BRIA 19 2 c Copying Music and Movies from the Internet: "Digital Piracy" and "Fair Use"

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Spring 2003 (19:2)
 

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Copying Music and Movies from the Internet: "Digital Piracy" and "Fair Use"

Copying free digital music and movie files from the Internet has become easy and popular. Most of the copying violates current law. Should the law be changed?

Joel, a high school student, uses a free Internet service that enables him to locate, download, and copy digital files containing copyrighted songs and music of his favorite singers and bands.

Maria, a university student, bypasses the security system on the copyrighted movie DVDs she has purchased. She makes digital copies of the DVDs on her computer and trades them with her classmates over the university's high-speed network.

Did Joel or Maria do anything illegal? In Joel's case, he violated copyright law by copying music on his computer without paying for it or getting permission from the copyright owners. In Maria's case, she violated a recent copyright law that prohibits anyone from tampering with security devices on DVDs.

Both these cases illustrate cases of stealing called "digital piracy." Some, however, argue that copyright laws have gone too far and that consumers should have greater "fair use" rights to access and reproduce copyrighted works.

Basic Copyright Rules

Copyright law attempts to reward creators of works of art and to encourage them to create more works. It gives the creator of an original work the "exclusive right" to reproduce, sell, and distribute copies of it. For example, if a person writes a book or a song, others may not sell the book or song without the author's consent. In effect, the law grants to creators a monopoly that rewards them for their original works and motivates them to produce more. The copyright exists for a limited time. After that, the work falls into the public domain and anyone may copy it.

The founders of the United States recognized the importance of copyright. Article I, Section 8 of the Constitution states: "Congress shall have the power . . . To promote the Progress of . . . useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their . . . Writings . . . ." In 1790, Congress passed and President Washington signed the nation's first copyright law "for the encouragement of learning."

Copyrighted materials must be "original works of authorship." Original works of writing, music, film, technology, and other creative areas are "intellectual property" that people own and may copyright. Copyrighted works must be recorded in a "fixed" medium. This can be a printed document, audio recording, video, film, or other medium. Although no one may copyright facts or ideas, authors may copyright their expression of them.

Once people record their original works in some "fixed" medium, the works are automatically copyrighted. For enhanced protection, creators may register their works for a small fee at the U.S. Copyright Office.

Currently, the law sets the length of most copyrights to the lifetime of the author plus 70 years (a total of 95 years for movies). After that, the work goes into the public domain and anyone may copy and distribute it.

Copying or distributing copyrighted work without permission is called "copyright infringement." The copyright owner may sue an infringer in civil court for lost sales and other money damages. In addition, the government may prosecute infringers in criminal court for violating U.S. copyright laws.

Courts have long recognized a "fair use" exception to copyright law. For example, over the years courts ruled that individuals may copy limited amounts of copyrighted material for critical reviews, news reporting, research, and teaching. Congress wrote the concept of fair use into the 1976 Copyright Act. Congress noted that no clear definition of fair use is "possible, and each case raising the question must be decided on its own facts." The law gives courts four factors to consider in determining whether something is fair use:

(1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

(2) The nature of the copyrighted work.

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

(4) The effect of the use upon the potential market for or value of the copyrighted work.

Music Copyrights

The nation's first copyright law protected only books, maps, and charts. A work could be protected by copyright for no more than 28 years. Then it went into the public domain. Congress added copyright protection for published sheet music in 1831. In 1909, Congress gave composers the exclusive right to make sound recordings. But after a composer has made a sound recording, the law gives others permission to make a recording of the work if they pay the composer a set fee.

When tape recorders brought on the first wave of mass music piracy, Congress in 1972 outlawed copying copyrighted sound recordings. The new law, however, allowed consumers to make audiotape copies of original sound recordings for "home use." Home use was considered a form of fair use.

Starting in the early 1990s, MP3 computer software, freely available on the Internet, enabled users easily to make perfect digital copies of CDs and online music files. Some argue that it is fair use for a person who legally acquires a CD or online music file to copy it for personal purposes.

