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Letter to GeekRadio about File Sharing

Hi, Jay (of GeekRadio),

I was a little appalled at the general recommendation you gave to listeners to “just not file share” because “it’s wrong.” (or something like that). Perhaps a radio show really isn’t an adequate forum to go into the intricacies of file sharing on copyright, but here are a few things wrong (or incomplete) with your statement.

  1. there exists and will continue to exist ways to share files anonymously. I’m not talking about kazaa, emule, morpheus, but freenet, blubster and others can cloak identity. Technologically speaking, this is not a difficult task for software to do.
  2. it is NOT illegal to download files off file sharing networks, but it is ILLEGAL to be caught sharing files. So leeching is perfectly legal while sharing files is NOT.
  3. Practically speaking, there are many ways of obtaining mp3s and sharing them legally. Check a CD out of the library and rip the mp3s. Absolutely legal. Buy a CD, rip the mp3s and later sell the CD on amazon or half.com. Legal (although the entertainment industry has been lobbying to change this “first sale” doctrine. See William Patry’s analysis). Burn a data CD/DVD of legally obtained mp3s and distribute to friends. All absolutely legal.
  4. It’s legal to download mp3s off the Internet, although not always legal to share them. Lots of sites permit this and haven’t been shut down. Look at webjay.org, a site that let people create online playlists and provide URLs to the mp3s. Occasionally submitters post links to infringing mp3 hyperlinks, but those things don’t stay up for very long. Look at Irate Radio , a tool that puts legal mp3s onto your computer. Absolutely 100% legal. The favorite for unsigned bands at the moment is myspace.com, where you can download mp3s to your heart’s content. Surpringly, amazon.com has a ton of mp3s free for download as well.
  5. Podcasts haven’t been used so far been used to distribute mp3s, but that will probably change in the next year or so. Big media companies generally frown on this, but smaller companies (and self-produced bands) generally are much more liberal about using podcasts to push mp3s onto audiences.
  6. Capturing video/audio streams from the Internet is (as far as I know) perfectly legal, especially if the stream is unencrypted. (See this page about tools for downloading/converting media streams. ).
  7. Your blanket statement gives the impression that the vast majority of mp3s out there are forbidden to download/share. My experience has been the opposite: the overwhelming majority of mp3s out there are legal to share/copy (although frequently individual sites are vague about whether you have the right to distribute them). Many unsigned groups put lots of mp3s on the web to promote themselves. In Houston for example, almost all the important bands have put free mp3s on the Houston Chronicle site (Go to the Chronicle music URL and search by genre). It is a gold mine.
  8. It has been on my to-do list to make a mp3 torrent file of Chronicle-distributed mp3s. Of course, I’d need to obtain permission from the bands first, but I suspect most of them would be overjoyed at the opportunity to permit this (because they are offering them up for downloading anyway). Last year at South by southwest Music Fest, they created a 4 gigabyte bit torrent file of all the bands appearing at the festival. That’s a heckuva lot of legal mp3 files.

Those are my thoughts on legal downloading. Now let’s talk about the so-called “wrongness” about downloading. No discussion can be complete without mentioning the inequities of current copyright law.

  1. Whenever you say things like “file sharing is wrong,” you should also add “and Time-Warner forbids you to sing the Happy Birthday in a public place.” Most people think that prohibiting “Happy Birthday” is far-fetched and ridiculous, and yet this is one of valuable musical properties out there. (For the record, Time-Warner recently reorganized its music division so that Warner Chappell Music owns the song). Big media companies diminish their credibility by insisting on absolute enforcement of their rights (which average consumers regard as absurd).
  2. Most Americans are unaware that copyright durations are significantly more liberal in European or Asian countries than in the US. In most European countries sound recordings 50 years or older are in the public domain. That means that Elvis, Frank Sinatra, Big Band music and Louis Armstrong are already in the European public domain. So when are songs by these dead people going to go into the public domain in the US? Take a guess. The answer is 2067! (when almost all of us will be dead!)

This point is worth discussing. Pre-1972 recordings are NOT covered by federal copyright law. State laws preempt federal copyright law for recordings until 2067, so that means there are a lot of tracks from the 19th century (recorded by Edison himself) that won’t be released until 2067. (See this library report and this advocacy article ). When we see examples of older recordings released on archive.org, it is NOT because they are in public domain; it is because the state contracts governing the master recordings have expired, or the copyright owner has bequeathed it to the public domain.

So you are put in the logical position of saying that it will never be legal to share mp3s by these singers in your lifetime because it is wrong. So why is it wrong? It’s wrong because the lawmakers have passed laws saying it’s wrong. So what if the lawmakers were wrong? If the next Congress rolled back copyright law to a more reasonable term, would it still be wrong?

The next meme to watch out for is “Better to be safe than sorry–buy from iTunes!” I know you’re familiar with FUD tactics like this in the IT industry. Look who is broadcasting such memes: Big Media sources and big name Bands. If you want to obtain mp3s by Eminem or Beyoncee, well, I guess iTunes is the easiest and most expensive way to obtain them legally. (It also uses DRM and won’t accept mp3s by many independent bands). But the hidden premise here is that the only interesting bands out there come from big labels. If people were more open-minded and knowledgable about how to find music, they would not need to rely so much on iTunes. Quickly dismissing file-sharing without pointing out the legal options only perpetuates this fear, uncertainty and dread.

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