Music piracy

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A stylized representation of music piracy

Music piracy is a type of copyright infringement defined by activities involving the illegal downloading, copying, and distribution of music. Music piracy effectively circumvents the standard process of legally acquiring music released by artists through an official platform like iTunes or Spotify. Consumers are able to obtain the music they want without having to be dependent on the authorized music distributors themselves. However, the industry experiences harm, as a result, in the form of losses in revenues, wages, taxes, and jobs.[1] Music piracy has remained a contentious battle between the music industry and consumers since the early stages of musical documentation. There have been a number of legal issues brought up regarding the piracy of music. While it is widely known as a "victimless crime", music piracy is a point of ethical concern regarding anonymity, plagiarism, and online virtues.

History

Music piracy is a phenomenon that has been observed before the invention of the Internet, but it was impossible to exist on such a large scale until the Internet prompted a profound improvement in music accessibility. During the first half of the 20th century, piracy was ubiquitous but hidden from the public eye. Due to lack of federal protection over sound recording, bootleggers recorded live performances and redistributed recordings in a manner that was technically not illegal until 1973.[2] Music piracy derived from sound recordings became more common during the rock counterculture era of the 1960s. Famous bootlegged rock albums include Bob Dylan’s "Great White Wonder" (1969) which featured high-quality recordings of unreleased songs, and The Rolling Stones’ "Live’r Than You’ll Ever Be" (1969), from an audience recording of their concert in Oakland, CA.[3] This insurgency prompted in the United States a copyright policy change during the 1970s.

1990's

During the 1990s, the United States observed the extreme extent to which piracy could impact the music industry. Coinciding with increased mainstream computer usage, music piracy in the form of peer-to-peer (P2P) MP3 file-sharing platforms became incredibly easy to use and accessible for anyone with basic computer skills. In 1998, President Bill Clinton, signed into law the Digital Millenium Copyright Act, cracking down on many forms of online piracy. [4] The new law required a means of getting around the firewall easily. Napster, a notable P2P technology, was created in 1999 by Shawn Fanning and Sean Parker, and reportedly reached 80 million registered users.[5] Despite its popularity, Napster quickly received legal backlash as it likely caused a reduction in record sales; the RIAA and musicians like Dr. Dre and Metallica sued Napster and won.

2000's until Today

In 2011, Napster was acquired by Rhapsody from Best Buy and now provides on-demand music to brands like iHeartRadio.[6] Beyond basic MP3 file sharing, P2P sites were also utilized to leak albums before they were officially released to the public. Bennie Lydell “Dell” Glover, an employee at a CD manufacturing plant in North Carolina became notorious for single-handedly smuggling hundreds of pop and rap CDs out of the factory and sharing them on the P2P file-sharing site Rabid Neurosis (RNS). It is estimated that nearly 2,000 albums were leaked on RNS around the turn of the century, most of which came from this North Carolina plant.[7] Artists such as Jay Z, Eminem, Mary J Blige, Kanye West, and Mariah Carey had their music leaked on RNS as a result of Glover’s actions. [7]

In more recent history, the Music Consumer Insight Report of 2018 reflects on the prevalence of music piracy in the modern era. The report revealed that “38% (of those surveyed) consume music through copyright infringement”[8] and found that the majority download their music through stream-ripping, cyberlockers, or P2P. However, the present system for acquiring music through legal constraints is not necessarily without critique. Spotify, with 87 million paid subscribers,[9] has been accused of being a legal version of what Napster and the like once were, the argument being that with minimal fees for unlimited music consumption, the price of music is effectively free.[10]

Limewire

In the 2000s, Limewire was globally considered the most popular platform for listeners to find, download and share music. Branded as a peer-to-peer file sharing platform, millions of users downloaded various music files off the platform, while Limewire itself had no ownership or rights over the records or content being distributed. As a result, the music industry lost millions of dollars in revenue, since people chose to operate the platform over purchasing and downloading legitimate files distributed by the content's legal owners and creators. According to some figures, the music industry's revenue halved over the span of a decade, and a large portion of that plunge can be credited to the birth and subsequent popularity of Limewire. In 2010, after a four year legal dispute with the industry, a judge finally ordered Limewire shut down, deeming it as having caused irreparable damage to the music industry as an entirety, and urging it to take down and limit the level of damage it has caused due to its past infringements. [11]

