PITTSBURGH: Music, Copyrights, and Free Speech in the Digital Age

Joseph Schaeffer, Pitt Law '12, attended a panel on Music, Copyright, and Free Speech as part of the ACLU's Sex, Drugs, and Rock & Roll series at Carnegie Mellon University...

In the past 10 to 15 years, music has gone from a finite good available only in physical form from various brick and mortar retailers to an infinite good readily available for legal purchase and illegal download on the internet. As I write this post, I'm listening to music on an iPhone, a device smaller than a deck of cards, which holds approximately 8 GB of music that has been ripped from CDs, purchased from iTunes, and downloaded from the internet. Music's relatively new status as an infinite good has led to an intense debate between the music industry and consumers. How far may the recording industry limit consumers' free speech rights to hear and disseminate recorded works in the interest of protecting copyright? The ACLU event that I attended was led by staff attorney Sara Rose, and was an attempt to facilitate a discussion on this inherent conflict between copyright and free speech. However, it became clear that many of the audience members lacked an understanding of the basic economic, ethical, and technological issues impacting the music industry in the 21st century.

I was surprised to hear most of the audience members come out strongly in favor of copyright protections, given that the event was sponsored by the ACLU. The recurring theme was: "If a person creates a work, he should have the sole right to profit by it and determine its dissemination," and there appeared to be real anger directed toward individuals who download music illegally without compensating the content owners. Most of the audience members were in their 50s, and many likened sharing an mp3 to stealing a CD from Barnes & Noble, but as the discussion progressed, some began to realize that CDs and mp3s are, in fact, not substitutable goods. When I purchase a CD, I may legally lend that CD to a friend so that he may also listen to it. I do not have the same right when I purchase an mp3. First, much of the music purchased online is protected by Digital Rights Management, a technology which limits a song to playback on specifically authorized computers and devices. Thus, sharing of legally purchased digital music is often limited by DRM, and removal of DRM is technically subject to criminal sanction under the Digital Millennium Copyright Act (DMCA) of 1998. Second, the DMCA prohibits the sharing even of legally purchased, unprotected files. This gives rise to the perverse situation where it would be legal to lend a friend a physical copy of "Abbey Road," but illegal to send the same friend a digital copy of the same album.

As the audience members began to understand more about the realities of digital music, they became more willing to discuss the need for the music industry to change its business model. Sara Rose introduced a possible solution advanced by the Electronic Frontier Foundation (EFF), under which every consumer with an internet connection would pay his ISP an additional $5 music download fee. Consumers who paid this fee would then have the right to download unlimited amounts of music from the source of their choice, and the music industry would be responsible for monitoring this traffic and apportioning the monies to the artists according to the popularity of their music. As the audience quickly recognized, however, a voluntary system would give rise to a free rider problem where the music industry would be in much the same position it is now - policing those who do not pay into the system. While a compulsory system would remove the need for enforcement, it would also limit consumers' free speech rights by limiting their right to choose. The EFF's proposal thus appears to be an imperfect solution.

Another option would be for the music industry to recognize that its business model is dead. This is a radical proposal under which artists would give away their music for free in order to sell the finite goods of concert tickets and merchandise. While the music industry has generally been reluctant to experiment with this model, major artists, such as Radiohead and Nine Inch Nails, have shown that it can be remarkably effective. Interestingly, this solution appeared to be more popular with audience members than the solution advanced by the EFF. Not only does this solution preserve the consumers' choice, but it insures that the artist is compensated for his work. Further, consumers are used to the concept of a free trial being used to sell a more expensive product.

Ms. Rose then tried to shift the discussion to copyright law's impact on software and technology, but the audience appeared to be even less familiar with this subject. A discussion of file-sharing software such as Limewire was filled with factual errors, not the least of which was that using such software will make available all files on your computer to other users (this is not necessarily the case). Thus, while the recording industry copyright claims may shut down file-sharing programs with both legitimate and illegitimate uses, most participants didn't use these programs and were thus unconcerned.

As was to be expected, the conversation became most lively where it concerned issues directly affecting the participants. A latecomer hijacked the discussion about music to discuss a lawsuit brought against him by the Carnegie Library demanding he transfer the domain carnegielibrary.us. Another latecomer only marginally addressed issues of copyright and free speech, spending far more time criticizing corporate America. While Ms. Rose and most of the other participants tried to return the discussion to music, copyright, and free speech, it became clear that these new participants were determined to bend the panel to their personal agendas, and many of the audience members began to leave the room.

In many ways, the ACLU panel on Music, Copyright, and Free Speech reflected the larger society debate on this issue. The participants tended to find the technology confusing, misunderstand the underlying issues, and hold strong positions without being able to fully support them. On the one hand, I found this disappointing, since I had hoped to learn more about the inherent legal conflict between copyright law and free speech rather than hear a rehashing of basic concepts. On the other hand, the experience was enlightening. As part of the Napster generation, I often fail to see, let alone understand, the more traditional copyright argument. By bringing together participants from different demographics and generations, the ACLU panel reminded me that there continue to be fundamental disagreements as to how copyright should work in a digital age.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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