To Burn Or Not To Burn? It’s More Than An Ethical Question Presented by Dr. James Frankel

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Are we raising a generation of criminals?

Session Overview Introduction A Brief History of P2P File Sharing Legal Ramifications –What’s legal, and what isn’t? Ethical Considerations –A look at BOTH sides of the issue Educational Concerns –Our charge as educators. –Fair Use Resources

What are we talking about? and hundreds more!

Peer-To-Peer File Sharing Services allow users to download and upload various file formats over the Internet.

Most Peer-To-Peer File Sharing Services are legal entities, but users utilize the service illegally.

Most users download music and then burn those songs onto a blank CD. Many rip tracks from CD’s which they have bought and share them with everyone.

KaZaA

LimeWire Ratings

Win MX

The Tools of the Trade

A Brief History of P2P File Sharing Made popular in mid-1999 by an 18-year old Northeastern University dropout named Shawn Fanning who created Napster. It is estimated that there are over 70 million users subscribed to P2P File Sharing Services today. According to research, over 25% of users are children between the ages of 12 and % are between the ages of 18 and 29. (Pew Internet Project)

In addition to music, many other file types are available to users including: –Software –Visual images –Full-length Feature Films –Viruses In April 2000, the Recording Industry Association of America (RIAA) sued Napster to shut down it’s service. Napster loses it’s case and shuts down in In 2002, the RIAA sued Verizon to obtain customer information linked with IP addresses (the unique ID# for each Internet subscriber).

In 2003, Verizon was forced to turn over it’s customer information to the RIAA - lawsuits quickly followed. In April of 2003, Apple launched iTunes - a legal song-downloading website. In 6 months users had downloaded 6.5 million songs at 99 cents each. Today, over 1 billion songs have been downloaded on iTunes. In May of 2003, Napster relaunches as a legal website. On September 9, 2003 the RIAA sued a 12- year-old New York girl named Brianna LeHara. They settle out of court for $2,000.

Since April of 2004, the RIAA has filed 14,800 lawsuits (averaging nearly 750 a month) against individual users and universities for copyright infringement through downloading music illegally. There are another 17,500 people named in lawsuits yet to be filed. In recent legal action both the Dutch Supreme Court and the US Ninth District Court of Appeals have ruled that P2P File Sharing Services such as KaZaa, Grokster, and StreamCast are not responsible for what their users do with their service. The RIAA and the MPAA have filed a brief with the US Supreme Court asking for the decision to be overturned. Recent research has shown that illegal downloading has dropped dramatically since the RIAA began litigation against individual users.

Last week the RIAA began sending letters to universities across the United States requesting student identities behind their IP addresses. These letters threaten lawsuits if the names are not turned over. Students caught in this latest campaign are given a choice of settling their case online, or facing a lawsuit. Letters to individuals will begin within the year.

Legal Ramifications What’s legal and what isn’t?

US Copyright Act of 1976 Copyright literally means the right to copy. Congress passed the Act to protect the authors both creatively and financially. Musically this means: –The copyright in the musical composition, i.e. the actual lyrics and notes on paper. This is usually owned by the songwriter or music publisher. –The copyright in the sound recording, i.e. the recording of the performer singing or playing a given song. This is usually owned by the record company. Titles 17 and 18 of the U.S. Code protect copyright owners from the unauthorized reproduction, adaptation or distribution of sound recordings, as well as certain digital performances to the public. Source: Althouse, 1997

What’s Legal? It is legal to copy songs from an existing CD that you have purchased for your own use (compilation). It is considered fair use to then use that CD in the classroom for evaluation, rehearsal, exercises, or examinations. It is legal to download MIDI files of music that is in the public domain (unless the specific arrangement is copyrighted) and burn them on to a CD. It is legal to download music when the copyright owner gives permission or when you utilize a legal music downloading website.

What’s Illegal? Pretty much everything else. It is illegal to download copyright protected songs from the Internet without paying for them. It is illegal to upload songs onto a P2P File Sharing Service. It is illegal to burn those songs on to a CD, even for personal use. It is illegal to burn a compilation CD for another person, even if you paid for the CD’s that you use to make the compilation.

Under current US Copyright Law it is technically illegal to record your performance ensemble without permission from the publisher even if only for archival purposes. Fair Use allows for one archival copy in educational settings only. It is illegal to burn and sell CD’s or videos of a performance without written permission from each publisher ( as well as the payment of a Mechanical Licensing Fee cents per recorded work (or 1.75 cents per minute - whichever is greater) in royalties for each CD sold - even if you are making less than 500 copies. Many P2P Websites now have legal disclaimers with the intention of freeing them from any responsibility for the activities that take place on its service.

Consequences Criminal penalties for first-time offenders can be as high as five years in prison and $250,000 in fines. Most lawsuits are settled for between $4,000 and $5,000. Civil lawsuits can also be pursued with a minimum penalty of $750 per downloaded song up to $150,000 per copyright infringement. With some P2P Services such as KaZaA, there are security problems which means that potentially all of the files on your computer, including confidential files, are available for viewing.

Fair Use

“Fair use is any copying of copyrighted material done for a limited and "transformative" purpose such as to comment upon, criticize or parody a copyrighted work.” Stanford University Law Center

The Four Factors of Fair Use –Purpose: Is it educational? –Nature: What was the original context of the copyrighted material being used? –Amount: Less than 10% or 30 seconds –Effect: Are you taking money out of the copyright holders hands? Some believe that there is a fifth factor - Good Will - but it is not written into the law Fair use is often unclear. Congress included the word transformative in the definition to leave it open to interpretation.

Podcasting

Rule of Thumb: If you think you might be breaking copyright law… you probably are.

Ethical Considerations

A Question Of Ethics Each year, the recording industry loses 4.3 billion dollars, in sales, a trend that began in There is recent evidence that this trend is reversing. The 10 most popular albums sold 40 million copies worldwide last year, down 20 million from the year before - according to the RIAA. Most recording artists make only $1.50 per CD. While many live very comfortable lives we must remember that they have earned it and therefore deserve it. If we were in their position, what would we think? Who makes the rest of the money?

Stealing is stealing. Everyone knows that it is wrong. Why is downloading music alright? Is shoplifting a CD different than downloading it illegally? Shouldn’t we support the musicians we admire by purchasing their music? What would that musician do if they knew you steal their music on a regular basis? Just because everyone else is doing it does not make it alright.

The Other Side… Stanford Law School Professor Lawrence Lessig’s book Free Culture. Where would our culture be without imitation and outright copying? Where did the copyright laws originate? Who is being protected by the current US Copyright Laws? What is to become of our culture?

Educational Concerns Our charge as music educators

Our Charge What kind of example are we setting for our students if we use or encourage the use of illegally downloaded music, software, or any other type of media in our classrooms? Do not use illegally downloaded music in front of your students. Set a positive example, not a negative one. We must to adopt a zero tolerance policy in our schools for illegally downloaded music that not only applies to our students, but to our colleagues and administrators as well. We must actively seek to educate our students that downloading music without paying for it is illegal. Discuss the ethical aspects of illegal downloading. Share the consequences with the students. Scare them straight.

Resources Copyright: The Complete Guide for Music Educators by Jay Althouse. Alfred Publishing Co., Van Nuys, CA Free Culture : The Nature and Future of Creativity by Lawrence Lessig. Penguin Books, New York Digital Copyright by Jessica Litman. Prometheus Books, Amherst, NY The Future of Music : Manifesto for the Digital Music Revolution by Dave Kusek & Gerd Leonhard. Berklee Press, Boston, MA

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