Final paper, complete!
Hey everyone,
For my Philosophy of Law research paper, I chose to write about music piracy. Instead of choosing a side, however, I decided to argue for a change in the laws. I know none of you are really law buffs, but I thought you all might like to gain a greater perspective on the whole illegal downloading issue. This is a ten page paper, and thus not a short read, but I promise it will be interesting. If you'd rather read it in native format, give me your e-mail address and I'll mail it to you.
Music Piracy and the DMCA: An Argument for Restructuring
Bootleg music has existed, in one form or another, for decades. Ever since the consumer gained the ability to record on cassette tapes, records and radio broadcasts were copied in order to share music with one’s peers. For a good while, this system worked. Few musicians had any problem with a fan copying one or two songs, as it served to promote the band in question. In fact, the distribution of mix tapes was a fundamental means of self-promotion. These times, however, are long gone. Nowadays, pirating media, especially music, is one of the most heated issues facing people of all walks of life, from college students to musicians to lawyers. Everyone is embroiled in the new wave of music distribution, and the media giants are taking out their perceived losses on the common consumer with six-figure lawsuits and product restrictions that border on criminal. The biggest obstacle to peace in the realm of music, however, is not the contentious media moguls or the Robin Hood-esque pirates, but instead the outdated or bigoted intellectual property and copyright laws. The greatest offender in this sense is the Digital Millenium Copyright Act, an act instituted in 1998 designed to enforce the iron grip of the music industry. If global media is ever to move on from this sad state of affairs, major revisions must be applied to not only the DMCA, but intellectual property law in general.
File sharing, the act of copying music into a digital format and then distributing it via the Internet, has its roots in the earliest days of college networks. Students would record low-quality copies of their favorite CD tracks and share them with friends. The copies were not replacements for CDs, partially due to the loss of quality, but mostly due to the thinking of the age. Never did the earliest file sharers think that digital media and mass music distribution would replace physical formats. As the Internet became more prominent and widespread, so did music sharing, eventually leading to the glut of digital media freely available on the Web today. Methods of recording songs off of CDs began to result in better quality music, and soon the thoughts of the age began to turn more and more to the ease and appeal of digital music collections. Faced with the cost of CDs, which are almost universally acknowledged to be far overpriced, many college students, to whom music is incredibly important, began to turn to their college networks for free music. This led to the creation of Napster, the first, and arguably best-known, file sharing client. Napster allowed anyone with a computer and a connection to the Internet to access a wealth of free music. Napster was eventually shut down, but other clients, such as KaZaA, LimeWire, and eMule, took up its legacy. Even more widespread networks of file sharing exist alongside the various “peer-to-peer,” or P2P, clients. The largest and most successful one was Oink, which was recently shut down alongside a massive outcry from the Internet community. Today, digital music distribution has become so widespread and popular that it has become impossible to stop. To date, music pirates have been two steps ahead of every industry attempt to shut them down. The industry, however, is not blameless in this battle. Their draconian attempts at control have only spurred the common file sharer on to greater acts of piracy.
