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Evan Williamson Homepage e-mail: segarat@hotmail.com |
Introduction
Something for nothing makes for very good business. Thousands of people across the globe use this business everyday by simply turning on their computers and looking for what they want. Some find it. Free music, movies, and software are found in abundance across the Internet, if a user knows where to look. The Internet has created a global community where information is regarded as free enterprise. To those with copyrights, trademarks, and patents, though, this is a disturbing phenomenon. In 1999, Napster told the public not only where to look but gave direct access to the material through a peer-to-peer (p2p) file sharing network (Burkhalter). While pirating, making illegal copies of copyrighted material, is not new, it is made easier with file sharing networks and programs such as Napster, Kazaa, and others. By looking into the past legal actions, ethical considerations, and current regulation of copyright infringement, one can begin to see the future of copyrights on the Internet.
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History
The United States passed the first copyright law in 1790 and saw the first registered documents within weeks. For a time, the government clerical offices held all copyright records until it became its own entity. Since 1870, the Copyright Office has been a part of the Library of Congress (Copyright Office). It is this office and the laws pertaining to it that control the information of the country by designating who created what and when. When a complaint is brought forth, it is these records that are turned to. Usually this is a solitary case. Copying materials on such a mass scale has never really been large problem with print materials. The time and money that is taken to control such an endeavor often outweighs the pay off for the crime itself. Not so with electronic material. As materials such as music and movies have become more and more digitized, the ability to readily copy and distribute has become an easy enterprise.
Maybe not the first, but one of the most landmark cases involving digital copyright infringement was the Betamax case. In early 1976, Sony introduced a video recording system known as the Betamax. Universal City Studios and Walt Disney Productions claimed that the ability of the recorder to "copy programming off air was an infringement of copyright" and "sought to halt the sale of the machines" (Balio). The case was filed in November 1976 with the U.S. Federal District Court of Los Angeles. Sony defended itself, claiming that the existence of cassette recorders, which had the ability to copy music, had not been challenged and therefore made a precedent. The court sided with Sony, citing that the private use of material copied with a recorder within copyright guidelines was acceptable. A later appeal in 1981 overturned this decision, but the more popular video home system (VHS) was beginning to show a large increase in sales making the reversal near impossible to enforce. In January 1984, the Supreme Court overturned the appeal (Balio). This case can be cited as important not only for the history of VHS but for all recording software and machines. CD and DVD burners, printers, fax machines, and file share programs all exist in abundance because of this case. By stating a precedent that the owner of the product, not the product or the manufacturer, is responsible for the use of the product, liability has been passed to the consumer. The consumer must be aware of copyright laws and whether he or she is infringing on them.
The most popular case concerning file sharing is Napster. Napster, created by Shawn Fanning, was a file sharing network used for exchanging MP3 files, a type of compressed music files. Released in the fall of 1999, Napster came under legal action in December of that year by A & M Records, Inc. in the District Court for the Northern District of California for “among other things, contributory and vicarious copyright infringement” (Zepeda). The majority of the music distributed on Napster was copyrighted material. Following the lawsuit, the music group Metallica also sued the company in 2000 but to no avail. The attention gained in the media by the lawsuits led to Napster becoming even more popular than before with users numbering in the tens of millions. The record company’s lawsuit was a success and, after a failed appeal, Napster was ordered to suspend the use of its network (Wikipedia). One major reason it lost the case was because of the design of the network. Current P2P networks allow the users to directly connect to each other in a decentralized network. Napster operated with servers connecting its members, leaving it actionable by allowing for the illegal files to passing through the servers. Another reason Napster lost was part of the defense it presented. By claiming protection under the Audio Home Recording Act (AHRA) of 1992 and the Digital Millennium Copyright Act (DMCA) of 1998. The court found that Napster was not offered protection under the laws because computers were not considered recording devices and Napster’s servers were not considered Internet Service Providers (ISP). After facing many financial and legal fees, Napster declared Chapter 11 bankruptcy in 2002. After selling their license to another company, Napster became a pay-per-download company. In the wake of Napster’s demise as a free file sharing program, several other networks opened with decentralized capability. While some litigation has come from these company’s rise in popularity, most notably Grokster, companies are flourishing (Wikipedia).
