Authorizing Piracy on the Cyber Seas: An Initiative to Compensate Rights Holders of Sound Recordings by Making Music Free
Wallace, William, The George Washington International Law Review
During the summer of 1999, a music-enthusiast and tech-savvy seventeen-year-old by the name of Shawn Fanning created one of the Internet's first digital music file sharing services.1 Annoyed at the time and effort it took to find digital music online, Fanning developed Napster, the now infamous peer-to-peer (P2P) file sharing program that allowed users to download copyrighted music files at no cost.2 Within a matter of months, Napster became one of the fastest-growing software applications, reaching 26.4 million unique global users by early 2001.3
The Record Industry of America (RIAA) responded with legal action, alleging contributory copyright infringement and, on February 12, 2001, the Ninth Circuit ruled that Napster must cease allowing users from trading copyrighted files through its software.4 Although the RIAA was victorious, this was only the beginning of the record industry's fight against digital music piracy.
After Napster's collapse, users scattered across a bevy of alternative file sharing sites that began to surface.5 By July of 2001, news outlets were already reporting on the many successive P2P services growing out of Napster's demise, such as KaZaa, Aimster, and AudioGalaxy. 6 The newer sites ran with ever-increasing levels of sophistication, and made it increasingly difficult for record industries across the globe to shut them down.7
In the subsequent years, developed nations and record industries across the world have continued to fight piracy.8 A confluence of factors has upset such efforts, however, leading to greater revenue losses for copyright holders.9 Losses accrue as international file sharing pirates develop innovative ways to dodge efforts to curb piracy and undeveloped nations fail to implement copyright protections domestically.10 Despite attempts to induce noncompliant nations to adopt and enforce stronger domestic copyright laws, piracy remains omnipresent.11 The means by which the developed world has sought to eradicate piracy have failed to compensate rights holders for lost profits.12 This Note proposes a solution.
First, this Note discusses the technologies that have facilitated music piracy over the Internet, and explains the effect piracy has had on the economies of nations. Second, it explains how modern intellectual property conventions have updated older copyright conventions to meet new challenges in the Internet age. Third, it discusses both the failures of these conventions and the reasons why copyright conventions and copyright enforcement will fail to curb music piracy. This Note argues that, because aggressive enforcement has failed, the global community needs to take a new approach.13 This Note proposes the creation, through treaty, of an international organization (IO) that will levy websites that facilitate P2P music file sharing in order to compensate rights holders for revenues lost as a result of music piracy. In exchange for registration with this IO, hosts and users of these sites will be granted immunity from civil and criminal liability in an effort to encourage registration. The IO will also have the power to investigate and prosecute copyright infringers within member states, investigate infringement in non-member states, and reach out to non-members to encourage ratification of the treaty.
Digital music piracy rates have increased as the ability to share files has expanded. Attempts by various nations to curb music piracy by using punishment as a deterrent have failed. This section will first address how file sharing has increased access to pirated markets and led to the decline of global music sales. Second, it will explain how the decline in music sales has resulted in an underinvestment in talent, has kept investors out of certain markets, and has yielded job losses. Third, it will explain how attempts to curb music piracy rates have failed and will continue to fail.