To those without a deep knowledge of the situation, it would be common sense to say that the music industry is being unfairly denied profits by the actions of some upstart Internet hotshots. This view is far from the reality of the situation, as the thieving ways of the music pirates pales in comparison to the ridiculously heavy-handed response of the industry, as well as the industry’s complete unwillingness to change with the times. By keeping the price of CDs high and bearing little regard for the release of low-quality musicianship, the industry alienated its consumer base. The people, however, had no alternative source of music until file sharing came along. Additionally, instead of embracing the advent of digital media, the industry chose to turn to the government for support. The Recording Industry Association of America, the trade group representing the recording industry in America, has been bringing suit against file sharers since 1998. The RIAA has been claiming outrageous damages and using bullying tactics to keep their flagrantly ridiculous cases out of court. Recently, the very first file sharing case to reach trial, Capitol v. Thomas, resulted in compensatory damages in the amount of $220,000 being awarded to Capitol Records, one of the major American record labels. An excessive reward of $9,250 dollars per shared song was requested by the prosecution, when each song would have cost only less than a dollar to download legally. Althought the Copyright Act allows for statutory damages allows for damages ranging from $750 to $150,000, an appeal citing the 8th Amendment was submitted. The RIAA argued that statutory damages need not have any relationship to actual damages, and the appeal was denied. Similarly outrageous cases have been reported across the country, cases of college students being threatened with legal action for the sharing of music. These students are encouraged to settle out of court, often for several thousands of dollars, arguably because the RIAA knows how ridiculous its legal claims are. Additionally, the industry claims to be losing millions of dollars to the activities of Internet pirates. If this were true, the industry would be scrambling to reform its distribution model instead of clinging to the outdated method of the 80s and 90s. This is not true, however, as is reported in an article from Ars Technica, a popular website that watches every aspect of technological culture:
“BMI reported revenues of $673 million for the 2004 fiscal year, an increase of nearly $43 million, 6.8% over the prior year. The performing rights organization generated royalties of more than $573 million for its songwriters, composers and music publishers. Royalties increased by $40 million or 7.5% from the previous year. BMI President and CEO Frances W. Preston said both the revenues and royalty distributions were the largest in the company's history” (Fisher Par.3) BMI, or Broadcast Music, Inc., is one of the largest music companies in the world, and their profits have been rising every year for the past ten years. Where are the reported losses? Where is the evidence of a crumbling industry? A study conducted in 2002 by researchers from both Harvard University and the University of North Carolina found that:
“file sharing has no statistically significant effect on purchases of the average album […]. Moreover, the estimates are of rather modest size when compared to the drastic reduction of sales in the music industry. At most, file sharing can explain a tiny fraction of this decline. This result is plausible given that movies, software, and video games are actively downloaded, and yet these industries have continued to grow since the accent of file sharing” (Oberholzer 25). What few people realize is that when an album has been illegally downloaded 100,000 times, that is not 100,000 physical albums that were not sold. Instead, that is a few thousand physical albums not sold and many thousands of albums that never would have been sold in the first place. File sharing increases the popularity of all bands, from independent groups to big-name stars, and allows people to find bands they like without losing money in buying albums they don’t like. People who illegally download albums often go on to buy the physical album to support the bands they like, and also support their favorite bands by buying concert tickets and merchandise. Jon and Ben Snyder, music executives, spoke out in support of these facts in the following passage:
“It's also been widely reported that the most downloaded album of all time was "The Eminem Show," by Eminem. It was downloaded so heavily that Interscope took the unusual step of releasing the album a week early due to the rampant online sharing of tracks from the album. Fast-forward to the end of 2002, and "The Eminem Show" is the best-selling album of the year. This seems to indicate the opposite of what the RIAA would have you believe. When people share MP3s, more music is sold, not less” (Snyder 3). Another thing to be considered is the size of portable mp3 players today. Apple boasts iPods with capacities ranging from 1 gigabyte to 160. At a dollar per legal song download, the smallest iPod would cost $240 dollars to fill and the largest would cost over $40,000 to fill. This is mind-bogglingly expensive, and mp3 players of such size are not only a tacit admission of the viability and merit of free, easily downloadable music, but an obvious proof that the future of music is not in bulky collections of CDs but in massive, compact collections of digital media. If Apple did not expect its users to have that much music, it would not produce such large mp3 players, and, in effect, Apple makes more money off of pirates and file sharers. A final point to make about the misdeeds of the recording industry is the false demonization that it attributes to pirates. The industry claims that pirates maliciously steal albums before they are formally released, when leaked albums are easily traced back to the industry itself. Completed albums are stored digitally before being sent to the factory for manufacturing in CD form. From the recording studio to the factory, there are literally dozens of fans that could easily grab a copy of their favorite band’s new album, making it obvious that before the industry can complain about thieving Internet mavericks, it must tighten its own security. Based off of this example, some have argued that the industry should begin the digital sale of albums as soon as they are completed, and then release the physical media once manufacturing is complete. Such a business model would give musicians more time and exposure and would give fans new music faster. The industry, however, would suffer backlash from retail store chains, which rank as the biggest legal distributors of music in America. If albums were released early on the Internet, retailers would sell less CDs, and thus they threaten to not sell CDs at all, which would result in a major profit loss for music labels. So, instead of going with the flow and changing to meet the needs of a new era, the music industry chooses to cling to old traditions and defend itself behind expensive lobbying and draconian intellectual property laws.
