break copy-control technology applied to copyrighted material. Various peer-to-peer services have appeared that encourage and assist this widespread unauthorized copying. Napster, which will be discussed later, was the first and best known, but similar services such as Aim ster, the FastTrack network including Kazaa and Grokster, and Gnutella-based services like Morpheus have sprung up. In 2000 and 2001 small Open Nap 'Napster clone's servers, based on the original Napster protocols, also appeared. FACTS ABOUT INTERNET PIRACY o In May 2002 there were approximately three million users and 500 million files available for copying at any one time on all of the peer-to-peer services worldwide (IFPI, 2002) o There are approximately 200,000 Web and FTP sites hosting or linking to some 100 million unauthorized recorded music files worldwide (IFPI, 2002) o Right now there are hundreds of unauthorized music downloading sites in the U.S. with the three most popular sites having a combined 70 million active users (Robinson, 2002) o 99% of music files available online are unauthorized (IFPI, 2002) COPYRIGHT LAW At the center of this controversy is copyright protection and the average person's lack of knowledge or lack of concern whether they are committing copyright infringement when they are downloading music on the Internet.

According to a new Pew Internet and American Life Project survey (2003) that highlights the enforcement battle facing the recording industry, two-thirds of Internet users who download music do not care whether they are violating copyright laws. The survey said younger Americans, ages 18 to 29, were least worried about copyrights, with 72% saying they were not concerned. It said 61% of Americans who were 30 to 49 years old were similarly unconcerned. Full-time students were the least concerned with violating copyright, with 82% saying they were not worried at all. This goes back to focus on how most of these violators skew very young. HISTORY ON COPYRIGHT LAWS Copyright law all started with the "Statute of Anne", and the world's first copyright law was passed by the British Parliament in 1709.

Yet the principle of protecting the rights of artists predates this. Before free speech, before freedom of assembly, before freedom of religion, there was copyright protection in our Constitution. The principle took hold during the Constitutional Convention of 1787 when James Madison suggested that the Constitution include language "to secure literary authors their copyrights for a limited time". It is found in Article I, Section 8, of the U.S. Constitution stating...

The 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... President George Washington signed the first copyright law on May 31, 1790. Nine days later, author John Barry registered his work, The Philadelphia Spelling Book, in the U.S. District Court of Pennsylvania, making it the first "writing" protected by copyright.

Since then, the copyright laws have been revised numerous times. The revisions have been aimed at balancing the author's right to reap the benefits of his or her work, and society's ability to benefit from that same work. COPYRIGHT LAW AND THE MUSIC INDUSTRY There are a handful of federal, state, and international laws that govern copyright practice and need to be considered when looking at the recording industry and the internet. In general, they are designed to protect the rights of artists while preserving the public's right to benefit from the works of those same artists. The various laws provide for civil and criminal penalties against those found guilty of violations. U.S. Copyright Law {Title 17 U.S.C. Section 101 et seq., Title 18 U.S.C. Section 2319} - Federal law protects copyright owners from the unauthorized reproduction, adaptation, performance, display or distribution of copyright protected works. Penalties for copyright infringement differ in civil and criminal cases.

Civil remedies are generally available for any act of infringement without regard to the intention or knowledge of the defendant, or harm to the copyright owner. In terms of music swapping on the internet, most downloaders fall under this category. Criminal penalties are available for intentional acts undertaken for purposes of "commercial advantage" or "private financial gain."Private financial gain" includes the possibility of financial loss to the copyright holder as well as traditional "gain" by the defendant. This would apply to the actual stakeholders of the websites that benefit from the downloading of music because they have financial gain through advertisers on the sites. Where the infringing activity is for commercial advantage or private financial gain, sound recording infringements can be punishable by up to five years in prison and $250,000 in fines (IFPI, 2002). Repeat offenders can be imprisoned for up to 10 years.

