To Steal or Not to Steal: An In-Depth Look at New Age File Sharing
Media represents the simplest forms of human communication. It is the crux of basic speech, simple conversation, and individual thought translated into the plurality of mediums. Media represents the human desire and ability to record simple speech, to educate oneself, and most importantly —to be heard. In the twenty-first century, technological innovation has allowed for the convergence of traditional forms of media with the digital age. Traditionally taking the form of purely written or typed word, simple media has transformed into mass media and mass communication. The arrival and creation of television, radio, and the internet has allowed for expedited and near instantaneous communication. The realization of rapid and expedited communication however, is accompanied by ethical quandaries regarding the means and uses of particular modes, specifically, the internet.
The internet represents a critical juncture of mass media technology and communications. As a means for communication, it allows for the interconnectivity of billions of users across a global sphere. As a mode for simple and pure data transfer, the internet functions at an increasingly rapid pace with user connectivity as a mere limiting factor. This understanding however, is accompanied by ethical questions tied directly to the speed, accessibility, and assurances in which the internet is applauded. Specifically, the internet, as a means for data transfer and communication, has created a medium in which the former are often unaccompanied and uninhibited by ethical or legal ramifications. Individual data downloading, colloquially referred to as torrenting, works by allowing users to obtain and download specific data through the internet. In conjunction with a lack of accompaniment and inhibition, torrenting allows for a possible universalization of data downloading, including copyrighted and non-copyrighted material. Issues and questions swiftly arise though with the individual or mass torrenting of copyrighted material, specifically music, movies, or material in suite with the entertainment genre. As proponents for a free and unabridged system of torrenting arise, so to do opponents and activists find ethical and legal reasons against such a system. In either argument, it is important to understand the conversation, the full scope of the ethical concerns, and the consequential views of either side.
Before a conversation on the ethical and consequential concerns of torrenting can take place, it is paramount to develop a full understanding and scope of the modes and mediums for torrenting information and data, copyrighted and non-copyrighted. Torrenting, particularly of copyrighted material, predominately takes places with a peer-to-peer sharing system. Across a global digital medium, peer-to-peer file sharing utilizes a decentralized structure for downloading information and data. Peer-to-peer file sharing works by connecting each individual user, or peer, to multiple other peers across a digital connection. Each individual user operates as a “node” and connects to other nodes or “neighbors.” Within this simplified system or network, individual users download information and data from each other, not a sole server, in a decentralized scheme. (Yee & Nguyen, 2009)
A common mode or protocol for peer-to-peer data transfer is BitTorrent. Created by Bram Cohen, BitTorrent works by utilizing the common decentralized system of peer-to-peer file sharing, but optimizes file downloading by breaking data into smaller “pieces.” By breaking a whole data section into multiple pieces, individual users, or peers, can gather and download data from multiple peers and sources at once. In conjunction with common peer-to-peer file sharing schemes, a single network, or swarm, can consist of thousands or more individual users. Once an individual has successfully completed a data transfer and has obtained a full data file, the individual in turn acts as a new source, or seed, for other users. As a result, BitTorrent’s system of file sharing allows for a quicker and more reliable mode for data transfer to it’s the usage of multiple users across a decentralized network. Consequently, the shortcomings of BitTorrent system can aptly be characterized through availability. If a sole user, or seeder, with a completed data file is available, data transfer can continuously occur. When a lack of availability occurs and there is no longer a single seeder facilitating the upload of data, transfer ceases across the network. (BitTorrent, 2014)
Downloading data and information from a decentralized peer-to-peer network can take two similar, but independent forms—torrent files and magnet links. Although both forms utilize BitTorrent protocols and software for data transfer, each is accompanied by distinct advantages and disadvantages. Torrent files, utilizing a “.torrent” extension, require an individual user to download a specific source data file before starting a transfer. Once this data file is procured, the common peer-to-peer system of downloading can occur, but with a centralized tracker. Although data transfer itself is decentralized, a centralized tracker serves to “collect a peer's IP address and port number to share with other peers connecting to that same swarm.” (BitTorrent, 2014) A centralized tracker gives torrent files the advantages of downloading faster through greater and quicker peer connectivity, being more searchable on digital databases, and the ability to be saved for later download. The disadvantages of torrent files exist within the utilization of a centralized tracker. If the tracker needed for downloading is malfunctioning, defective, or is outdated, file transfers and downloading may not be possible. (Khurshid, 2012)