Legality

While the US Constitution explicitly states intentions “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”[12], music was not originally considered a product that warranted protection under this copyright umbrella for half a century. The running list of copyright protected products in the U.S. (which originally contained books, maps, and charts) failed to include music until 1831, and sound recordings until 1972.[2] With the Copyright Act of 1909, published work became ‘protected’ and composers/musicians earned a flat rate royalty payment when their music was recorded. During this time, reproducing specific musical compositions (similar to creating covers) without the consent of the original composer remained legal. This right to reproduce without permission, known as a "mechanical license" still exists today, although there is a statutory royalty that must be paid. [13]

Sound Recording Act of 1971

Sound recordings remained unprotected until the "Sound Recording Act of 1971" was passed, which extended federal protection to prohibit piracy of phonorecordss.[14] As an amendment to the Copyright Act, the Sound Recording Act of 1971 included sound recordings (any work that resulted from the fixation of a series of musical, spoken, or other sounds) as copyrightable works[15] The Act also legally clarified the difference between original works and reproductions of those works, stating that only the copyright holder had the authority and right to reproduce and distribute the sound recordings. Despite the efforts of the Act to protect sound recordings or the collection of sounds stored on a reproduction, the Sound Recording Act of 1971 was broad in scope and allowed for the exploitation of certain loopholes.[15] In 1973, the United States Supreme Court in Goldstein v. California ruled that, in effect, states maintained the right to expand copyright protection of sound recordings through their own anti-piracy laws, even beyond federal policy. [16]

Copyright Act of 1976

The "Copyright Act of 1976" explicitly laid out copyright protections and terms of fair use, successfully replacing its 1909 predecessor. Most notably, this Act extended the length of protection to cover the life of the author plus an additional 50 years, which was extended to 70 years in 1998.[17] This law, serving as the basis of Title 17 of the United States Code,[13] remains as the basis of American copyright law today.

Since the late '90’s the criminalization of music piracy has intensified. Now, depending on the severity of the violation, the case can be handled as a civil lawsuit (with damages of up to $150,000 per infringement), or result in criminal charges, with penalties of up to 5 years in prison and $250,000 in fines. [18]

Digital Millennium Copyright Act

The Digital Millennium Copyright Act of 1998 laid out a framework for copyright protection on the internet. The law implemented two international copyright treaties and also created a notice-and-takedown system for online copyright infringement. [19] Under the DMCA, online service providers, such as websites, are not liable for copyright infringement on their sites about which they are unaware. [19] The burden is on copyright owners to search out copyright infringement, and send a takedown notice to the website hosting the infringing content. [19] Upon receiving the notice, the site is required to take down the infringing content. This removes the burden of individual sites to check every upload for infringing content, and promotes ignorance by websites. The DMCA, although allowing the internet to grow, as service providers were not subject to massive copyright infringement, also spurred piracy, as websites have no incentive to look for infringing content.

Stop Online Piracy Act

In 2011, the "Stop Online Piracy Act" (SOPA) was introduced by U.S. Representative Lamar S. Smith (R-TX). The intention was to combat online piracy and counterfeit trafficking with higher intensity, with strong support from the Recording Industry Association of America (RIAA). Proponents of SOPA argued that it would "protect IP and industry, jobs, and revenue" and was necessary to improve copyright law enforcement, especially with respect to foreign companies and websites.[20]. The bill received bipartisan support in the House of Representatives and the Senate, in addition to other Associations and Legislatures. Opposition to the bill included arguments that the threat to free speech allowed law enforcement to Unconstitutionally block access to Internet domains due to infringement of copyright by content. In addition, opponents mentioned that SOPA would bypass "safe harbor" protections from liability, which is protected by the Digital Millennium Copyright Act as well as pushback from library associations. The bill was never passed after receiving widespread public backlash in the form of online protest from companies like Google and Wikipedia.[20]

Social Media

YouTube's Music Policy for the song "YMCA" by Village People

New social media platforms that allow for the creation and dissemination of audio and video - by the average person - have unleashed a wide range of music copyright problems. Seeing as anyone can upload a video to YouTube, Facebook, or Instagram (and such content often includes music) these platforms have been forced to create policy to protect copyright laws.

