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English 111, Section 133
4 November 1999
Technology is Changing
the Way We Listen to Music
Downloading MP3s from the Internet should be made legal. An MP3 is a near CD quality digital recording of a musical piece that is compressed so it can be distributed through the Internet (Simple Net). High prices, new technology, and availability are causing most music lovers to turn to the Internet to listen to their music. It’s convenient to search a computer database for a song you’ve been wanting to hear by your favorite artist, download it, and copy it on to a CD. More and more people are doing this because with the help of search engines it’s possible to find any song imaginable and download it for free. What most people don’t realize is that the reproduction of a musical work, distribution of copies of a musical piece, and the public performance of the work without the copyright owner’s consent are all violations of copyright laws (Anderman and Paez 5). However, they do know that getting caught for this crime is very unlikely. Catching those who violate copyright laws is very tricky because in most cases it’s hard to tell who is at fault. Because of very detailed, complicated copyright laws even prosecuting a web site for promoting pirated music is almost too difficult to attempt.
New digital audio compression technologies have made promoting, distributing, and selling music very easy (5). Sound files called MPEG 1 Layer 3 or MP3 for short allow users to download digital quality music for free over the Internet. These compressed audio files can be played on an individual’s computer by using special software. With the help of CD-writers, a relatively new computer technology that allows people to create there own CDs, illegal copies of the copyrighted material can be made at near compact disc quality (Anderman and Paez 6). Portable MP3 players have now been developed that make pirating songs even easier. Instead of having to search for and buy expensive music, people are simply downloading the songs they want and designing their own CDs or just listening to the music on an MP3 player. In any case these new technologies are concerning the music industry because composers and production companies are losing a tremendous amount of money (MacDonald 1).
The increasing popularity of MP3s has resulted in the need for copyright law reforms. Because MP3s violate copyright laws, service providers have to take extreme precautions to avoid liability for copyright infringement (Anderman and Paez 7). The first of many says that service providers are not liable if the provider doesn’t start the transmission of the audio file nor manually carry out the copying process (8). The provider can not select the recipients, nor can the transmissions make any changes to the online material (8). The Digital Millennium Copyright Act, otherwise known as DMCA, addresses many issues associated with copyright infringement and rules for digital audio transmission over the Internet. It deals with many issues that include anti-piracy provisions, liability for online copyright infringement, and requirements for digital music delivery (1). These reforms, designed to protect the Internet Service Providers from liability, make catching individuals who break copyright laws very hard. It’s difficult for providers of interactive web sites and networks to search through all of their hosted web sites for pirated materials so in order for them to be shielded from liability, they can’t have anyway of knowing about the pirated material stored on their server. If the provider is notified of the infringing material, they have to stop accessing to the particular web site immediately. There are many specific rules that the providers must follow in order to avoid blame for copyright infringement if one of their web pages is hosting pirated materials (Anderman and Paez 8).
Deciding whether or not copyright laws were violated intentionally is too difficult because there are two types of copyright infringement, direct and indirect (7). If someone makes a digital copy of a musical work such as a MP3 and makes it available for downloading on the Internet, they have directly violated copyright laws. Direct copyright infringement occurs when a person knowingly makes illegal copies of copyrighted material and distributes it to the public without getting permission from the copyright owner (7). It doesn’t matter whether they’re getting financial gains out of it or not. In other words, an individual doesn’t have to be selling CDs with MP3s on them to violate copyright laws. However, if someone is willfully infringing copyright laws for financial benefits, they can be sentenced to five years imprisonment and $250,000 in fines (Simple Net). Simply downloading a song without the author’s permission to the hard drive of your computer violates copyright laws, and if convicted of this the penalty of $100,000 per infringed sound recording can be imposed (Simple Net). An Internet Service Provider can be held liable for pirated materials if a web page they are hosting contains pirated materials. However, if the provider unknowingly hosts a web page that has MP3s on it they are indirectly violating copyright laws, but they can still be held liable for up to $20,000 for each infringed sound recording (Simple Net). Something had to be done to protect them from being persecuted for an offense they committed unintentionally.
Under the DMCA a service provider is required to provide designated information about them so they can be notified of pirated materials, such as MP3s, on their web sites (Anderman and Paez 7). They must also develop a policy that allows them to punish or get rid of all account holders who infringe the material (10). An Internet Service Provider or ISP does not have the right to alter any measures taken by the copyright owner to protect their work. If the copyright owner asks a service provider for the name of a copyright law offender, the ISP has to disclose the information to them (10). However, the issuing of a subpoena for this information is a long, rigorous process, and now the problem is deciding whether or not the violator of copyright laws should be prosecuted for committing the crime or not. Safe harbors from liability, specified in the Digital Millenium Copyright Act, were enacted to protect against indirect copyright infringement (7).