Contrary to torrent files, magnet links to not utilize a centralized tracker for data transfer. Further, magnet links to not necessitate an individual user download a source data file for full data download to occur. A magnet link is merely a link which inherently contains all of the information required to find other peers and start a data transfer and download. Due to a simplistic structure, magnet links are often easier to find than torrent files, increasingly user orientated, and can be downloaded across different peer-to-peer platforms. In part to a lack of a centralized tracker however, magnet links are often coupled with slower and more dynamic downloading rates than torrent files. Although torrent files and magnet links have different and distinct downloading protocols, both share an equal final result of user data obtainment. (Khurshid, 2012)
On the internet, multiple websites and sources exploit torrent files, magnet links, and a wholly decentralized themed system for file transfers and downloading. Two websites in particular, Thepiratebay.com and KAT.cr, arguably garner the most user and media attention. Both websites are separate and independent from the either, but both share similar themes of allowing individual users to search, find, and download data and information. The Pirate Bay was founded in 2003 by the organization Piratbyrån. Originally run in Sweden on a single laptop, The Pirate Bay was founded with the goal of creating a “big library.” By 2005, the site contained over two million peers and was accessible in multiple languages. In 2007, The Pirate Bay became an independent organization and was operated by non-Piratbyrån members. By 2009, The Pirate Bay ceased to centrally track torrent and began to only index torrent files. Taking a further step towards internet and legal resiliency, in 2012 The Pirate Bay began to only provide magnet links to individual users. Continuing to expand its global reliability and reach, in 2012 The Pirate Bay also transitioned to a non-tangible cloud based operation. (Ernesto, 2013) Currently, The Pirate Bay ensures continual user access and operation in part by existing across multiple domain addresses and secondary proxy websites. (The Pirate Bay, 2015) In addition, The Pirate Bay in 2013 released an internet browser, “PirateBrowser,” which works to ensure individual user access to The Pirate Bay by circumnavigating government and internet censorships. (Ernesto, Pirate Bay Releases 'Pirate Browser' to Thwart Censorship, 2013) As a source and access point for downloading data and information, The Pirate Bay serves as a fundamental cornerstone in the plight of the illegal distribution of copyrighted material.
In conjunction with KAT.cr, or Kickass Torrents, serves to provide individual users with a searchable network of data and information. Founded in 2008, Kickass Torrents operates as a searchable database only and does not individually host tracker information or specific content or data. In similarity with The Pirate Bay, Kickass Torrents is hosted across multiple global domains with the goal of maintaining and expanding individual user access. (Kickass Torrents, 2015) Perhaps credited to its reliability and ease of access, in 2015, KAT.cr had an Alexa global ranking of 82 with 7.15 daily page views per visitor. (Alexa Internet, Inc, 2015)
The availability and accessibility of data and information on the internet through sources such as The Pirate Bay and Kickass Torrents create several legal issues. Specifically, issues arise pertaining to the legality of downloading copyrighted material. These issues directly stem from global copyright laws, but predominantly from those found in the United States. The direct conflict resulting from illegally downloading copyrighted material on the internet have caused a rise in both legislative and judicial legal battles.
United States copyright law is based directly on the United States Constitution. Article I, Section 8 of the United States Constitution states, “The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Known as the Copyright Clause, this passage, constructed amongst the legal foundations of the United States, gives Congress the ability to promote specific social and cultural entities and venues through legislative constrictions. Through the addition of this solitary sentence to the United States Constitution, the United States Congress has ensured copyright through key and particular legislative acts. (Pallante, 2015)
Following the Copyright Clause in the United States Constitution, United States copyright law has seen nine major revisions. Extending from the Copyright Act of 1790 to the most recent Digital Millennium Copyright Act of 1998, Congress has continued to extent individual copyrights for individual creators and has sought to diminish infringement upon copyrighted works or protected intellectual property. Two of pieces of legislation, the Copyright Act of 1976 and the Digital Millennium Copyright Act of 1998, have had the greatest impact of copyright and criminality in the United States. Enacted on October 19th, 1976 and put in effect on January 1st, 1978, the Copyright Act of 1976 was the first significant piece of copyright legislation since the Copyright Act of 1909 and remains the cornerstone for present copyright law in the United States. The Copyright Act of 1976 sought to update four critical copyright components—copyrightable subject matter, rights of copyright holders, fair use, and the duration of copyright protection.
On subject matter, the Copyright Act of 1976 allows for the copyright of eight distinct groups. As detailed, the Act states—
“literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.”
