Kelso 1

Aime Kelso
CST 300L
December 6, 2015
Digital Piracy

Piracy often conjures up images of swashbuckling pirates from the Golden Age who

ransacked ships, and sailed the open seas in search of treasure and adventure. It was an era ruled

by oppression and tyranny. Pirates, [who] were uniquely democratic and libertarian . . .

of Piracy, n.d.-a).
championed the earliest ideas of freedom and democracy (Golden Age

Though history knows them to be ruthless killers and thieves, pirates have been glorified in

popular movies and television shows for decades. The Golden Age came to an end around 1730,

when increased military presence and international anti-piracy laws banished all pirates (Golden

Age of Piracy, n.d.-b). Piracy, however, has seen a major revival in the 21st century, where it has

taken on an entirely new meaning. Digital piracy is a form of online piracy [which] includes

the unauthorized online distribution of electronic copies of copyrighted material such as

hat is digital piracy?, n.d.). In essence, it is a virtual form of

software, movies, and music (W

stealing which is both morally and ethically wrong. The way digital piracy is regulated and

punished, however, is highly inconsistent, generating many ethical implications.

Digital piracy made its debut in 1999 when three teenagers: brothers Shawn and John

Fanning, along with Sean Parker, came together to create a peer-to-peer file sharing network. As

the name suggests, a peer-to-peer (P2P) network is created when two or more PCs are

connected and share resources without going through a separate server computer (Cope, 2002).

These networks allow users to share various digital content such as books, music, movies,

television shows, and games. The trio developed and launched Napster in May of 1999 and it

became the first streamlined software application expressly designed for sharing digital music
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files across the web. Napster became wildly popular as internet users discovered they could

freely access and download a wide array of musical genres, rare albums, popular hits, videos,

and bootlegs. At the height of Napsters popularity, there were approximately 80 million users

registered on its network (Harris, n.d.). However, Napsters successes were short-lived. It was

not long before recording artists, record labels, and the Recording Industry Association of

America (RIAA) caught wind of Napsters illegal operations, and sought to take the network

down.

The RIAA was not pleased to learn of the millions of music files being shared across the

internet. They took swift action, filing suit against Napster in December of 1999. In regard to

their lawsuit, they released the following statement: Napster is about facilitating piracy, and

trying to build a business on the backs of artists and copyright owners (Zaleski, 2015). Not long

after, heavy metal band Metallica also filed suit against the file sharing network. The band was

hard at work recording a track for the upcoming movie Mission Impossible 2. The unfinalized

track titled I Disappear made its way onto Napster, and then onto the radio before its official

release. This so incensed the band that it filed suit against the fledgling company (Patel, 2015).

Napster lost, of course, as they were no match against copyright infringement laws. They were

ordered to remove all of Metallicas content from their database within 72 hours, or be shut

down (The death spiral of Napster begins, n.d.). After Metallicas victory, several other

recording artists filed similar suits, but it was the RIAAs twenty billion dollar infringement case

that brought Napster down for good. They filed suit against Napster for the unauthorized

distribution of copyrighted material [and] after a long court battle . . . obtained an injunction

from the courts which forced Napster to shut down its network in 2001 (Harris, n.d.). Though
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Napster officially went offline, and was forced to liquidate its assets, this would not be the end of

the RIAAs troubles. A slew of new file sharing networks were created following Napsters

demise.

Though Napsters heyday had come and gone, they opened the door to a host of similar

file sharing websites. The most popular form of modern peer-to-peer file sharing is torrenting.

Torrent networking debuted in 2001 [when] Python-language programmer Bram Cohen created

the technology (Gil, 2015). Cohen did so with the explicit purpose of sharing his technology

with the world. A torrent (more formally known as a bittorrent) works by downloading small

bits of files from many different web sources at the same time (Gil, 2015). They are often used

to distribute large files (entire music albums and discographies, and large program files) which

are both adware and spyware free, and can be downloaded at a much greater speed than other

P2P networks. Torrents embody the true essence of peer-to-peer sharing. Unlike Napster,

which relied on publishing servers to distribute files, torrent files are distributed by the users

themselves. Torrent users voluntarily upload their file bits . . . without payment or advertising

revenue. [They] are motivated, not by money, but by a Pay-It-Forward cooperative spirit (Gil,

2015). Users are rewarded for sharing their files with maximized download speeds, while those

who only leech (download but do not share) are punished with the slowest download speeds.

