COPYRIGHT CONUNDRUM

June 2003
		Is downloading copyrighted music tantamount to stealing? Lawrence Lessig, an expert on Internet law from Stanford University's Law School, and Matt Oppenheim, senior vice president of business and legal affairs for the Recording Industry Association of America, answer your questions about this heated debate.

Online NewsHour Special Report: Copyrighting in the Digital Age Forum Introduction If I can go to my local library and check out and copy a CD for free, why can't I copy a digital CD from an online friend? Given that distributing a large number of Xerox copies of a book without proper authorization is illegal, why would P2P be any different? Please explain how the DMCA will or will not impede further technological innovation and scientific research of new media devices? And, does this law violate my fair use rights as a consumer? Are the RIAA's "cease-and-desist" notices to alleged Internet pirates a violation of my personal property rights? How do musicians benefit from the RIAA's actions against alleged Internet 'pirates'? Would music companies consider developing an online service similar to that of Apple's iTunes or develop their own P2P networks? Does the U.S. Constitution rely on patent and copyright laws as way to advance the arts and sciences, or to protect business interests? Is it illegal to download the MP3 version of a song that I have already purchased? Would outlawing anti-copyright devices in theory extend copyright terms for eternity?

Bryan Wagstaff from Bountiful, Utah asks: The RIAA has been actively scanning the Internet for .mp3 [audio] files, and mass mailing "cease-and-desist" letters. But, in many cases -- for instance, recently at Penn State -- the files are not RIAA-produced or copyright-protected recordings at all. Doesn't the "cease-and-desist" notice represent an unauthorized access to property, and a violation of my personal rights? We own the property (including the copyrights) that we are offering on our sites, so how can the RIAA presume that they are the only content producers and guardians of copyrights? In sending unjustified "cease-and-desist" notices, the RIAA makes it almost impossible for us to distribute our content without being labeled as 'pirates.' Lawrence Lessig from Stanford Law School responds: This is an interesting question. If a site posted a notice that no one was allowed to come onto the site for purposes of scanning the character of the files kept on that site, then the RIAA technologies would be "trespassing" and would violate the law in at least some states. But more generally, this practice is a form of harassment, and its effect is to harass those who would develop the public domain. Matt Oppenheim from the Recording Industry Association of America responds: When the RIAA searches the Internet to find infringing recordings that are being distributed, it is looking in exactly the same types of places that anybody else on the Internet may go. We are not accessing anybody's "property," and we are certainly not violating anybody's personal rights. We are doing exactly the same thing that every other infringer is doing. It is akin to our searching for vendors on the street selling CDs, and our looking to see what they are selling. We are simply surfing the net for infringements. Often when we find infringements, we send letters requesting that the infringement stop. Over the last few years, copyright holders (not just record companies) have probably sent out well over half a million DMCA [Digital Millennium Copyright Act] cease and desist notices. Over that same period of time, there have been probably less than 100 reported mistakes. Of those less than one hundred mistakes, all of them, as far as I know, have been resolved without any adverse effect on the individuals distributing the content. In the case of Professor Usher at Penn State, we quickly withdrew the notice as soon as we were made aware of the mistake. In the course of the RIAA's internal investigation regarding the matter, we identified a temporary employee who had disregarded our policies and sent out that notice, and two dozen others improperly. We have corrected all of those errors, apologized to everyone involved, and fired that temporary employee. So, responsible copyright holders try to minimize the likelihood of an error in the first place. (And the stats show that most of the copyright holders are acting responsibly.) Beyond that, if there is a mistake, responsible copyright holders immediately address that mistake. And, finally, if an irresponsible copyright holder makes a mistake, the DMCA has a process built into it for counter-notifications to be made in which an individual can dispute a take down notice. Once a counter-notification is made, the onus is on the copyright owner to prove that their works are being infringed. [In response to viewer's question: "We own the property (including the copyrights) that we are offering on our sites, so how can the RIAA presume that they are the only content producers and guardians of copyrights?"] We don't for a moment presume that our members are the only ones that own copyrights. We know that the universe of copyright holders is massive. We also do not presume that the RIAA is the only entity actively protecting copyrights. We are well aware of many others who are engaged in the very same activity. [In response to viewer's comment: "In sending unjustified "cease-and-desist" notices, the RIAA makes it almost impossible for us to distribute our content without being labeled as 'pirates.'"] It is difficult to respond to this comment since the RIAA only seeks to enforce the copyrights of its members. If you are attempting to distribute recordings that you own the rights to and the RIAA is in any way preventing you from doing so, you should contact us immediately.