YouTube has a comprehensive music policy that details which uses are allowed for individual works. For example, the use of certain songs in videos can cause the videos to be blocked in certain countries or can cause the video to generate specific advertisements. This policy also allows any artist to take action against a video that includes his or her music. Like copyright law, YouTube divides music copyright into two categories: sound recordings and musical composition. Sound recordings refer to specific audio recordings of a musical work, with rights belonging to the performer or producer, while musical compositions refer to the underlying music or lyrics, with rights belonging to composers or lyricists. [21] YouTube goes beyond legal requirements under the DMCA with its Content ID system. Content ID uses bots to seek out infringing works in uploaded videos and deletes or changes the monetization of infringing videos. [22]

Instagram has been known to stop live video streams due to copyrighted music being played in the background. To avoid music piracy, one of Instagram's new features allows users to add the "music sticker" to their stories for music that has given Instagram the right to be used. [23]

Facebook When uploading a video to Facebook, Facebook automatically scans for illegally distributed music. Facebook has planned to release a lip-syncing feature, with hundreds of songs available, much like the app Musical.ly. Facebook will pay artists and singers whose music is available on the platform. [24] Similarly to Instagram, Facebook does not allow videos to be posted if there are copyright issues with the background music.

Twitter Twitter's recent fair use policy has lead to the suspension of many accounts on the platform. Twitter determines whether uses are fair, and thus in compliance with the policy based on the purpose of the use, the nature of the underlying work, the amount of work copied from the original author, and whether or not it affects the market for the original work. This policy is taken from the "fair use" doctrine in copyright law allowing certain uses of copyrighted material without having permission from the original author. [25] Users who see their copyrighted material used without permission can file a complaint with Twitter, and the formal complaint will be sent to the user who posted the content, along with removal of the tweet and potential account suspension.

SoundCloud SoundCloud uses automated systems to scan uploads and match them against tracks that have been marked flagged by the rightsholders. Soundcloud also has a manual takedown process, in accordance with the DMCA, allowing users and rightsholders to report content not caught by the system [26]. [27].

Ethical Implications

The Polarization of Music Piracy

A Pirate's Justification

Consumers who pirate music offer several justifications for why they pirate. One argument used to downplay the moral problems of piracy is that it can be perceived as being more comparable to trespassing than theft since piracy does not prevent others from accessing the music. Rather, music piracy simply circumvents the legal process and redefines who has access to music.[28]. The high cost of music and other digital goods is another factor in inducing piracy, with the prices for songs being thought higher than what they are actually worth. [29] Likewise, lack of access is another justification, with piracy sometimes being the only way to get access to songs or other works. [30] Additionally, people tend to pirate music more if they do not think piracy is immoral or a violation of their ethics, for reasons such as the greed of music producers or the free flow of information. [31] Moreover, people sometimes justify their piracy because it is easy to do, or because they've done it in the past, perhaps believing that, if it were wrong, it would be harder to do. [31]

Another reason people justify piracy is as an act of resistance against the penalties for copyright infringement. The Recording Industry Association of America (RIAA) was criticized in the early 2000s for seeking to make examples out of individual infringers, resulting in enormous judgments.[32] Thus, pirating music can be seen as taking action against record labels that pirates see as taking advantage of ordinary people.