The Act further states a work must be “in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated…”This specific protection allows for all physical or tangible work to by copyrightable, not solely works which are officially published or granted specific copyright by the United States Copyright Office. (Cornell University, 2015)
On the rights of copyright holders, the Copyright Act of 1976 grants copyright holder’s definitive rights and allowances as they pertain to individual works and the ability for reproduction. The five specific rights as outlined are—
“[the right] to reproduce the copyrighted work in copies or phonorecords; to prepare derivative works based upon the copyrighted work; to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.” (Cornell University, 2015)
On fair use, the Copyright Act of 1976 allows for the use of copyrighted works if they fall under specific categories of “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” In determining future substance and possible infringement of copyrighted works, the Act outlined four determining factors—
“the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.”
This section of the Act serve to create a balance between protecting the rights of the individual copyright holder and the propagation of a fair and open marketplace of ideas. When a possible infringement is made, a court of law is required to consider these four factors in deciding whether a hypothetical use truly represents infringement or merely fair use. (Cornell University, 2015)
On the duration copyright protection, the Copyright Act of 1976 extends protection for all works created on or after January 1st, 1978, the date the Act legally takes effect. For general works, copyright protection will last for “a term consisting of the life of the author and 70 years after the author's death.” For joint works, copyright protection will last for “a term consisting of the life of the last surviving author and 70 years after such last surviving author's death.” For anonymous works, the copyright protection will last for “a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.” The Copyright Act of 1976 greatly contrasts the Copyright Act of 1909 with over a two-fold increase in the duration of copyright protection. This increase allows for the greater continual protection of a copyright holder, but subsequently diminishes the ability of a work to fall into the public domain and potentially add to a societal marketplace of ideas. (United States Copyright Office, 2015)
Following the expansion of rights provided to the owners and holders of copyrighted works, Congress passed the Digital Millennium Copyright Act in an attempt to align the United States with international law in regards to digital copyright infringement. Passed on October 12th, 1998 and effective October 28th, 1998, the Digital Millennium Copyright Act creates a the legal basis for both protecting internet service providers in regards to copyright infringement and seeking to further criminalize digital copyright infringement and expand the jurisdiction and ability to prevent further or future copyright infringement.
Title I of the Digital Millennium Copyright Act, the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” in part, created the basis of “anti-circumvention” guidelines. Specifically, Title I, Section 103 of the Act states it is illegal to—
“…manufacture, import, offer to the public, provide, or otherwise traffic in a device, service or component which is primarily intended to circumvent ‘a technological measure that effectively controls access to a work,’ and which either has limited commercially significant other uses or is marketed for the anti-circumvention purpose; manufacture, import, offer to the public, provide, or otherwise traffic in a device, service or component which is primarily intended to circumvent ‘protection afforded by a technological measure that effectively protects a right of a copyright owner,’ and which either has limited commercially significant other uses or is marketed for the anti-circumvention purpose.” (United States Copyright Office, 1998)
Under these stated provisions, it is illegal and punishable for an individual to distribute and utilize anti-circumnavigation devices. Consequently, it is illegal to download, upload, or facilitate the data transfer of copyrighted materials. Specifically, this piece of legislation would make websites such as The Pirate Bay and Kickass Torrents illegal and prosecutable. Further, programs used to directly download copyrighted material, such as LimeWire of Napster, as is historical demonstrated, are also illegal and prosecutable. (Campbell, 2010)
Title II of the Digital Millennium Copyright Act, the “Online Copyright Infringement Liability Limitation Act,” created a “safe harbor” or a mode of protection for internet service providers in regards to liability for copyright infringement. Per this section of the Act, internet service providers will not be held legally liable for copyright infringement if specific guidelines are followed. In particular, an internet service provider must not have knowledge of or facilitate the hosting of infringed content or receive payment or money from activity extending from the distribution of infringed material. Further, Title II states an internet service provider must “respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity” following a notice from a copyright holder. If these guidelines are followed, an internet service provider may not be wholly help accountable or legally prosecuted for instances of copyright infringement found on hosted websites. (Cornell University Law School, 2015)
Due to legal and legislative constraints placed on copyrighted material throughout the past forty years, digital resources for the legal usage of copyrighted material have become increasingly prevalent. Digital media services, both free and subscription based, serve to provide the individual user with a growing variety of content, without the possibility of legal ramifications. Services dedicated with provided individual users with music content have gained mass popular across the globe. Free services such as Pandora and subscription or cost based services such as ITunes and Spotify have allowed for a near universal access to copyrighted music content.
