The last fifteen years have seen enormous leaps in the evolution of digital music content and its use on the Internet. The proliferation of peer-to-peer file sharing networks in the last decade has made the exchange and transfer of copyrighted music easier than ever. For copyright holders and their distributors, this is often seen as the theft of intellectual property that carries with it negative financial consequences. For others, both producers and consumers of digital music, the ease of content sharing is equated with the potential for exposure and freer exchange of ideas and material, creating an environment more conducive to creative expression. This relationship is constantly evolving landscape is pressuring copyright law and other legislation designed to regulate the use and exchange of digital music to adapt just as quickly in order to keep pace.
The Napster Case
The general public was introduced to the intricacies of peer-to-peer file sharing and its legal intricacies in the early 2000s when the RIAA sued Napster for copyright infringement under the US Digital Millennium Copyright Act. The RIAA argued that the company made available software that facilitated the illegal exchange of copyrighted material without permission. Napster attempted to sidestep the allegations by claiming that their role was that of a facilitator who made the files available through a central directory and search engine but did not directly infringe on the copyrights. The case went to the Ninth Circuit Court of Appeals, where the majority of Napster’s defense was rejected. The Court ruled that by facilitating access to unlicensed digital music content “Napster committed repeated infringements of copyright law as millions of users uploaded and downloaded copyright protected sound recordings.” This set an important precedent that enunciated how file sharing facilitators would be treated within the legal system. Napster in its original form soon went bankrupt, ultimately reviving itself years later as an online music store.
Fair Use and the Betamax Doctrine
Shortly after Napster went under, one of its successors, a file sharing platform called Grokster, was sued by MGM along similar lines. This case went all the way to the Supreme Court where the Betamax Doctrine was called into play to add an additional layer of nuance to the issue of copyright infringement in the digital age. The Betamax Doctrine stated that copying original content was not necessarily an infringement of copyright law if there were a substantial non-infringement potential, such as private or educational use, and that such usage would have fallen under the category of Fair Use. The Court noted that determining an individual downloader’s intended use of the copyrighted material was impossible, and further suggested in that case that a constricting set of copyright laws and would stifle creativity and innovation. The majority opinion noted that copyright law existed to protect creative output, not to boost revenue for the content producers. Ultimately, the Court shifted responsibility for interpreting the statute to Congress, creating more confusion.
Congress and SOPA
For its part, Congress recently weighed in on the copyright debate earlier this year by floating the Stop Online Piracy Act. SOPA was a wide-ranging piece of legislation
which aimed to curb the activities of websites engaging in illegal proliferation of copyrighted material. Some of the more controversial aspects of the bill included providing authority to the Justice Department to shut down websites deemed to be involved in infringing activity without due process of law. As the case studies above have shown, the definition of what constitutes copyright infringement is not always clear and such sweeping authority was seen by many as a form of censorship that clashed with the First Amendment. From a broader perspective, the debate pitted web titans like Wikipedia and Google against more traditional business interests. Wikipedia, along with other web authorities, blacked out their site for a day in protest. The legislation was quickly shunted aside by Congressional leaders in the face of heated public backlash and currently the legislative situation remains in a state of flux.
In another recent case, the US Justice Department enlisted the help of Hong Kong authorities in shutting down the file sharing website Megaupload.com. These aggressive actions suggested a renewed effort on the part of policymakers and law enforcement to target organizations that are infringing on the copyrights of music and other media. It is likely there will be further enforcement actions against large-scale facilitators and aggregators of copyrighted music content moving forward.
Not all content producers share the view that the open exchange of content cuts into profits and poses a threat to the music industry. The electronic music producer known as Pretty Lights frequently samples other musician’s music for his tracks. In order to sidestep the legal quagmire of copyright law, he has made all of his tracks available for download on his site for free with an option for donations. Given that in two months he was able to distribute those tracks to four million people, increase e-mail sign-ups by over 60,000 and boost web traffic by 700% it seems this approach has been a successful one.
The Future of Copyright Law in the Digital Age
A clear consensus has yet to emerge on the exchange of digital music. Large content aggregators like YouTube tend to err on the side of caution, removing any content that may potentially infringe on copyright and advising in their disclaimer page that the “way to ensure that your video doesn’t infringe someone else’s copyright is to use your skills and imagination to create something completely original.” That is the safest approach, particularly since the record industry is well equipped with the resources to wage financially draining legal battles. But as legal scholar Guy Douglas noted in a paper for the Murdoch University Electronic Journal of Law, “simply expanding copyright protection for the benefit of those who create and own music copyright will potentially reduce the opportunities for the users of the Internet and information technology for deriving the full benefit that these developments may bring.”
For now, the most important lesson to be drawn from this ongoing process is that the dynamic between music producers, the record industry, the public and the Internet itself will continue to rapidly shift, and regulatory framework will be further refined as it works to keep pace.