Many people, however, began to download music from various unauthorized web sites and then "share" it with others on the Internet. This violated the copyright of music composers, publishers, and recording companies to reproduce and distribute their works.

The Napster Case

Napster was an online company that developed a free service, enabling users to locate and download MP3 music files and share them with others. By 1999, Napster users were sharing 10,000 MP3 music files per second over the Internet.

In 2000, major recording companies, music publishers, and a few rock bands joined to sue Napster for massive copyright infringement. These plaintiffs charged that Napster facilitated wholesale illegal copying that cut CD sales and undermined plans to sell music online.

Napster argued that it had no way of knowing if its users were engaged in any illegal activity. Napster also claimed that copying music on the Internet for personal use was similar to home audio and video taping, which are fair-use exceptions to copyright infringement.

Before trial, the federal judge in the case ordered Napster to block all files containing unauthorized copyrighted works. When Napster could not do this, the judge ordered the company to disable its file-sharing service, pending the outcome of the trial. But Napster went out of business by mid-2002, and the case never went to trial.

So far, neither Congress nor the Supreme Court has acted to specifically outlaw Napster-like file-sharing. As a result, new free file-sharing services, financed mainly by advertising, have appeared on the Internet to replace Napster.

Movie Copyrights

Congress granted movies copyright protection in 1912. In the 1970s, the movie industry tried to stop people from copying films on video recorders. Consumers won a victory in 1984 when the U.S. Supreme Court exempted video "home recording" from copyright infringement, another example of fair use.

Recently the movie industry has installed a security code on most DVDs. It prevents copying them on VCRs and computers. Although the Digital Millennium Copyright Act of 1998 makes it illegal to do so, hackers can bypass the security code. This allows digital copying and transmission of unauthorized DVD movies over the Internet.

Digital Piracy and Fair Use

Today, downloading and copying CD and DVD digital files from U.S. and foreign Internet web sites are as popular as ever. Because of digital piracy, say music industry representatives, CD sales have sharply fallen. Similarly, the motion picture industry reports that Internet users download 350,000 movies every day, depressing DVD sales.

Alain Levy of EMI Recorded Music fears, "We are allowing a whole generation to believe that recorded music should be free." If this view should prevail, Levy and others doubt many would invest in the expensive recruitment, tours, and marketing of new music talent. Jack Valenti, chairman of the Motion Picture Association of America, says bluntly, "When you take what is not yours and not freely offered, you are stealing."

Major music recording companies are just beginning to sell music at reduced prices over the Internet. The movie industry will undoubtedly follow as soon as high-speed Internet connections become more common. But music executive Miles Copeland wonders, "How do you compete with free?"

While not defending digital piracy, critics of Hollywood and the major recording labels say that there should be more fair use of copyrighted works. According to fair-use advocates, consumers should have the right to make copies of their CDs and DVDs so they can play them at home, at work, in the automobile, and on portable devices. In addition, users may need backup copies to restore lost, stolen, or damaged discs. Supporters of more fair use also say that music fans should have the right to download and copy "sample" songs to help them decide if they want to buy entire albums.

The Length of Copyright Protection

Another current issue involves the length of copyright protection. In 1998, Congress passed the Copyright Term Extension Act. It extended copyright protection for 20 additional years. This means copyright protection now lasts 70 years after the author's death.

Critics called the law the "Mickey Mouse Extension Act," because Disney's character Mickey Mouse had been scheduled to go into the public domain in 2003. The entertainment industry, including Disney, had pushed for the copyright extension law.

Stanford University law professor Lawrence Lessig challenged the law in a case that went before the U.S. Supreme Court. Lessig pointed out that the Constitution gave Congress the power to issue copyright protection for "limited times" only. He argued, among other things, that existing copyrights are not limited if they can be continually extended by Congress. In 2003, however, the U.S. Supreme Court in a 7-2 ruling held that the law did not violate the Constitution. [Eldred v. Ashcroft] The court noted: "History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime."

