The New Buccaneers: the Rise of Mp3 Piracy

“...music is not food, shelter or clothing. People aren't going to spend $17 for a CD when they can get exactly the songs they want for $5, or for free. Now the people have got the technology first, and the industry is screaming foul.”
-- Chuck D, frontman for rap group Public Enemy

The New Buccaneers

For centuries, the term “piracy” has evoked images of cutlass-swinging, one-eyed, parrot-shouldered, peg-legged barbarians who leech the wealth of the seas through direct attack of merchant vessels. In recent years, this use of the term has declined, yet the word’s new meanings are just as insidious: “piracy” now refers to the illicit copying and reproduction of copyrighted or patented intellectual property. While it may appear that the trafficking of ideas is something that has only recently become important to the global economy, in fact, this business has always been a significant one. For as long as composers have been composing, inventors have been inventing, and authors have been writing, ideas have been a fundamental element of civilization. But for just as long, there have been elements of society eager to copy and exploit the works of others for their own advantage, circumventing standard distribution methods in favor of illegal alternatives. To protect creators from these forces – now known as piracy, especially in reference to the distribution of music and computer software – governments have stepped in, using copyright and patent laws to make such exploitation severely punishable. Unfortunately for artists and inventors, such protections have proved to be of limited effectiveness. Despite the best efforts of many dedicated individuals, piracy, ranging from advance copies of Hollywood motion pictures to bootleg recordings of rock and roll concerts, has persisted. However, through strict enforcement and harsh penalties, the widespread proliferation of illicit copies of protected intellectual property has been curtailed... until recently.

In June of 1999, the file-sharing service Napster went online, a seemingly-innocuous event which would in fact prove to be quite momentous. What began as a cult-like .mp3 music file sharing operation, with only a few hundred thousand users, soon evolved through the publicity of a recording industry lawsuit into a national – and eventually worldwide – obsession (Marcus “Napster History”). Within weeks, thousands, then millions of songs became available on the network, serving only to increase its popularity. Compounded by the predictable scores of “copycat” programs that used and enlarged upon Napster-like technology to enable even more distribution of music (and other data), the file-sharing phenomenon seemed, by 2000, like it was here to stay.

But not everyone was so pleased; Napster and its spawn weren’t just enabling the free flow of data, they were aiding and abetting the theft of intellectual property. Indeed, what had been a community fostering the sharing of music was now several global networks consisting primarily of music pirates. The issue at hand was not the undisputed brilliance of the technology and “business model” that Napster had created. Rather, the issue was compensation – for artists and for distributors, all of whom claimed (and still claim) to have been suffering increasing losses due to piracy. Yet, viewing the issue on a larger level, the main effect of the new networks was - and is - a more efficient transmission of music from creators to audiences, and could that be a bad thing?

Yes it can, argue recording artists and distributors, through their representative body, the RIAA (Recording Industry Association of America), which has filed lawsuits against a number of file-transfer companies and individual pirates. But many disagree, seeing the new technology as representing the downfall of an unfair music industry cartel which has only their own interests, and not those of consumers, at heart (O’Reilly “Piracy”, Dembeck “Napster War”). Thus, mp3 piracy is many things to many different people. To some artists, it is a form of advertising, like radio (Ziemann “Piracy Myth”), while to others it represents their loss of control over their own work (Ferris “Ulrich Interview”). To recording companies in America, it represents a sign that perhaps their traditional methods of distribution have become outmoded. And to consumers, it represents a cheap (virtually free) and easy alternative to buying CDs, with little or no sacrifice in quality. All in all, the sharing of .mp3's, via the Internet, is a perfectly viable technology – ingenious, even - that all agree is here to stay. But whether it will end up free and unfettered, as it has been since Napster’s founding to this very day, or under the strict control of recording artists and distributors, is a battle that is still being fought, in the courts of United States law and in the minds and hearts of consumers.