Pandora has been a leading and important innovator in providing free user access to music since its inception in 2000. Simply, Pandora is an internet radio station—ingenuously designed for the maximization and optimization of individual user experience. Pandora radio operates by allowing each user to search for a specific “artist, track, comedian or genre, and Pandora will create a personalized station that plays their music and more like it.” Further, Pandora allows for user interactivity in the form of “thumbs-up” and “thumbs-down.” Each que dictates whether a song will be respectfully played again or removed from consideration. (Pandora, 2015) Pandora functions through the utilization of the “Music Genome Project.” This project analyses “using up to 450 distinct musical characteristics by a trained music analyst.” Through this analysis, a customizable, personalized, and specific radio station can be created, with each song, artist, and album played fitting into particular characteristics and themes. (Pandora, 2015) In a 2015 survey, it was found that over 100 million people listened to online radio for almost thirteen hours weekly; 45% of which used Pandora. Further, the same survey found that Pandora owned a brand awareness rating of 75%. (Palermino, 2015)
In contrast to Pandora, which is largely based on a cost-free structure, iTunes and Spotify utilize payment systems for allowing user access to music content. Created and released by Apple Inc. on January 9th, 2001, iTunes has gone through twelve innovative updates and currently distributes media of multiple genres. The iTunes store currently holds nearly 40 million songs, all of which are independently purchasable. Unique from historically purchasing whole albums at once, iTunes allows a user to purchase individual songs only or a whole album at once. (Apple Inc., 2012) As of 2013, Apple announced that individual iTunes accounts totaled 575 million—an annual growth rate of 44%. (Elmer-DeWitt, 2013)
Spotify, although a cost-based system like iTunes, utilizes member subscriptions instead of charging for individual songs. Spotify, unlike iTunes however, operates without allowing individual members to retain possession of music. Founded by Daniel Ek and Martin Lorentzon in October of 2008, Swedish based Spotify is a music streaming service which allows for paid and non-paid subscriptions. At a rate of $9.99/month, Spotify reported in 2014 that it maintained over 15 million subscribers. This total is following a yearly increase of nearly 5 million paid subscribers. Overall, Spotify maintains a total active user-base of over 60 million individuals. (Nelson Jr., 2015) As a service for streaming musical content, Spotify offers its users a vast library of over 30 million songs and a collection of over 1.5 billion different playlists. (Spotify, 2015) Spotify, like iTunes and Pandora, seemingly strives to garner active members, both paying and non-paying, in an attempt to lure a global consumer base away from free, but illegally downloaded and obtained music and other copyrighted content.
After analyzing different means for illegally procuring data and information, legislation pertaining to copyright in the United States, and resources and avenues for legal obtaining music, it is critical to gain further insight. Looking into both the legal and illegal obtainment of music, it is essential to understand personal motivations and considerations—why to steal and why not to, ethical concerns and understandings regarding downloading copyrighted music, and the overall attitude towards copyright legislation and laws in the United States.
For the purpose of trying to better understand these issues and to gain further insight into the matters, I conducted a personal interview with Jenn—a 23 year old, college student, who prefers to only leave a first name for reasons of anonymity. I began the interview modestly by asking Jenn if she listened to music and if so, how often. This she responded with, “Yes, I listen to music daily, for maybe 4-6 hours total at least.” Although a basic question, an interviewee who did not listen to music at all would not be able to provide insight into music based questions. Following this, I asked Jenn if she legally purchased music, to which she replied—“Yes, one to two times a month, maybe an album a month.” (Jenn, 2015)
Next I delved into questions regarding torrenting and the illegal downloading of music. I asked Jenn if she illegally downloaded music, how often, and through what sources, to which she replied—“On occasion, maybe once a week, four to five songs probably. I use different torrenting websites to download music like Kickass Torrents or I just ask friends to download music for me.” Based on this answer, Jenn not only has a tendency to illegally download music more often than legally purchasing it, but she utilizes one of the most common websites to do it—Kat.cr. Finally, I asked Jenn if she knew how torrenting works, to which she replied—“Yes, there are seeders and feeders. Feeders need seeders to allow a download to happen, and if there are too many feeders and not enough seeders, a download won’t work.” Although the terminology is not all correct, using “seeders correctly” and proving a basic understanding of how torrenting works demonstrates an interest not only in obtaining music, but how the process itself works. This level of understanding gives a greater credence to any ethical and moral insights into downloading music legally versus illegally. (Jenn, 2015)