Violators can also be held civilly liable for actual damages, lost profits, or statutory damages up to $150,000 per work. The Federal Anti-Bootleg Statute {18 USC 2319 A} - prohibits the unauthorized recording, manufacture, distribution, or trafficking in sound recordings or videos of artists' live musical performances. Violators can be punished with up to 5 years in prison and $250,000 in fines. There are two important legal concepts, especially pertaining to the Internet, that should be kept in mind-contributory infringement and vicarious liability. Contributory infringement may be found where a person, with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another.

For example, a link site operator may be liable for contributory infringement by knowingly linking to infringing files. Vicarious liability may be imposed where an entity or person has the right and ability to control the activities of the direct infringer and also receives a financial benefit from the infringing activities. Vicarious liability may be imposed even if the entity is unaware of the infringing activities. In the case of a site retransmitting infringing programs, providing direct access to infringing works may show a right and ability to control the activities of the direct infringer, and once again, receiving revenue from banner ads or e-commerce on the site may be evidence of a financial benefit. Fair Use Doctrine {USC Title 17, Sec 107} - The "fair use doctrine" of federal law is a complicated area. Basically, it limits the extent of property interest granted to the copyright holder.

For example, this might allow citizens to cite a quotation from copyrighted material when the excerpt is used for teaching, research, news reporting, comment, criticism or parody (Cross, Miller, 2002). There are some limitations. Whether the court allows you to reproduce, distribute, adapt, display and / or perform copyrighted works depends upon the nature of the use (commercial purposes, non-profit, educational), the length of the excerpt, how distinctive the original work is, and how the use will impact the market for the original work. A number of file swapping advocacy groups are utilizing the Fair Use Doctrine as a defense to downloading music due to the fact that individual swappers are not using the songs for commercial purposes. But generally speaking, one is not allowed to take the "value" of a song without permission, and sometimes that value is found even in a three-second clip.

The Audio Home Recording Act of 1992 (AHRA) - This 1992 legislation exempts consumers from lawsuits for copyright violations when they record music for private, noncommercial use; eases access to advanced digital audio recording technologies; provides for the payment of modest royalties to songwriters and recording artists and companies; and mandates the inclusion of serial copying management technology in all consumer digital audio recorders to limit multi-generation audio copying (i. e., making copies of copies). In general, the AHRA covers devices that are designed or marketed for the primary purpose of making digital musical recordings. Digital audio cassette players, mini-disc players, and DAT players are devices covered by the AHRA. This law will also apply to all future digital audio recording technologies, so Congress will not be forced to revisit the issue as each new product becomes available. The AHRA provides that manufacturers (not consumers) of covered devices must: o register with the Copyright Office; o pay a statutory royalty on each device and piece of media sold; o implement serial copyright management technology (such as SCMS) which prevents the production of copies. In exchange for this, the manufacturers of the devices receive statutory immunity from infringement based on the use of those devices by consumers.

Multipurpose devices, such as a general computer or a CD-ROM drive, are not covered by the AHRA. This means that they are not required to pay royalties or incorporate SCMS protections. It also means, however, that neither manufacturers of the devices, nor the consumers who use them, receive immunity from suit for copyright infringement. This leaves swappers open for suit. DMCA Federal Copyright Laws alone were not enough for the RIAA to pursue litigation against music file swappers and illegal music internet service providers. The passage of the Digital Millennium Copyright Act (DMCA) was a complex landmark piece of legislation that made major changes in U.S. copyright law to address the digitally networked environment.

The DMCA has its origins in the 1996 World Intellectual Property Organization's Diplomatic conference in Geneva. Although U.S. copyright law already met the treaties's tankards, legislation was needed to meet the treaties' prohibition of devices used to undermine electronic "locks". The DMCA does just that, among other things, by prohibiting the manufacture and distribution of devices designed for the sole purpose of undermining technology used to protect copyrighted works. WHAT DOES THE DMCA PROVIDE The main role that the DMCA addresses outside of U.S. Copyright Law has to deal with circumvention of copyright protection systems. The following are the main points addressing this: o The DMCA prohibits gaining unauthorized access to a work by circumventing a technological protection measure put in place by the copyright owner where such protection measure otherwise effectively controls access to a copyrighted work (The Digital Millennium Copyright Act, 1998) o To facilitate enforcement of the copyright owner's right to control access to his copyrighted work, the DMCA also prohibits manufacturing or making available technologies, products and services used to defeat technological measures controlling access (The Digital Millennium Copyright Act, 1998).

