The DMCA and Music Fans: A Conflict of Interest

The speed, low cost and ease of the Internet make it one the most effecient tools for music copyright infringement in our digital arsenal. Laws like 1998’s Digital Millennium Copyright Act (DMCA) attempt to make sure consumers follow copyright laws even with the ubiquity of the internet and other technologies. Unfortunately, many citizens break these laws because they don't know exactly what they are allowed to do with their Internet and CD burners and the harsh punishments they may face.

This Web page will tackle the following five topics in the discussion of music piracy and the DMCA: First, online music pirates, most of whom are college aged or younger and do not know what is legal and what is not, often fall back on the common misconception that if something is available online, it must be free. Second will be the fact that, for some reason, the federal government has not devoted much time and effort to enforcing the new copyright laws. That has left the role of law enforcement, specifically with lawsuits, to The Recording Industry Association of America (RIAA), a trade group that represents the U.S. music industry, and similar organizations. Third, the DMCA makes some avenues of personal use of music also illegal, infringing the rights of consumers who legally buy music online. Forth, although peer-to-peer (p2p) programs like Napster and KaZaA take the majority of the criticism for promoting music piracy, there are numerous other means for music piracy that go largely un-noticed in today’s computer age Last, the Web page will look at the future of music copyright law.

Copyright laws in America are ambiguous and undoubtedly more mysterious to the average citizen than laws concerning shoplifting or violent crime. The entire concept of intellectual property might seem foreign to over half of the world’s population from cultures in the Orient, the Muslim world and those native to the Americas and Africa who do not consider intellectual production to be personal property (Gantz & Rochetster, 256). Nonetheless, there are defined copyright laws in our country and, although they are always changing, many people do not know or pay attention to them. One of the first concepts to understand is that all creative media are automatically protected by Federal copyright law once they are recorded on a form of physical media (like CDs, books and movies); the author does not have to apply for copyright like she would a patent (Gantz & Rochester, 176; Litman, 17). Therefore, no matter where it appears, on a billboard, on the radio or on the Internet, all recorded media are covered by copyright.

Clarified into layman’s terms, here are some of the actions a normal consumer without any license from the copyright holder is allowed to do with copyrighted music considering the DMCA and all other copyright laws: make a complete copy for personal or archival use; copy the music to another medium, such as an ipod, for personal use; play the music for friends, talk about it, and play it on the piano; loan, rent and resell the CD (Gantz & Rochester, 177; Litman, 16-18). Here are some actions that are outlawed: Make and distribute copies in any manner, be it as a gift or to make profit; upload music to the Internet or distribute to unknown users on the Internet via peer-to-peer or similar networks; override technological copy protection measures for any reason, including personal use; play pre-recorded music in a business establishment; charge guests to listen to copyrighted music; make any derivative work from a prerecorded song (rap samplers without licensing agreements are breaking the law) (Gantz & Rochester, 177; Litman, 16-18). Although the list above gives some of the common actions where copyright law might be considered, there are many more details in the law books.

Oddly, the government does not usually try to track down and the illegal behavior of p2p programs or music copyright unless pirates are making serious profit from it. Although the official fines and penalties are steep, fines up to $250,000 and three years imprisonment for copyright infringement for personal use (Gantz & Rochester, 204; www.RIAA.com), the police seem to not chase down these law-breakers. Even with the number of digital music pirates in the hundreds of millions, the Department of Justice files only about 100 criminal cases on all intellectual property issues per year and they are usually aimed at large counterfeit operations where professional music pirates fill warehouses with burned CDs and DVDs(Gantz & Rochester, 207).

In the government’s place, corporations act as intimidators and enforcers of copyright law, suing copyright violaters and reaping the money that might result from federal fines for themselves. It is no wonder that large media corporations supported the DMCA which makes the job of prosecuting music pirates easier and more lucrative than ever.

The anonymity that people once associated with the Internet has been all but eliminated with the incorporation of the DMCA. Once the RIAA identifies a music downloader’s “IP address” (unique online identification number), the DMCA lets the RIAA obtain his or her real name and physical address from that user’s Internet Service Provider (Gantz & Rochester, 204). Starting in 2003, the RIAA has been using this information to level lawsuits against individuals who use peer-to-peer programs like Napster, radio stations they claim infringe on their copyright, and universities that host networks where illegal downloading takes place. As of March, 2004, the RIAA has sued almost 2,000 music swappers for copyright infringement, usually issuing claims for the maximum fine of $150,000 per download (cnetnews.com). Even at the minimum fine of $750 per download, these suits could garner billions of dollars for the music industry (Hinduja, 39; Gantz & Rochester, 22). Most cases settle out of court for $2,000 to $5,000 total, about the cost of having legally purchased each track for 99 cents (Gantz & Rochester, 200).