Following this line of questioning, I asked Jenn about her knowledge of the legality behind downloading music from websites such as Kickass Torrents and her opinion on the matter. To this Jenn replied—“I know it is not legal and I know it hurts the music industry because artists and song writers don’t get paid.” When I asked about her knowledge of legislation and her opinion on the legality of the matter she replied—“I do not know the legislation. But, I like to buy because it is usually a better quality, but they don’t always have the mixes I want. For remixes and songs I can’t buy, I download them.” This answer is critical because it reveals a strong willingness to legally download and obtain music, but when it is not available, it is okay to utilize illegal avenues. (Jenn, 2015)
I concluded the interview by asking Jenn a simple question with an open-ended possibility. I asked if she though free music was a good think and why? She replied—
“Yes. There is no difference between free music and unlimited free streaming to me. I don’t care if I own it or I don’t. If streaming is available, I don’t see a need to download music. But, if the song isn’t available on iTunes, Pandora, or Spotify, I will download it to get the music I want to listen to.” (Jenn, 2015)
This final line of questioning and the resulting answer represents the pivotal and most important part of the overall interview. As an objective interviewee, but a subjective music listener, Jenn demonstrated an overwhelming willingness to listen to music legally, through digital radio stations and cost-free subscription services. In a pursuit to counter a cultural and societal trend towards downloading music illegally, Jenn keenly demonstrates that services like iTunes, Pandora, and Spotify may be winning back ground. If ethical concerns don’t always demonstrate an overarching issue, as is the case with Jenn, reliability, access, and speed may be more important battleground themes. Further, if others follow suit in a similar lack of concern for true legislative legality, overbearing copyright laws and vast copyright extensions may be deemed archaic, if not obsolete. This interview demonstrates that legal measures may not be the appropriate or most viable solution, but countermeasures intrinsically provided by using services such as iTunes, Pandora, and Spotify may be.
In relation to this interview, other data further corroborates this theory. In April 2011, The Pirate Bay collaborated with Cybernorms Research Group, an affiliate of the Swedish Lund University department of Sociology of Law, to create a 72 hour survey regarding file sharing. As a result, the survey garnered almost 76 thousand full responses. As stated, the goal of the survey was to “shed light on the intriguing question: why do good people steal intellectual property?” Further, the survey “[allowed The Pirate Bay] to know a little bit more about the people whom conduct file sharing, their opinions and norms; social norms that clearly differ from the ones stipulated in law.” (Cybernorms Research Group, 2011)
Of all the survey participants, 70 thousand were male and almost 5 thousand were female, with the largest represented demographic of 18-24 year olds at 32 thousand. Of the survey respondents, over 23 thousand stated they file shared “every day or almost every day,” 20 thousand participants stated they file shared “more than once a week,” and 19 thousand participants stated they file shared “more than once a month.” Only 5 thousand respondents stated they never file shared, a small 6.7%. (Svensson, Larsson, & de Kaminski, 2014)
When asked how often they listen to music with free streaming, over 17 thousand participants responded with “every day or almost every day,” 14 thousand participants responded with “more than once a month,” and 13 thousand participants responded with “more than once a week.” In total, only 19 thousand participants, or 25.7%, stated they never listen to music with free streaming. This is highly contrasted to a total of 58.4% of participants stating they listen to music with free steaming at least once a month or more. These possibly counter-intuitive responses lead one to conclude that free streaming is an active and increasingly growing resource for finding and listening to music. Finally, the survey asked respondents how they saw the future of file sharing. In response, an overwhelming almost 47 thousand or 62% of participants stated “file-sharing will develop in ways that neither law nor market can control.”(Svensson, Larsson, & de Kaminski, 2014)
As demonstrated through this survey, opinions on file sharing may widely vary, but opinions on the ultimate end seem to have a distinct opinion—file sharing cannot be fully obstructed by either market influence or legal recourse. File sharing, torrenting, and general peer-to-peer networks exist within a digital space, lacking a physical and tangible sense for police or human action. For now, alternative means for file sharing such as iTunes, Pandora, and Spotify, create a sphere objectively free from legal copyright or ethical constraints. This sphere allows users to obtain and view content, but often without a cost factor, are unable to fully acquire ownership. The future of torrenting is wholly uncertain, as is the future of concrete alternatives, but as market opinions and values shift, so to do ethical concerns and obligations.
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