An Artist's Defense

The Recording Industry Association of America, representing record labels, is the main opponent of music piracy

Conversely, the holders of copyrights, including artists, songwriters, and record labels have pushed back against piracy and its justification. Since the 1990s, the RIAA has served as the leading opponent to music piracy, following the introduction of Peer-to-Peer MP3 file sharing, and has taken legal action on a number of infringers. [32] . The RIAA and other rightsholders consider piracy akin to theft, even though nobody is deprived of any physical property, because they lose a chance to make a sale, and they lose control over their work.[13] Moreover, pirating music is illegally, and can be punished both civilly and criminally.[13] Although arguments can be made that it is sometimes ethical to break an unjust law, copyright law is doubtfully unjust enough to justify piracy.

Despite pirates' claims that music piracy is a "victimless crime," a study has found that music piracy costs the United States economy $12.5 billion annually. [33]. Moreover, on the broadest scale, this $12.5 billion represents 71,060 jobs, indicating that there are victims of music piracy. [33]

Implications of Technological Advancement

James Moor, a professor of intellectual and moral philosophy, argues that as technology proliferates and evolves, its ethical implications (and impact) only increase.[34] In the case of music piracy, the ease, and frequency at which music can be illegally recorded, copied, and/or distributed is positively correlated to the ever-increasing capabilities and accessibility of technology. For example, the rise of computers as a common household object in the 1990's prompted the emergence of P2P MP3 file sharing, which - in turn - generated an entirely new set of ethical implications. The technological advancement leading to an expansion of user capabilities often warrants an updated ethical evaluation. Even further, Moor writes that “situations arise in which we do not have adequate policies in place to guide us. We are confronted with policy vacuums”[34] Given the speed at which technological innovation takes place, it is crucial that we frequently revisit, evaluate and refine our current policies.

Impact of Online Anonymity

Often, offenders of music piracy are successful at remaining anonymous, and, therefore, are able to avoid legal consequences. As Wallace discusses in Online Anonymity,[35] the ability for an online agent to maintain their anonymity can lessen their degree of accountability. Moreover, with a reduced sense of personal accountability, individuals become more willing to justify operating outside of legal constraints and are still able to maintain a clear conscience. In theory, if a given crime is not associated with the criminal (for lack of a better word), then the crime cannot reflect poorly on them. If a large portion of consumers behave this way, the music industry is sure to experience a sizable loss in revenue.

Reflection of Online Virtues

In Social Networking Virtues, Shannon Vallor emphasizes that personal values are often obscured in an online context.[36] Technology can provide a platform to fully embody, contradict, or fabricate one's personal values (e.g., honesty and empathy). Though most music pirates likely would not consider themselves "thieves" or "criminals," the disconnect that an online context brings, in effect, distances the perpetrators from their offense. The current era of online music piracy with countless P2P file sharing sites provides a platform for individuals to act in contradiction to their values, for better or for worse.

The theory of self concept maintenance[37] says that people will behave such that they reach a balance of gaining utilitarian reward without detracting from their self concept. Actions with more malleable categorization i.e. actions that people can more easily reinterpret in a more palatable light, are more likely be taken. In a study on dishonesty, participants were more likely to cheat by reporting higher scores, if they received tokens which they then exchanged for money, rather than if they had directly received money. Online platforms allow for a similar distancing effect, where people are less likely to categorize online music piracy as theft, than stealing a physical good.

Connections to Plagiarism

Although piracy is not plagiarism, and, in some ways, is antithetical to plagiarism, plagiarism does highlight some of the ethical quandaries with music piracy.. As John Snapper writes, plagiarism involves "improperly incorporat[ing] existing work either without authorization or without documentation or both." [30] In addition, plagiarism tends to involve some deception or concealment. [30]. In the case of piracy, the deception is absent. Pirates do not conceal what they are doing. Moreover, pirates tend to not claim that the work being pirated is their original creation. They do not "incorporate" the pirated songs, but they do lack authorization, and, sometimes, documentation. In this way, where plagiarism is a stealthy undermining of these values, piracy is much more open. [30]