The Technology

An understanding of the issues behind the mp3 piracy phenomenon does not necessarily require a full knowledge of the technologies at hand. However, two fundamental concepts are basic to the controversy. First, the evolution of peer-to-peer file distribution, a tool utilized both by Napster and by its successors; and second, the development of the .mp3 format itself. To date, in fact, the external (in this case, legal) manifestation of the controversy has revolved around developers and distributors of the former technology. In the bigger picture, however, at the center of this issue is the fate of music itself, traditionally an analog commodity, in an increasingly-digital world. In this context, both P2P and .mp3 have played and will continue to play a large role.

The 1990s heralded the fruition of the computer age, as personal computing technology advanced in power and declined in price to the point where PCs have become almost ubiquitous in American society. Even more impressive has been the popularity of the Internet, founded in large part on the development of the quick and easy Hypertext Transfer Protocol that has yielded the World Wide Web (see “HTTP”). But as Internet connectivity has become almost as widespread as computers themselves, as dialup connections have increased in speed, and as broadband has proliferated in many areas, the door has opened for new ways to transfer data between computers, beyond the traditional FTP (File Transfer Protocol) and HTTP technologies. Perhaps the most influential of such technologies has proven to be the P2P – or Peer-to-Peer – data transfer paradigm. P2P was first developed in the late-‘70s to early-‘80s, with the advent of the USENET online Newsgroups and the FidoNet Bulletin Board System, along with other forerunners of the technology.

What peer-to-peer entails is a brand new concept in data storage and transmission: instead of keeping information on one central server or group of servers, make every single user’s computer into both a client and a node. This means that the data on the network is the data stored on the hard drives of every computer in the network, and that any one piece of information, anywhere on the network, may be downloaded by any other computer! (see “Peer-to-peer”) Not surprisingly, the potential of this technology was, and still is, huge, but its realization took some time. This realization, arriving only in the late 1990s and early 2000s, would prove to have far-reaching consequences for intellectual property holders and pirates alike.

But P2P could not affect the music industry without the simultaneous development of another important technology: the .mp3 file. Mp3 stands for “MPEG-1 Layer III,” a music-file compression format developed and patented by the German company Fraunhofer Gesellschaft and adopted by the Industry Standards Organization in 1992. Music files, in their raw form, consist of simple digitization of sound waves in such a way that a computer is capable of reproducing them. However, these files (*.RAW audio data, often contained in *.WAV files thanks Zerotime) are extremely large, occupying approximately 10 megabytes of storage per minute of sound. Even with increasingly fast connections, the transmission of such files over the Internet on any remotely-large scale is technologically unfeasible. Mp3 achieves approximately a 10-to-1 compression of this data, so that, for the most part, each minute of a song takes up only 1 MB of disk space. While this varies with the quality of the compression, so that better-sounding files take up significantly more space, a good, CD-quality file for an average song may be transferred over the Internet in a matter of minutes. In short, the .mp3 format made online distribution of music a real possibility! (mp3-mac.com “MP3 History”) Mp3 soon became the most popular music file format, and though alternatives exist, such as the open-source Ogg Vorbis (.ogg) or the proprietary and copyright protecting Windows Mediaplayer Audio file (.wma) from Microsoft, mp3 remains the de facto standard.

Its position was further cemented with the development of cheap, large-capacity personal, hand-held mp3 players in the early 2000s, culminating in 2001 with the exceedingly-popular iPod, one of a number of “jukebox” players with the storage space for literally thousands of CDs’ worth of audio. It is worth noting that .mp3 remains a proprietary technology, and for every hardware .mp3 player produced, manufacturers must pay the patent owners a small royalty. Despite this, .mp3 has become not only the most popular, but also the most convenient technology for distributing digital audio files. Not coincidentally, it is also easy-to-transfer, and this has in large part contributed to the increase in rampant online music piracy in recent years. Initially distributed primarily on World Wide Web sites, the advent of Napster began the shift of mp3 transmissions from traditional HTTP to P2P systems. The combination has proved a powerful one.

