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Copyright Law: Music Downloads
Music piracy is by no means a new phenomenon. At the beginning of the twentieth century, when music was sold in the form of printed "sheet music," pirates took advantage of a the-then newly developed technology called photolithography and sold duplicate copies of the 'legal music' at half the price -- causing great annoyance among the music publishing companies. (Johns, 2002, p. 68) Much later, the 1960s and 70s saw the proliferation of bootlegged songs of the legendary Bob Dylan that almost rivaled the sale of the singer's officially released songs. The recent development of computers, the Internet and music compression technologies such as MP3, however, have given a totally new dimension to music privacy. Free music downloads and the exchange of music files over the Internet has reached such daunting proportions that the music industry considers it as the single biggest threat to its very survival. The music recording companies have adopted a zero tolerance policy towards such practice and have resorted to extensive litigation to stop companies and even private individuals from unauthorized music downloads and exchange over the Internet. Although the opponents of music piracy vehemently justify their position on the basis of intellectual property rights and ethics, unrestricted exchange of music on the Internet is considered as perfectly legitimate by large sections of the public. This paper discusses whether downloading of music from the Internet should be unrestricted and free by looking at both sides of the issue. While doing so, recent court cases about music piracy in the United States and Australia, shall also be examined.
The Beginnings of Music Downloads on the Internet
For a considerable period after the start of the Internet, it was not possible to download music on the net as audio and sound files are bulky and the slow modem speeds meant that it took a very long time for such files to download. Then came the data compression technology called MP3 in 1996, which made digital audio file transfer over the Internet possible and music piracy on the net took off in a big way. (Paradise 1999, p. 240) number of Web sites, offering free music downloads, sprang up on the Internet. In the initial years, these were mainly run by college students who had easy access to the Internet on college campuses, were computer savvy, and loved music. Later on, high profile companies like Napster became leading providers of free music on the net by introducing a link for Internet users to exchange their music files.
The Napster Lawsuit & its Aftermath
Napster attracted the ire of the music recording industry, which filed lawsuits (A&M Records Inc. et al. Vs. Napster) against the company in the U.S. courts in 2001. A Californian district court ruled against Napster, ordering it to close its file-transferring service. Ultimately, the ninth circuit appeal's court upheld the decision of the district court against Napster in 2001. On appeal, the U.S. Court of Appeals for the Ninth Circuit upheld the decision in a landmark ruling in 2002 that forced Napster to close down its file-transferring Website and file for bankruptcy. ("Napster Lawsuit," 2002 Findlaw) The court ruling, however, was far from a death-blow to the free downloading business on the Internet as there were a number of grey areas in the court's ruling that did not lift the cloud of confusion about the application of copyright laws on the Internet. Other companies, such as the Dutch-based Kazaa, Grokster, and StreamCast Networks quickly stepped into the shoes of Napster to fulfill the burgeoning demand of free music download by the public. These new organizations circumvented the ruling against infringement of the copyright laws by using peer-to-peer network sharing, without the need for a central Web site like Napster's. (Burgunder, 2002 p. 686) By using a software that directly linked the computers of the music file-sharers, these companies could claim that they had no control over the activities of the file-sharing individuals.
The Recording Industry Association of America (RIAA) was not impressed with this "technicality" and filed similar suits against the new entrants in the file-sharing business including Kazaa. Initially, a Dutch court ordered the owners of the Kazaa software to stop distributing the music-sharing software over the Internet, but in March 2002 the Amsterdam Court of Justice ruled on appeal that the Kazaa software owners were not liable for abuse of their file-sharing program, which had other uses besides downloading copyrighted music and films.
Current Scale of Internet Music Downloads
The extent to which these peer-to-peer file sharing facilitators have thrived can be gauged from a survey conducted by Ipsos-Insight, a market research firm, in 2002 which reveals that well over 20 million people use peer-to-peer music services every month; over 4.4 million users can be found on the Kazaa network at a time and over 700 million MP3 files available for exchange at any given time over this single network alone. (McLaughlin, 2003)
Ethics of Free Music Downloads
Before examining the arguments for and against the desirability of unrestricted music downloads on the Internet, it would be worthwhile to briefly look at the ethics behind the issue. There is, of course, no single theory of Ethics that applies to such an issue. Some ethical theories that may guide us in determining whether people are justified in exchanging music files over the Internet include John Locke's theory about the "fruits of labor," the Utilitarian theory of "happiness for the greatest numbers," and the Deontological theory about one's "duties and responsibilities to federal and universal laws." (Benech et al., 1999)
If we apply John Locke's theory that "every person owns his own person and the labor of his body" to the issue of music downloads, it would be apparent that the person who labors to produce the music is the music artist. By downloading her "fruit of labor" without compensation would be clearly unethical. (Ibid.)
On the other hand Jeremy Bentham's Utilitarian theory justifies acts that cause the greatest happiness for the great numbers. Clearly, unrestricted (and free) downloads of music causes a great amount of happiness for millions of people. The people who are hurt by such 'acts' are: the recording companies and the artists who have created the music. Obviously the "happiness" created by the act of free music downloads is far greater than the "grief" caused by it. Hence, according to the Utilitarian theory, file-sharing on the Internet is ethical. (Ibid.)
Deontology" emphasizes the "duties and responsibilities" of individuals to both universal as well as federal laws. The theory also teaches that "you should never deliberately use someone else to make yourself better off in life." Thus the Deontological principles would consider illegal music downloads as unethical, as such acts are against the copyright laws and a music file sharer is "deliberately using someone else" to be better off in life. On balance, therefore, free music downloads are unethical according to a majority of ethical theories.
Arguments For and Against The premise of the recording industry, and other opponents of unrestricted music download on the Internet, is that such acts cause a direct loss in terms of loss of sales. In other words, it is assumed by it that the people who download free music on the net would be willing to pay for such music, if they were prevented from getting it for free. Such a premise is debatable. For example, a major new study quoted in the New Scientist magazine (March 30, 2004) shows that there was no relationship between downloading of music on the Internet and the decline in sale of the same music. The researchers monitored as many as 680 albums, from a range of musical genres, downloaded over a17-week period in 2002 and compared this data to changes in album sales over the same period. They found that "the most heavily downloaded songs showed no decrease in CD sales as a result of increasing downloads," and in fact, the best selling albums during this period "appeared to sell better when downloaded more heavily." (Knight, 2004)
Even some music artists of the opinion that free music downloads do not hurt sales of legitimate music. The Grateful Dead have never objected to "illegal" recording of their live performances. Other, lesser known artists such as Angie Aparo, an Atlanta-based singer song writer agree. He believes that the only way to make illegal downloading obsolete is "by making something so great they have to own it." (Barnes, 2004) Another artist, Steve Erle, expresses a similar view by stating, "If I make records that are indispensable to my audience, they'll go out and spend money to buy them, even if they've already downloaded them." (Ibid.)
Even some music industry moguls recognize that free music download by listeners is not without its benefits since a number of music lovers buy the music of their favorite (or even new) artists after sampling or investigating their music online. Several people have opined that the 30% decline in CD sales over the last…[continue]
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