Like plagiarism, piracy harms content creators both economically and by infringing the moral rights of rightsholders. Like plagiarism, piracy reduces the economic incentives to produce songs by taking away sales from artists. [30] Although there are tradeoffs, such as pirates having expanded access to music, the economic harm to creators still exists. [30] In addition to the economic harm, piracy, like plagiarism, harms to moral rights of creators. Moral rights are the rights of creators to control how their work is used, performed, or distributed. [30] Piracy removes control from creators, as they have no input in how their songs are distributed or what is done with them. Although the United States does not tend to recognize moral rights, the harm caused by violating these rights is an ethical problem for pirates. [30]

See Also

References

  1. ↑ Kalken, E. (July 2016). Piracy and Innovation in the Media Industries (Masters thesis). Radboud University, Nijmegen, Netherlands. Retrieved from https://theses.ubn.ru.nl/bitstream/handle/123456789/2067/Kalken%2c_E.C.J._1.pdf?sequence=1
  2. ↑ 2.0 2.1 Cummings, A. S. (2012, April 20). The Long History of Music Piracy. Retrieved from https://www.learnliberty.org/blog/the-long-history-of-music-piracy/.
  3. ↑ Bootleg Recording. (n.d.) Retrieved February 8, 2019 from Wikipedia: en.wikipedia.org/wiki/Bootleg_recording
  4. ↑ “Digital Piracy: 1990s.” Understanding Piracy Then and Now, digitalpiracy.web.unc.edu/digital-piracy-1990s/.
  5. ↑ Harris, M. (2019, January 23). The History of Napster: Yes, It's Still Around. Retrieved from https://www.lifewire.com/history-of-napster-2438592 .
  6. ↑ Napster. (n.d.) Retrieved March 11, 2018 from Wikipedia: en.wikipedia.org/wiki/Napster.
  7. ↑ 7.0 7.1 Empire, K. (2015, June 7). Stephen Witt: 'Music Piracy Is Illegal – but Morally, Is It Wrong?'. Retrieved from https://www.theguardian.com/books/2015/jun/07/filesharing-stephen-witt-how-music-got-free-interview .
  8. ↑ International Federation of the Phonographic Industry. (2018). Music Consumer Insight Report Retrieved from https://https://www.ifpi.org/downloads/Music-Consumer-Insight-Report-2018.pdf .
  9. ↑ Gartenberg, C. (2018, November 1). Spotify Hits 87 Million Paid Subscribers. Retrieved from https://www.theverge.com/2018/11/1/18051658/spotify-paid-subscribers-q3-earnings-update-87-million.
  10. ↑ Tobin, S. (2018, December 3). Is Music Piracy Still A Problem?. Retrieved from https://www.forbes.com/sites/quora/2018/12/03/is-music-piracy-still-a-problem/#d57665c76104 .
  11. ↑ "Limewire shut down by federal court" https://www.theguardian.com/technology/2010/oct/27/limewire-shut-down
  12. ↑ U.S. Const. article I, Sec. 8.
  13. ↑ 13.0 13.1 13.2 13.3 Copyright Law of the United States. 17 U.S.C. December 2016. Retrieved from https://www.copyright.gov/title17/title17.pdf.
  14. ↑ Sound Recording Act of 1971. (n.d.). Retrieved April 22, 2019 from the IT Law Wiki: https://itlaw.wikia.com/wiki/Sound_Recording_Act_of_1971.
  15. ↑ 15.0 15.1 Halpern, M., (1971). Sound Recording Act of 1971: An End to Piracy on the High C's. George Washington Law Review, 40, 964-994. Retrieved from https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/gwlr40&id=991&men_tab=srchresults .
  16. ↑ (Goldstein v. California, 1973). Retrieved from https://scholar.google.com/scholar_case?case=3043821630623021343&q=goldstein+v+california&hl=en&as_sdt=80000006 .
  17. ↑ (Copyright Act of 1976). Retrieved from https://www.copyright.gov/title17/92appa.pdf.
