Free music or stealing?

WHEN Lucila Crena, a freshman at Emory University in Atlanta, turns off the light in her dormitory room at night to go to sleep, her computer is still working hard.

``There'll be like 30 things downloading at once,'' she says. By ``things,'' she means songs she is downloading illegally using Kazaa, a Napster-like program the music industry is trying to put out of business.

``Right now it's all Christmas songs,'' she says, ``but I've got a lot of swing and tango.'' She estimates she has 1,200 songs on her hard drive.

Her roommate, Jolyn Taylor, agrees that downloading music on the Internet is wrong, but he does it also.

Trent Reznor, lead singer of the rock group Nine Inch Nails, has something to say to the Emory roommates: ``Just because technology exists where you can duplicate something, that doesn't give you the right to do it. Once I record something, it's not public domain to give it away freely.''

Crena and Taylor have technology and the sheer weight of numbers on their side. According to a new poll by Ipsos-Reid, an independent marketing research company, more than 60 million Americans have downloaded music via the Internet - more than one-quarter of the population older than 12. Kazaa, one of the most popular downloading programs (also called file-sharing, because they allow individual computer users to share their files), is growing at a rate of almost 300 percent per year.

Reznor - along with a massive cohort of popular musicians including Missy Elliott, Neil Young, the Dixie Chicks, DMX and Elton John - have the law and morality on their side.

But the side with the law and morality appears to be losing, at least in the hearts and minds of music fans.

The result is the biggest disconnect between the law and otherwise law-abiding citizens since the days of Prohibition. Tens of millions of people are blithely breaking the law - and they know it. And most of the time, they just don't see what they're doing as particularly wrong.

``Some people don't know what's right to do, and some people don't want to do what's right,'' says Frank Breeden, president of the Gospel Music Association. The GMA is one of many organizations that work with the Recording Industry Association of America , which spearheads lobbying, lawsuits and educational campaigns to try to stem the downloading tide.

``People see this as an invisible, seemingly victimless activity, when the truth is it hurts the ultimate small business person, and that's the songwriter,'' who does not collect royalties, Breeden adds.

Randy Cohen, who writes the weekly ``Ethicist'' column for The New York Times Magazine, says he gets regular mail from music downloaders who realize that what they're doing isn't really right.

``They're hoping I can justify it for them,'' he says. But he won't. ``The central moral point is that you can't take someone's work without their permission.'' he says.

But Cohen acknowledges that the widespread nature and extreme ease of downloading music have made it a unique situation.

``People do this who would never in a million years go into a store and swipe a CD. Something a lot different is happening. There are temptations no ordinary human can resist,'' he says. ``And from the point of view of a kid, the music is already on her computer. It's all very good to say it's wrong, but the kids will just take it.''

Indeed, downloading is more a young people's game. The Ipsos-Reid poll found that more than 60 percent of people age 12 to 24 have downloaded music from the Net, compared with 19 percent of those 35 to 54.

``The students do not see anything wrong with it,'' says J.T. Gilbert, who teaches religious education at St. Pius X High School in Atlanta. ``(But) I don't necessarily blame my students for their naivete. To me the parents are the moral guides to their children's life. What we cover at school needs to be followed at home.''

Cohen blames the record industry for allowing matters to get to this point by overcharging for CDs and being slow to set up legal downloading systems.

In fact, just about everybody blames the record industry (except people who work for the record industry).

``I can't come up with an ethical argument to defend downloading, but I feel like I'm ripping off some big corporation, which doesn't feel as bad,'' says Mike Garmisa, an Emory senior. ``Companies are definitely fixing CD prices, and artists are getting such a small percent of the price.''

CD sales are down about 11 percent so far this year compared with last year, according to Nielsen SoundScan, while sales of blank CDs are expected to jump more than 40 percent this year, according to the Consumer Electronics Association.

Critics of the industry say there's no proven link between declining CD sales and soaring music downloading; the industry says it's obvious what's happening.

In addition to legal remedies - the industry is trying to put several file-sharing companies out of business, just as it did Napster - the record labels have also pushed their artists front and center in an attempt to convince downloaders that what they are doing is wrong.

A new group funded by the Recording Industry Association, called MUSIC (Music United for Strong Internet Copyright) has started a series of TV ads and a Web site (www.musicunited.org) featuring musicians speaking directly to their fans.

``We really look at it as stealing, because ... you're not paying for it,'' says hip-hop star Nelly.

