Piracy is a form of theft. Specifically, it refers to the unauthorized copying or use of intellectual property. Intellectual property is knowledge or expression that is owned by someone. There are three major types of intellectual property: 1) creative works, including music, written material, movies, and software, which are protected by copyright law; 2) inventions, which are protected by patent law; and 3) brand-name products, which are protected by trademarks. Many of the issues surrounding piracy have to do with the difference between intellectual property and physical property. A CD, for example, is a piece of physical property, but the songs on the CD are intellectual property. A customer in a record store can purchase a CD, but someone else still owns—or more precisely, has the copyright to—the songs on the CD.
Piracy is primarily a problem for the entertainment and software industries, and therefore piracy most often involves violations of copyright law. Copyright is a legal right that protects creative works from being reproduced, performed, or disseminated without permission of the copyright owner. Essentially, a copyright gives its owner the exclusive right to make copies of the material in question.
Physical piracy—the copying and illegal sale of hard-copy CDs, videotapes, and DVDs—costs the music industry over $4 billion a year worldwide and the movie industry more than $3.5 billion. These numbers do not factor in the growing (and difficult to measure) problem of Internet piracy, in which music and movies are transferred to digital format and copies are made of the resulting computer file. Journalist Charles C. Mann explains why Internet piracy has the potential to be vastly more damaging to copyright industries than does physical piracy:
To make and distribute a dozen copies of a videotaped film requires at least two videocassette recorders, a dozen tapes, padded envelopes and postage, and considerable patience. And because the copies are tapes of tapes, the quality suffers. But if the film has been digitized into a computer file, it can be E-mailed to millions of people in minutes; because strings of zeroes and ones can be reproduced with absolute fidelity, the copies are perfect. And online pirates have no development costs—they don’t even have to pay for paper or blank cassettes—so they don’t really have a bottom line.
The problem of Internet piracy did not gain national attention until Napster gained an enormous following in 1999.
The original Napster, created by then–college student Shawn Fanning in May 1999, was an online music service that enabled users to trade digital music flies. Napster used a technology known as peer-to-peer (P2P) networking. P2P networking essentially enables users to link their com- puters to other computers all across the network. Each user linked to the Napster network was able to share his or her music files with all the other users on the network, and each user was in turn able to download a copy of any music file on almost any other computer in the network. Napster claimed to have over 20 million users in July 2000, all of them making copies of each others’ music.
By that time, Napster had become the subject of a massive controversy over online file sharing. Part of Napster’s appeal was intertwined with the novelty of digital music: Many technically inclined people enjoyed using computer programs to organize their music collections and also liked being able to “burn” their own CD mixes. But the truly unprecedented aspect of Napster was that it gave users convenient access to a seemingly unlimited selection of music—for free.
Many fans of Napster did not view downloading music as piracy; they argued that Napster was a tool for music sharing, not stealing. They also contended that Napster gave new exposure to independent musicians. A teenager quoted in a June 2000 Newsweek feature on Napster summed up the typical view: “People don’t think it’s anything bad. . . . Or think about it at all.” Meanwhile, the creators of Napster claimed that they were not responsible for what users did with their software.
The music industry disagreed. “What Napster is doing threatens legitimate E-commerce models and is legally and morally wrong,” said Hilary Rosen, then-president of the Recording Industry Association of America (RIAA), the trade group that represents the U.S. music industry. Several record labels filed suit against Napster in December 1999, and after months of hearings, Napster was eventually shut down in July 2001.
To the frustration of the music industry, other file-sharing services emerged to take Napster’s place. Some never gained a wide following of users, while others, such as Scour, Grokster, Morpheus, and Audiogalaxy, were targeted by copyright-infringement lawsuits. In late 2003 one of the most popular file-sharing services was Kazaa.
Although Kazaa and other file-sharing services allow users to share movie files and software as well as music, the music industry has led the fight against online file sharing. The RIAA and other organizations representing the music industry blame online file sharing for the 26 percent fall in global CD sales that occurred between 1999 and 2003. Many factors, including a sluggish economy and a lack of exciting pop music releases may be responsible for the decline, but as reporters Kenneth Terrell and Seth Rosen note, “digital piracy undoubtedly plays a role.”
