Home > Michael Ashton > Music Piracy

Music Piracy

Music piracy is defined as performing any form of unauthorized duplication and/or distribution of music. This includes downloading, file sharing, and CD-burning. In recent years, file sharing has sparked a serious debate on how the infringement of copyright impacts the legal distribution of music, in terms of file sharing copyrighted audio and visual content.

In a broader sense, commentators have pointed out that the music industry and other forms of media (like film and TV) are having a difficult time adapting to the digital age. But how has piracy of music online affected those who release their music? What about those who download music illegally?

Using the internet as its primary tool, the downloading of copyrighted material and sharing of recorded music in MP3 file format and other audio files is more prominent than ever, even after the demise of Napster and a series of infringement suits brought by the American recording industry.

The debate on peer to peer and file sharing is evidently become a topic discussed around the globe. Peer to peer (referred to as ‘P2P’) technology allows people worldwide to share files and data. However, there is a significant proportion of the data shared is material passed freely between users that is or should be subject to copyright or other restrictions.

Illegal downloading and copying hurts the songwriters and recording artists who produce music. These people depend on the royalties they get from the authorized sales of their recordings in order to make their living and to continue doing what they love to do. Many recording artists receive most of their income from royalties. For many young artists, income from royalties means survival. In the end, illegal downloading guarantees that artists won’t be fully rewarded for their hard work and devotion to the craft. Works that are not sufficiently original cannot enjoy copy protection. For a work to be original, it must possess a “modicum of creativity”, which is a “low threshold” although some creativity must exist.

When you buy music legally, there is usually a copyright mark somewhere on the product. In contrast, stolen music generally doesn’t bear a copyright mark or warning. Either way, the copyright law still applies because copyrighted creative work does not have to be marked as such to be protected by law.

Copyright infringement is the unauthorized use of copyrighted material in a way that violates one of the copyright owner’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works that build upon it. This occurs when one of a copyright owner’s exclusive rights is violated. The principle that the work one has created belongs to the creator and should be controlled by them is as timeless as it is global.

Around the world, this principle is encoded in law. “Copyright” is a term of intellectual property law that prohibits the unauthorized duplication, adaptation or distribution of a creative work. There is copyright in the musical composition, such as the actual lyrics and notes on paper. This is usually owned by the songwriter or music publisher. Additionally, there is copyright in the sound recording, such as the recording of the performer singing or playing a given song. This is usually owned by the record company.

Different legal systems and technologies, handle this issue differently. P2P file sharing is used both legitimately (to distribute with permission or non-copyright materials), and illegitimately (in breach of copyright). It is highly popular and effective, with some estimates being that 15 – 35% of all internet traffic is P2P usage in some form or other. Under federal law, first-time offenders who commit copyright violations that involve digital recordings can face criminal penalties of as much as five years in prison and/or $250,000 in fines. You could also be sued by the copyright holder in civil court, which could cost you hundreds of thousands of dollars more in damages and legal fees.

For the most part, the criminal law is only used for commercial copyright infringement with one exception, and an offense is committed when knowing or reasonably suspecting that the files are illegal copiesand without the permission of the copyright owner. Examples of these include:

  • making unauthorized copies, such as ripping and burning music files or films on to CD-Rs or DVD-Rs
  • distributing or selling unauthorized copies of CDs and DVDs
  • distributes unauthorized copies as a commercial enterprise on the internet

Copyright law does not speak against P2P services. It speaks against people who steal and illegally distribute copyrighted music that doesn’t belong to them. The music industry has been a major beneficiary of new technology (from wax cylinders to vinyl to LPs to CDs) and the current technological developments are no exception. Great technology can be abused and that’s what the industry is confronting right now. We have to figure out how to take advantage of the great new delivery systems that the Internet offers, without being seriously damaged by uncontrolled piracy. P2P in particular can really be a fabulous technology – but right now it’s doing far more harm than good.

More power has been given to police, customs and trading standards officials to take people to court. Most people with home computers are also using CD copiers to make copies to sell. Most computers sold now in major computer stores feature CD burners to allow people to save files onto CD-Rom drives. Use for personal work is only entirely legal.

Peer to peer sharing doesn’t just affect the music industry. It affects Internet users as well. When users utilize software that facilitates illegal downloads, you open your computer to unwanted pornography, security breaches, and viruses.

Consumers complain that online music being sold through legal distributors was supposed to usher in a new era of inexpensive, easy-to-access music for consumers. In many cases, buying music online is still cheaper than shopping for CDs at retail outlets. But just a year after iTunes debuted with its 99-cent songs and mostly $9.99 albums, that affordable and straightforward pricing structure is already under pressure. The industry is also mulling other ways to charge more for online singles. One option under consideration is bundling hit songs with less-desirable tracks. Another possibility is charging more for a single track if it is available online before the broader release of the entire album from which it is taken. There is also talk of lowering the price on some individual tracks from older albums. The new pricing developments come as digital-music sales are growing steadily. In 2004, around 25 million digital tracks were sold in the first three months of this year, compared to 19.2 million for the second half of last year, according to reports from Nielsen SoundScan. While this does show promise of how the music can transition into consumer’s love for the digital era with some ease, this is still a major decrease from how music gained profit with sales in record stores.

The issue of online music prices raises philosophical as well as legal debates for music executives, musicians and performers and consumers. Some executives, for example, believe they should be charging a premium for the online versions of older tracks because consumers may be willing to pay more for harder-to-find material. Others believe that downloading music “illegally” is a shortcut to getting the songs they choose without spending their money on material they don’t like or on items that are overpriced. Until there is a resolution between the two issues, copyright infringement will be an issue that will remain heavily debated.

(written during the summer of 2008)

Categories: Michael Ashton
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