Illegal File-Sharing it Seems so

Illegal File-Sharing It seems so easy -- like a victimless crime, hence its commonality. However, if this is the case, then why have so many musical artists known for their support of free speech and free use of the World Wide Web taken such a strong stance against illegal file sharing? It is true that illegal file sharing is theft.

Although the object cannot be seen and touched like a physical object in the 'real world' the theft of intellectual property, like a work of music downloaded without paying the artist his or her required royalty, is still theft. Artists fear for the loss of their livelihoods, given the fear that benefiting from copyrighting is the only way they can make money from their songs, tunes, and lyrics.

but, that being said, how does the government go about enforcing laws against file-sharing online in a way that protects consumer freedom to download music and the freedom of computer programmers to create file-sharing technology, as well as the freedom of musical artists? Because it is almost impossible to prosecute individual users, regulatory agencies have tried to exercise oversight against the providers of the file-sharing services.

While it may be appropriate to do so in some cases, as in the case of Napster, in recent cases, the courts and Congress have gone too far in trying to regulate file-sharing and have impinged upon the individual liberties of Internet users in doing so. The most famous case of copyright infringement upon the Internet was that of Napster and so it has provided the model for most cases that have followed since. The type of file sharing on Napster was eventually declared illegal.

Napster was found guilty of committing contributory infringement of copyright laws in Napster a & M. Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896 (N.D. Cal. 2000). Napster was described as a wheel within the hub the center of illegal network activity. "All file transfers went to the center and then were uploaded from there," in the way the file-sharing system worked (Hersche 2005). "Napster managers could delete uploads and was fully in charge of all traffic, therefore committed contributory infringement of copyright laws.

Contributory infringement is inducing, causing, or materially contributing to the infringing conduct of a third party, 'with knowledge of the infringing activity'" (Hersche 2005). However, the Napster decision set a dangerous precedent for creating an over-zealous environment of regulating music downloading and creating file-sharing technology.

For example, in a later case, the file-sharing system Grokster argued that its Fast Track network has legitimate purposes: although its "Fast Track" or "peer-to-peer" technology allowed users to download software indexing media files on their computer, and make those files available for others to download, Grokster argued that "illegal downloading and uploading of copyrighted materials is beyond the control of the software designers," while the Supreme Court argued that as the apparent purpose of the software was to encourage illegal downloading, it had to be disbanded entirely (Hersche 2005).

Ironically, the same argument could be made of a Xerox machine that has both legitimate and illegitimate uses in terms of copying books and other printed material. The illegal use lies in the way the material is disseminated, not in the technology itself! Furthermore, it is worth noting that similar arguments about technology infringing upon copyrights were made against the use of Betamax and VHS before these technologies became ubiquitous in the 1980s.

Movie studios were afraid they would go bankrupt, if individuals could tape programs on cassettes, and watch them whenever they desired in the comforts of their home. "Universal Studios Inc. And Walt Disney Productions Inc. accused the Sony Corporation and several other defendants of infringing their copyrights," but "the Supreme Court reversed the appeals court's ruling [and] held that since the harm to copyright owners from home-taping was minimal and speculative, home taping should be considered fair use (Liebowitz 1985, p. 2).

The Justices used the Fair Use Doctrine to support their decision, holding that although VHS could be used for illegitimate purposes, upholding the idea that "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords...for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" was a more important right to protect under Fair Use Doctrine (Liebowitz, 1985, p.4). Freedom of access to information was more important, and creating an unregulated market environment of ideas.

Granted, file sharing is not always used for such a legitimate purpose, but then again, neither were 'taped' VHS movies and programs.

While on the surface it would seem because intellectual property law that "provides the copyright holder an exclusive right to copy the intellectual product," is necessary because "the lack of competition in the reproduction of the intellectual product allows greater remuneration to the copyright holder than would otherwise be the case," the right to profit off of one's product is not absolute, and the consumer also has a right to fair use and access (Liebowitz 1985).

Furthermore, even if Grokster and Napster were largely illegitimate, the response of the industry to zealously prosecute them may have been an excellent example of using a sledgehammer to kill a fly. In many cases, "illicit copying might actually benefit copyright owners," through the "exposure effect, where consumers can become familiar with a product that they would eventually purchase (Liebowitz 2007). The rise of VHS, for example, precipitated new interest in the entertainment industry.

Also, laws against file-sharing have been almost impossible to fully enforce, and have, if anything, spurred hackers on to be more creative. No matter how many court battle are fought, the music industry, if it does not change, will still feel the economically detrimental effects of its outmoded methods of music marketing, with a focus on selling songs.

The real heart of the illegal downloading issue is that the music industry, faced with plummeting CD sales, and the persistent difficulty of regulating illegal file-sharing despite the favorable court decisions regarding Napster and Grokster, has had trouble rethinking its paradigm for profits. Programs such as American Idol, music concerts, fan magazines, and other methods of generating revenue seen to be a better focus to generate profitability in the future for the music industry.

Instead of changing and trying to become leaner and more competitive, protectionism has been the industry's fall-back stance. The music industry has pressured Congress to protect its interests, and successfully lobbied congressional supporters to take aggressive action against illegal-file sharing on college campuses through the Higher Education Act 2008 which includes new provisions requiring universities and colleges receiving federal funds to develop.