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"Bad Boys, Bad Boys, What'cha Gonna Do? Whatcha Gonna Do When They Come For You?
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INTRODUCTION Nietzsche once said, “Without music life would be a mistake.” With this eloquent statement, he expresses the magnitude of what lies at the core of every human being and that is simply our inherent love for music. It is a human necessity that strikes a chord (no pun intended) with all of us and always seems to mark every emotion, experience, event, and time period. Music has no boundaries with its interpretations, evolutions and expressions being limitless. Though little could Nietzsche have ever imagined, a world-wide communication network allowing for the consumption of downloadable music from cyber networks by internet explorers on personal computers. In this paper, I will briefly explore the world of music swapping over the internet and how this new phenomenon has sparked one of the largest quandaries of legal episodes to ever hit the modern era. Millions of people are illegally downloading copyrighted songs from the Internet causing the music industry to be caught in a downward spiral as it continues to lose exponential amounts of revenue every year. There is no doubt that this is piracy from a legal standpoint, but who wants to see twelve-year old girls and young college students being dragged into courts because they downloaded Britney Spears singing “Oops! I Did It Again?” No one does. But this paper does not answer the ethical issue of whether or not people have the right to download music from the internet instead of paying $19.95 for a CD. Instead, it analyzes how the music industry, under the umbrella of the Recording Industry Association of America (RIAA), has been legally enabled to do so because of the Digital Millennium Copyright Act (DMCA) of 1998. This paper is separated into five different segments that provide: A) a brief background on and current status of internet music swapping; B) a general description of copyright law which is at the center of this issue; C) a summation of what the DMCA is and two landmark cases that evolved from it and D) a discussion of possible future legal implications this dispute could have. INTERNET MUSIC SWAPPING Ricardo Morgan is the kind of person who petrifies entertainment executives. The twenty-nine year old Atlanta, Georgia resident, who is a General Manager at a restaurant, rarely patron’s record stores anymore. He downloads most music he wants, such as songs from rapper 50 cents, from the Web without paying music companies nor the rapper, one red cent. Ricardo is an honest working man and he is committing piracy without probably even knowing it. How did this come to be and what does it mean for the music industry? FACTS ABOUT THE MUSIC INDUSTRY The music industry in 2002 was estimated to be worth $40 billion globally (RIAA, 2002) with the U.S. recording industry accounting for close to one-third of that world market. Hundreds of thousands of people are currently employed either directly or indirectly by the music industry. It has now lost a substantial amount of revenues with sales falling 8.2% in 2002, losing $1.1 billion. The Overall Size of the U.S. Sound Recording Industry ($ millions) Year Dollar Value % Change 1993 $10,046.60 - 1994 $12,068.00 20.12% 1995 $12,320.30 2.09% 1996 $12,533.80 1.73% 1997 $12,236.80 -2.37% 1998 $13,723.50 12.15% 1999 $14,584.50 6.27% 2000 $14,323.00 -1.79% 2001 $13,740.89 -4.06% 2002 $12,614.21 -8.20% Newly released figures from the RIAA for Mid-Year 2003 are even more dismal with retail shipments of albums dropping 11% in the first half of the year, falling to 252.6 million units from 283.7 million. Looking at the total music market, shipments fell to 335.6 million units, a decline of 15.8%. Total value was down 12% to approximately $4.8 billion. TYPES OF INTERNET PIRACY At its simplest, internet piracy involves the copying of files containing recorded music from the web or FTP (file transfer protocol) servers, or making available such files from Internet Relay Chat (IRC) channels or newsgroups for immediate access and download by any of the half-billion users. Links and hacking sites also facilitate unauthorized copying. Links sites contain long lists of hyperlinked file names that, when clicked, commence direct or indirect downloads of infringing files from other servers. Hacking sites provide access codes, serial numbers, software or other means to break copy-control technology applied to copyrighted material. Various peer-to-peer services have appeared that encourage and assist this widespread unauthorized copying. Napster, which will be discussed later, was the first and best known, but similar services such as Aimster, the FastTrack network including Kazaa and Grokster, and Gnutella-based services like Morpheus have sprung up. In 2000 and 2001 small OpenNap ‘Napster clone’ servers, based on the original Napster protocols, also appeared. FACTS ABOUT INTERNET PIRACY • In May 2002 there were approximately three million users and 500 million files available for copying at any one time on all of the peer-to-peer services worldwide (IFPI, 2002) • There are approximately 200,000 Web and FTP sites hosting or linking to some 100 million unauthorized recorded music files worldwide (IFPI, 2002) • Right now there are hundreds of unauthorized music downloading sites in the U.S. with the three most popular sites having a combined 70 million active users (Robinson, 2002) • 99% of music files available online are unauthorized (IFPI, 2002) COPYRIGHT LAW At the center of this controversy is copyright protection and the average person’s lack of knowledge or lack of concern whether they are committing copyright infringement when they are downloading music on the Internet. According to a new Pew Internet and American Life Project survey (2003) that highlights the enforcement battle facing the recording industry, two-thirds of Internet users who download music do not care whether they are violating copyright laws. The survey said younger Americans, ages 18 to 29, were least worried about copyrights, with 72% saying they were not concerned. It said 61% of Americans who were 30 to 49 years old were similarly unconcerned.
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