Ever since music piracy became the “problem” that the industry proposes it to be, intellectual property and copyright laws have struggled to keep up with the rapidly changing face of music culture. In a legal landscape where a housewife can be sued for six-digit sums and poor students are bullied into settlements for nonsensical charges, changes must be made. The music industry plays fast and loose with the Fair Use doctrine, a doctrine of United States copyright law that allows for limited nonprofit use of copyrighted material. It was previously mentioned that there are legal ways to download music, and these services are often held up as an argument that the music industry is, indeed, changing to meet the needs of the time. This, however, is simply untrue. Most, if not all, legal download services are not only limited in content, but often restrict ownership of the downloaded songs, violating both property rights and the Fair Use doctrine. Most legal music services force users to acquiesce to a “Terms of Use” agreement that tricks them into giving up parts of their property rights on purchased songs. Download services such as Ruckus restrict how many times a song may be copied to a CD, and also don’t allow their users to put the downloaded music onto portable mp3 players. The iTunes Store, the download service run by Apple, is an even worse offender. Songs downloaded from the iTunes Store can be copied to CDs a total of seven times, can be copied between computers only five times, and only work on Apple devices such as the iPod. Most legally downloaded songs are also impossible to edit, taking away the fundamental right of artists to not only incorporate the inspirational works of others into their work, but also to create tributes to peers and masters. As recently as 2006, Sony introduced a hidden system of file protection on all of its CDs. This protection was so well hidden that experienced computer administrators were unable to find it, but the protection was also so shoddily made that it made the security present on any computer easily pregnable. Hackers could latch on to the protection files and use them to enter a computer system unopposed, and Sony’s attempts to fix the errors in their software only ended up making the problem worse. In the end, the Department of Homeland Security formally reprimanded Sony and all who would seek to employ similar invasive systems. Instead of changing to go with the flow of music distribution, the music industry prefers to tighten its claws on its property. The concept of putting restrictions on a product after it has been sold is ridiculous, as the following passage from an article from the Electronic Frontier Foundation makes evident: “Imagine if Tower Records sold you a CD, but then, a few months later, knocked on your door and replaced the CD with one that you can't play in your car. Would you still feel like you "owned" the CD? (Par.4). The EFF is a law group that has been prevalent in the field of intellectual property law since 1990, as is the group that successfully took legal action against Sony for its aforementioned security-compromising files. All of these problems could be mitigated by laws that reduce the vagueness of Fair Use and correct the failures of the DMCA, an act championed by major labels but almost universally reviled by the national intelligentsia. The DMCA enacts laws that make it illegal to bypass copy protection on software, and also mandates that webcasters (or, anyone who would play music online for a crowd) pay licensing fees to the owners of the songs they use in addition to the fee they already paid to buy the song. Overall, access to music must be made cheaper, and companies must stop restricting full property rights to consumers. The only way to make peace between music distributors and music listeners is to give the listeners a fair method of music collection. Also, lawsuits regarding file sharing must be reigned in. As it stands, file sharers are yoked with punishments more substantial than those given to robbers, all for attempting to listen to the artistic expression of men and women who aren’t even adequately paid by their own labels for complete ownership of their songs.
Unless the laws are changed to be relevant to the new world of music, America will run the risk of sweeping up an entire generation in needless legal battles and effectively punishing people for simply trying to enjoy art. It is obvious that neither the music industry nor the Internet pirates are innocent in this struggle, but the far more underhanded and vile actions of the industry go to show that a new era of music culture has come, and they can not control it. Art, as well as the artists who produce it and the people who enjoy it, should not be subject to the whims of corporate greed and lobbied laws. Without major revisions to intellectual property law coupled with more benevolent industry attitudes toward Fair Use, the nation faces the threat of criminalizing an entire generation of music fans.
Give me feedback either here or on AIM, please. If you catch something wrong, please tell me so I can fix it before I hand it in :P. All of your comments and insights are greatly appreciated!