  18. ↑ About Piracy. (n.d.) Retrieved from https://www.riaa.com/resources-learning/about-piracy.
  19. ↑ 19.0 19.1 19.2 (Digital Millennium Copyright Act of 1998). Retrieved from https://www.aclu.org/other/text-digital-millennium-copyright-act-dmca.
  20. ↑ 20.0 20.1 Stop Online Piracy Act. (n.d.) Retrieved March 7, 2019 from Wikipedia: https://en.wikipedia.org/wiki/Stop_Online_Piracy_Act.
  21. ↑ Lesson: Know How Music Rights are Managed on YouTube. (n.d.). Retrieved from https://creatoracademy.youtube.com/page/lesson/artist-copyright#strategies-zippy-link-1 .
  22. ↑ What is a Content ID claim?. (n.d.). Retrieved from https://support.google.com/youtube/answer/6013276.
  23. ↑ Introducing Music in Stories. (2018, June 28). Retrieved from https://instagram-press.com/blog/2018/06/28/introducing-music-in-stories/.
  24. ↑ Constine, J. (2019). Facebook allows videos with copyright music, tests Lip Sync Live. Retrieved from https://techcrunch.com/2018/06/05/facebook-lip-sync-live/.
  25. ↑ Fair Use. Retrived April 14, 2019 from Wikipedia: https://en.wikipedia.org/wiki/Fair_use.
  26. ↑ Copyright methods and notifications (n.d.). Retrieved from https://help.soundcloud.com/hc/en-us/articles/115003452067-Copyright-methods-and-notifications
  27. ↑ Report Copyright Infringement (n.d.). Retrieved from https://soundcloud.com/pages/copyright/report
  28. ↑ Barry, C. (2019, February 25). Is Downloading Really Stealing? The Ethics of Digital Piracy. Retrieved from https://theconversation.com/is-downloading-really-stealing-the-ethics-of-digital-piracy-39930.
  29. ↑ Cheng, H. K., Sims, R. R., & Teegen, H. (1997). To Purchase or to Pirate Software: An Empirical Study. Journal of Management Information Systems, 13(4), 49-60. doi:10.1080/07421222.1997.11518142
  30. ↑ 30.0 30.1 30.2 30.3 30.4 30.5 30.6 30.7 Snapper, J. (2008). The Matter of Plagiarism: What, Why, and If. In Himma, K.E., & Tavani, H.T. (Eds)., The Handbook of Information and Computer Ethics (pp. 533-552). Hoboken, NJ: John Wiley and Sons. Retrieved from https://umich.instructure.com/courses/273552/files/9617600?module_item_id=590908.
  31. ↑ 31.0 31.1 Cronan, T.P. & Al-Rafee, S. (2008). Factors that Influence the Intention to Pirate Software and Media. Journal of Business Ethics,78(4), 527-545. doi:10.1007/s10551-007-9366-8.
  32. ↑ 32.0 32.1 Minnesota Woman Ordered to Pay $222,000 in Music Piracy Case. (2012, September 12). Retrieved from https://www.rollingstone.com/music/music-news/minnesota-woman-ordered-to-pay-222000-in-music-piracy-case-236366/.
  33. ↑ 33.0 33.1 Siwek, S. E. (2007, August 21). The True Cost of Sound Recording Piracy to the U.S. Economy (Rep. No. 188). Retrieved from https://www.ipi.org/ipi_issues/detail/the-true-cost-of-sound-recording-piracy-to-the-us-economy
  34. ↑ 34.0 34.1 Moor, J.H. (2005). Why We Need Better Ethics for Emerging Technologies. Ethics and Information Technology, 7, 111-119. https://doi.org/10.1007/s10676-006-0008-0
  35. ↑ Wallace, K.A. (1999). Online Anonymity. Ethics and Information Technology (21-31). https://doi.org/10.1023/A:1010066509278
  36. ↑ Vallor, S. (2010). Social Networking Technology and the Virtues. Ethics and Information Technology, 12(2), 157-170. https://doi.org/10.1007/s10676-009-9202-1
  37. ↑ Mazar, N., Amir, O., & and Ariely, D. (2008). The Dishonesty of Honest People: A Theory of Self-Concept Maintenance. Journal of Marketing Research, 45,(6), 633-644. https://doi.org/10.1509%2Fjmkr.45.6.633.
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