Thesis on "Illegal Downloads: Ethics and Technology"

Thesis 7 pages (2424 words) Sources: 8 Style: APA

[EXCERPT] . . . .

Ethics and Technology: Illegal Downloads

Analyzing the Ethical Responsibility of Illegal Music Downloads

and Copyright Infringement

Serving as the catalyst of the debates, litigation and ongoing legal precedents that seeks to define the ethical responsibility for illegal music downloads and copyright infringement is 17 U.S.C. § 106(3) which defines the exclusive rights in copyrighted works. This law is also referred to as Title 17 of the U.S. Copyright Act. Why this law has become such a catalyst for protecting the rights of music producers and the owners of intellectual property is that it states that any developer, provider, or producer of a copyrighted work has the statutory right to its distribution (Dannenberg, 2006). This law then sets the foundation for the definition of intellectual property digitally distributed over the Internet (Bowie, 2005).

Analyzing the Ethical Responsibility of Illegal Music Downloads

and Copyright Infringement

Defining the ethicacy of downloading music illegally and ultimately who is the person or parties who are held legally responsible is the intent of this analysis. Title 17 of the U.S. Copyright Act 17 U.S.C. § 106(3) is the cornerstone of much of the legal precedents and analysis that define under which situations different people, businesses, or online services are held liable for illegally downloading, distributing or in some cases, reselling digital content and intellectual property. The law states that in 17 U.S.C. § 106(3) that the producers of a given intellectual property have the rights to its distribution and that title of the digital good passes when purchases from one member of the distribution channel to another (Easley, 2005). Inherent in the legal interpretations of 17 U.S.C. § 106(3) to this point are several key points that define who can ethically download, play and potentially repurpose music online. The first is the concept of the title of the music passing to each person in the value chain or distribution channel who purchases it. To place the purchased music on a shared Peer-to-Peer (P2P) website including Napster, Pirate Bay or others is, as courts have ruled in the case of Jeffry & Pam Howell (Dannenberg, 2006) not violation of the music's copyright. In May, 2008 the U.S. District Court Judge in Phoenix, Arizona ruled that the Howells had placed the files on the site for storage and not with the deliberate attempt to share or somehow gain from their distribution. Yet if the files had in fact been shared and traversed entire nations and ended up being digitally remastered and sold as black market CDs on the streets of Beijing, Hong Kong, Saigon or any number of other Southeast Asian countries the music producers would have lost hundreds of thousands of dollars in revenue and more fundamentally, their rights would have been violated. Yet the judge favored the Howells as there was no willful intention to defraud the producers of the intellectual property.

The specific case of the Howells has specifically called into question the role of P2P sites and if their very existence is the catalyst of illegal file sharing activity (Altschuller, Benbunan-fich, 2009). According to the Recording Industry of America (RIAA) and the National Academy of Recording Arts and Sciences (NARAS) the P2P sites created a fertile opportunity for the limits of 17 U.S.C. § 106(3) to be tested continually (Banerjee, Faloutsos, Bhuyan, 2008). In effect the P2P sites became the ethical proving grounds of how all forms of digitally mastered intellectual property would be treated either as individually owned assets of those consumers who purchased them, or as the storing areas of services, often originating on college campuses as Napster did, of storing digital content. The ethicacy of Napster, Pirate Bay and many others were early brought into question however, as their ethical and legal argument stated that under 17 U.S.C. § 106(3) they were performing a distribution service of "making available" intellectual property (Banerjee, Faloutsos, Bhuyan, 2008) and this was protected by the copyright law. Nearly every record label with artists who appealed to college-age students immediately fought the Napster defense, citing that nearly 30% of all music on any given Apple iPod has been pirated, with P2P sites being the primary culprits from a research standpoint (Green, 2007). Paradoxically however many of the students who was part of additional empirically-derived interviews stated that they did not get any innate pleasure out of downloading from these P2P sites; they were simply on a budget and trying to enjoy music as they would otherwise on a radio (Gerlich, Turner, Gopalan, 2007). To these students and the millions like them who enjoyed music from P2P sites then it was synonymous with a highly targeted, focused music service that would be comparable to XM Satellite Radio today. This clearly does not excuse the ethicacy of the issue of downloading music illegally and then loading it on iPods yet it does show just how popular the practice had become over time (Levin, Dato-on, Rhee, 2004). All of these factors taken together then became the impetus of defining the ethicacy and legal precedents of how would be held liable for illegally downloading and distributing intellectual property including music, images, and works of original development, all covered under the Copyright Act 17 U.S.C. § 106(3).

Determining Legal and Ethical Responsibility for Copyright Infringement

As has often been stated in the legal research of intellectual property cases, the music industry cannot indict and hold liable the entire distribution channel and value chain of their industry for illegally downloading and using music. Instead aspects of the distribution channels and the roles of lateral-based channel partners that enable the ability to illegally share intellectual property is who the ethical burden and legal responsibility needs to rest on (Levin, Dato-on, Manolis, 2007). This includes all manufacturers of systems, media players, laptop computers with media playing capability, and developers of devices which can download music, all of which have widely varying Digital Rights Management (DRM) strategies, technologies and techniques. DRM-based strategies are meant to ensure that digitally mastered intellectual property is not illegally re-distributed or resold (Levin, Dato-on, Manolis, 2007). The many instances of how DRM schemes, technologies and systems have been broken into or hacked with instructions made freely available over the Internet how to use these techniques to also illegally copy content is proliferating over the Web (Lysonski, Durvasula, 2008). The ethical responsibility for illegal music distribution is actually the responsibility of these companies, services, and technology providers who are making the en masse duplication of digitally-based intellectual property possible (Dannenberg, 2006). It is in the failure of these companies to have a consistent standard for DRM that leaves the potential open for the intellectual property that is supposed to be protected by 17 U.S.C. § 106(3) to be used illegally. Second, there is a complete lack of technical expertise in the companies that comprise the primary, secondary and tertiary tiers of the music industry's distribution channel as to exactly how to enforce ownership through DRM and other means as well (Easley, 2005). The infamous Sony Root Kit fiasco which would send all music titles, regardless of whether they were copied from a CD for use on a laptop or purchased through a legal online store such as iTunes were reported. What resulted was a complete loss of credibility for Sony and their use of DRM, which they had to eventually abandon proving further how difficult this aspect of rights enforcement through music distribution channels is.

Critics of DRM state that this approach to managing intellectual property rights invades the privacy of consumers and leads to the potential for device manufacturers to unwittingly become the channels by which online criminals gain access to personal information (Gerlich, Turner, Gopalan, 2007). On these grounds of consumer privacy many consumer rights advocates groups argue that DRM needs to be abolished and that the music industry needs to think broader about how the distribution of songs would broaden the overall market (Banerjee, Faloutsos, Bhuyan, 2008). In fact this is exactly the opposite of what happens as studies indicate that when entire albums are given away their latency, or popularity, diminishes faster than if they had been sold. Giving away free albums and digital content may lead to a rapid spike in popularity for a short period of time yet it gives way to a rapid reduction in value of the goods delivered (Easley, 2005). Clearly this criticism of DRM strategies, techniques, and technologies is unfounded and further does not excuse music download and distribution sites, manufacturers and resellers of private label music equipment from the responsibility to have a unified standard for DRM. To hold the consumers liable for each specific copyright violation, as the RIAA tried to do by capturing IP addresses and prosecuting every single person who downloaded a song illegally is a practice that cannot scale over time. Think of the burden on the legal system alone by choosing this approach to the enforcement of 17 U.S.C. § 106(3). While the RIAA has been aggressive in its enforcement of the copyright laws and… READ MORE

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