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The increase of using the Internet to download and share intellectual property such as movies, music, games or computer programs has created a controversy between their creators and the consumer. While the creators of the intellectual property feel that media sharing, or the downloading and sharing of their work over the Internet, is a sale lost, studies show that this number is difficult to document accurately and that media sharing over the Internet may be increasing the sales and popularity of the files downloaded. Currently, there is not a clear understanding to what is and is not legal in regards to media sharing. Many people violate these laws but only a few are prosecuted for doing so. Those against the new bills being proposed by congress to limit or stop certain media sharing sites believe that these regulations are violating our rights, while those for it feel that regulating and controlling what and who can download these files is necessary for profit. Will stricter regulations for downloading intellectual property such as movies, music, games, and computer software solve the controversy between the creator of the intellectual property and the consumer who wants to download at will? One solution that can satisfy the profit the creator is after and the freedom to download that the consumer is after is to provide more subscription based services to download movies, music, games and computer software.
The first taste the masses got of obtaining intellectual property without compensating those who owned the property was through a program that became a household name, Napster. Napster, created by Shawn Fanning, first went online in 1999 and offered peer-to-peer file sharing that allowed users to browse the music files of other users, ignore copyrights, and download at will (Funding Universe). The network was not a “true” peer-to-peer service because the list of files shared between users were stored on a central network of servers (Weisbein, 2008).
It is commonly believed that declining CD sales are directly correlated with the rise of Napster. In actuality, in the time period that Napster was active, 1999-2001, CD sales increased by over five-hundred million dollars when compared to CD sales in 1998. It was only after Napster ceased operating, as a result of a court order, that CD sales began to decrease (RIAA, 2008).
After Napster’s end, other file sharing networks took its place on the Internet. The most notable was a program by the name of Kazaa. Kazaa had six separate malware programs bundled with it that recorded internet use, created pop up ads, and altered sites that browsers attempted to query (Remove Adware.com.au). The malware was used to record the data of file sharing for use as evidence in a court of law for the purpose of suing the individuals involved.
Since 2001, the music industry has been continually increasing the amount of money spent on legal expenses to prosecute those involved in the illegal downloading and sharing of intellectual property. This has proven to be an unsuccessful way of increasing profits. Many of the lawsuits brought on by the Recording Industry Association of America involve defendants who are unable to afford an attorney or the money judgment awarded against them. As a result, many of the lawsuits never find their way to court and if they do, they regularly settle outside of court for a few hundred dollars (Weisbein, 2008).
In 1967 the World Intellectual Property Organization was created “in order to encourage creative activity, to promote the protection of intellectual property throughout the world” (World Intellectual Property Organization ). As intellectual property branched out onto the newly formed Internet, WIPO created a copyright treaty that extended the privileges of the original treaty to encompass digital rights in 1996. In response to the overwhelming growth of personal computers on the Internet, Bill Clinton took two parts of the treaties from WIPO and created what is known as the Digital Millennium Copyright Act (or DMCA) of 1998 that criminalized circumvention of digital copyrights in the United States (U.S. Copyright Office). A provision of the DMCA included the Online Copyright Infringement Liability Limitation Act (or OCILLA), also known as the “Safe Harbor” provision that offered online service providers limited liability in their mediation between copyright holders and end users (U.S. Copyright Office).
The DMCA has had many opponents since its inception. While the law attempted to provide an extension of its current copyright laws, many people have found that its implementation has hurt some unintended areas or provided an excuse for abuse (Electronic Frontier Foundation). Many research facilities, cryptography communities, and security companies have been cited or brought to court due to their part in breaking a provision of the DMCA. Although without these people, many companies would never have found the security flaws in their products.
As the act of illegal downloading grows, many proponents of the DMCA have called for harsher penalties and stricter methods of controlling digital media on the Internet. In 2002 the Consumer Broadband and Digital Television Promotion Act (or CBDTPA) was proposed in order to prohibit any technology that could circumvent digital copyrights that restricted use, but it was quickly shot down, citing politician’s differing opinions. Currently proposed is the Combating Online Infringements and Counterfeits Act (or COICA) which would be one of the strictest bills towards copyright violations to date. Essentially, the Attorney General would be allowed to create a blacklist of Internet sites that it would pass on to Internet service providers (Electronic Frontier Foundation). Those sites would no longer be available to customers of those providers. While proponents of this bill say that this would be used specifically for sites that are notorious for illegal downloading, opponents say that there is a large margin for non-infringing sites to be taken down as well, impeding on the First Amendment right to free speech.
