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Why suing college students for illegal music downloading is right

By Marci A. Hamilton
FindLaw Columnist
Special to CNN.com


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(FindLaw) -- Recently, and controversially, the recording industry has switched tactics in its fight against illegal downloading. Despite fear of a public relations debacle, it is planning to sue student downloaders.

First, however, it must identify them, and gather evidence of their illegal activity. Toward this end, subpoenas have already been sent to a number of universities and Internet Service Providers. Hundreds more are expected in September, after school starts.

Meanwhile, the Recording Industry Institute of America (RIAA) has not only led the fight for these lawsuits, but also joined together with campus administrators to educate students on the law and the consequences of violating it.

Some have criticized the RIAA and others in the music industry for going after students. But I will argue that it is entirely right -- both legally and morally -- for them to do so.

The enduring value of an enforceable copyright law

In a society that enjoys the benefit of a strong, enforceable copyright law, it is too easy to forget what life would be like without it.

While my son went to space camp in Huntsville, Alabama, recently the rest of us went to Nashville, the home of country music and the Country Music Hall of Fame. The museum is excellent at many different levels, but my favorite element was the film of television clips showing country music over the past 50 years. Now, my mother is from Wyoming and my father from Kentucky, so I was destined to be a country-western music fan. The film brought back a million childhood memories; it also reminded me why copyright is such an absolute necessity.

Was it not for copyright's ability to build fences around intangible goods such as lyrics and melodies, a performer like Loretta Lynn would not have been able to leave Butcher Holler, Kentucky, and share her gifts with the world. The list of country music stars that have come from humble beginnings is long, and the best country music never forgets its origins.

The world would have been a lesser place but for copyright's ability to pave the road for these stars to travel from rags to riches, from hillbilly country to the big lights. The Country Music Hall of Fame gives you a real taste of that story as it displays the humble beginnings of some, as well as the gold-plated piano Priscilla Presley gave to Elvis on their first wedding anniversary.

In a culture without copyright, only the rich, or the government-sponsored, could be this culture's full-time creators. Poor artists such as Loretta Lynn would have to flip burgers long into their music careers -- and might even give up on music entirely.

For these reasons, imagining a world without copyright wouldn't just impoverish the musicians. It would also impoverish the museum, the culture and music itself.

If the class of creators were winnowed down to the rich and the government-sponsored, and the free market were thus to be replaced by a patronage system, the ability of art to speak to the American people would dwindle precipitously. Artistic works would cater to elites; classical music might survive, but rock and country would encounter grave difficulties.

In the end, then, there is no such thing as cost-free downloading. It may be fiscally free today, but it will cost society dearly in the future.

The advent of the anti-copyright culture

The simple, yet crucial reasons why we have copyright in the first place are easy to forget in the new Information Era. Its utopian early years led adults and students alike to believe that whatever came across their computer screen could be -- and ought to be -- downloaded cost-free. There was a moment of stunned disbelief: copyright seemed obsolete.

Some saw this simply as a technological reality; others viewed it as a positive social development as well. In fact, it turned out that it was neither. Still, an anti-copyright culture developed -- to the shock of the recording industry.

At first, the industry -- wary of alienating the young people who were often its best buyers -- made a strategic decision to go after the big boys in court. That meant targeting Napster -- and soon the industry won its fight.

Nevertheless, the industry continued to hemorrhage, dropping approximately 8 percent in sales last year. The culprits may well be the new Web sites, such as KaZaa, which, unlike Napster, do not depend on centralized servers. These sites accordingly make it nearly impossible to identify the Web host or master.

The industry then had no choice but to go after users -- which meant going after students -- and it did. As soon as it made the decision, copyright didn't seem so obsolete, after all.

While technology did tend to facilitate illegal downloading, it did not pose infinite obstacles to figuring out who was committing these copyright crimes; universities and ISPs alike tracked their users in certain ways. Although the industry will continue to work on improving the technological protection for works on the Web, for now, the courts will serve them quite well.

That goes to show that, with respect to copyright, new rules are not needed; just enforcement of the old. We were never living in a true legal vacuum, as the "Information Wants to Be Free" contingent suggested; we were living in an enforcement vacuum instead, and that is now changing, as violators are being hunted down.

Even the hunt itself has had a chilling effect. Knowing that one is committing a crime, and may be caught, is scary indeed. Students will back off of illegal copying once they learn that the free ride was an illusion; and if they don't, many parents will step in to ensure that their children don't earn a criminal record along with their college diploma.

Like shoplifting, illegal downloading can be reduced by monitoring and warning

In a lot of ways, downloading is more like shoplifting than it is like "piracy," the term often used for it. Pirates embrace a life of crime; shoplifters often see their activity (wrongly) as an exciting and slightly risky diversion -- a relatively petty vice in an otherwise law-abiding life.

The more seriously society takes shoplifting, the more shoplifters will be deterred. The same is true, I believe, for illegal downloaders. Every law-breaking student has a diploma at stake, and only a scintilla of students is hardened criminals. Like the thrill of shoplifting, the thrill of illegal downloading may fade quickly in the face of serious penalties, and a real risk of getting caught.

Of course, technological "locks" won't be perfect, and some level of crime will remain. But here, again, the shoplifting analogy is instructive. Stores do not lock up every item they offer to prevent shoplifting. Instead, they post signs saying shoplifting is a crime, monitor their customers, and press charges against individual shoplifters. Despite all this, retail stores have had to build into their profit picture losses that will result from undetected shoplifting.

The recording industry will have to use similar tactics, and like retail stores, they will have to live with a small loss from undetected stealing. But that loss can be minimized, through warnings, monitoring, and enforcement. And word of enforcement spreads. Few will be shoplifting from the store that famously pressed charges against Winona Ryder. Few students will keep downloading once their classmates have famously gotten in deep trouble for doing just that. That is good for them, but even better for us.

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Marci A. Hamilton, a FindLaw columnist, is the Paul R. Verkuil chairwoman in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Her other pieces on copyright, among other issues, may be found in the archive of her columns at the FindLaw Web site.


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