Together, .mp3 and P2P have helped forge an online world that is virtually completely safe and convenient for music pirates. Practically any song may be found through a search of any of a number of P2P networks – now mostly based on open-source Gnutella technology, developed by Justin Frankel and Tom Pepper of Nullsoft, Inc. in 2000 – and downloaded rapidly. In this technological climate, the question is no longer whether consumers will be able to pirate their music online, for as quickly as record companies come up with Digital Rights Management solutions (i.e. copyright protection mechanisms), crackers are able to defeat them. Rather, the issue is a philosophical, ethical, and economic one: Legally, .mp3 piracy is theft, but does that mean it is wrong? Is the current “standard” music distribution system really any better for artists, or is it time for change? But on the other hand, how can music pirates justify what is essentially technologically-mediated stealing? (Moore, “Is...Piracy Stealing?”)

There are basically two sides to these issues: those who support or practice music piracy, especially through Internet file sharing, and those who oppose it. These parties have been drawn onto opposite sides of a number of legal battle lines. Representing anti-piracy persons and organizations is, primarily, the RIAA, while file-sharing advocates, many of whom hesitate to use the loaded term “piracy,” are fronted for the most part by P2P services, such as Napster, KaZaA, Grokster, and others. Thus, although the controversy surrounding piracy is far more complex than the basic technological developments underlying its rise, it is the developers and distributors of this technology that, to this day, find themselves in conflict with “The Industry,” representing the opinions of all their users as an entirety.

Napster

Napster began transferring files June 1, 1999, a day that will live in infamy for the recording industry. In a matter of weeks, college students across America latched onto the service as a way to get their music for free, for only the cost of increased phone and Internet Service Provider bills. A number of universities were soon forced to ban the service for its heavy use of the institutional Internet connections, resulting in petitions to keep the music flowing through college campuses. This, however, was the least of Napster-founder Shawn Fanning’s worries, for on December 7 of that year, the Recording Industry Association of America filed a lawsuit against Napster for copyright infringement, and the rock band Metallica followed suit on April 13, 2000. Metallica was just the first of a number of artists to come out swinging, as it was soon revealed that though a number of musicians were unworried or even enthusiastic about the new services, just as many were extremely upset by their loss of control over the distribution of their creations (Marcus “Napster History”). The lawsuits against Napster, with its mushrooming popularity and rapidly-increasing volume of copyrighted material, became the center of the conflict as the 21st century dawned, and dawned again the next year.

The issue of P2P file-sharing is closely tied to copyright law itself, a controversial subject in its own right. Many advocates of “fair use,” as guaranteed by America’s founding fathers in the Constitution, are distressed by recent laws, especially the Sonny Bono Copyright Extension Act and the Digital Millennium Copyright Act (1998), which have extended copyright terms significantly and dramatically increased the penalties for infringement, either direct or indirect. These other issues also relate back to .mp3 piracy, for increased copyright terms delay the entrance of copyrighted work into the public domain. This means that even old recordings from the 1950s and before, owned by recording companies (rather than artists – an idiosyncrasy of current music distribution businesses that has itself perplexed many observers), will not be available for use without charge until many years from now. What is more, one reaction of the recording industry to piracy has been to develop technological prevention systems, all of which have proven ineffective to this point. This effort, known as the Secure Digital Music Initiative, has resulted in a number of copyright protection systems, which, despite their ineffectiveness, are protected under the DMCA, so that to “develop circumvention methods” for one of these technologies, if prosecuted, carries a fine of up to $100,000 and a prison sentence! The free-speech issues raised by this law are beyond the scope of the .mp3 piracy controversy, but are interesting nonetheless (see Felten v. RIAA, 2001). All in all, copyright law is a very complex and controversial field, and it is here that the first battle over piracy was fought.