The most notorious directory of torrent files is a website called The Pirate Bay.

The Pirate Bay (TPB) is one of the most popular torrent tracking sites on the internet

today. It was first founded in September 2003 by Gottfrid Svartholm and Fredrik Neij who were

part of the Swedish pro-culture and anti-copyright organization Piratbyrn (which translates to

The Piracy Bureau) (De Looper, 2014). They openly advocated file sharing, and opposed
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limitations to sharing information and culture. TPB does not host individual torrent files on its

website, but instead tracks files which can then be downloaded using the bittorrent protocol

(Crawford, 2009). Because torrents are distributed in bits from multiple sources, they are much

harder to localize, making it much more difficult to punish individual users. TPB grew

increasingly popular in a few short years boasting 2.5 million users by the end of 2005. The high

volume of users garnered them serious attention. Copyright holders began sending notices . . .

demanding The Pirate Bay take down certain content, citing copyright infringement (De

Looper, 2014). They were, however, unswayed by the requests, and their lack of response

eventually led to the site being raided by Swedish Police (De Looper, 2014). The website was

shut down, and its founders found guilty of assisting copyright infringement. They were

sentenced to one year in jail and faced fines of $3,620,000. The decision was appealed in 2010,

with the jail time being reduced but the fines were increased to $6.5 million (De Looper, 2014).

Despite the punishments, TPB was only out of action for three days before the website was back

up-and-running. They have since been raided and shut down once more. However, after the first

raid the servers were moved over to a cloud-based storage system, so they were able to once

again resurrect themselves. Switching to cloud storage has made it near impossible to completely

shut down the site, as the servers and systems can be backed up again and again. Though the

Recording Association of America (RIAA) has been relentlessly battling file sharing networks

since they first appeared at the start of the millennium, they have struggled to bring digital piracy

to an end.

There are a vast amount of individuals who download media illegally on the internet.

According to a study conducted by the University of Arkansas, most college students have no
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qualms about downloading entertainment (Allen, 2003). Of the students who participated in the

study, seventy percent admitted to having downloaded some type of copyrighted material.

Nearly half justified their actions by arguing that companies overcharge, or that artists make

enough money in the first place. Another 23 percent felt that downloading was akin to borrowing

music from a friend (Allen, 2003). The study also found that a majority of downloaders would,

in fact, be willing to pay for music, but only if process (and the price) were friendly enough.

Of those who download illegally, a majority do so as a result of unfair prices and lack of

quality content on CDs. In fact, one of the initial reasons Napster was created came in response

to people who felt that the music industry had let them down [by] only publishing a few hit

songs per CD [while] leaving the rest of the album with filler (Weisbein, 2008). Media

consumers, regardless of whether they download legally or illegally, value quality content, and

fair prices. As such, it is probable that illegal downloaders use this claim of value to support their

downloading habits. A nationwide poll conducted in 2006 revealed that three-quarters of music

fans [felt] compact discs [were] too expensive . . . and 58% [said] music in general [was] getting

worse (Music Fans Blast Industry In Poll, 2006). Another reason people download illegally is

to sample new music. Because Napster allowed its users to download songs individually (rather

than requiring them to buy entire albums) it enjoyed great success. It allowed users to, in

essence, try before buying. Consumers could sample different artists and musical genres to

find out whether or not they like them. This had the potential to trigger more legal downloads. A

study, conducted by Luis Aguiar and Bertin Martins, found that legal purchases would be about

2 percent lower without illegal downloading availablemeaning . . . illegal downloads boost

legal downloads (Rothman, 2013). Those who sample music through illegal downloading may
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turn into lifelong fans, thus contributing to the legal sales of CDs, concert tickets, and other

merchandise. The music industry, however, does not favor these odds.

While downloading music (and other digital media content) for free is favorable for those

on the receiving end, digital piracy negatively impacts everyone involved in the production

process. For record labels, distribution companies, and the artists themselves, digital piracy can

be devastating. Though many believe illegal downloading to be a victimless crime, when

content is downloaded illegally, millions of dollars of revenue are lost. In the decade since

peer-to-peer (p2p) file-sharing site Napster emerged in 1999, music sales in the U.S. have

dropped 47 percent, from $14.6 billion to $7.7 billion (RIAA - Anti Piracy, n.d.). Revenue from

CD sales is divided up between a recording artists team (other band members, publishers,

songwriters, distributors, etc), and with the steep decline, profits are scarce. For every $1000 in

music sold, the average musician makes $23.40 (The Great Divide, 2010). This is where the

Recording Industry Association of America (RIAA) steps in.