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Current Regulations
Many laws currently regulate the use of intellectual property online. The first and foremost of these laws is the Copyright Law, Title 17 of the U.S. Code. While added to and changed for growing technologies, this law has always guaranteed the author of an original work all rights to that work through reproduction and distribution (Copyright Office). Additional laws have been used to govern the Internet, specifically the AHRA and the DMCA.The Audio Home Recording Act of 1992 began the digital media coverage of United States copyright laws. This law stated that all digital recorders contain programs that allowed for first generation copying but not second generation copying, meaning one could copy something from a television or home recorder but could not make a copy of a commercially available VHS cassette. The law also contained a notice that all manufacturers of digital recording devices pay a royalty tax that would be distributed to copyright owners. The purpose of this law was to prevent piracy of music and films available in commercial form while compensating copyright holders of any profits lost by legal copying through home recordings meant for personal use (Hall). In terms of file-sharing, this law protects users who make copies for home use from networks while they already own the item requested. Yet it does not protect users as computers have not been classified by the courts as “digital audio recorders,” as seen in the Napster case. This law allows the consumer to buy merchandise that protects the copyright holder.
The Digital Millennium Copyright Act (DMCA) of 1998 was created to not only protect copyrights but to make illegal any measure to circumvent copyright technology. This law has met with some contriversy as it generalizes many cases. By providing law that makes code cracking of copyright technology illegal, the law generalizes users who make use of these programs with the intent of playing media on a machine that is unsupported by the original programmers. The most notable case to resist this is the DeCSS case. DeCSS is a program developed by a young teenager to decrypt CSS (Content Scrambling System), the code that encrypts commercial DVDs, to allow him to play the content on a Linux computer operating system, which is unsupported by DVD technology. The intention was not to pirate DVDs, only to allow playback (Spinello). After posting his program on the Internet, the teen and websites linking to the content met with litigation in the United States due to the DMCA and copyright violation. This is one example where generalities in laws for content on the Internet can be wrongly used to target programs that were intended for benign purposes.
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Ethical Considerations
In the United States, it is illegal to duplicate copyrighted material and pass that material off as one’s own. This includes selling, distributing, or otherwise making available the material without the creator’s or owner’s consent. File sharing has been brought to the forefront of many debates and legislation because many file-sharing networks allow users to pass along copyrighted materials. The documentation of the Napster and other hearings has been made plentiful, proclaiming that file-sharing of copyrighted materials is stealing, yet millions continue trade music and videos every hour of every day. This act of disregard for the law begs for attention.
However one looks at file sharing, it is an illegal endeavor. Those who use the services provided to download or upload copyrighted material, regardless of knowledge on the subject, are subject to the penalties. Why do people continue to share illegal files then? There are several reasons, some economical and some personal. One of the largest is economical. By downloading one song, the user does not have to buy a $15 or $20 CD filled with songs that he or she does not want. While businesses like iTunes, which costs by the download, are servicing this market with success, the free aspect of file-sharing networks is attractive. This is where the personal reasons enter. As a global community, the Internet often offers free information in many forms from anywhere on the globe. Users have become accustomed to this free access and have extended it to music, film and television files found online. “It is easy to see how our perception of cyberspace has made free music file-sharing a seemingly acceptable social practice” (Canadian).
