Ethical responsibility for illegal music downloads under the U.S. Copyright Act

Ethics and Technology: Illegal Downloads

Analyzing the Ethical Responsibility of Illegal Music Downloads

and Copyright Infringement

Serving as the catalyst of the debates, litigation and ongoing legal precedents that seeks to define the ethical responsibility for illegal music downloads and copyright infringement is 17 U.S.C. § 106(3) which defines the exclusive rights in copyrighted works. This law is also referred to as Title 17 of the U.S. Copyright Act. Why this law has become such a catalyst for protecting the rights of music producers and the owners of intellectual property is that it states that any developer, provider, or producer of a copyrighted work has the statutory right to its distribution (Dannenberg, 2006). This law then sets the foundation for the definition of intellectual property digitally distributed over the Internet (Bowie, 2005).

Analyzing the Ethical Responsibility of Illegal Music Downloads

Determining Legal and Ethical Responsibility for Copyright Infringement

As has often been stated in the legal research of intellectual property cases, the music industry cannot indict and hold liable the entire distribution channel and value chain of their industry for illegally downloading and using music. Instead aspects of the distribution channels and the roles of lateral-based channel partners that enable the ability to illegally share intellectual property is who the ethical burden and legal responsibility needs to rest on (Levin, Dato-on, Manolis, 2007). This includes all manufacturers of systems, media players, laptop computers with media playing capability, and developers of devices which can download music, all of which have widely varying Digital Rights Management (DRM) strategies, technologies and techniques. DRM-based strategies are meant to ensure that digitally mastered intellectual property is not illegally re-distributed or resold (Levin, Dato-on, Manolis, 2007). The many instances of how DRM schemes, technologies and systems have been broken into or hacked with instructions made freely available over the Internet how to use these techniques to also illegally copy content is proliferating over the Web (Lysonski, Durvasula, 2008). The ethical responsibility for illegal music distribution is actually the responsibility of these companies, services, and technology providers who are making the en masse duplication of digitally-based intellectual property possible (Dannenberg, 2006). It is in the failure of these companies to have a consistent standard for DRM that leaves the potential open for the intellectual property that is supposed to be protected by 17 U.S.C. § 106(3) to be used illegally. Second, there is a complete lack of technical expertise in the companies that comprise the primary, secondary and tertiary tiers of the music industry's distribution channel as to exactly how to enforce ownership through DRM and other means as well (Easley, 2005). The infamous Sony Root Kit fiasco which would send all music titles, regardless of whether they were copied from a CD for use on a laptop or purchased through a legal online store such as iTunes were reported. What resulted was a complete loss of credibility for Sony and their use of DRM, which they had to eventually abandon proving further how difficult this aspect of rights enforcement through music distribution channels is.

Critics of DRM state that this approach to managing intellectual property rights invades the privacy of consumers and leads to the potential for device manufacturers to unwittingly become the channels by which online criminals gain access to personal information (Gerlich, Turner, Gopalan, 2007). On these grounds of consumer privacy many consumer rights advocates groups argue that DRM needs to be abolished and that the music industry needs to think broader about how the distribution of songs would broaden the overall market (Banerjee, Faloutsos, Bhuyan, 2008). In fact this is exactly the opposite of what happens as studies indicate that when entire albums are given away their latency, or popularity, diminishes faster than if they had been sold. Giving away free albums and digital content may lead to a rapid spike in popularity for a short period of time yet it gives way to a rapid reduction in value of the goods delivered (Easley, 2005). Clearly this criticism of DRM strategies, techniques, and technologies is unfounded and further does not excuse music download and distribution sites, manufacturers and resellers of private label music equipment from the responsibility to have a unified standard for DRM. To hold the consumers liable for each specific copyright violation, as the RIAA tried to do by capturing IP addresses and prosecuting every single person who downloaded a song illegally is a practice that cannot scale over time. Think of the burden on the legal system alone by choosing this approach to the enforcement of 17 U.S.C. § 106(3). While the RIAA has been aggressive in its enforcement of the copyright laws and their interpretation of them as an organization, specifically targeted individuals including Jamie Thomas (Altschuller, Benbunan-fich, 2009) and the Howells (Easley, 2005) it has found that the scalability of this type of enforcement and the attempts through threats to gain compliance (Levin, Dato-on, Rhee, 2004) have not worked.

Arguably the deficiencies in processes and technologies throughout the distribution channel enable the unethical sharing of digital property by consumers in the first place. it's as if the incompetence of these channel partners' platforms, either from a website standpoint with the support of DRM technologies or the reliance on faulty, often poorly designed DRM systems, technologies and techniques create much opportunity to take digital and intellectual property and repurpose it illegally across P2P sites that seek to make all music egalitarian (Lysonski, Durvasula, 2008). it's as if the mid-tier of the distribution channel is leaving the door open wide enough from an intellectual property standpoint to allow for individuals to selectively choose which songs, digital products of all sort, and what platforms they want to repurpose them on (Levin, Dato-on, Manolis, 2007).

When the music distributors, both in the form of traditional forms including music stores selling CDs and non-traditional forms including music download sites, and the manufacturers of electronics equipment have on the one hand the right of "making available" digital assets for sale per their contracts with producers under 17 U.S.C. § 106(3) fail to protect these assets they invite piracy. Yet across the entire tiers of distribution channels of the music and digital entertainment industries the need for more uniformity of process for protecting copyrights is needed. This approach to looking at which members of a distribution channel have the processes most susceptible to enabling and encouraging piracy by a lack of auditability and efficiency is where the legal responsibility lies. In effect the lack of DRM, process and audit controls in place for music distributors and with manufacturers and most importantly the lack of consistency has left the industry with no other choice but to threaten the consumer to attempt to gain compliance (Levin, Dato-on, Manolis, 2007). Not only has this been a public relations disaster it is not a scalable enforcement strategy. The fact that the industry is using DRM more as a means to lock other vendors out of each others' installed bases of users and customers and less about doing what this technology is supposed to do, which is enforce copyright laws (Dannenberg, 2006) is a case in point. Enforcement of copyright laws needs to be across the areas of the distribution channel which has the scalability to make a significant difference in compliance and enforcement rapidly as well.

Conclusion

Copyright infringement laws are being tested daily by the widespread practice of illegally downloading and distributing music. To prosecute the individual is to entirely miss the point, and also to create a legal workload that will not scale over time. The fact that music distributors, manufacturers of music players and electronic equipment that can play music all cannot find a common platform for Digital Rights Management (DRM) is clearly where liability for copyright infringement lies. The use of P2P sites for the unlawful distribution of music has become a fertile area for copyright infringement activity (Banerjee, Faloutsos, Bhuyan, 2008). Yet to consider the myriad of permutations and combinations of how individuals repurpose, share, burn onto CDs and load onto their MP3 players illegally gained songs misses the point. The issue is one of a cohesive, unified standard that is unenforceable across all digital assets covered by 17 U.S.C. § 106(3). The distribution channels many approaches to delivery of music needs to have a unified standard to protect music and all forms of digital entertainment content. What the distribution channel partners and for that matter the entire music industry strive to accomplish is to create an enforceable, auditable standard for DRM that does not require consumers to give up their individual data and most importantly, does not violate the individual rights to privacy as the Sony Root Kit did. Instead there must be a consistency to the execution of this standard so that once music and all other forms of digital content arrive with a consumer they cannot duplicate, sell, post or use as easily as they can today.