``I'm all for getting a taste of something before you buy it, but when it becomes more than a taste and people begin hoarding the entire work, it becomes piracy, which results in a system in which artists are not being rewarded for their work,'' says Vanessa Carlton, who broke out earlier this year with the hit ``A Thousand Miles.'' Others, from Luciano Pavarotti to Eminem, also sound off on the group's Web site.

Ken Vaux, a fellow at the Center for Ethics and Values in the Garrett-Evangelical Theological Seminary in Chicago, doubts the campaign will work on kids who have come to expect free downloadable music as virtually an entitlement.

``They'll say Eminem is 100 times a millionaire. Who cares if he doesn't get a royalty?''

The best solution, practically everyone agrees, would be for the record labels to set up their own system, where fans could download music legally for a reasonable fee.

``The record companies have only themselves to blame. They're dragging their feet, hoping they can still charge 20 bucks for a CD,'' says Cohen.

The labels have made a tentative start, with fee-based systems like MusicNet and PressPlay. But the systems still have huge gaps in their music libraries - the Beatles, the Rolling Stones, Alicia Keys, No Doubt and Billy Joel are among many major musicians not yet available. All are available on free, but illegal, systems like Kazaa, Morpheus and Grokster.

``It's still wrong to do this,'' Cohen says, ``but the law has to seem reasonable to people.''

An interesting legal discussion by David Boies (yes the same one) regarding Napster. This is from Wired Magazine

Can you walk us through the case and the arguments you're making?

Sure. There are four basic issues, and the recording industry has to win on each of them in order to prevail. If Napster wins on any one of the four, Napster prevails. The first issue is: Are Napster's users engaged in copyright infringement? If they are not, that's the end of the matter, because nobody alleges that Napster directly infringes any copyright. Napster's only alleged liability is for contributory or vicarious infringement. You cannot have contributory or vicarious infringement without having some underlying infringement. So when Napster's users engage in noncommercial sharing of music - noncommercial copying of music - is that activity copyright infringement?

We say it is not, for two basic reasons. The first is that this kind of noncommercial consumer copying is recognized as fair use under common-law theories and doctrines, and under the Supreme Court's criteria. And second, with respect to audio recordings - that is, music - the Audio Home Recording Act directly says that noncommercial copying by consumers is lawful. The 9th Circuit, in RIAA v. Diamond Multimedia Systems, in 1999, read that statute as permitting all - and all is the word of the opinion - all noncommercial consumer copying as lawful.

The second issue?

The second issue is whether Napster can be held responsible if some users engage in copyright infringement. We maintain that Napster cannot be guilty of vicarious or contributory infringement, because the service unquestionably involves substantial noninfringing uses. In the 1984 decision in Sony v. Universal Studios, where the entertainment industry had tried to stamp out VCRs, the Supreme Court said that even though VCRs were predominantly used to copy copyrighted materials, because there were substantial uses that did not infringe copyrights - either because the material was not copyrighted or the copyright owner did not object - you could not find that Sony was guilty of contributory or vicarious infringement.

Now, the recording industry sometimes seems to argue that what matters is which use of the technology predominates. That has never been the law, and, indeed, in the Sony case, it was absolutely clear that more than 80 percent of the use was copyright infringement. So the issue is not, Which is the predominant use, but rather, Is there any substantial noninfringing use? And in fact, in Sony, the Supreme Court did not say there had to be any actual substantial noninfringing uses - it said that the technology merely had to be capable of substantial noninfringing uses.

One noninfringing use is space-shifting. [Music listeners space-shift when they copy songs they already own onto more portable media.] The 9th Circuit has held that space-shifting is clearly a noninfringing use, and both Napster's expert and the RIAA's expert say space-shifting is a very substantial use by Napster users.

Another noninfringing use is to distribute music that is either not copyrighted at all, or whose copyright has been lost, or whose copyright holder doesn't object, and that kind of music represents another use of the Napster system.

Yet another related use is sampling. Assume you've got copyrighted material, the copyright is valid, and the copyright holder has not given permission. Even under those circumstances, sampling has always been held to be a fair use. Now, there was some suggestion in the RIAA's court filings that sampling is not a fair use, which is not consistent with what the Supreme Court said in the Sony case. But even if sampling were not a fair use - and we think it is - certainly space-shifting, the sharing of uncopyrighted music, and the sharing of copyrighted music where permission has been granted all would be fair uses.

