Music piracy: a worldwide issue, different means but same results

The menace of Internet

Even though Internet has provided great solutions (to increase the number of commercial transactions and reduce its costs; to get families and friends closer no matter the distance; to be better informed about what is happening all around the world; to make our lives easier to the entire world); it also has posed the biggest problem to the music industry in its way to combat and eradicate music piracy.^106(*)

Well-funded online services, such as Kazaa,^107(*) Music Match, Gnutella or Audio Galaxy,^108(*) have sprung up. Those business models promote widespread unauthorized copying of music without permission from or payment to the record companies, composers or artists that developed the music.^109(*) Online piracy is the unauthorized uploading of a copyrighted sound recording and making it available to the public,^110(*) or downloading a sound recording from an Internet site even, if the recording isn't resold.^111(*) Downloading, for personal use, is not a crime in Peru.^112(*) Even so, widespread downloading hurts legitimate CD sales and the development of legitimate online music services.^113(*) While it was enough when one person could make a copy of a song and give to a friend, now the same person can upload a song and make it available to millions on the Internet.^114(*) Internet piracy is not just a bit of harmless copying. It' s taking the music created by others and distributing it around the world without the artists having any choice in the matter.^115(*)

Digital Interactive Fingerprinting^116(*) (DIF) seems to be a strong solution to combat music piracy on line. It is providing the means to trace the identity of the person who downloads a copyrighted file which appears on an unauthorized website.^117(*) However, it is impractical, almost impossible to sue millions of people.

The music industry has responded by offering now online music distribution via Presplay (Sony and Vivendi Universal) and MusicNet (AOL Time, Warner, EMI, Bertelsmann's BMG, and Real Networks).^118(*) The problem that faces these digital services is that consumers expect the same breadth of selection and portability that websites as Aimster, Lime Wire and Bear Share offer. Consumers can find albums on these websites that are not longer in the retailers' stores because they are out of catalog. It is also questionable how much the consumers are willing to pay for these services.^119(*) To make legal downloading more affordable, convenient and attractive than illegal downloading is the answer.

Online piracy in Peru is «rudimentary» yet because access to computers is a privilege that few Peruvians has and access to Internet is a dream that has not come true for millions of Peruvians.^120(*) The situation is similar in Ecuador, Bolivia and most of the countries of Latin America and it may not dramatically change for a number of years to come. There is still time to find a real solution to Internet music piracy.

Universal Problem

As we can see, music piracy does not differentiate between third world countries and developed countries. For instance, Italy and Spain occupy the unhonorable sixth and seventh positions in the world's largest pirate markets. United States has a piracy problem too. In the United States CD-R piracy increased significantly in 2001: 2.8 million-pirate CD-R discs were seized, up from 1.6 million in 2000.^121(*)

Piracy is an issue worldwide. The problem is the same in Eastern Europe or in South Asia.

Means used by pirates can vary but the results are the same. In most countries of Latin America, street vendors favor the rapid increase of piracy. In the United States, where high technology is available and is widespread around the country; burners, computers and Internet at home plus purchases of CD-R's^122(*) cause the same damage.

To sign international treaties and to procure enforcement via raids in Peru or to impose one of the highest fines in the world for copyright infringement (if not the highest) and to utilize developed devices to detect piracy in the net by the United States will not provide a 100% effective solution to this problem. These measures are part of a more integral solution.

Nowadays, Peruvian authorities are making a big effort (certainly it could be better) conducting raids more frequently, having a special police unit that takes care of copyright infringements and increasing the number of IP prosecutors. However, it is not only with the enforcement of laws by the Governments that the problem will be resolved.

Piracy exists not only because there are persons who want to break the law expressly. There are other factors such as the cultural. Copyright in some countries is a completely alien concept.^123(*) For example, many people ignore that if they have a little business (nothing fancy, something that just permits the owners to survive) and they play some music to make the customers and themselves more comfortable, they have to pay a license fee.

Economics is another factor must be taken into account. It is not that people around the world prefer to purchase a pirate musical edition, they don't have another choice. Their budget is so tight that the cost of a «legal CD» is unaffordable. The option that many people have is music or no music? What would you choose in that case?

* ¹⁰⁶ Retailers and music recorders (specially in the U.S., France, Denmark and Belgium) face, nowadays, the biggest crisis of its history due to Internet piracy.