Napster was sued for contributory and vicarious copyright infringement, whereby the technology they developed, being used for infringing activities by end-users, made them liable for the violations themselves. To these charges, a number of defenses were possible. First, Napster could have claimed that there were no direct infringers on their network, but in their case, this would have been a blatant falsehood. Second, they could have sought protection under one of the various “safe harbors” for services such as libraries and Internet Service Providers in the DMCA. Again, this would not have worked for Napster, due to the strict requirements for classification under such harbors. Finally, the most promising defense, and the one pursued by Napster’s attorneys, is the “Sony Betamax Defense,” so appellated for its origin in the controversy surrounding the development of VCR technology in the 1980s. In that case, Sony demonstrated that its Betamax VCRs were “capable of substantial non-infringing use,” e.g. recording one’s favorite programs to watch at a later date, and so the company could not be held liable for the possible violations of some who might use the devices to duplicate copyrighted material (like movies, etc.). Similarly, Napster argued that it is possible to use its software legally, for to have an .mp3 reproduction of a song on one’s hard drive falls under fair use if one has purchased a copy of the recording.However, Napster faced a major hurdle: its software involved the maintenance of a list of available files on a central server. In this way, Napster contributed directly to the infringement, doing nothing to hinder copyright violation despite their knowledge that such was taking place. Because of this, the Ninth Circuit Court of Appeals rejected Napster’s appeal of the original decision, which found Napster guilty of vicarious copyright infringement. (Von Lohmann “File Sharing and Copyright Law”)

Associated court decisions through 2000 and 2001 essentially killed Napster and its P2P network. The era of free, centrally-regulated P2P .mp3 distribution was over when Napster shut down in July, 2001. Another ruling in favor of artists who filed suit forced Napster to pay $26,000,000 plus royalties on files traded over its planned, for-pay music network (which never really took off) (Marcus “Napster History”). All in all, the Napster “saga” ended sadly for the ambitious company, as the legal prohibition of Internet .mp3 piracy was reaffirmed. By this time, however, Nullsoft’s Gnutella protocol had become popular, and a number of services, notably Morpheus, Aimster, KaZaA, and Grokster, quickly rose to take Napster’s place.

Gnutella differed in that no central list of files was kept, so that the network was essentially in a state of total anarchy. While incapable of controlling in any way the traffic on their networks, a number of these networks have also fallen prey to RIAA lawsuits, however. As of 2003, though, a number of them remain in service. Despite their best legal efforts, the recording industry has not been able to kill .mp3 piracy simply by shutting down the distribution methods.

Predators and Prey

But what is this all of this conflict really about? In short, the .mp3 piracy phenomenon is simply the circumvention of standard music distribution media by individuals who feel they have a right to access the music they want however they are capable of accessing it. Clearly, such ideas are contrary to the interests of those who dominate the standard distribution media today, and, as such, they have provoked intense opposition. The crux of these arguments is the idea of copyright – or the concept, guaranteed by the framers of the United States Constitution, that the authors of a creative work are entitled to the benefits that emerge from that work for a certain period of time. Piracy represents a technique whereby those who are willing to can avoid the channels of distribution that permit copyright holders to collect these benefits. On the face of it, then, the .mp3 “controversy” seems rather one-sided. After all, file-sharing may be fun and convenient, but it is clearly illegal. Why then, do pirates feel their actions are justified? The answer, in part, has to do with the structure of current music distribution itself.

The first idea that might pop into the mind of anyone considering the issue of piracy is ownership. After all, if a person purchases an album, its theirs, right?. Who, then, is the RIAA to say what that person can and cannot do with the music on that album? It would seem that whether they wish to preserve it in its original packaging for sake of their collection or use the CD as a coaster for beverages, or, indeed, upload the contents of that CD onto a file-sharing network is nobody’s business but their own. However, this argument contains a logical fallacy; what one purchases when one buys an album of music is not the music itself but a “license” of sorts, or a limited right to utilize the copyrighted contents of the album. Even after the CD or record has been purchased, the original copyright holder still retains ownership of the music on that piece of media. Music copyrights are, as a rule, owned by recording companies, not artists. The profits from CD and record sales go primarily to record companies, with only a small royalty going to the artists.