But to ensure that legitimate multipurpose devices like MP 3 players can continue to be made and sold, the prohibition applies only to those devices that: A. Are primarily designed or produced for the purpose of circumventing; B. Have only a limited commercially significant purpose or use other than to circumvent; C. Are marketed for use in circumventing Both of these points apply directly to the music file sharing issue because the technology that is utilized by sites like Napster are commercially designed to circumvent the protective measures put in place by the music companies that prevent CD's from being reproduced. The music file sharing sites are marketed with the intent of circumvention and there really is no other commercial use for the sites. This would be later challenged by Napster and will be discussed later. The DMCA creates civil remedies and criminal penalties for violations. A civil action may be brought in a federal district court where the court can grant injunctions and award damages, costs and attorney's fees. The court may also order the impounding, the remedial modification or the destruction of the devices or products involved in the violation.

The court can also grant subpoenas for the music companies against any network or company in order to obtain names of violators. This is key because it enables the music companies to go after the actual swapper by obtaining their identities. The veil of anonymity of individuals subscribed to a service has been lifted. This is discussed later in the RIAA vs. Verizon case. LANDMARK CASES When the RIAA began pursuing contributors to piracy of music including: online companies; universities where students were utilizing the school's network to trade music; and companies whose internet subscribers were swapping music there were two landmark cases that the DMCA played a substantial role in the verdicts.

RIAA vs. NAPSTER, INC. The largest and most significant case in the battle of online piracy of music thus far was RIAA vs. Napster. Napster was the largest online music sharing service in the nation. On Napster users could utilize its proprietary software call Music Share to search for MP 3 music files and download or share files free. Napster maintained a searchable directory and an index to connect users together. However, the company merely connects the computer sharing the MP 3 with the computer downloading and storing the file.

On December 6, 1999, various recording labels under the RIAA sued Napster for contributory and vicarious infringement that is mapped out in the DMCA. Napster's defense was that its business activities fell within the safe harbor provisions of the DMCA. That subsection limits liability "for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections". (Carlinsky, 2001) Napster argued that it is just a "service provider" and should not be sued under the DMCA because: A. The Napster user initiates the transmission of MP 3 files B. The transmission occurs through an automatic, technical process without any editorial input from Napster C. Napster does not choose the recipients of the MP 3 files D. Napster does not make a copy of the material during transmission E. The content is not modified during transmission U.S. District Court Judge Marilyn Hall Patel ruled in favor of the RIAA. Her ruling basically suggested that Napster or any other company facilitating the transmission of infringing material over the Internet might fall within the DMCA's safe harbor, but since the company failed to adopt a written policy that warned infringers against the transmission of copyrighted materials it did not fall under the DMCA's safe harbor.

Judge Patel contended that Napster had knowledge of, and substantial participation in, the infringing acts of its users and had a financial interest in those infringing acts, and was in a position of supervision. On March 5, Judge Patel issued an injunction which enjoined Napster from "engaging in, or facilitating other in, copying, downloading, uploading, transmitting, or distributing copyrighted sound recordings". (Carlinsky, 2001) Napster as it was known for was shut down. RIAA vs. VERIZON After Napster was shut down, marked growth in more than half a dozen other centralized services occurred where programs for sharing music could be obtained including BearShare, LimeWire, Kazaa and iMesh. Industry analysts were contending that the users had become accustomed to obtaining music online and that the music industry failed to create an online alternative. Also, not only were users accustomed to getting music online, they were accustomed to getting it for free.