* ¹⁰⁷ Kazaa < http://www.kazaa.com/us/index.php> (accessed Oct. 24, 2002). Kazaa has started to charge $ 1.99 monthly for a 1-year membership. For that amount, one can download unlimited songs, download full movies, free virus protection and download accelerator.

* ¹⁰⁸ Audiogalaxy < http://www.audiogalaxy.com/> (accessed Oct. 29, 2002). Recently, this web site began to charge for its services. You just type the name of the artist or the name of the song you are looking for and voila! Almost immediately appear the different existing versions of your request.

* ¹⁰⁹ IFPI, supra n. 27.

* ¹¹⁰ RIAA, What Is Piracy? < http://www.riaa.org/Protect-Campaign-1.cfm> (accessed Oct. 24, 2002).

* ¹¹¹ RIAA, supra n. 30. In the U.S., the Digital Millennium Copyright Act delineates the responsibilities of Internet service providers (ISP's) in cases of infringement online. The law formalizes a notice and takedown procedure between ISPs and copyright owners. It is now clear that when an ISP is aware it is posting or transmitting infringing content, the ISP must act to remove the infringing works or it may be liable for any resulting damages. The DMCA also contains the key agreement reached between the RIAA and a coalition of webcasters and satellite audio delivery services. This section provides for a simplified licensing system for digital performances sound recordings, such as those on the Internet and through satellite.

* ¹¹² Id. In the U.S., the No Electronic Theft Act (NET) criminalizes sound recording copyright infringements regardless of whether there is a financial gain from such infringements. A copyright is infringed when a song is made available to the public by uploading it to an Internet site for other people to download, or otherwise reproducing or distributing copies without authorization from the copyright owner. Actually the NET Act defines financial gain as the receipt or expectation of receipt of anything of value. It sets penalties for willful copyright infringement. The infringement can be punished by up to 3 years in prison and $250,000 in fines, even if there is no financial gain. Individual also may be held civilly liable regardless of whether the activity is for profit, for actual damages or lost profits, or for statutory damages up to $150,000 per infringed copyright.

On the other hand, Peruvian Law does not contemplate this type of sanctions. Under article 41 of the Legislative Decree N° 822, individuals can make copies of music recordings for personal noncommercial use (it doesn't matter the devices employed) and cannot be sued for copyright infringement. WIPO's treaties cover these aspects but still they need a Peruvian legislation's adaptation in order to comply with these agreements.

* ¹¹³ IFPI, supra n. 27.

* ¹¹⁴ John A. Tessensohn, A New Dawn In The Japanese Fight Against Digital Piracy, Ent. L. Rev. 1888 (1999).

* ¹¹⁵ IFPI, supra n. 27.

* ¹¹⁶ PAN Network, How To Stop Online Music Piracy < http://www.pan.com/piracy/> (accessed Nov. 25, 2002). The DIF can be installed on any website, and interacts transparently and seamlessly with any media file (i.e. MP3, RA, WMA, etc). The system includes built-in detection of unauthorized files on the Internet by means of a search engine. The search engine constantly scans the Internet for the presence of DIF fingerprinted files and will automatically alert the copyright owner should any of their files be detected on a unauthorized website.

* ¹¹⁷ Id.

* ¹¹⁸ Grace Bergen, Speech, Beyond Napster- The Future Of The Digital Commons (Sacramento, Ca., Oct. 08, 2002) (University of the Pacific, McGeorge School of Law).

* ¹¹⁹ Id. Digital services must work out cooperative agreements. Ex: Pressplay won't allow file sharing, MusicNet will if members share with other paying members of same service. What happens if Pressplay member wants to share with friend who belongs to MusicNet?

* ¹²⁰Pedro Canchari Palomino, Adicción A Internet En Lima Perú < http://www9.gratisweb.com/iadperu/Enperu.htm> (accessed Nov. 25, 2002). Until 1998 the number of PC was calculated in 749,464. The Peruvian National Institute of Statistics (INEI) considers that 3,3 % of the Peruvian population estimated today in 26'748, 972.00 million people, has access to the cyberspace.

* ¹²¹ IFPI, supra n. 23.

* ¹²² In the U.S., nowadays, is a fact that CD-Rs are the most selling item in a retailer store.

* ¹²³ Gurnsey, supra n. 86, at 459.