For my Philosophy of Law research paper, I chose to write about music piracy. Instead of choosing a side, however, I decided to argue for a change in the laws. I know none of you are really law buffs, but I thought you all might like to gain a greater perspective on the whole illegal downloading issue. This is a ten page paper, and thus not a short read, but I promise it will be interesting. If you'd rather read it in native format, give me your e-mail address and I'll mail it to you.
Music Piracy and the DMCA: An Argument for Restructuring
Bootleg music has existed, in one form or another, for decades. Ever since the consumer gained the ability to record on cassette tapes, records and radio broadcasts were copied in order to share music with one’s peers. For a good while, this system worked. Few musicians had any problem with a fan copying one or two songs, as it served to promote the band in question. In fact, the distribution of mix tapes was a fundamental means of self-promotion. These times, however, are long gone. Nowadays, pirating media, especially music, is one of the most heated issues facing people of all walks of life, from college students to musicians to lawyers. Everyone is embroiled in the new wave of music distribution, and the media giants are taking out their perceived losses on the common consumer with six-figure lawsuits and product restrictions that border on criminal. The biggest obstacle to peace in the realm of music, however, is not the contentious media moguls or the Robin Hood-esque pirates, but instead the outdated or bigoted intellectual property and copyright laws. The greatest offender in this sense is the Digital Millenium Copyright Act, an act instituted in 1998 designed to enforce the iron grip of the music industry. If global media is ever to move on from this sad state of affairs, major revisions must be applied to not only the DMCA, but intellectual property law in general.
File sharing, the act of copying music into a digital format and then distributing it via the Internet, has its roots in the earliest days of college networks. Students would record low-quality copies of their favorite CD tracks and share them with friends. The copies were not replacements for CDs, partially due to the loss of quality, but mostly due to the thinking of the age. Never did the earliest file sharers think that digital media and mass music distribution would replace physical formats. As the Internet became more prominent and widespread, so did music sharing, eventually leading to the glut of digital media freely available on the Web today. Methods of recording songs off of CDs began to result in better quality music, and soon the thoughts of the age began to turn more and more to the ease and appeal of digital music collections. Faced with the cost of CDs, which are almost universally acknowledged to be far overpriced, many college students, to whom music is incredibly important, began to turn to their college networks for free music. This led to the creation of Napster, the first, and arguably best-known, file sharing client. Napster allowed anyone with a computer and a connection to the Internet to access a wealth of free music. Napster was eventually shut down, but other clients, such as KaZaA, LimeWire, and eMule, took up its legacy. Even more widespread networks of file sharing exist alongside the various “peer-to-peer,” or P2P, clients. The largest and most successful one was Oink, which was recently shut down alongside a massive outcry from the Internet community. Today, digital music distribution has become so widespread and popular that it has become impossible to stop. To date, music pirates have been two steps ahead of every industry attempt to shut them down. The industry, however, is not blameless in this battle. Their draconian attempts at control have only spurred the common file sharer on to greater acts of piracy.