The debate, however, continues over whether copyright protection should last so long. Many urge Congress to shorten the protection. They point out that the purpose of copyright is to reward the creator of a work and to encourage more works. They say that copyrights now last so long that the creators of these works are long dead and the benefits go to enrich media giants. Lessig says: "We now have an incredible concentration of copyrights in a few entities. Never has there been a point where more of our culture has been controlled by fewer people."

Lessig argues that Americans have less access to artistic works and information. He points out that only "2 percent of work 75 years old is currently exploited commercially. . . ." He says it could be put on the Internet except for copyright restrictions. But, he says, "Congress's practice is to extend protection generally. It cannot see beyond this 2 percent--for among other things, the 2 percent includes Mickey."

Supports of copyright extension point out that the European Union and other countries have adopted the life plus 70 years formula for copyrights. They say that it is becoming the international standard. They argue that American copyright holders deserve the same protection.

Valenti points out that copyrighted material is an important asset. He says: "Intellectual property, consisting of the core copyright industries, movies, TV programs, home video, books, musical recordings and computer software comprise almost 4 percent of the nation's Gross Domestic Product, gather in some $45 billion in revenues abroad, and has grown its employment at a rate of four times faster than the annual rate of growth of the overall U.S. economy. Whatever shrinks that massive asset is not in America's interests."

For Discussion and Writing

1. Do you see any difference between unauthorized downloading of copyrighted music from the Internet and shoplifting CDs from a store? Explain.

2. What is fair use? Look at the guidelines for courts and examples of fair use in the article. Decide whether each of the following is fair use or copyright infringement:

a. Making computer backup copies of purchased CDs and DVDs.

b. Burning copies of purchased CDs to use at home or in a car.

c. Sharing copies of purchased CDs and DVDs over the Internet.

d. Copying "sample" music album singles from unauthorized web sites for personal use.

e. Burning CDs of songs downloaded from unauthorized web sites for personal use.

f. Setting up a web site, financed by advertising, that distributes free unauthorized copies of CDs and DVDs.

3. How would you have decided the Napster case had it gone to trial? Give reasons for your decision.

4. Do you think the current length of copyright protection is reasonable? Explain.

For Further Information

The Basics

Copyright Tutorial A good overview of the law and issues. From Caltech.

Crash Course in Copyright From University of Texas.

Copyright Law in the United States An explanation. From Bitlaw.

Laws

Timeline: A History of Copyright in the United States From the Association of Research Libraries, Washington, D.C.

Legal Information Institute: Copyright: An Overview

Copyright Treaty

U.S. Copyright Act of 1976

Digital Millenium Copyright Act

Copyright Extension Act

Legal Sources

Findlaw Special Coverage: Napster

Recording Industry Association of America (RIAA) Litigation
Cyberspace and Intellectual Property Law Journals
Intellectual Property
Copyright

Cyberspace Law

Jurist

Copyright and Patents
Internet Law Wire

Nolo: Copyright

Virtual Chase: Intellectual Property Law

Government

U.S. Copyright Office

World Intellectual Property Organization

Intellectual Property on the Internet: A Survey of Issues

Frequently Asked Questions About Copyright From CENDI.

Media

PBS

Online Newshour

Stop the Music
Napster No Longer
Online Music

Copyright Conundrum A debate between Laurence Lessig, law professor at Stanford University, and Matt Oppenheim, senior vice president for the Recording Industry Association of America.

Copyrighting in the Digital Age

Archive of News Stories
Laws and Legislation

Landmark Cases

Frontline

Dreaming in Broadband
The Way the Music Died

NOW: Copyright in America

Technology Articles by Robert X. Cringely

Son of Napster: One Possible Future for a Music Business That Must Inevitably Change

First Monday: A Journal on the Internet

A Copyright Cold War?
Copyright and Authors
The State of Copyright Activism

Federal Relations E-News

GigaLaw.com Daily News

Yahoo Full Coverage

Intellectual Property
Digital Music

PC World: Copyright

Weblogs

BeSpacific

Copyright
Digital Rights
Intellectual Property
Internet

Blawg

Intellectual Property

Berkeley Intellectual Property Weblog

Current Copyright Readings

Yale Law School: LawMeme

Scholarly Electronic Publishing Weblog

Chris Rush Cohen

Lessig Blog

Napster

Napster

Wired News: The Day the Napster Died

MSNBC: From Betamax to Napster

Wikipedia: Napster

Napster Editorial Cartoons A collection by Daryl Cagel, Slate Magazine.

