Copying and Sharing Recorded Music (The Dos and Don'ts of Copyright Law) Page 3

Thus far, the courts have found these programs to be not guilty of copyright infringement. However, all eyes are now on the Supreme Court, which is currently deciding a case involving a suit brought by MGM Studios against Grokster. The ensuing decision will almost certainly be of monumental importance in deciding the future of P2P programs. However—and this cannot be overstated—the Supreme Court is addressing the legality of Grokster itself (and, by extension, related programs), not the actions of those who use such a program. In other words, even if Grokster is found to be not guilty of infringement, this will in no way exonerate those who use it or a similar program to share music without the permission of the copyright holders.

In an attempt to control illegal P2P file sharing, Senator Orrin Hatch introduced before Congress a bill commonly called the "Induce Act." This act would hold technology companies responsible if their devices are used to commit copyright infringement. Were this bill to pass, commonly used devices such as CD burners, MP3 players, and TiVos, as well as a variety of software, all of which have been employed for lawful copying, might end up being removed from the market. The implications of this can hardly be overstated. Because the principal parties involved in modifying the bill—the technology and entertainment groups—were unable to agree on a draft, in October 2004 the Senate Judiciary Committee decided to postpone a final review. I fear that we have not seen the last of the Induce Act.

Concluding remarks
Digital technology has been a blessing and a curse. While it has in many ways revolutionized audio and video recordings, it has also turned out to be a copyright nightmare. Due to a combination of users' ignorance of and lack of respect for the law, and predominantly as a result of the downloading of MP3 files, copyright infringement has grown to levels that could not have been imagined 10 years ago. This situation has fostered a battle between copyright holders (ie, the studios and record companies) who want to protect their intellectual property, and the users of protected materials, many of whom feel they are being denied their rights and/or are being punished for the misdeeds of others. The film and music companies are using every means at their disposal to prevent illegal copying, targeting both P2P providers and, more recently, individuals who participate in the act of unauthorized file-sharing. This latter action in particular has had the unfortunate consequence of making the studios seem like the town bully, thus serving to increase the antagonism felt by those who purchase their products. Irrespective of whether one approves of the recording studios' business methods, the fact remains that copyright infringement is rampant, and that the studios are within their rights to protect their intellectual property, just as any business owner is within her rights to protect against shoplifting.

As a further means of preventing illegal file sharing, the studios are also limiting the consumer's ability to gain access to digital data. This is being accomplished by copy-protecting discs, not allowing digital outputs on SACD players (and possibly not on HD DVD players, once these are introduced), and by using the DMCA (footnote 11). The DMCA not only prevents the copying of protected discs, it also provides copyright holders with subpoena rights, forcing Internet providers to identify the names of those subscribers who are believed to have engaged in copyright infringement. Although a recent court decision (footnote 12) somewhat limited these powers, this still smacks of Big Brother. Until such time as the DMCA is found to be unconstitutional, the most useful approach is probably to write to one's congressional representative to express one's dissatisfaction and urge that the law be either repealed (unlikely) or modified (possible). And while you're at it, be sure to mention the Induce Act, which has the potential to be even harder on consumers than the DMCA.

The Supreme Court's decision on Grokster may change the entire picture. If Grokster (and, by extension, other P2P programs) is found to be guilty of vicarious or contributory infringement, it might spell the beginning of the end of unauthorized P2P file sharing. Naturally, such a decision would delight the studios. Interestingly, this might actually be good for law-abiding audiophiles—with illegal P2P file sharing effectively controlled, the studios may be far less concerned with backup copies and the like. With a little luck, they might even allow digital outputs on SACD players, and slow down lawsuits based on violation of the DMCA. Of course, if the Supreme Court decides in favor of Grokster, all bets are off—the studios will presumably push for more and more restrictive legislation, and will seek to control digital datastreams with every means at their disposal.

While it is easy to blame the studios for their anticonsumer attitudes and for not embracing the Internet, the source of the problem is, ultimately, those who break the law. It is my hope that this article will encourage audiophiles to further investigate the relevant laws, to share the information with others, and to encourage others to respect copyrights. Perhaps, with a bit of luck, this will lead to a reduction in the level of copyright infringement. Otherwise, I fear that more and more of the privileges we've grown to enjoy will be taken away.

Postscript: The Supreme Court issued its decision in MGM vs. Grokster on June 27, 2005. In a unanimous decision the Court ruled that the lower Court (ie, Court of Appeals) had incorrectly applied an earlier decision (Sony vs. Universal Studios; commonly referred to as the Betamax decision) when it dismissed the case in favor of Grokster. Specifically, the Supreme Court explained that the fact that the products sold by Grokster and StreamCast Networks, Inc. could be used for legitimate, non-infringing purposes does not provide an automatic safe haven from charges of copyright infringement. Specifically, the Justices noted the existence of numerous documents suggesting that Grokster and StreamCast solicited and encouraged the use of their products for the unauthorized exchange of copyright-protected music and video, and opined that the Betamax ruling will not preclude liability where the evidence "...shows statements or actions directed to promoting infringement..."

In a concurring opinion, six of the nine Supreme Court Justices also considered whether Grokster's and StreamCast's products are capable of "commercially significant non-infringing uses." Based on the evidence before them, three Justices ruled that the products did have such uses, and three ruled that they did not. (The remaining three were silent on this issue.) The case will now be returned to a lower court, where it will be decided in light of the Supreme Court ruling and the specific facts of the case.



Footnote 11: There seems to be a widely held belief that this legislation was "paid for" by the film studios. I will leave the political commentary to the more seasoned Stereophile writers.

Footnote 12: Recording Industry Association of America vs Verizon Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003).

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