Is Music Download Illegal?

Assignment: 3000 word essay Mujtaba Al Ahmad

Internet downloading is immoral and puts the future of the music industry at risk

Until the 1990s, copying music was a tedious task, you had to go out and buy an album. If you wanted to copy it, you needed to buy a cassette and then play the entire album while the cassette was recording it.

Two developments changed this: one was the invention of easily copy able audio-file formats, most notably MP3. This allowed music-lovers to copy a song with the click of a mouse-button.

The second was the spread of the internet, and with special softwares which consumers could use to share files, like u torrent, lime wire, bit torrent, e-mule, etc. known as Peer to Peer (p2p). Once you have installed the software, it connects you to other users of the same software. With p2p technology used by many download providers, individual users are connected directly to one another; p2p file share software makes contact with a centralised server which uploads a list of files available on your hard drive. If anyone connected to the same server (i.e. logged on to the software) searches for a specific file or name of a specific song which is on your list, the server provides them with your computer address and their computer connects directly with yours and copies the file through the internet. The file does not pass through the central server - the software directs it directly to your computer.

In 1999, an 18-year-old college dropout named Shawn Fanning changed the music industry forever with his file-sharing program called Napster1. His idea was simple, to create a program that allowed computer users to share and swap files, specifically music, through a centralized file server. His response to the complaints of the difficulty to finding and downloading music over the Net was to write the source code for a program that combined a music-search function with a file-sharing system and, to facilitate communication and instant messaging. Napster was an instant hit among the downloaders, by the end of year 2000 Napster had over 20 million active users who downloaded an average of 3000 songs.

However this campaign was not very long lasting, in 2000 the recording industry association of America filed suit against Napster charging them with tributary copyright infringement, which means Napster is being accused not of violating copyright itself but of contributing to and facilitating other people's infringement. However, Napster argues that because the actual files are never in Napster's possession, but transferred from user to user, that Napster is not acting illegally. The issue in p2p applications is that if Napster is guilty of copyright infringement, then the consumers of Napster are guilty too. Likewise, if the consumers are not guilty, then how can Napster be held responsible.

The power of the technology clearly has potential consequences for the music industry and raises many questions like; is it immoral or illegal?

Because the mp3's and the internet made music sharing easy, we should understand the difference between "distributing" music and "copying" music.

Distributing means making the music available for other people, either for profit or not. This is in any case illegal, because even if you buy a copy of a song legally, you never have permission to pass the song on to other people. In the context of peer-to-peer software, uploading is the same as distributing.

Copying means making a copy of a song or album for your own use. Before the MP3-format and the internet, making a copy was a little bit of a grey area. You were allowed to make a copy for private and personal use, but legally speaking only under the following conditions this is called the Berne three-step2:

1. Copying is only allowed in "certain special cases".

2. Copying should not mean that the artist who produced the music cannot exploit their work normally.

3. Copying should not hurt the lawful interests of the rights holder (this is often seen as meaning that the private copy exception is only allowed when there is also a way of charging for the private copies being made, so that the artist gets some payment).

Before the internet other forms of copying were considered illegal, but probably you would never become involved with any other forms of copying, unless you actually became a professional music pirate with a factory in your backyard, copying and ripping out music CDs for your own profit. But, as noted above, the internets changed all that by making it easy for anyone to copy and distribute music files. Downloading without permission is considered illegal in most but not all countries (i.e. in the Netherlands until 2009, it was legal to download under the private copy exception. Just recently, the Dutch government announced they would make downloading without permission illegal there too) 3.

The Government has declared that the uploading and downloading of music from the internet is illegal and considered as theft, but the critiques do not think like wise. Further in the essay I will debate about the pros and cons of downloading which will be morally based and will also cover the effects on music industry:

Theft always involves a thief taking something away for themselves with the result that the original owner can't use it anymore. For example, if I steal your bike, you can't use it anymore. And this is exactly why theft is wrong: you had something which you wanted to use, and now you can't anymore, simply because I took it. That's why downloading music is not theft because it is a form of copying. You download a copy from an original, but the first owner still has the original on his or her computer, and can still enjoy it. In more complicated terms: music files are "non-rival" goods, meaning that my use of the good does not diminish your future use of it. However, theft is taking something from someone who is the rightful owner without their permission. It doesn't matter if the rightful owner keeps an original version or not. If you are downloading music from an unofficial source, you are stealing it: you can start listening to that song, without the permission of the original owner. The only way you can get the right to listen to that song is via a legal transaction from which the rights owner can make a profit.

Realistically speaking, music is not even property - for property to really be property, it needs to be something physical that you can touch and see. If it is tangible, it is easier to keep someone from using it, whereas when it is intangible, no one can. What if someone hears a song on