In effect, the music distribution system that has evolved since the mid-20th century is a chain of middlemen. Despite increasingly cheap and efficient media, as cassettes and CDs have all but replaced 8-track tapes and records, album prices have climbed steadily to their current level of $15 to $20 for most new releases. And this, many argue, is simply theft – from the consumers. All of this is compounded by what many see as a decline in the quality of albums in recent years. From the era of well-thought out, complex creation, pop albums have now turned towards “hits,” of which one or two may be found on each album, along with eight to ten other songs, of varying quality. While this is a subjective judgment many have made, it has nevertheless influenced many people in that online distribution, song-by-song, may be just what audiences are looking for. For if people were able to pay for only the songs they wanted, and not for those they didn’t, it would be cheaper and more satisfying for consumers. All in all, many music fans no longer feel they are getting their money’s worth from the recording industry. P2P file-sharing has offered them an alternative which, for the first time, requires no sacrifice in sound quality, unlike bootlegging and other, less-sophisticated forms of piracy. (Moore “Is ... Piracy Stealing?”)

In addition, music piracy is seen as a victimless crime. While the RIAA has presented plenty of data to the effect that CD sales have been declining since the popularization of P2P services (RIAA “2001 Year-End Shipments”), proponents of file-sharing have questioned the validity of the data and the assertion that “piracy” is to blame (Ziemann “Piracy Myth”). What the recording industry ignores, they point out, is that there has been a widespread economic decline stemming from September 11th and the dot-com bubble burst which has coincided with the rise of piracy. Thus, a decrease in CD profits does not necessarily indicate a significant loss of sales due to piracy. And in fact, many .mp3 distributors have pointed out that their services actually make music more valuable; after all, if a person’s music collection may be transferred easily from one computer to another, the entire thing is more convenient and, with the popularization of .mp3 players, portable (Lessig 130-1).

What is more, artists, have, in fact, been essentially giving away their creations for free for decades, over the airwaves via radio. They do this in exchange for only small royalties from radio stations because the popularization of their songs amounts to free advertising for them. In the same way, many file-sharing advocates feel that .mp3 files provide much-needed publicity for new artists whom the recording industry hesitates to risk money on, favoring instead more sure-fire “hit-making” bands (Ziemann “Piracy Myth”). As various proponents of this new “advertising” paradigm point out, “obscurity is a far greater threat to artists than piracy,” comparing the lost sales due to piracy to the significant but ultimately unavoidable losses artists face from common shoplifters (O’Reilly “Piracy”). Thus, the arguments of “piracy”-advocates center around their claims that what the record-companies call theft is actually good – for consumers and for artists themselves, if not for the record companies; but then, who needs them anyway?

Naturally, the recording industry sees things rather differently, and it would be naïve to presume that a major portion of their motivation is not based on material profit. However, issues of copyright and intellectual property rights also play into it. Lars Ulrich of Metallica perhaps put it best when he said, “The Internet is not the issue, the issue is who dictates what goes on with your work” (qtd. in Ferris interview). This viewpoint is certainly understandable, especially since United States law grants all of these rights to the copyright holder, whether it is the artist or their recording company, and it is the prerogative of such parties to enforce those rights. In short, recording industry representatives see themselves as the victims of this piracy scourge, and even the staunchest of file-sharing promoters would be hard-pressed to prove that the industry does not experience a direct material loss due to online music piracy. (Whether or not this material impact is deserved, or indeed long-overdue, is another matter (Blonder “Free Content”.)

However, the RIAA is also predisposed against any technology or paradigm-shift that might threaten their dominance of the music industry and their control over the hearts and minds of the MTV generation. But this dominance, this control, they argue, is not something anybody else has the right to take from them, especially not free file-sharing services, and particularly not ones which are illegal under US law. From the recording industry’s viewpoint, then, the ethical and legal issues surrounding the .mp3 piracy issue are far more clear-cut than piracy advocates would care to admit (Moore “Is...Piracy Stealing?”).

The special interests represented by recording industry advocates have not escaped the notice of some in the public eye. Various figures in the computer world have gone on record speaking out against piracy, a seemingly-surprising development that makes quite a lot of sense when it is considered that an incredible percentage of professional-grade business and imaging software in use today is, in fact, pirated. Naturally, software developers have been among the many to speak out in condemnation of the music piracy phenomenon. Similarly, certain politicians have latched onto the piracy issue as a moral battleground; for example, Representative Ed Towns of New York expresses his belief that “piracy hurts everyone both online and offline,” expounding upon the statement by pointing out that industry losses due to piracy are felt directly by small-time retailers, and eventually by consumers themselves (“Piracy hurts”).