To those without a deep knowledge of the situation, it would be common sense to say that the music industry is being unfairly denied profits by the actions of some upstart Internet hotshots. This view is far from the reality of the situation, as the thieving ways of the music pirates pales in comparison to the ridiculously heavy-handed response of the industry, as well as the industry’s complete unwillingness to change with the times. By keeping the price of CDs high and bearing little regard for the release of low-quality musicianship, the industry alienated its consumer base. The people, however, had no alternative source of music until file sharing came along. Additionally, instead of embracing the advent of digital media, the industry chose to turn to the government for support. The Recording Industry Association of America, the trade group representing the recording industry in America, has been bringing suit against file sharers since 1998. The RIAA has been claiming outrageous damages and using bullying tactics to keep their flagrantly ridiculous cases out of court. Recently, the very first file sharing case to reach trial, Capitol v. Thomas, resulted in compensatory damages in the amount of $220,000 being awarded to Capitol Records, one of the major American record labels. An excessive reward of $9,250 dollars per shared song was requested by the prosecution, when each song would have cost only less than a dollar to download legally. Althought the Copyright Act allows for statutory damages allows for damages ranging from $750 to $150,000, an appeal citing the 8th Amendment was submitted. The RIAA argued that statutory damages need not have any relationship to actual damages, and the appeal was denied. Similarly outrageous cases have been reported across the country, cases of college students being threatened with legal action for the sharing of music. These students are encouraged to settle out of court, often for several thousands of dollars, arguably because the RIAA knows how ridiculous its legal claims are. Additionally, the industry claims to be losing millions of dollars to the activities of Internet pirates. If this were true, the industry would be scrambling to reform its distribution model instead of clinging to the outdated method of the 80s and 90s. This is not true, however, as is reported in an article from Ars Technica, a popular website that watches every aspect of technological culture:
“BMI reported revenues of $673 million for the 2004 fiscal year, an increase of nearly $43 million, 6.8% over the prior year. The performing rights organization generated royalties of more than $573 million for its songwriters, composers and music publishers. Royalties increased by $40 million or 7.5% from the previous year. BMI President and CEO Frances W. Preston said both the revenues and royalty distributions were the largest in the company's history” (Fisher Par.3) BMI, or Broadcast Music, Inc., is one of the largest music companies in the world, and their profits have been rising every year for the past ten years. Where are the reported losses? Where is the evidence of a crumbling industry? A study conducted in 2002 by researchers from both Harvard University and the University of North Carolina found that:
“file sharing has no statistically significant effect on purchases of the average album […]. Moreover, the estimates are of rather modest size when compared to the drastic reduction of sales in the music industry. At most, file sharing can explain a tiny fraction of this decline. This result is plausible given that movies, software, and video games are actively downloaded, and yet these industries have continued to grow since the accent of file sharing” (Oberholzer 25). What few people realize is that when an album has been illegally downloaded 100,000 times, that is not 100,000 physical albums that were not sold. Instead, that is a few thousand physical albums not sold and many thousands of albums that never would have been sold in the first place. File sharing increases the popularity of all bands, from independent groups to big-name stars, and allows people to find bands they like without losing money in buying albums they don’t like. People who illegally download albums often go on to buy the physical album to support the bands they like, and also support their favorite bands by buying concert tickets and merchandise. Jon and Ben Snyder, music executives, spoke out in support of these facts in the following passage:
“It's also been widely reported that the most downloaded album of all time was "The Eminem Show," by Eminem. It was downloaded so heavily that Interscope took the unusual step of releasing the album a week early due to the rampant online sharing of tracks from the album. Fast-forward to the end of 2002, and "The Eminem Show" is the best-selling album of the year. This seems to indicate the opposite of what the RIAA would have you believe. When people share MP3s, more music is sold, not less” (Snyder 3). Another thing to be considered is the size of portable mp3 players today. Apple boasts iPods with capacities ranging from 1 gigabyte to 160. At a dollar per legal song download, the smallest iPod would cost $240 dollars to fill and the largest would cost over $40,000 to fill. This is mind-bogglingly expensive, and mp3 players of such size are not only a tacit admission of the viability and merit of free, easily downloadable music, but an obvious proof that the future of music is not in bulky collections of CDs but in massive, compact collections of digital media. If Apple did not expect its users to have that much music, it would not produce such large mp3 players, and, in effect, Apple makes more money off of pirates and file sharers. A final point to make about the misdeeds of the recording industry is the false demonization that it attributes to pirates. The industry claims that pirates maliciously steal albums before they are formally released, when leaked albums are easily traced back to the industry itself. Completed albums are stored digitally before being sent to the factory for manufacturing in CD form. From the recording studio to the factory, there are literally dozens of fans that could easily grab a copy of their favorite band’s new album, making it obvious that before the industry can complain about thieving Internet mavericks, it must tighten its own security. Based off of this example, some have argued that the industry should begin the digital sale of albums as soon as they are completed, and then release the physical media once manufacturing is complete. Such a business model would give musicians more time and exposure and would give fans new music faster. The industry, however, would suffer backlash from retail store chains, which rank as the biggest legal distributors of music in America. If albums were released early on the Internet, retailers would sell less CDs, and thus they threaten to not sell CDs at all, which would result in a major profit loss for music labels. So, instead of going with the flow and changing to meet the needs of a new era, the music industry chooses to cling to old traditions and defend itself behind expensive lobbying and draconian intellectual property laws.