Since the illegal downloading of music files began, the music industry has claimed that it has had a direct negative impact on their revenue. File sharing of intellectual property has indeed had an impact on the world of music and money. Getting a straight answer on whether the impact of sharing intellectual property has had a negative impact on the music industry worthy of complaint from big wigs is a winding road full of twists and turns in the form of conflicting information from a variety of sources.
The way revenue is generated is changing. CD sales may be down but digital music trade revenue is up (IFPI). The death of the CD may have more to do with changing technology and less to do with file sharing. In the early days of file sharing, there were few legal means of acquiring music online. As the music industry has caught up with technology and started offering their goods online, they have met the convenience demand of consumers. This may very well have been what many were after when downloading illegally online. They didn’t necessarily want to “steal,” but they sure weren’t going to drive to Best Buy to pick up Celine Dion’s new album either.
Popular artists have in recent years experienced a large increase in the amount of revenue from live performances (TIMES). This is great news for the artists, who receive a very small portion of the money generated from the sale of their music. The bulk of their wealth comes from live performances. Speculation would have us believe that illegal downloading may be fueling the live music boom. People who have never heard of a band are less likely to purchase music than someone who is familiar with the musical group. On the other hand, if it doesn’t cost someone anything they are more likely to listen to a band. If they like what they hear, they may wind up jumping up and down in front of the artists surrounded by other fans.
The music industry makes the case that every illegal download is a lost sale, but there are likely more variables involved than illegal downloading as music isn’t the only form of entertainment.
Of course, people download music without paying for it, but there is question as to if it is really having a negative impact on the music industry. Sales figures are up, which would suggest that the music industry isn’t in any trouble of disappearing.
Using digital media sharing to download movies can be done over sites that have been legally authorized to distribute that movie by the copyright owner. Without that authorization, the movie has been illegally downloaded, or "stolen" from its creator. This is known as piracy. Being in possession of this illegally obtained movie file is currently viewed by the DMCA as being in possession of stolen goods and once it is downloaded by another, being a distributor of stolen goods. The Motion Picture Association of America equates downloading and sharing movies without the approval of the copyright owner to walking into a Wal-Mart and stealing a DVD. They believe that this type of piracy is taking billions of dollars per year away from the industry that created the movie and that changes need to be made in order to take back control of the distribution of their goods.
Currently, if people want to illegally download a movie, they can visit a site that allows media file sharing between users and search for the desired movie. They download it from the file holder's library, someone who previously downloaded it from someone else, and continue the media sharing cycle. If somebody wants to legally download a movie, they can visit internet sites such as Hulu.com and download the movie from an approved, legal library. Other options include sites like Netflix.com, in which they can pay to rent the movie for a limited amount of time.
Researchers, Ackerman and Yigit, found that 32 million Americans over the age of 12 had downloaded at least one feature length movie from the Internet, 80 percent of whom had done so exclusively over sites that enable illegal downloading of files. Of the population sampled, 40 percent felt that downloading copyrighted movies off the Internet constituted a very serious offense; while 78 percent believed that taking a DVD from a store without paying for it constituted a very serious offense (Movie File Sharing-Booming: Study, 2006).
If the proposed COICA is passed, one of the changes will be blacklisting sites that allow the illegal sharing of movies between users. It will enable the copyright owners to control the distribution of their movie and enable the consumer to view the movie only from legal sites, usually ones that will require a fee for the ability to view the movie.
Those who are against the proposed bill believe that the Motion Picture Association of America is being greedy and only wants to see their profits as high as possible, without caring for the consumer or their freedom to search the Internet without censorship.
Computer software is defined as a set of programs that a computer uses in order to perform certain tasks, and since the introduction of the affordable personal computer (PC), software sales have gone up exponentially, taking in a total of $10.5 billion in 2009 (Lane). Many, though, feel that the rising profits of the software industry are not limited to the amount sold but, also, to the rising prices of software.
As it is now, one can buy programs or software from a varying amount of sources such as mass market stores (Wal-Mart, Target, etc.), online stores, and from the producer’s website, itself. In the former two, the program can be downloaded directly on the hard drive via Internet instead of being physically located on a cd, and the purchase of the program is completed when one receives a “key” – usually a combination of letters and numbers - to activate the product for use.
In retaliation to the growing number of software thefts, companies have implemented several ways to thwart the illegal acquisition of their software. The most popular remains the registration key already mentioned, and some add a “twist” by also requiring that the product be registered on the company’s website or over the phone. Other companies have used a piece
of hardware called a dongle that connects to the PC through an input/output port such as USB that acts as a physical key to unlock protected software.