All in all, a wide variety of anti-piracy voices have been raised to emphasize that not only recording industry executives are hurt by the illegal distribution of copyrighted music files. Increasingly, these ethical consideration are coming into play, as a supplement to the arguments of direct economic damage being made by RIAA members themselves.

relatively Recent Developments

In early 2003 the battle between P2P users and the Recording Industry Association escalated into a full-scale war. As new P2P networks and clients have continued to pop up, artists and distributors have claimed that the threat posed by piracy is only escalating. Perhaps the most significant new development in the P2P world is the FastTrack network; most notably, Sharman Networks’ popular KaZaA Media Desktop, and its offspring, KaZaA Lite and Diet KaZaA, have come to dominate the P2P scene, along with sister FastTrack clients Grokster and iMesh. Thus, it is safe to say that piracy has not been reduced significantly over the past several years, and that the phenomenon of Internet music file-trading continues to bloom – or as the RIAA might say, to mushroom out of control.

One significant judicial result was the January, 2003, ruling that the Verizon Online Internet service provider must reveal the names of demonstrated online music pirates to the recording industry for use in individual prosecution. This has raised numerous concerns regarding the liability of ISPs for their customers’ usage of the channels they provide, along with serious issues of Internet privacy. Designed as an avenue for the secure, anonymous transmission of data, this ruling is an early sign that the Internet may no longer be the haven for private traffic it has heretofore been.

However, the most important legal decision in recent months was a California federal judge’s ruling that Grokster and Streamcast (parent of the Morpheus network) are not liable for copyright infringement over the FastTrack system of which they are a part. This case represented the Recording Industry Association’s first significant attempt to shut down a decentralized P2P network, in contrast to the centralized systems they defeated in the Napster rulings of 2000-2001. The RIAA’s failure to demonstrate liability on the part of these FastTrack clients is a promising sign for proponents of P2P file-sharing networks, and an unfortunate turn of events for those concerned with the continuing threat of music piracy on the Internet. (Lessig “Victory for Innovation”)

In the face of such legal failure, the industry has turned to rather unorthodox methods in an attempt to curb the growing acceptability of piracy in the minds of the public. Firstly, a number of direct lawsuits have been filed against individual music pirates, ranging from owners of machines sharing supposedly-pirated files to distributors of small-time software tools for finding copyrighted materials. While a number of these lawsuits have eventually been dropped, and others have proven to be spurious, in at least several instances, defendants were compelled to settle amicably in the face of the intense legal opposition which the recording companies were prepared to bring forth (Homer “Jesse Jordan interview”).

Another strategy pursued by artists and distributors recently is file “faking,” whereby file-sharing networks are flooded with data labeled as accurately-copied .mp3 files of copyrighted music. However, upon opening these files, users find them to be three and a half minutes of silence, or full of gibberish, or in one memorable instance, a recording of Madonna asking, “Just what the f*ck do you think you are doing?” Naturally, this has provoked some opposition from advocates of the file-sharing services, many of whom claim that such tactics represent the RIAA’s interference with legitimate economic activities, the legality of which US courts of law have recently reaffirmed! Others point to the obscenity contained in some of these files, such as Madonna’s offering, which under recently-legislated anti-“Spam” (junk email) laws, is prohibited (Rasch “Borderline MP3 Tactics”). Unfortunately for the controlling parties behind decentralized networks like FastTrack or Gnutella, there is not much that can be done in response to this new strategy, as the RIAA seemingly has as much right as anyone to place whatever files they wish onto the systems.

Finally, a last, dramatic turn of events for pirates occurred in late April of 2003, when the RIAA simultaneously sent instant messages to over 200,000 users of the online networks KaZaA, Grokster, and Morpheus, warning that their piracy is not anonymous and that they may easily be traced (“RIAA IM’s Thousands”). Ironically, this tracing is the very ability the RIAA claimed to be incapable of in their case against Verizon, necessitating the ISP’s release of user data to the industry association. As a whole, recent legal decisions and new RIAA strategies in opposition to piracy demonstrate the escalation of the conflict to an entirely new degree of controversy.