The RIAA, whose job is to protect the intellectual property and First Amendment rights

of artists and music labels; conduct consumer, industry and technical research; and monitor and

review state and federal laws, regulations and policies (RIAA - Anti Piracy, n.d.), firmly

believes that the music industrys dwindling profits are a direct result of illegal downloading.

This causal claim puts pirates at the center of the industrys incurred losses because,

ultimately, piracy is theft. The Copyright Act of 1976 states that works of authorship

[including] literary works, musical works . . . motion pictures . . . songs and movies . . . [cannot

be] reproduced, republished, or used without permission from the copyright holder (Wang,

2013). Though it is nearly impossible to completely eradicate illegal downloading, the RIAA
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remains committed to providing the best possible experience for music fans through education

about copyright laws (and the consequences of breaking those laws), raising awareness for the

many great legal sites in the music marketplace, and bringing legal action against digital

offenders (RIAA - Anti Piracy, n.d.). They want fans to enjoy their iPods, CD burners, and other

devices, but . . . to do so responsibly, respectfully, and within the law (RIAA - Anti Piracy, n.d.).

To combat the high volume of illegal downloads, the RIAA has implemented substantial

punishments for copyright infringement. Those found guilty face up to five years in jail, fines

and charges of up to $150,000 per file, and additional legal fees and damages from copyright

holders who may also file suit (Illegal Downloading & File Sharing, n.d.). The RIAA assumes

digital piracy accounts for the bulk of its lost assets, and enforces these penalties in an effort to

recover those losses. This solution is supported by the ethical framework of cultural relativism

which bases ethical judgement on the laws of society. If it is not legal, it is not permitted. The

profits received from filing lawsuits against illegal downloaders would bring revenue back to the

industry, and allow for growth, and the promotion of new talent.

Another way the RIAA is cutting down on illegal downloading is by making digital

downloads available through numerous online services. One of the most successful is Apple,

Inc.s iTunes music store, which to date has sold over 1,000,000,000 songs worldwide at 99

cents per song (Weisbein, 2008). This solution, which is supported by the ethical framework of

utilitarianism, is beneficial for both the music industry, and downloaders. Utilitarianism attempts

to achieve virtue through means that generate the most pleasure, and the least pain for all those it

affects. Apples iTunes music store keeps the cost of its content low enough to entice consumers

to download legally, and simultaneously provides revenue to the artists whose music it sells.
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However, there are still disadvantages to both solutions. Policing digital piracy can be more

trouble than its worth. Often, lawsuits dont return much profit as a majority of individuals

pursued by the RIAA are unable to pay any [monetary] judgment awarded against them . . . in

most instances these cases do not go to court. Instead, they are settled for a few hundred dollars

most likely less than the cost of bringing the lawsuit (Weisbein, 2008). Additionally, although

the iTunes store is a step in the right direction, the profits it returns are not nearly enough to

make a significant impact. The way consumers buy music has changed. The majority are no

longer purchasing entire albums (which generate higher profits), but instead pick and choose

between individual tracks. Industry revenues arent falling solely because pirates steal songs,

but rather because music fans are buying tracks, not albums (Bertolucci, n.d.).

Alternatively, there are several key issues illegal downloaders would like the music

industry to address. One such example is the resurgence of quality music. A nationwide poll,

conducted by the Associated Press and Rolling Stone magazine found that 49% of music fans

ages 18-to-34 -- the target audience for the music business -- say music is getting worse (Music

Fans Blast Industry In Poll, 2006). Radio stations no longer function the way they did in past

decades. Though there are a number of new songs being released, only a very small percentage

are given airplay. In the past, it was DJs and music directors who created radio playlists, and as

such, listeners were exposed to a much more diverse mix of sounds and styles. However, today

radio station playlists are formatted by the marketing and advertising departments of large

corporations. The majority of music played on todays airwaves is the same generic sound that

has been recycled time after time (Weisbein, 2008). Record labels calculate whats most likely

to turn a profit, and then market the same mainstream sounds based on those statistics. This not
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only leaves music fans dissatisfied, but makes downloading illegally much more appealing since

it is one of few options to discover and sample new artists. If radio stations began to play more

new artists, there would be less reason for music fans to opt for illegal methods of acquiring new

content.