On the side of the consumer, one could see this as a globalization of a trend that began more than 40 years ago with the invention of the re-recordable audio cassette. One could take an audio cassette and record off the radio and off of another cassette. These copies could be used for personal use under the Betamax Decision and the AHRA and were often traded or given away. This pop-culture phenomenon known as “mixed tapes” or “compilations” has been a staple for many poor teens throughout the decades, appearing in such movies as High Fidelity. Quotes from High Fidelity express the extreme nature some may take to making such tapes, like, “the making of a good compilation tape is a very subtle art. Many do's and don'ts. First of all you're using someone else's poetry to express how you feel,” and “The making of a great compilation tape, like breaking up, is hard to do and takes ages longer than it might seem. You gotta kick off with a killer, to grab attention. Then you got to take it up a notch, … so then you got to cool it off a notch. There are a lot of rules” (Bevan). These rules are part of a subculture that believes arranging someone else’s art, making a compilation, is an art form. The extension of this as technology progressed is CD burning. Rather than buying the original CD, pulling the files off of it, and making a new CD, consumers found they could find all the music they needed online through file sharing. Compilation makers and casual music listeners alike are finding music free online and are equating this with the older views they held on making copies through cassette, not seeing or outright denying the precedents set in court.
The ethical decision whether or not to download illegal content is a personal choice with legal consequences. While the number of global online users is increasing daily, the number of litigation against people performing illegal acts is still low although severe. This attracts many users who see this as a way to get free entertainment with little chance of repercussion, while others see it as continuing a trend that has been well established. However one views file-sharing copyrighted materials, it is still a crime and is therefore unethical as it takes profits away from those who own the copyrights.
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Conclusion
Because digital media is so versatile and the industry surrounding it so high in profits, there will always be those who will protect copyright and those who circumvent it. Digital manipulation, whether for profit or for sport, is an industry that has only grown within the last forty years. File-sharing technology allows for a greater number of people to access a large amount of product. This is a revolution for a capitalist society, and one that has found its conclusion. By appealing through legislation or through values, copyrights must be maintained to protect the originator of the art, for it is the essence of the creation that has the most at stake.
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Work Cited
Balio, Tino. "Betamax Case." The Museum of Broadcast Communications. Retrieved on December 6, 2005 from http://www.museum.tv/archives/etv/B/htmlB/betamaxcase/betamaxcase.htm.
Bevan, Tim, et al (Producers), & Frears, Stephen (Director). (2000). High Fidelity. [Motion Picture]. Burbank, CA: Buena Vista Home Entertainment.
Biegel, Stuart. “The Digital Millennium Copyright Act.” The UCLA Online Intstutue For Cyberspace Law and Policy. Updated February 8, 2001. Retrieved on December 7, 2005 from http://www.gseis.ucla.edu/iclp/dmca1.htm.
Burkhalter, Brian. "Napster: Then and Now." The Napster Controversy. 2001. Retrieved on December 6, 2005 from http://iml.jou.ufl.edu/projects/Spring01/Burkhalter/Napster%20history.html.
Canadian Internet Policy and Public Interest Clinic. “File Sharing.” FAQs and Resources. Updated October 5, 2005. Retrieved on December 6, 2005 from http://www.cippic.ca/en/faqs-resources/file-sharing/
Copyright Office. "United States Copyright Office A Brief Introduction and History Circular 1a." U. S. Copyright Office. Revised January 2005. Retrieved on December 6, 2005 from http://www.copyright.gov/circs/circ1a.html.
Hall, Tia. “Music Piracy and the Audio Home Recording Act.” Duke Law and Technology Review. November 2002. Retrieved on December 8, 2005 from http://www.law.duke.edu/journals/dltr/articles/2002dltr0023.html. Spinello, Richard A. and Tavani, Herman T (editors.) “Intellectual Property in Cyberspace.” Reading is CyberEthics: Second Edition. Jones and Bartlett Publishers. Sudbury, Massachusetts: 2004.
Wikipedia: the Free Encyclopedia. “Napster.” Last Updated December 5, 2005. Retrieved December 5, 2005 from http://en.wikipedia.org/wiki/Napster
Zepeda, Lisa M. “A&M Records, Inc. V. Napster Inc.” Berkeley Technology Law Journal Annual Review. Volume 17, Issue 1. 2002. Retrieved from Ebscohost on December 6, 2006.
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Created December 11, 2005 by Evan Williamson Updated December 18, 2005