Kevin Carlson
3/6/02
Paper 2
Music Piracy
or
“Copyright Infringement in the Reproduction of Commercial
Electronic Music Recordings”
It’s hard nowadays to come across a person who hasn’t either made a copy of a CD, made a compilation CD, or downloaded an MP3 off the Internet. With the technology of digital music reproduction exploding all around, it’s becoming an ever-increasingly difficult task for recording artists and companies to protect their intellectual property against unauthorized reproduction and distribution. In this paper, I will help clarify what the law defines as “unauthorized” reproduction of music, I will give an overview of the phenomenon of File-Sharing and its consequences, and I will discuss the how industry is attempting to battle music piracy.
The Constitution empowers Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” (Article I, Section 8, US Constitution) This is the basis of copyright protection in the United States, which subsequently lead to the Copyright Act.
The Copyright Act stated that the owner of a copyright has the exclusive rights "to reproduce the copyrighted work in copies or phonorecords,” (which was obviously well before the era of the Compact Disc, but it can be assumed CD’s would fall under the same category as “phonorecords”).
The Act elaborates on this “Right of Reproduction”, in which the owner has the exclusive right to “reproduce, distribute, perform, display, or license the work referenced in the copyright.” The holder of the copyright additionally receives the exclusive right to produce or license the production of derivatives of the work. (Such as extracting single tracks from a CD for compilation purposes).
However, one restriction was placed on these rights as granted by the Act, that is of “Fair Use”. This “Doctrine” outlined criteria in which a consumer could legally use the material held in copyright. These criteria included using the material for: “criticism, comment, news reporting, teaching, scholarship, and research”. It could be interpreted that this does not necessarily exclude recording for private use. (* The interpretation of “Fair Use” is dealt with on a case-by-case basis.)
As technology grew, the ability to copy copyrighted material became easier and more accessible to the general public. Many law-suits occurred, including the famous Betamax suit, in which Universal City Studios objected to people using VCR’s to tape shows to watch them at a later time. Congress eventually came out with the Audio Home Recording Act of 1992. This Act states that although you do not have a constitutional "right to copy," you do have immunity from any copyright infringement action, provided that the copying is performed with a device designed with Serial Copy Management System (SCMS), which enables copy-protection for CD’s and Digital Audio Tape.
So, is it illegal to copy a CD’s contents onto another CD or convert its contents to MP3 format? It depends on whom you’re asking. The Recording Industry Association of America (RIAA) will give you a resounding YES. They believe any reproduction at all is a breach of copyright. “Any unauthorized reproduction of a sound recording is technically a copyright infringement. It does not matter whether the reproduction is from a CD to a cassette tape, from a CD to a hard drive, or from a CD to a CD-Recordable disc."
Whether you agree with this or not, you will most probably never be prosecuted if you stick by these guidelines: you record the material for your own private use, you do not create “an effect on the potential market for the music contained on the disc and the value of the work”, and you do not distribute copies.
So, knowing all this, should file-sharing be considered piracy? Technically, yes. Let’s look at an overview of file-sharing in order to understand why.
Any current computer system with a CD-ROM drive and the right software has the ability to “rip” tracks off a music CD and compress them into the famous “MP3” file. This is a near-CD quality format that greatly reduces the size of the original (i.e. from 32MB to 3MB for a 3-minute track). This way, it won’t take too much space on your hard drive, and it can be quickly and easily up/downloaded on the Internet.
Many networks exist on the internet that enable thousands of users to connect to each other’s systems and share different files, especially the popular MP3.
- Peer-to-peer. This type of network is so-called since each user is an equal, or peer, and file-sharing occurs directly between them. Examples: Gnutella and its clients: LimeWire, BearShare, Toadnode, and Mactella.
- p2p. This technology enables searches that are up to 50 times as fast as Gnutella. Certain users are designated as “supernodes”, because of their powerful computers, and are solely used for the handling of requests. Examples: KaZaA and its client, the popular Morpheus (currently shutdown); MusicCity
- Others. Various advantages/disadvantages: Audiogalaxy, Opennap (in response to Napster’s troubles), Imesh, and those that utilize Instant Messaging (Aimster).
If you have allowed another user to download an MP3 from your system, you have technically just distributed a copy of copyrighted material and have broken the law. Granted, this is not as bad as if you were paid to do so, but it’s still illegal. So, why is file-sharing so widespread, is no one policing this “illegal” activity? Well, time will tell. In the meantime, the recording industry is fighting back.
As stated above, the Recording Industry Association of America has some seriously stringent views on commercial digital music reproduction. Although strict, they certainly have some valid points. If file-sharing were left unchecked, why would anyone want to go out and purchase something they could get for free, without risk? Therefore, the RIAA, which includes 90% of all recording companies in America, is fighting non-stop for the protection of intellectual property. The RIAA's ultimate goal is to require CD-R and CD-RW hardware manufacturers to look at the copy protection bit on an audio disc and refuse to copy if that bit is set to "on." (Currently, most do not.)
It’s difficult to talk about this topic without mentioning Napster. Napster was the first widespread file-sharing community. Basically, Napster was made an example of by the Supreme Court to spread the word that the “free ride” was over with file-sharing. Napster, after a long struggle, was ordered to honor any request from any copyright owner that their material be removed from the “community”. It was not surprising that most of the major companies made such a request, eliminating most of the songs that people went there in search of.
Record companies are experimenting with new technology to inhibit the reproduction of music CD’s. Although the technology is kept secret, there are a few consistencies across the board. One way to “confuse” a CD recorder is to encode false information in the “table of contents” of the CD, which gives incorrect locations of the tracks as well as the start and end times. The recorder is thus unable to duplicate the CD. Another method is to include small errors in the music itself. Although this is ignored by a regular CD player, a CD-ROM drive will be sent into a loop trying to correct the problem.
Today, these technologies are being tested on select distributions. Most implementations to date have failed, resulting in recalls. Most of the problems involve the inability of the customer to get a computer’s CD-ROM drive to simply play the tracks, as well as some high-end home and car stereo systems that employ CD-ROM technology.
Finally, with every advance in computer technology, there is some hacker on the other end trying to subvert it. As of today, every single encryption or copyrighting scheme that has been attempted with music CD’s has been cracked by a hacker. Some things will never change.
Sources:
http://mp3.about.com/library/weekly/aa090301.htm
http://www.digitalproducer.com/pages/cd_audio_rights_and_wrongs.htm
http://mp3.about.com/library/weekly/aa071601.htm
http://www.howstuffworks.com/mp3.htm