Another reason people choose to download illegally is to prevent their hard-earned

money from supporting the wrong peoplenamely, the record labels. People who download

copyrighted music claim that had they purchased the music, the money would not have gone to

the artists, but [instead] to the record companies (Is it ethical to download music for free? n.d.).

Downloaders assume their money will not go to the artists themselves, who they feel deserve a

majority of the profits. In turn, this justifies not paying for the music altogether. According to

Figure 1, the way profits are divided between the label, and the artist are indeed disproportionate.

Figure 1. The Great Divide (Jefferson, 2010)

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With the current breakdown, recording artists actually only make about 18% of all the profits.

While many fans do, in fact, want to support their favorite artists, it is not currently possible to

do so without a majority of the money going directly to the record label. The distinct solution to

this, would be for the music industry to reassess the way profits are divided, or for the artists

themselves to seek alternative methods of promotion. As a result, those who download illegally

to offset the balance of greedy record labels would be able to rest assured knowing that their

money actually went to supporting the artists they admire.

Both of the aforementioned options reflect the framework of ethical egoism. Egoism

states that individuals are governed by their own self-interest. Because they do not like what

theyre hearing on the radio, and to avoid funding record labels, downloaders have acted in their

own self-interest through means illegal downloading. The potential benefits that would come

from giving more airplay to new artists on the radio are that it would expose listeners to a variety

of fresh and unique sounds and styles. This, in turn, would decrease the need for illegal

downloading. The digital downloading phenomenon is that it has created an audience that is far

bigger and far hungrier for new music than any previous generation (Dee, 2011). Additionally,

if recording artists were to receive a majority of the profits from music sales, illegal downloaders

would have more of a reason to purchase music legally, as it would support the artists directly

and allow for those artists to record more new music. In contrast, there are negative effects to

these options as well. For instance, if radio stations switch up the music they play, they risk

losing mainstream audiences. Increased diversity of music could cause the amount to listeners to

fluctuate. Additionally, if the music industry were to redistribute the breakdown of profits giving

more money to the artists, it may lead to record labels having a harder time promoting and
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supporting the artists it manages. Furthermore, the lack in funds may make it so that less new

artists can be picked up by a label.

Evaluating both perspectives on digital piracy and their respective strengths and

weaknesses, it is clear that action must be taken to mitigate illegal downloading. However, this

must be implemented in a way that is both realistic and fair. Though copyright infringement is

indeed against the law, its punishments far outweigh the crimes associated with it. Violating

copyright, when it comes to downloading illegally, can result in up to five years in jail, fines and

charges of up to $150,000 per file, with additional legal fees and damages from the copyright

holders (Illegal Downloading & File Sharing, n.d.). These punishments are unethical, unrealistic,

and ineffective. Of those charged with copyright infringement, most cannot afford to pay the

fines. As such, it is hardly a wise investment to bring these suits to case when the return is so

minimal. If the RIAA is suffering so wholly from falling revenues, as they claim, this course of

action would only serve to increase their losses. There is, in fact, conflicting evidence that

piracy actually results in losses to the extent that the courts are imposing on file sharing

defendants (Oswald, 2012). The RIAA blames its falling revenues on piracy, when it may

actually be more the move away from physical media to digital media (Oswald, 2012).

The music industry has failed to update its business model since file sharing first began in

1999 with Napster. The RIAA has painstakingly tried to maintain the status quo and continue

with the old way of doing business. [But] ultimately, this has been to their detriment as theyre . .

. competing with the groundswell of communities on the internet and in social media (How The

Music Industry Failed to Adapt, 2012). The reality is that music fans are no longer buying

physical CDs, and in this digital era, they hardly need to. Music and media can now be
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downloaded and stored across all electronic devices (cell phones, iPods, computers, etc), and

done so at a much cheaper cost than it would be to buy a physical CD. But the music industry is

adamant on sticking to its outdated business model, even though the refusal to adjust continues to

work against them. Furthermore, copyright infringement punishments are so excessive, that they

are not actually taken seriously. The court system needs to take a look at how its prosecuting

these cases, and award the record industry damages more in line with reality (Oswald, 2012).

