As the developed world moves into the 21st century, its populace is in the midst of a revolutionÑnot of industry, but of information. With the advent of the internet, digitally encoded information can be transferred between computers anywhere in the world. The potential of this newfound technological ability has been immense. People can communicate, share data, and interact without regard for physical location, greatly enhancing the speed of business and politics. However, the potential for abuse is great as well, as people can choose to share information that they do not own. Clearly, a new digital paradigm has arisen.
In this new digital era, an unprecedented disconnect has arisen between the law and the people. Specifically speaking, the use of peer-to-peer (P2P) software has allowed people to disregard copyright laws without abandon, and disregard they do. Every time a college student, soccer mom, or business executive downloads a song with the intention of keeping it, he or she has stolen that musicianÕs intellectual material and is breaking copyright law. To address this problem, however, one must analyze the reasons behind this disconnect. Do people often disregard this law, simply because they can get away with it, or are other factors such as convenience responsible? Ultimately, this nationÕs public policy (as well as othersÕ) must strike a balance between protecting the intellectual property rights of the artist and the Òfair useÓ rights of the consumer.
Each of these rights will individually be considered, with intellectual property rights coming first. To define, intellectual property refers to the creative productions of a human being. An artist creates a painting or sculpture. A director, actors, and crew make a movie. An author writes a book. A musician writes and/or performs a song. All of these productions are the creative work of their producer and represent their intellectual property. Many create these productions with the aim of economic fulfillment. Placing their works in the marketplace to be bought gives them the incentive to create new and better works. Copyright laws have been created to protect this intellectual property, and the economic incentive behind its creation. For a society to retain its culture and creativity, strong intellectual property rights must be maintained.
Next to be considered are Òfair useÓ rights. To define, Ôfair useÕ refers to the method and manner in which a consumer should fairly be permitted to use an artistic creation. For instance, a consumer has many Ôfair useÕ rights in regards to music. Once he buys a Compact Disc (CD), he should be able to listen to the music contained thereon to the maximum of his enjoyment and convenience. This should include being able to play the CD in multiple locations, copying the song onto another CD for back-up purposes or to create a mix of songs, and copying the song onto a computer or portable music player to listen to at the office or on the run. As a consumer, these Ôfair useÕ rights are necessary to protect the investment of money that was made in purchasing a given work. Just as an artistÕs incentive to produce a work must be maintained, so must the consumerÕs incentive to purchase a given work. Only with both sets of rights protected, will the marketplace for creative intellectual endeavors remain healthy.
The specific innovation, that has transformed the internet into a medium for sharing and distributing intellectual material, has been the peer-to-peer network. After the well-known service, Napster, was shut down, a newer and more-pure form of the P2P network arose. As embodied by programs like Kazaa and Gnutella clients, this new scheme contains no central list servers like Napster did, no index of music. Rather, each userÕs computer searches the other computers in a web-like fashion for the desired song, movie, or other file. Courts have yet to come to a final say regarding the legality of this software, but even if they do, enforcement will be difficult, because there are no central servers to shut down.
The only practical form of enforcement then, with regards to companies like Kazaa, is to force them to stop producing their software or to alter the software to keep it from being able to transfer copyrighted materials. Kazaa claims that the second option is impossible, and therefore not an option at all. The main issue then is whether or not Kazaa should be forced to stop making its software. Advocates against Kazaa, such as the Recording Industry Association of America (RIAA), answer in the affirmative. They argue that KazaaÕs software acts directly as an enabler of music piracy, and therefore is party to copyright infringement. One of the counterarguments by Kazaa supporters is that Kazaa can also be used for several legitimate uses, and therefore it would be unfair to shut it down just because it can be used for illegal purposes. One of the legitimate uses is the sharing of uncopyrighted material. Proponents argue that the P2P medium is ideal for small, relatively unknown bands to have their material heard, without the costs and barriers of signing with a record label. Opponents counter this claim by pointing out that other venues are available for these small bands and uncopyrighted material, such as websites like MP3.com.
Another arguably legitimate use lies in the sharing of music for preview purposes only. Take for instance, a hypothetical new album from the rock band Metallica. A person wants to decide whether or not to purchase the album, but is not familiar with the songs to be sure she would really like the album. Furthermore, she rarely gets a chance to listen to the radio and therefore lacks that opportunity to get acquainted with the new songs. So she turns to Kazaa, and downloads some of the new songs. If she likes them, she might decide to go to the store and purchase the album, but if she does not like them, then she might simply delete the files. Take another example. A different person hears from a friend about a really new group called The Strokes. He is told that they are really good, but would like to find out for himself, so he downloads their music. Again, if he likes a lot of it, he very well might go to the store and purchase the CD. As the argument goes, being able to access so much music for free, allows many people to sample more music and therefore breeds a desire in music in them that would not have existed otherwise, possibly leading to increased CD purchases by that individual.
On the other hand, just as the above individuals might go to the store to buy music, they might rather be satisfied with simply keeping the downloaded songs and even downloading more. They then can burn these songs to a CD or transfer them to a portable music player to listen to anywhere. The flexibility and price are unbeatable, but the quality and consistency are often lacking. But in the absence of firm data that record sales are being hit by P2P file sharing, it is impossible to know which use of the medium is most prevalent: preview and buy, or preview and steal.
Ultimately, a market solution would be most preferable, because it would allow consumers and artists to naturally arrive at a system best fulfilling both their needs. Attempts have been made by the record and technology companies to create online digital music stores that have a per song fee or a per month fee. In large part, these ventures have failed, but critics say that the pricing has been too high and the flexibility on Ôfair useÕ much too low, not allowing consumers to transfer the songs around and listen to them at their own leisure. If some of these online ventures find the right formula and maintain a higher quality than free P2P services, then they will attract consumers and keep the creative marketplace vibrant for artists and consumers alike. However, if time passes and consumers show no real interest in purchasing music online, and if record sales begin to show tangible declines due to online piracy, then steps must be taken to protect intellectual property rights, including the shutting down of software like Kazaa.