There is virtually no way to enforce copyright laws on MP3s because it’s so easy to indirectly violate them. When considering what the Internet is, a vast collection of information interconnected for the public, the need for safe harbors becomes apparent. However, it’s these same safe harbors that provide ways to escape liability when an individual does violate copyright laws. Web pages are connected through hyperlinks and search engines so even though a web site might not contain MP3s, it can be linked to other web pages that do (9). This makes it difficult to zero in on the web site that is violating copyright laws. The problem becomes evident when considering the two types of links, the in-line link and the out link (10). The out link doesn’t provide much information for the destination site and is the most common type of link used on the Internet (10). It simply allows the user to push a button and go to another site. However, an in-line link actually pulls information from another web site into the current page (Anderman and Paez10). In other words, MP3s could be available through a web page that doesn’t actually host the pirated materials. The problem of linking to pirated material is the easiest way to face liability for infringing materials. For that reason service providers can escape liability by removing themselves from the guidelines set by the safe harbors through in-line links (10). These loopholes make it almost impossible to catch someone who is involved in the copying and distribution of MP3s. Musicians are recognizing that they are losing a lot of money, so they are trying to find some way to put a stop to it and still make money in the process (6).
MP3s eliminate the ownership of a musical piece. This new method for listening to music is threatening the music industry by encouraging copyright infringement of musical works (6). Since MP3s are downloadable for free, no one is going to buy music. Because of this the copyright owner isn’t going to make any money with record labels. Record labels are scared that eventually these new technologies are going to put them out of business. A recent lawsuit by the Recording Industry Association of America or the RIAA against Diamond Multimedia Systems, Inc. due to copyright infringement was over royalties (6). The RIAA thought they should get a cut of the profits made by Diamond Multimedia Systems because they were facilitating piracy. Record labels will soon be a thing of the past because most musicians will be on an independent label and eventually sell their music via the Internet (MacDonald 1). Web sites will start paying musicians for the right to host their musical works online and allow members, who have paid a fee to join the service, to download the material in MP3 format (2). The Secure Digital Music Initiative or SDMI is an example of businesses already beginning to exploit the digital music market (2). “mp3.com is an alternative to retail distribution that has the Big Five record labels shaking in their boots”(MacDonald1). According to Michael Robertson, CEO of the web-site, “mp3.com has captured the digital-music revolution. It’s changing the way people listen to music”(qt. in MacDonald 1). BMG Entertainment is also launching a new web site called GetMusic.com that will sell music online (Anderman and Paez 6). Under SDMI, the distribution of music in digital format won’t violate copyright laws. This new process, SDMI, was planned by the RIAA, which means that it is a last resolve to take control of the music market back and still make money (6).
MP3s are available on the Internet for free, and because of this there is no way for a musician to make any money. Right now MP3s violate copyright laws because the majority of them are duplicated without the author’s consent. However, there is a way to distribute MP3s on the Internet and still allow the artist’s to make money. Because a musical recording is licensed, a fee would have to be paid to the copyright owner for the right to distribute their music online (8). However, the fee paid would only be good for a certain allotted number of transmissions, and monitoring and controlling how many times a MP3 has been downloaded is not easy. There are ways to get around the methods that MP3 distributors are using now to record how many times a file has been downloaded to another computer. System caching is the method in which web sites are stored on a computer (8). Because of this an individual could listen to the same MP3 multiple times off of one download. This makes it very difficult for the copyright owner to make money from their music because they can easily be cheated out of their share of royalties. An online MP3 distributor can pay the copyright owner to make their musical piece available for a specific number of transmissions and go way beyond that allotted number of downloads without the author even knowing (Anderman and Paez 8). To avoid this regulations were placed on Internet Service Providers that require them to refresh the system cache so often to prevent the MP3 from being available too long (8).
Both recording artists and the record industry need to realize that we are approaching a new era of technology in which the Internet will play a key role in everyone’s daily activities. Everything from services to material objects is becoming readily available at the click of a mouse button via the Internet. Waiting for a musical artist’s new CD to be released only to pay an outrageous price for it is a thing of the past (MacDonald 1). The need for a record label is slowly deteriorating. Eventually every musician will have their own independent label and therefore have their music readily available through the Internet, so mp3s should not violate copyright laws. The sooner record companies stop resisting the era that precedes us, the better for the music lovers all over the world that want every kind of music available at their fingertips without ever leaving their home.
Anderman, Jason M. and Mauricio F. Paez. Down & Dirty With DMCA. Online. Internet. .
MacDonald, Patrick. “Music Industry Hearing a Whole New Song.” Seattle Times. 4 Oct. 1999. Online. 13 Oct. 1999.
“Simple Net.” Home Page. 13 Oct. 1999 .
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