Digital piracy is akin to stealing, whose punishments are far less severe. In many states,

shoplifting is charged and punished as a theft or larceny offense -- usually as a petty theft or the

states lowest-level theft offense if the value of the merchandise stolen falls below a certain

threshold ($500, for example) (Goguen, n.d.). Moreover, copyright infringement suggests that

those who are illegally downloading make money from the stolen goods. However, the

majority of those who download do so only as a means of obtaining their favorite music and

movies for personal use. They do not make a profit off of the illegally downloaded content, so,

realistically, it should be punished more as theft than outright copyright infringement. By

bringing the punishments within a more realistic scope, they will ultimately be more effective.

Digital piracy is a unique crime that needs an equally unique punishment. Unlike

common theft, which entirely deprives the property owner of that propertys use, digital theft

does not exclude the copyright holder from [the use of that content], or their ability to benefit

from it . . . To draw an analogy, it is more like trespassing on [someones] land [as opposed to]

taking [their] land away from [them] (Barry, 2015). In order to better regulate digital piracy, its

fines should be greatly decreased. In addition, fines should directly correlate to the amount of

content each specific person has downloaded illegally. There should still be a set dollar amount
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for each different type of illegally downloaded media (songs, movies, television shows, software

programs, etc), but the fines should reflect the current economy. $150,000 per file is far outside

the range of what the average American can afford to pay. In fact, its more than the average

American even earns per year. According to the latest Census data the median household

income in the US is $52,250 (How much do Americans earn in 2015?, n.d.). It is both logical

and foreseeable to implement an updated fine amount. Doing so would benefit both offenders

and the music industry as the offenders would actually be able to pay the fines, and learn from

their mistakes, and the music industry would make profits off the actual monetary value of what

was stolen. The rest of the music industrys losses are the cause of various factors that have

nothing to do with piracy, and need to be dealt with internally. Record companies need to

understand . . . that their competition (ie the whole of the internet) is offering their product for

[much cheaper], and no threatening ISPs or taking kids to court for downloading 57,000 albums

is going to change that (Dee, 2011). Illegal downloaders should be brought to justice for their

wrongdoings, but they should not be making up the difference for the music industrys failure to

adapt to change, and its refusal to enact a new business model. However, this solution comes as

an assumption that those illegally downloading are not redistributing their stolen goods for profit.

Those who both illegally download and redistribute content for profit should be subject to

copyright infringement laws to the fullest extent. These laws should still be brought within

realistic proportion, but if a person has made revenue off of the content they have downloaded

illegally, they should be made compensate the copyright holders. My biases on this issue are

derived from growing up in a household that took the law very seriously. Having a father who

worked in law enforcement is a pretty strong driving factor in not only know right from wrong,
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but doing right. On a much grander scale, laws have been instituted in the United States to ensure

fair and equal rights for all citizens. Breaking the law undermines the structure of society and the

values that this country was founded upon.

Despite the legality, there are valid points on the side of those who download illegally.

One such example is the lack of new artists who get radio airplay. Many downloaders seek new

artists because theyre bored of the same mainstream sounds. Exposure to a greater variety of

genres and sounds on the radio could potentially bring a lot more revenue to the music industry,

and it would make things a lot more diverse. As it stands today, radio stations generally give

airplay to more established artists, and tend to opt for a more mainstream sound. But with so

many different kinds of music being generated, radio stations could really benefit from

incorporating more new artists into their lineup. In a society which is continually expanding

technologically, there is a need to constantly re-evaluate laws and the manner in which things are

done. It is inhibiting to propose a solution of fining illegal downloading based on a model of

copyright that is failed to keep up with evolving technology. Doing so could potentially stall the

growth of society as a whole. As our society and technologies continue to grow, the laws that

govern them must follow suit. The digitization of music (and other forms of media) should have

been a good thing for the industries involved. Not only did it mean cheaper production . . . it

also meant cheaper and more widespread distribution (How The Music Industry Failed To

Adapt, 2012). Perhaps if society and the industry had adapted a new business model right at the

start of file sharing networks, illegal downloading would have never become the issue it is today.

Nonetheless, there is little sense in speculating what could or would have been. The

potential negative outcomes from continuing to punishment copyright infringement do not

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outweigh the gains that would come from doing so. As it stands, illegal downloading is a

problem which needs modern, and realistic solutions. If society were to implement a set of

punishments which better fit the crime of illegal downloading, the amount of pirated content

would greatly be reduced as citizens would be realistically brought to justice for their

wrongdoings. Perhaps then, the industry could successfully turn the tide of free downloading

back to a pay model (Dee, 2011).

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