There's no question that these are already very substantial uses on the Napster system, and there's no question that these uses are growing. For example, when we put in our court filings, there were 15,000 to 17,000 artists who had expressly authorized Napster to permit its users to share their music. By the time we got to the hearing stage, it was more than 24,000. And it's over 25,000 today.

Issue number three?

The third point is the Digital Millennium Copyright Act, which we have argued that we are covered by, and which was specifically designed by Congress to give a safe harbor to Internet service providers so that they would not be held liable for their users' activities. The RIAA argues that if, as a general proposition, you know your users are engaging in some copyright infringement, you can't take advantage of the DMCA. But that can't be what the DMCA meant, because if you didn't know your users were doing it, you wouldn't have any liability anyway. The Digital Millennium Copyright Act was designed by Congress to say, "You know, service providers, even though you may have knowledge that some users are engaged in unlawful activity, that doesn't mean you have to monitor what each of your users is doing."

The DMCA also set up a notification procedure, through which service providers like Napster can say, "Look, if you believe somebody is infringing, you bring us a notice. We will then shut them down unless they give a counternotice. If they give a counternotice, it's up to the court to decide." And that system has worked with Napster. Hundreds of thousands of users have been terminated because of those notices. Congress set up a system. That system works.

OK. The fourth and final issue?

Copyright misuse. The 9th Circuit has made it clear that if copyright holders use their copyrights for anticompetitive purposes - to try to gain control over something they do not control directly through their copyrights - that's copyright misuse. It is clear that the RIAA has set out to control the Napster media. They have written documents saying they want to shut Napster down and then take over the technology. The RIAA's members are acting in concert. They have pooled, according to their own statistics, 90 percent of the copyrights on music. All of those kinds of activities constitute copyright misuse. And if they are engaged in copyright misuse, they cannot enforce their copyrights.

Offering other people's copyrighted product for other people to rip is theft in my opinion.I have always found it unethical.God frowns upon both the people who offer the download sites and the people who rip other's songs.

Interesting opinion for one who frequents a site that does just that. The articles reprinted here are also copyrighted and this site has already settled a suit in the matter.

Of course, I don't hold that it is stealing or unethical at all. I believe that Free Republic is making legitimate use of the "Fair Use" provision in copyright law that allows people to exchange copyrighted materials for disussion so long as they do not profit by it.

Well the people swapping MP3s aren't profiting by it either. And the file-traders could well be "discussing" the music amongst each other (which is why all these file-trading sites have chat capability).

Just as people can store and archive MP3s so that they don't have to buy the CDs, people can store and archive articles that are posted here so that they don't have to subscribe to the publications that publish them. One may argue that we are doing the more honorable thing here but it really boils down to the same thing. In both cases, copyrighted material is being disseminated.

Granted that most of the articles posted here are already available for free on the originating websites. But those websites depend on clicks to drive their advertising revenue. So we should get in the habit here of clicking the source URL for articles posted here so that the originating website gets a click. Losing the ability to read and discuss articles here will be a terrible thing. It will also be a terrible thing to lose the ability to sample the MP3s of music I am thinking of buying.

Thanks, excellent find. Boies's case is very weak on points 1 and 3, and point 4 could not save Napster in the long run, but point 2 is solid. The technology has a legitimate use (there is plenty of legally free music out there).

Nonetheless, although Napster and all the others should not be banned, people who use them to get copyrighted music they don't already own are doing something illegal and unethical. Yes, the recording companies are greedy and stupid, and they ought to develop a different business model allowing songs to be legally downloaded more cheaply, but that is no justification.

This is not something that technology can fix. No matter how many layers of encryption there are, it will always be possible to intercept the bits at the very end of the process, just as they go into the speaker, a physical device. Nor will digital-to-analog conversion help, because the waveform can still be recaptured and re-digitized. The best you can do is make it cumbersome and difficult and make legal downloading cheap enough that very few people will want to get involved with illegal copying.

One thing that CAN be done -- only sell physical CDs to identifiable individuals (require a picture ID), and steganographically encrypt a serial number in the music. This can be done in a way that is basically impossible to remove without destroying the sound quality. That way, if a pirated copy DOES circulate, it will be possible to tell who bought the original. Pirates will still be able to get around this by stealing physical CDs, but this trick will significantly reduce the incidence of piracy even further.

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