Kazaa is owned by Sharman Networks, which is based on the South Pacific island of Vanuatu and is thus less bound by U.S. laws. Kazaa and other descendants of Napster also use much more decentralized P2P networks than did Napster and cannot be eliminated by shutting down a few servers, as was the case with Napster. Therefore the music industry has begun focusing on individual file sharers rather than the P2P networks they use. In April 2003, for example, the recording industry sued four university students in federal court, accusing them of making thousands of songs available online for illegal downloading over P2P networks. The RIAA took a much larger step in September 2003, when it filed lawsuits against hundreds of Kazaa users, threatening them with penalties of thousands of dollars per copyrighted work that was shared online. “We’ve been telling people for a long time that file sharing copyrighted music is illegal, that you are not anonymous when you do it, and that engaging in it can have real consequences,” said RIAA president Cary Sherman. She added, “Nobody likes playing the heavy and having to resort to litigation, but when your product is being regularly stolen, there comes a time when you have to take appropriate action.” The RIAA offered to drop the individual lawsuits if the accused signed affidavits promising to stop sharing copyrighted music online.
The RIAA was able to file these lawsuits because of a June 2003 court ruling that said that Internet service providers (ISPs) were legally obligated to reveal the names of alleged file sharers. However, in December 2003 the U.S. Court of Appeals for the District of Columbia Circuit overturned the earlier rulings, stating that ISPs are not legally obligated to reveal their customers’ identities. The ruling does not making file sharing legal, but it seriously hinders the music industry’s strategy of targeting individual file sharers.
Many critics of the music industry’s hard-line stance against online file sharing have argued that record companies need to embrace digital music. Legal, online music stores such as iTunes—and a relaunched version of Napster—have begun selling songs for $0.99, and their success suggests that many people are willing to pay for the convenience these services offer. Digital music sales may therefore offer a partial fix for the music industry’s woes.
However, despite the efforts to fight it and the alternatives that are being offered, online file sharing remains rampant. An estimated 2.6 billion music files are downloaded through P2P networks each month, and more than four hundred thousand movies are downloaded each day. These figures will probably rise as computers become more powerful and broadband Internet access becomes more widespread.
The growth of online file sharing demonstrates how new technologies pose a fundamental problem for copyright law. Computers and the Internet have made the transmission of information easier than ever before, but the entire copyright system depends on the ability of copyright holders to control the transmission of information—specifically, to control who has the ability to access and copy their work.
The most vehement defenders of online file sharing believe that since the Internet has revolutionized the way people access information (including intellectual property such as music or movies), the law should change as well. John Perry Barlow, a cofounder of the Electronic Frontier Foundation, has argued that “copyright’s not about creation, which will happen anyway—it’s about distribution.”
Applying this view to online music sharing, some defenders of the practice argue that copyright law is not designed to protect musicians, for whom it costs relatively little to create songs, but instead to reward record companies, who make large investments in choosing to produce thousands of CDs. Record companies, according to this logic, benefit society by helping to distribute creators’ work, and the law should enable them to make a profit in doing so. But, the argument goes, since the Internet has made transmitting information almost free and thus made CDs largely unnecessary as a means of distributing music, record companies are no longer necessary—and neither are the laws that make copying songs illegal.
The idea that the Internet has made (or will make) copyright law unnecessary is a radical one. But elements of this view frequently surface in the debate about online file sharing. For example, John Naughton, a columnist for the Observer, writes that the RIAA’s stance that online music sharing is “stealing” is misleading:
Pretending that intellectual property is the same as any other kind of property is deeply misleading. For while there is no gain to society from plundering other people’s physical property, there is clearly a social benefit from the wide dissemination of intellectual property—i.e., ideas and their expressions.
In Naughton’s view, online file sharing does not qualify as “piracy” at all:
We have to remind legislators that intellectual property rights are a socially-conferred privilege rather than an inalienable right, that copying is not always evil (and in some cases is actually socially beneficial) and that there is a huge difference between wholesale ‘piracy’—the mass-production and sale of illegal copies of protected works—and the filesharing that most internet users go in for.
Although online file sharing debuted in 1999, lawmakers and copyright industries are just beginning to address the myriad questions the practice has generated. In At Issue: Internet Piracy, authors attempt to answer some of those questions.