The most controversial way, though, is the use of Digital Rights Management, or DRM for short. DRM technologies often limit or completely inhibit the digital content set by the publisher in order to control what can be done by end users. Examples include: Apple’s iTunes purchases used strictly on Apple products, Sony’s infamous root kit installation in 2005 that allowed a virus-like program (similar to a Trojan) to be installed in order to monitor users but instead broke many PCs (Borland), and limiting the number of times a program can be installed on a PC.
Many users have been able to circumvent the restrictions that the publishers enact on their software, and this is the main reason as to why software piracy will not be slowed in its current form. Hence, more and more publishers are starting to practice what is known as open source, promoting free movement of an end product or blueprint to be used as the consumer sees fit.
According to research conducted by the Business Software Alliance (BSA) in 2009, illegal software downloading, or piracy, cost producers over $51 billion in commercial revenue worldwide and nearly $1 billion in the United States, alone (Business Software Alliance). The US has the lowest rate of software piracy with 20% of total software usage having been obtained illegally. Current laws prohibit the illegal downloading of software under the Digital Millennium Copyright Act, and punishment for such an act can carry a jail sentence of up to 5 years and a $250,000 fine.
Like its counterparts, the Entertainment Software Association (ESA) has recently begun to claim lost revenue due to piracy and used game sales and supports the COICA because of it. If passed, the COICA has significant potential to completely change how people use the Internet worldwide. The way the ESA hopes to benefit from legislation like this is by its Internet domain blacklist capabilities. The COICA will give the Department of Justice the power to force Internet service provider’s to block access to any website they prove or feel assist in infringement. Including the support of this bill, the ESA has also filed lawsuits to prevent second hand sales of their games.
ESA publishers have also enacted such practices as DRM to combat piracy and the second hand sale of games. Video game publisher Ubisoft’s DRM requires its users to have a constant Internet connection in order to verify if their gaming titles are legitimate. As a result of all the attention, shortly after the release of Ubisoft’s DRM on their current title, it had been cracked by hackers and placed online for download. These techniques have been labeled draconian by loyal customers, due to extreme inconvenience. Ironically, DRM of video games hasn’t halted piracy, it has increased it. On September 7, 2008, the Electronic Arts game, “Spore,” became the most illegally downloaded mainstream game in Internet history at the time. The main cause of these illegal downloads were widely attributed to the use DRM. These new procedures have angered many loyal customers of publishers that have chosen to practice DRM restriction. Because illegal downloader's don’t have to deal with DRM’s consequences, the procedures have led customers to believe that they’re the party being punished for purchasing their games legally. Publishers aren’t currently taking customer complaints seriously. Video game director Cory Ledesma stated, “We hope people understand that when the games are bought used we get cheated.” The ESA’s defensive maneuvers have now raised questions on whether they are violating the First Sale Doctrine. The first sale doctrine limits copyright holders' rights once legal copies of their work have been lawfully sold. This means that ownership of said property transfers to the customer. These laws give the customer the right to sell, or give away the copyrighted property they legally purchased. Restrictive DRM and restricting used game sales prevents the customers from using the First Sale Doctrine. If this continues, a side effect of these procedures will turn purchased video games into permanent rentals.
If the COICA and other legislations are passed the ESA may lobby to have peer to peer and merchant websites they feel harm their intellectual property, blocked from use. In the future, websites such as, GameStop, Amazon, eBay and Craigslist could be blocked for the sale of used goods.
With the advancement of computer technology, the industries that create digital media such as movies, music, games and computer software, claim to be losing revenue due to piracy and copyright infringement of intellectual property. In direct result of these claims, these industries are targeting some users and pressing legal charges against them for piracy and copyright infringements. Many computer users are not aware of the exact laws in effect regarding media sharing. Those who are prosecuted often feel they were singled out and that their Fourteenth Amendment rights were violated in the process. The Equal Protection Clause is part of the Fourteenth Amendment and states that people are "to be treated the same, legally, as others in the same situation ("Equal Protection")." By only prosecuting those they choose, Internet users are not being equally protected by the laws currently in place in regards to prosecution against piracy and copyright infringement.
The Recording Industry Association of America, Motion Picture Association of America, and the ESA's use of anti-piracy solutions are misguided. The industries use of judicial intimidation, DRM schemes, and by proposing harsh laws on a minority of people is an improper solution to the crime of a majority of users. The current regulations are not satisfying either party involved in media sharing: the creator of the intellectual property and the downloader of the property.