Napster Links

Eldred v. Ashcroft

Eldred v. Ashcroft

Wikipedia: Eldred v. Ashcroft

Eldred v. Ashcroft: A Primer From Washington Post.

Loyola of Los Angeles Law Review: Eldred v. Aschcroft

Academic Sites

Copyright, Intellectual Property Rights, and Licensing Issues From Berkeley Digital Library SunSITE.

Copyright and Fair Use From Stanford University Libraries.

Center for Intellectual Property and Copyright in the Digital Environment From University of Maryland University College.

Copyright Management Center From Indiana and Purdue Universities.

Law School Sites

Berkman Center for Internet & Society at Harvard Law School

Open Law

The Future of Intellectual Property on the Internet Debate between Jack Valenti and Lawrence Lessig.

Copyright and Digital Media in a Post-Napster World (PDF file)

Columbia Law School: Music Plagiarism Project

Intellectual Property and Technology Forum at Boston College Law School

Stanford Law School: Center for Internet and Society

Organizations

Recording Industry Association of America

Motion Picture Association of America

American Society of Composers, Authors, and Publishers

American Society for Information Science and Technology

Copyright's Digital Dilemma Today: Fair Use or Unfair Constraints? (PDF file)

Center for Democracy and Technology

Center for the Public Domain

Copyright Society of the USA

Creative Commons

Electronic Frontier Foundation

Copyright Law

Books

The Digital Dilemma: Intellectual Property in the Information Age Online book from the National Academy of Sciences.

Music Copyright for the New Millennium by David J. Moser.

Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity by Lawrence Lessig.

The Future of Ideas: The Fate of the Commons in a Connected World by Lawrence Lessig.

Link Collections

BUBL Link: Copyright

Academic Info

Copyright
Intellectual Property

Open Directory Project

Intellectual Property
Copyrights
DVD Encryption
Music Freedom
Piracy
Napster and MP3

Yahoo Directory

Intellectual Property
Peer-to-Peer File Sharing
Napster

American Library Association: Copyright and Fair Use

Copyright Resources on the Internet

A C T I V I T Y

Should File Sharing of Music and Movies Over the Internet Be Allowed by Law?

In this activity, students role play members of a congressional committee considering the following statute: It is hereby established as fair use for people to share copies of purchased music CDs with others over the Internet. The sharing must be for non-commercial purposes only.

Divide into small groups. Each group will be a congressional committee. Each committee should do the following:

  1. Make a list of the pros of the proposed statute.

  2. Make a list of the cons of the proposed statute.

  3. Discuss the statute. (Use information from the article, consider the pros and cons you have listed, and look at the brief arguments below.)

  4. Decide whether you favor or oppose the statute. Be prepared to report back to the class on your decision and the reasons for it.

  5. Have the groups report back, discuss the issue, and hold a vote.

Some Arguments on Both Sides

From the Free Music Philosophy website: "Free Music means that any individual has the freedom of copying, distributing, and modifying music for personal, noncommercial purposes. Free Music does not mean that musicians cannot charge for records, tapes, CDs, or DATs. However, something that can be copied arbitrarily many times, like music, should be set free. . . . Musicians currently make money through a variety of sources: sales of records, merchandise and concert tickets, and royalties from commercial airplay. Freeing music will certainly not be detrimental to the sales of merchandise and concert tickets, nor will it affect compulsory or performance royalties. If anything, it will improve sales since people will continue supporting artists they like by going to their concerts and buying their merchandise. Profits from record sales will also not be affected because people will be encouraged to buy directly from the artist for the added bonuses of liner notes, lyrics sheets, and packaging."