Although the odds of being sued by the RIAA are slim considering the number of illegal music downloaders, no digital music pirate is safe from them. Some of the oddest examples of these lawsuits include the cases of Brianna LaHara, a 12-year-old girl from Manhattan who was targeted for downloading television theme songs and tracks by pop stars like Mariah Carey, and Ross Plank who was accused of downloading scores of songs in Spanish, a claim he decidedly disputes. Grokster, the file sharing p2p program Brianna Lahara used to download the songs, payed her $2,000 settlement with the RIAA (Gantz & Rochester, 204). Plank had this to say about his lawsuit that totaled over $1 million:

Plank’s point is that the corporations want the money for themselves and not their artists like they claim. They can keep money won in lawsuits but would have to pay royalties to their artists were they to ask for reimbursement through the legal system.

The DMCA gives record companies additional avenues other than civil lawsuits to protect their music from non-paying consumers. For example, consumers are not allowed to circumvent technological protection measures on digital media such as password protection on songs, restrictions on the ability to play music, and copy protection on CDs and DVDs, even if it is for personal use (www.copyright.gov). This clause is one of the most controversial in the DMCA because some say it limits consumers’ legal rights to use their media. It is legal to copy CDs for personal use, but not so if they are digitally protected, thus nullifying the first legal action. Likewise, some online music services do not allow consumers to burn CDs of the music they buy from their computer for their personal use in a car stereo, for example, or transfer them to their portable MP3 players. Europe is taking a stand against companies like Apple that do not allow songs bought on their Itunes online music store to be played on any other portable MP3 player other than their Ipod. Norway passed legislation aimed to stop this exact practice and France, the U.K., Denmark and Sweden are expected to follow (Gohring, 23).

Recent technologies have raised questions about how the DMCA protects media. The RIAA argues that online radio providers (webcasters) break copyright law by providing their users with an interactive interface with skip or replay songs etc… (Holland, 108). The burgeoning world of online radio known as “podcasting.” is also an area of contention because laws were very light against recording copyrighted music from radio broadcasts onto cassette because the sound quality was so much compromised from the original (Gantz & Rochester, 12). Most downloadable podcasts are also compressed to very poor quality but the RIAA considers them equally culpable for copyright infringement.

Even with the explosion of p2p programs like Napster and the subsequent destruction many of them faced, there are many other technologies and programs that facilitate digital music piracy that still fly under the radar. All of the following technology is available for free download at this very moment. One system is BitTorrent, a peer-to-peer interface that downloads files from multiple users at the same time. This technology is often used for illegal piracy and is not completely unknown seeing as it accounts for nearly 35 percent of all Internet traffic (Hinduja, 23)! A program called Ourtunes is popular on college campuses. It allows users on the same network to download music from other people’s Itunes “shared music” feature, usually meant to only allow fellow network users the capability of listening to others’ music, not downloading it. Podutil is the name of a program that allows users to download music from their Ipod to their computer’s hard drive, a function not allowed on the normal Itunes program. This could lead to illegal behavior if a consumer uploads music onto their Ipod from a friend’s computer and uses Podutil to secure a copy onto their own computer. AOL Instant Messenger includes a function called “file sharing” where users can identify a folder on their hard drive to make available to anyone on the system. Then other users can browse the contents of this folder from anywhere on the Web and download what they please, be it music, movies or software. There is no protection for copyright infringement on any of these programs.

One thing about the future relationship between copyright law and music is clear: the recording industry will try to make as much profit as they can and consumers will try to get as much free music as they can. Clearly, these goals are in direct competition and the recording industry, with its lobbying interests represented in legislation, currently has the upper hand. In an ideal world, as the scope of online media and music downloading increases, music sellers will introduce policies that will not only make their customers happy but will be good for business. Gantz and Rochester lay out some possibilities for such an arrangement: the industry could offer a meterware system where customers pay for songs by the amount of times they listen to them. In other words, Apple could charge five cents per listen instead of 99 cents per song, and then give the song to the listener forever if they reach the 99 cent mark, an incentive for new customers. Another way the industry could strike a deal with consumers is to offer their old or retired music catalogues for download at a reduced price or for free. These would be recordings that have already made the companies a profit or that are out of print and no longer making them any money. Even if they offered these in slightly lower MP3 quality, it would be a sign of good will and not make them actually lose any money. With links and advertisments for their current cataloge, this system will likely gain exposure and more customers for the CDs they are selling(Gantz & Rochester, 265).

Intellectual property law will always be at odds with music fans who don't know about the laws or don't agree with them, especially technology-savvy young ones with limited bank accounts. As long as there is new technology, there will be new ways to circumvent the protection methods used by record companies. The DMCA has made that illegal but has not defeated the will of resilient music pirates all over the world and the World Wide Web.