Will stricter regulations for downloading intellectual property such as movies, music, games, and computer software solve the controversy between the creator of the intellectual property and the consumer who wants to download at will? Banning sites that allow media sharing from the Internet is not reasonable for long term control of piracy and copyright infringement because the Internet will continue to evolve, advance, and create ways for users to continue their actions. The secondary effect of banning sites that are involved in any way with illegal media sharing, as COICA would suggest, would violate the First Amendment by restricting the freedom to search the Internet without censorship. Reasonable solutions need to be promoted and used in contrast to their current methods. Solutions in the form of affordable subscription based services of digital media, such as iTunes and Netflix, are believed to be a good compromise between the creator and consumer. On these sites, consumers can legally listen, view, play or operate copyrighted intellectual property. The sites are unable to violate any laws and prevent the user from illegally downloading media and not being aware of it. Users of these subscription based services are able to pay an agreed upon rate which allows them to browse files and download them without the fear of being prosecuted. The industry creating the downloaded media should be satisfied because they would be back in control of their copyrights and able to make a profit off of their works. This solution can satisfy both parties' requests, without the use of harsh legislation as the COICA proposes.
BarrelRoll. “DRM Controversy”. 2008. Youtube. 11 Nov. 2010.
Borland, John. "Sony's 'rootkit' CDs." CNET. CNET News, 11 Nov. 2005. Web. 16 Oct. 2010.
BSA,"Seventh Annual BSA and IDC Global Software Piracy Study." Business Software Alliance, May 2010.
EFE, "DMCA Rulemaking." Electronic Frontier Foundation. Web. 15 Oct. 2010.
EFE, "The COICA Internet Censorship and Copyright Bill." Electronic Frontier Foundation. Web. 15 Oct. 2010.
"Equal Protection." Nolo's Plain-English Online Law Dictionary. Nolo, 2010. Web. 20 Nov. 2010.
Funding Universe. “Napster, Inc”. Funding Universe. 28 November 2010.
Gaurdian “Are downloads really killing the music industry? Or is it something else?” Gaurdian. November 17, 2010.
Harold, Smooth. “Video Games Seek Imunity From Used Sales Fails To See The Irony”. Infendo. 27 Aug. 2010. 11 Nov. 2010.
IFPI.“IFPI publishes Digital Music Report 2010.” International Federation of the Phonographic Industry (IFPI). 28 November 2010.
Lowensohn, Josh. “Ubisoft’s Controversial ‘always on’ PC DRM Hacked”. 21 Apr. 2010. 11 Nov. 2010.
Magrino, Tom. "Total US Software Sales Hit $15B in 2009 – NPD." Gamespot. 16 June 2010. Web. 16
Remove Adware. “The past, present, and future of downloading music on the Internet”. Remove Adware. 28 November 2010.
Sen. Leahy, Patrick J. “S.3804 — Combating Online Infringement and Counterfeits Act (Introduced in Senate - IS)”. Library of Congress. 2010. Sen. Patrick J Leahy. 11 Nov. 2010.
Struck, Shawn. “Thq Is Wrong: Used Video Game Sales Help The Industry”.1 Sept. 2010. 11 Nov. 2010.
Times. “Do music artists fare better in a world with illegal file sharing?” Times. 17 November 2010.
TTT1776. “ Ubisoft’s New DRM Infection Cured In One Day! Silent Hunter V Cracked & Pirated Over Night”. 2010. Youtube. 11 Nov. 2010.
TTT1776. “Ubisoft Punishes Customers For Buying Their Software With DRM. (Digital Restrictions Management.) ”. 2010. Youtube. 11 Nov. 2010.
United States. Digital Millenium Copyright Act of 1998. 1998. Web. 15 Oct 2010.
United States. WIPO Copyright Treaties Implementation Act (H.R. 2281) and On-Line Copyright Liability Limitation Act (H.R. 2180). 1997. Web. 15 Oct 2010.
Weisbein Jeff, “Illegal Music Downloading: Look at the facts”. Best Techie. 28 November 2010.
WIPO, “WIPO Copyright Treaty.” World Intellectual Property Organization. 20 Dec. 1996. Web. 26 Oct. 2010.
Various. “Copyright Infringement”. Wikipedia. 2010. Wikipedia. 11 Nov. 2010.
Various. “Digital Millennium Copyright Act”. Wikipedia.2010. Wikipedia.11 Nov. 2010.
Various. “Fair Use”. Wikipedia. 2010. Wikipedia. 11 Nov. 2010.
Various. “First Sale Doctrine”. Wikipedia. 2010. Wikipedia. 11 Nov. 2010.
Various. “United States Copyright Law”. Wikipedia. 2010. Wikipedia. 11 Nov. 2010.