Phil Galdston, Grammy Award-winning composer, lyricist, and music publisher from the MusicUnited.org web site: "Our livelihood is seriously and negatively impacted by unauthorized downloading of our work through peer-to-peer networks. . . . Every time someone downloads a song of mine without my permission, I am losing all that follows from it: the ability to support my family, the capital needed to continue to re-invest in my business, and the economic incentive to continue to create. . . . [M]usic is only in the air because my colleagues and I, through inspiration, hard work, and perseverance, have put it there. We are due our just compensation for its use, including via download. Just as importantly, as individual creators, we are entitled to decide when and how it may be downloaded. All of this is about the basic principles of private property -- principles that I have to believe most of those promoting or excusing or defending unauthorized peer-to- peer downloads would defend in any other situation."

SOURCES FOR DIGITAL PIRACY

A & M Records, Inc. et al. v. Napster, Inc., U.S. Court of Appeal, Ninth Circuit. 25 Mar. 2002. Find Law. 19 Dec. 2002.

Borland, John. "An End to Digital Piracy?" Cnet News.Com. 4 April 2002. Cnet Networks, Inc. 4 Dec. 2002.

__________. "D. C. Anti-Piracy Plans Fuel Culture Clash." Cnet News.Com. 27 Mar. 2002. Cnet Networks, Inc. 4 Dec. 2002.

"The Future of Intellectual Property on the Internet" [archived Webcast debate between Jack Valenti and Lawrence Lessig]. 1 Oct. 2000. The Berkman Center for Internet & Society at Harvard Law School. 5 Dec. 2002.

Healey, Jon. "Firm Says Law Stifles Fair Use." Los Angeles Times. 28 Oct. 2002:C1+.

__________. "Forthcoming CDs Pirated on Web." Los Angeles Times. 27 July 2002:C1+.

__________. "Napster Ruling Is Upheld." Los Angeles Times. 26 Mar. 2002.

__________. "Net Music That's a Steal--But Not Stolen." Los Angeles Times. 12 June 2002:A1+.

__________ "Latest Spin on Online Music." Los Angeles Times. 13 June 2002:C1+.

Jesdanun, Amick, "Digital Copyright Law Draws Wrath of Consumers, Educators." San Bernardino Sun. 23 Dec. 2002.

King, Brad. "The Day the Napster Died." Wired News. 15 May 2002. Lycos, Inc.

__________. "File-Trading Furor Heats Up." Wired News. 3 July 2002. Lycos, Inc.

__________. "Girding Against the Copyright Mob." Wired News. 2 Aug. 2002. Lycos, Inc.

Leeds, Jeff. "Online Music Sales Dive from 2001." Los Angeles Times. 4 Nov. 2002:C2.

Lessig, Lawrence. "Limits of Copyright." The Industry Standard. 19 June 2000. IDG.net.

Lieberman, David. "How Dangerous are Pirates?" USA Today. 5 April 2002.

Litman, Jessica. Digital Copyright. Amherst, N. Y.: Prometheus Books, 2001.

Moser, David J. Music Copyright for the New Millennium. Vallejo, Calif.: ProMusic Press, 2002.

"Music and the Internet." Issues and Controversies. 11 Aug. 2000.

Samuels, Edward. The Illustrated Story of Copyright. New York: St. Martin's Press, 2000.

Shiver, Jube. "Battle Stirs Over Copyright Laws." Los Angeles Times. 15 April 2002.

"Title 17--Copyrights." Legal Information Institute. Cornell University.

Traunson, Rebecca. "Pirated Files Clog College Networks." Los Angeles Times. 2 Dec. 2002:A1+.

Valenti, Jack. "A Clear Present and Future Danger: The Potential Undoing of America's Greatest Export Trade Prize." Jack Valenti Press Releases. 23 April 2002. Motion Picture Association of America.

 

 

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