Ever since music piracy became the “problem” that the industry proposes it to be, intellectual property and copyright laws have struggled to keep up with the rapidly changing face of music culture. In a legal landscape where a housewife can be sued for six-digit sums and poor students are bullied into settlements for nonsensical charges, changes must be made. The music industry plays fast and loose with the Fair Use doctrine, a doctrine of United States copyright law that allows for limited nonprofit use of copyrighted material. It was previously mentioned that there are legal ways to download music, and these services are often held up as an argument that the music industry is, indeed, changing to meet the needs of the time. This, however, is simply untrue. Most, if not all, legal download services are not only limited in content, but often restrict ownership of the downloaded songs, violating both property rights and the Fair Use doctrine. Most legal music services force users to acquiesce to a “Terms of Use” agreement that tricks them into giving up parts of their property rights on purchased songs. Download services such as Ruckus restrict how many times a song may be copied to a CD, and also don’t allow their users to put the downloaded music onto portable mp3 players. The iTunes Store, the download service run by Apple, is an even worse offender. Songs downloaded from the iTunes Store can be copied to CDs a total of seven times, can be copied between computers only five times, and only work on Apple devices such as the iPod. Most legally downloaded songs are also impossible to edit, taking away the fundamental right of artists to not only incorporate the inspirational works of others into their work, but also to create tributes to peers and masters. As recently as 2006, Sony introduced a hidden system of file protection on all of its CDs. This protection was so well hidden that experienced computer administrators were unable to find it, but the protection was also so shoddily made that it made the security present on any computer easily pregnable. Hackers could latch on to the protection files and use them to enter a computer system unopposed, and Sony’s attempts to fix the errors in their software only ended up making the problem worse. In the end, the Department of Homeland Security formally reprimanded Sony and all who would seek to employ similar invasive systems. Instead of changing to go with the flow of music distribution, the music industry prefers to tighten its claws on its property. The concept of putting restrictions on a product after it has been sold is ridiculous, as the following passage from an article from the Electronic Frontier Foundation makes evident: “Imagine if Tower Records sold you a CD, but then, a few months later, knocked on your door and replaced the CD with one that you can't play in your car. Would you still feel like you "owned" the CD? (Par.4). The EFF is a law group that has been prevalent in the field of intellectual property law since 1990, as is the group that successfully took legal action against Sony for its aforementioned security-compromising files. All of these problems could be mitigated by laws that reduce the vagueness of Fair Use and correct the failures of the DMCA, an act championed by major labels but almost universally reviled by the national intelligentsia. The DMCA enacts laws that make it illegal to bypass copy protection on software, and also mandates that webcasters (or, anyone who would play music online for a crowd) pay licensing fees to the owners of the songs they use in addition to the fee they already paid to buy the song. Overall, access to music must be made cheaper, and companies must stop restricting full property rights to consumers. The only way to make peace between music distributors and music listeners is to give the listeners a fair method of music collection. Also, lawsuits regarding file sharing must be reigned in. As it stands, file sharers are yoked with punishments more substantial than those given to robbers, all for attempting to listen to the artistic expression of men and women who aren’t even adequately paid by their own labels for complete ownership of their songs.
Unless the laws are changed to be relevant to the new world of music, America will run the risk of sweeping up an entire generation in needless legal battles and effectively punishing people for simply trying to enjoy art. It is obvious that neither the music industry nor the Internet pirates are innocent in this struggle, but the far more underhanded and vile actions of the industry go to show that a new era of music culture has come, and they can not control it. Art, as well as the artists who produce it and the people who enjoy it, should not be subject to the whims of corporate greed and lobbied laws. Without major revisions to intellectual property law coupled with more benevolent industry attitudes toward Fair Use, the nation faces the threat of criminalizing an entire generation of music fans.
Give me feedback either here or on AIM, please. If you catch something wrong, please tell me so I can fix it before I hand it in :P. All of your comments and insights are greatly appreciated!