Lasting impression - downloading is illegal

Hollywood, the music industry, select policy-makers and now the Justice Department have adopted a new "copyspeak" that equates the downloading of files from the Internet with "piracy," "stealing" and "shoplifting."

The pervasive theme of copyspeak is that downloading from the Internet is both illegal and immoral. It is neither. No doubt this era's rapid shift to digital technology is changing the rules of the game -- there is little doubt that some use the benefits of technology to make and distribute unauthorised copies for personal financial gain in clear violation of copyright law.

But we've been down the road of technological advancement before. How we resolve this latest tension between copyright and technology will define our future ability to communicate, create and share information, education and entertainment. Indeed, if the play button becomes the pay button, our very ability to raise the world's standard of living and education will be jeopardised.

With each new technology, the fears of the music and motion picture industries have grown. Television and the VCR allegedly marked the end of movies. CDs and cassettes would cause harm from real-time transfers and one-at-a-time copies. Today's technologies make these fears seem almost quaint.

The growth of reproduction, storage and transmission technology has terrified copyright owners -- most notably the music and motion picture industries. With high-speed connectivity and the Internet, the perceived copyright theft is not buying a CD and making a copy for a friend; it's downloading from a stranger or making available thousands of copies with the touch of a keystroke.

Based on these and similar threats the content community has gone on a scorched earth campaign -- attacking new recording and peer-to-peer technologies -- using the Congress, media and courts to challenge recording in the digital age.

As an industry that recognises the legitimate concerns of copyright owners that exist in a digital world, consumer-electronics companies have been working for years with both the recording and motion picture industries on developing technological measures that meet the needs of both industries by protecting content at the source.

But despite these efforts, the copyright community has declared war on technology and is using lawsuits, legislatures and clever copyspeak public relations to restrict the ability to sell and use new technologies. The downloading of a song to sample an artist's wares -- behaviour most Americans between 13 and 25 engage in regularly -- has been likened to a criminal and immoral act. It's time to take a close, hard look at this characterisation.

Downloading is not illegal Fair use rights -- the right of consumers to make copies of copyrighted materials for their personal use -- are guaranteed to consumers by statute, and applied judicially on a case-by-case basis. This means that, while some consumer practices ultimately could be adjudicated as either fair use or infringement, there is scant basis for challenging them as criminal activity, as copyspeak would now have it.

In copyspeak, there is no such thing as fair use "rights," rather fair use is only an affirmative defense to copyright infringement and therefore not a right. But various recognised "rights" may only be asserted as affirmative defences in a lawsuit. For example, in a slander suit, one may assert the First Amendment right but only as an affirmative defence; this does not diminish the fact that the right exists.

Time after time, practices of individuals that were initially equated with "piracy" or "theft" have been shown to be neutral, even beneficial, to copyright owners, and have been accepted as fair use. Think of the VCR and the Supreme Court decision holding that its use to tape full movies is completely legal.

To make downloading immoral, you have to accept that copyrighted products are governed by the same moral and legal principles as real property, thus the recent and continuous reference by the copyright community to label downloading as stealing. But the fact is that real and intellectual property are different and are governed by different principles.

Downloading a copyrighted product does not diminish the product, as would be the case of taking and using tangible property such as a dress. At worst, it is depriving the copyright owner of a potential sale. The truth is, it may be causing a sale (through familiarity) or, even more likely, have no impact on the sale. My son often will become familiar with artists through downloading their music on the Internet and then will go out and buy the CD. Indeed, recent studies by independent organisations have shown this to be the case.

The comparison to real property fails for several other reasons. Real property is subject to ownership taxes. Real property lasts forever and can be owned forever. A copyright can be owned only for a limited period of time. Indeed, the United States Constitution declares this. More, copyright law must bow to the First Amendment, which expressly allows people to use a copyrighted product without the permission of the copyright owner. This concern contributes to the statutory and judicial concept of "fair use". The First Amendment includes not only the right to send but also the right to receive. Indeed, in 1984 the US Supreme Court in declaring the VCR a legal product said that it could be OK to copy an entire copyrighted product. So if the Supreme Court expressly held that VCR copying in the home for noncommercial purposes is a legal activity, how is it suddenly labeled as "piracy" because the device is a computer?

The music industry has made little effort to look at new business models or provide a viable and attractive alternative to the downloading services. Instead, they spend their time complaining they "cannot compete with free," referring to the free downloading the Internet allows. But the marketplace demonstrates you can compete with free. Purveyors of bottled water do it. America Online does it. Book retailers do it with libraries. Independent online music services say they can do it, if they can clear the rights.

The recording industry and motion picture industry need to look for technological solutions to their own problems. Blaming declining revenue on downloading ignores the economic conditions, multiple entertainment options and a dearth of quality major label artists facing consumers. Content providers would be served better by working with technology companies to deploy these solutions rather than suing teenagers and lobbying Congress to legislate unreasonable and consumer-unfriendly mandates.

Gary Shapiro is CEO of the Consumer Electronics Association.

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