Technology

File-sharing issue hits crescendo: Supreme Court set to hear sides in heated copyright-law debate

March 21, 2005

By 1984, when the U.S. Supreme Court thwarted an attempt to prohibit consumers of Sony Betamax from recording television programs, music lovers already were accomplished at taping their favorite bands.

A blank Maxell cassette, a tape deck, a turntable and a copy of, say, your buddy's new R.E.M. "Reckoning" album provided the essential tools to copy the tunes without actually spending $7.99 on the record.

Fast-forward two decades and the debate over whether technological advances have made it too easy to pilfer artists' songs is reaching 120 decibels, or the average noise level of a rock concert.

That's because the high court again has been drawn into the copyright-infringement fray. Justices will hear arguments March 29 in what is expected to be a landmark case. In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, the plaintiffs seek damages under the theory that Grokster and StreamCast, both peer-to-peer networks, are responsible for the infringement because they allow users to transfer copyrighted music and movies without paying the artists, the record companies or the movie industry.

In today's high-tech world, file sharing made possible by such Internet networks has become the new method of music swapping, only much more simple. Spending a few hours on a computer visiting the variety of peer-to-peer Web sites available can net dozens of mp3 song files, without the recording hassles of yesteryear.

Most of the sites, such as Grokster, let users download songs at no charge. Despite the recording industry's successful legal fight to shut down the original Napster-the pioneer of music-sharing sites-free file sharing is even more rampant today. The difference between Napster and Grokster is that Napster housed song files on its own Web servers while Grokster provides the software to users to fish for the songs among themselves.

The number of Americans downloading music jumped from 30 million in 2001, the year of the Napster decision, to 35 million in 2003, according to a report from the Washington, D.C.-based Pew Internet & American Life Project.

In 2003, Apple introduced its iTunes music store that lets users download songs for 99 cents each. The computer maker estimates its total downloads this year will top 470 million. While the number is significant, the amount of free downloading dwarfs that figure, said Craig Pinkus, cochairman of Bose McKinney & Evans LLP's intellectual property practice.

"There's no question that the amount of legitimate downloading is increasing," he said, "but it's still by all estimates a tiny fraction of the downloading that's taking place."

The Washington, D.C.-based Recording Industry Association of America and Los Angeles-based Motion Picture Association of America Inc. have filed briefs urging the high court to overturn a ruling by the 9th Circuit Court of Appeals in San Francisco. The appeals court held that certain filesharing services are not liable for copyright infringements over their networks because they have no way of knowing their peer-to-peer software is being used for illegal purposes.

In its decision, the federal appeals court follows the Supreme Court ruling from the Sony Betamax case. Justices held then that manufacturers of copying equipment used principally for legitimate purposes could not be held liable for their customers' "incidental" infringement.

The plaintiffs' argument that Grokster and StreamCast are responsible for the software users' infringement rests on the theory that the two contribute to the infringement, or that the infringement is, in effect, their own. They further contend that the Sony Betamax case provides no safe harbor when a defendant, such as Grokster, engages in conduct that encourages or assists infringement, or intends to facilitate it.

Without requiring users to pay for copyrighted material, the sites are cheating the musicians the RIAA represents out of royalties they are entitled to had the users purchased the songs legally, the RIAA contends.

"We're hoping that a victory for us at the Supreme Court will encourage [the networks] to transition to legitimate business models," said Cary Sherman, RIAA president. "Right now, there's tremendous ambiguity. The Supreme Court has to clarify the circumstances and whether they can be held accountable or not. We obviously think they will be."

The dispute surrounding the legalities of file sharing gets murky, however, because not all material is copyrighted.

Moreover, some artists and musicians favor file sharing, asserting that it gives them exposure they otherwise couldn't get from radio airplay. Lost recording profits can be recaptured in ticket sales for concerts, they argue.

In an extensive study about file sharing by the Pew project conducted last year, 43 percent of the artists surveyed said file-sharing services are good for artists because they help promote and distribute their work. Slightly more, 47 percent, said file-sharing services were bad for artists.

One popular musician, Jason Mraz, estimated in a court filing that half the fans who pay to see him in concert discovered his music through illegal downloading.

Indianapolis rapper Rhymefest, who won a Grammy earlier this year for co-writing the song "Jesus Walks" with Kayne West, favors file sharing at all levels. His logic is simple: You can't stop technology.

"I don't have a problem with it because it's inevitable; it's already being done," he said. "There's nothing we can do about it and there's nothing the Supreme Court can do about it. File sharing means nothing to me."

Rhymefest has a new album due out this summer and is signed to a major record label, J Records. He said record sales mostly generate revenue for the labels and not the artists, and the labels are tricking the artists into being concerned about lost profits from downloads.

He said artists need to be more creative in finding other ways to make money, such as selling their music for use as ring tones on cell phones, a fast-growing practice.

Cathy Morris, a local jazz artist who plays a seven-string electric violin, selfproduces her own compact discs. While she does not enjoy the benefits that come from a major record deal, she nonetheless concurred with Rhymefest.

"Metallica wants every penny they can get," Morris scoffed, referring to the wellknown metal rockers who launched a campaign against Napster and file sharing. "They've made a ton of money off [their music]. When's enough enough?"

Other Hoosier musicians offer conflicting views. Carrie Newcomer, a singersongwriter who's recorded 10 CDs, including eight on Cambridge, Massbased Rounder Records, said industry giants such as Bruce Springsteen and Madonna can financially weather the downloading phenomenon. But for her, album sales can determine whether she makes money or not.

"One of the hardest things about this issue is the genie's out of the bottle and we can't put it back in," she said. "And the artists are caught in the middle, especially the midlevel artists."

Newcomer, however, makes a distinction between the act of burning CDs and downloading song files. If someone has one of Newcomer's CDs and burns it for a friend or relative, she considers that "fair use" because it's a lawful recommendation. Duplication of a piece of work through file sharing is not the same thing, and people sometimes have a hard time distinguishing between the two, she said.

Jenny DeVoe, another Indiana-based singer-songwriter, compares the practice of file sharing to stealing. She records her work on her own label, Rubin the Cat Records, and makes extra income doing voiceovers for commercials. If it weren't for the additional work, she would simply break even with her music career, she said.

"Everybody wants to get paid for their hard work, including artists," DeVoe said. "This is how we make our living, and you just hope people respect that."

Matt Chandler hosts the Free Zone radio show Fridays and Saturdays from midnight to 3 a.m. on WICR-FM at the University of Indianapolis campus. Besides spinning material from somewhat obscure bands such as Cracker, They Might Be Giants and Stereolab, Chandler plays bass in Thin Fevers, a "danceable art punk" band that is preparing to record an extended-play CD.

The 30-year-old recalls the days before the Internet explosion, when he would learn of groups from tapes his friends would record. Now, he views file sharing as the new way to trade music.

"The major labels have a vested interest in keeping people buying their products," Chandler said. "But I haven't seen anything concrete that downloads have hurt music."

Maybe not, but it's still an infringement violation, said Pinkus, the attorney.

"I don't think there's any question that it is," he said. "The real question is how to distinguish the VCR model of way back when from the peer-to-peer file sharing of today."
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