Because these other companies could not be shut down by the RIAA due to a number of various reasons, the RIAA had to resort to another measure... going after the user. The RIAA actually started suing music file swappers who were their own customers, at some point or still were. It started by suing 261 individual Internet music file-sharers that included college students and in one instance a 12-year-old girl. They were definitely trying to send a message to music swappers. But how did they get the names of these people? Users always believed they had the security blanket of anonymity from their service providers, but the DMCA enabled the RIAA to subpoena the list of subscribers from any company that illegal music file sharing was occurring on.

One case was a landmark in the effectiveness of these subpoenas actually being carried out and that was RIAA vs. Verizon. The RIAA served Verizon in 2002 with a subpoena demanding that the service provider disclose the identity of a user who uploaded more than 600 songs while connected to the company's Internet service. Verizon protested, but recently a U.S. district court judge ruled in favor of the RIAA and ordered Verizon to reveal the user's identity. IMPLICATIONS The RIAA's utilization of the DMCA to stop the illegal downloading of music on the internet has raised a number of possible implications. The legal soap opera that all of these proceedings are involved with will mean more to the American public than just stopping the illegal downloading of music. It can also mean a number of other things in regards to human rights and threats to several important public policy priorities: A. Jeopardizes Fair Use - By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, the DMCA grants copyright owners the power to unilaterally eliminate the public's fair use rights.

Already, the music industry has begun deploying "copy-protected CD's" that promise to curtail consumer's ability to make legitimate, personal copies of music they have purchased. Over 10 million copy-protected discs are already in circulation according to Mid bar Technology Ltd, a vendor of copy-protection technology. This also prohibits the ability to "time shift" programming for later listening or viewing. B. Weakens Security on All Computers - The RIAA is currently utilizing a tracking program that can track illegal music file swappers back to their computers. Therefore, people's computers can be accessed without their knowledge to verify that they have not downloaded music. C. Lessens Right to Privacy - "It is going to have quite a huge impact on privacy", says Gwen Hinz e, staff attorney for the Electronic Frontier Foundation (Tweeny, 2003).

The DMCA allows a significant amount of leeway for copyright holders to get network users' identities merely by alleging copyright infringement without review by a judge and without giving users any chance to protect themselves or their identities. D. Limits Competition and Innovation - Kazaa and other file sharing networks were discovered by individuals who wanted to increase access to programs, games and music. The music industry was not the innovators of music downloading because there is more of a substantial amount of money involved with selling actual hard copies of CD's for $19.98. With the technology a music swapper could download just one song instead of going out and buying the whole CD from retail. The DMCA could actually curtail other innovations that involve transmission of copyrighted materials. For instance, Vivendi-Universal's Blizzard Entertainment video game division sued a group of volunteer game enthusiasts who used reverse engineering to create free and open source software to allow owners of Blizzard games to play the games over the internet.

According to Blizzard, the software had been used by some to permit networked play of pirated Blizzard games (Wen, 2002). CONCLUSION There is no doubt that swapping illegally obtained music files over the internet is in direct violation of copyright law and that it has hurt the music industry substantially. The RIAA does have a right to protect its products and to ensure that artists get full credit for their works. The utilization of the DMCA has enabled the RIAA to halt a substantial amount of activity over the internet involving piracy, but at what price?

In a drastic measure to stop music swapping the DMCA may open up a number of other issues involving human rights and public policy that goes way beyond what Congress envisioned when it approved it. We cannot deny that Napster and other sites like it have advanced society through its technical innovation. Would file swapping over the internet been possible with them? Upholding copyright law and keeping in line with the vision of our fathers of the U.S. Constitution is essential, but the RIAA's strict utilization of the DMCA to bring suits against the public is obsessive and the U.S. court system has allowed a substantial amount of judicial leeway to the RIAA in order to stop piracy. This leeway may turn out to be more of a negative for individual rights in the future. 1.

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