Turmoil on the High Seas

To this very day the .mp3 file-sharing/piracy controversy remains one of the most heated issues among certain, more techno-centric circles in America and online. Various interest groups have spun the conflict in several ways to suit their purposes: recording distributors and some artists consider the piracy question a case of moral versus immoral, specifically, the legal distribution of goods for compensation versus the illegal theft of those goods; various consumers, including a number of music pirates, see the phenomenon as a sign of “market correction,” demonstrating that the high album prices which have reigned supreme for so long are no longer good business in today’s technological climate; while others expand on this idea, seeing piracy as the first battle in what is essentially a war between an entrenched, antiquated, and obsolete corporate economy and a blossoming digital world, the full potential of which has yet to be realized. (Dembeck “Piracy or Persecution?”)

On the whole, .mp3 piracy is an issue, like many, for which the two sides are almost totally entrenched, and, as such, is not dominated by one faction or the other. Mp3 pirates show no sign of slowing down, as overall Internet traffic in copyrighted music seems to be continuing to grow, demonstrating that there is a huge market of dedicated music fans against whom the recording industry stands in staunch opposition. Similarly, the recording industry continues to file lawsuits and pursue a wide range of strategies in an attempt to halt what they see as a deplorable and unconscionable, not to mention illegal, practice – a practice which threatens the livelihoods of the very artists these music fans purport to love so much. To date, the Industry has won the majority of legal cases brought forth against pirates and P2P networks, with the notable exception of the recent Grokster/Streamcast decision. However, the piracy issue seems to supercede the legal aspects of the controversy, for the Internet is an area where law is only enforceable to a limited extent, however much it may favor the Recording Industry Association in these cases.

Perhaps the most telling sign of this division in the world is the division in public opinion itself; 53% of American Internet users do not feel music piracy is stealing, while 40% of the general American population does not feel music downloaders are engaged in wrongdoing. And among habitual downloaders, the statistics are even more telling, as over 60% of P2P users do not care if the songs they download are copyrighted (Enos “Not Theft, Americans Say”). These are ideas that the recording industry certainly cannot afford to ignore; however, their reaction to date has been confined to condemnation and legal action, strategies which have yielded only limited results so far. All in all, it seems that the public is as divided as the music community itself with regards to the .mp3 piracy controversy, so that neither of the “camps” has gained true domination of the issue yet.

Perhaps the only thing people can agree upon is that piracy, for good or for ill, will force the music industry to undergo a drastic change. The shape of this transformation, however, has yet to become clear. One recent development is Apple Computer’s new service, whereby music fans can download legal .mp3 files of all the songs they wish, at the relatively inexpensive rate of $0.99 per tune. So far, this service has met with impressive success, but for the most part, such legal, for-pay alternatives to more-convenient, equal-in-quality, free (!), and illegal methods have yet to play a significant role.

However, many see this concept as a step in the right direction, for it is possible that album format as we know it may be a casualty of the piracy war. Evidence for this startling assertion includes the Chinese people’s own, less technologically-advanced piracy phenomenon, which has been burgeoning for many years and has all but shattered the traditional recording industry in China. In a place where the vast majority of copyrighted music is obtained via illegal bootlegs, recording distributors have learned to “face the music,” so to speak, and have begun to turn away from the 12-track, $15 album as primary source of revenue. (Crampton “Learning to live with Pirates”) Instead, artists in China, and increasingly in America, too, have to work a little bit harder to ensure the flow of profits, whether through increased touring, promotional deals, or alternative distribution concepts. Many observers see such developments only as increasing in America’s own music industry as online piracy provides the driving market force towards what some see as a long-overdue change for record companies (Chuck D in Ferris interview). Because of the dynamic atmosphere of business in the digital era, these changes are occurring constantly, and it is almost impossible to predict the ultimate results of piracy for the music business. Regardless of these results, however, they will certainly have a drastic impact upon the piracy phenomenon itself.

And indeed, much of the Internet piracy issue is tied directly to the controversies over the Internet itself, and over the fate of copyrighted materials. Closely related are questions of ever-increasing copyright terms, draconian penalties, the unenforceability of laws on the Internet, and a plethora of other issues. All this makes it difficult to predict where the piracy conflict will end up, even in the short-term future. However, the tremendous breadth of this controversy’s implications is obvious; music makers and music lovers across the globe will be influenced incredibly even by modest developments in this area. And the developments are not likely to slow down, as the two main sides of this issue remain more impassioned than ever about their causes. The result could be anything from brutal suppression of online freedoms to digital world of complete information anarchy, where anything can and will go.

Three hundred years ago, pirates signified both the danger and the economic potential of business on the high seas. Today, pirates of another sort are demonstrating to consumers and producers worldwide the similarly dramatic potentials inherent in business and entertainment conducted over the Internet.



Note: Since this was written (May 2003), a variety of developments have taken place which had influenced the music piracy issue. In addition to certain court decisions, the music industry has been rocked by the wild success of the iTunes Music Store and its diverse imitators, as well as by certain subscription-based services.

Apple, the owner of the iTunes service, is distributing songs for $0.99 per track, and sometimes $9.99 an album, using a DRM-enabled file format called .AAC. It is worthwhile to note that while the DRM allows users to authorize only a limited number of machines to play their songs on, and restricts the number of times a given playlist can be burned to CD-R, the format itself is an industry-standard, open codec, rather than a royalty-controlled technology like .mp3. I have significant experience with iTunes, and I find it a very pleasing system overall. Downloads are speedy, there are no incorrect filenames, etc., and the price is reasonable. Certain amenities, such as liner notes, however, demonstrate that physical media have not been altogether replaced...yet.

Competing for-pay music services include Napster 2, now under new ownership, MusicMatch, and a host of others. I have not really used any of these, so I cannot vouch for the quality of their service. However, all of them (as far as I know) distribute solely in the Windows Media Audio (*.WMA) file format, which is privately owned by Microsoft.

Clearly, all of this will have significant consequences for music piracy, but as of yet, these remain to be seen. However, when I have the time, perhaps I will expand this writeup....

Works Cited / References

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Anonymous. “Peer-to-peer.” Everything2 database: ‘Frater 219,’ Feb 18, 2001.

Anonymous. “History of MP3.” mp3-mac.com. Online, available (http://www.mp3-mac.com/Pages/History- _of_MP3.html). Accessed May 2003

Blonder, Greg. “Free Content: Why Not?” C|Net: News.com, Apr 3 2003. Online, available (http://news.com.com/2010-1071- 995188.html?tag=fd_nc_1). Accessed May 2003.

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Lessig, Lawrence. The Future of Ideas. New York: Random House, Inc., 2001.

Marcus, Sandra. “History of Napster.” Napster and Peer-to-Peer Music Exchange. Dec 6, 2001. Online, available (http://web.utk.edu/~smarcus/History.html). Accessed May 2003.

Moore, Charles W. “Is Sortware and Music Piracy Stealing?” Online, available (http://maccave1.freeyellow.com/stealing.html). Accessed May 2003.

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Towns, Rep. Edward. “Piracy hurts everyone both online and offline.” TheHill.com, May 22, 2002. Online, available (http://www.hillnews.com/052202/ss_towns.shtm). Accessed May 2003.

Von Lohmann, Fred. “IAAL: Peer-to-Peer File Sharing and Copyright Law after Napster” V. 2.0. EFF.org, Jan 2003. Online, available (http://www.eff.org/IP/P2P/Napster/20010227_p2p_copyright_white_paper.html). Accessed Apr 2003.

Ziemann, George. Email to Tim O’Reilly. “RE: The Music Piracy myth.” Apr 12 2003. Online, available (http://www.interesting-people.org/archives/interesting-people/200304/msg00129.html). Accessed May 2003.



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