THE LEGALITY OF FILE SHARING IS STILL OPEN

Ipods and other hard-drive and flash MP3 music players and storage devices may be getting cheaper every day, but filling them with songs has suddenly got a lot more expensive.

Let’s do some basic math, shall we? If the average three-to-four-minute song “weighs” 5 MB, and your MP3 device holds 20 GB, you can fit in about 4,000 songs. As more companies start producing devices of this type, prices are sure to fall, until iPod-like devices become as common as Walkman-type tape players were a decade ago.

And until now, filling your iPod was not a major problem… if you were willing to look at things in shades of gray. Yes, file trading has been considered illegal (at least until now), but we all know it goes on.

Now, I’m not accusing anyone of anything, but it takes an extremely principled music lover to ignore the temptation to download their favorite songs, especially if they need another 20 GB of music to fill their MP3 device.

Imagine if you had to actually pay for 4,000 songs! The sheer volume will cost you a pretty penny, even using an inexpensive service like iTunes, where you can order individual songs for 99 cents (but of course the Beatles, among other classics, are nowhere to be found in the iTunes store).

And 20 GB is small for an iPod-type device these days; 30 or 40 GB is more the norm. Granted, there are sites from which you can download free MP3 files, such as the Internet Underground Music Archive:

Sites like IUMA feature mostly unsigned artists looking for a contract. IUMA features artists with a wide variety of music styles, and you can easily find 4,000 legal files to download, but they are not likely to be the ones you consider favorites.

The big hits and the golden oldies – the ones everyone wants – are the ones that cost money. The easy availability of downloaded MP3s solves that “empty space” problem on large MP3 devices, if the downloader is willing to avoid the moral high ground.

Recently, though, record companies have been cracking down on “serial downloaders” – individuals who download thousands of files on a regular basis. The RIAA (Recording Industry Association of America) especially has taken individuals to court in an effort to discourage the practice.

Last week, for example, the RIAA filed nearly 800 lawsuits against individuals in 11 countries (including Israel) for illegal file swapping. Those being sued have the right to defend themselves in court, but unless they have a family member who is an attorney, they’re probably better off settling, considering the RIAA has plenty of lawyers who can make life hell.

The RIAA’s strategy has had an effect, it says, at least with some types of downloads. Anecdotal evidence indicates, for example, that there are fewer files available on Kazaa than there were just a few months ago, as file providers, fearing lawsuits, go “underground” and use less obvious methods, such as Usenet and BitTorrent.

And it’s not just individuals sharing files who are being sued; the entertainment industry has been going after the software makers who provide the means to share files.

In what is being called a landmark decision, the US Supreme Court ruled that makers of second-generation P2P (person-to-person) file sharing programs – that, unlike Napster, do not use a central server to maintain a database of shared files – could be held liable if people use the software to share files.

I hope you understand why I’m not providing links and screenshots of these file share communities.

The case, MGM vs. Grokster, was unanimously decided for the plaintiffs, MGM, which claimed that makers of file-sharing programs Grokster and Morpheus should be held responsible for the file-sharing activities of users.

And indeed, the court ruled unanimously that the defendants could in fact be sued by the RIAA, because they not only knew users would share files with their software; they encouraged the practice.

The decision would seem to finally end the ongoing debate on the subject. “The Supreme Court provided a real shot in the arm to legitimate online music services and unanimously injected moral clarity into this debate,” said Mitch Bainwol, Chairman and CEO of the RIAA. “If there was any doubt left, there should now be none; individuals who download music without permission are breaking the law. Our efforts to defend the rights of record labels, musicians, songwriters and others in the music community from theft will certainly continue and likely be strengthened in the weeks and months ahead.”

Maybe – or maybe the decision was not the big win the RIAA thinks it is. It’s not just music anymore, either; everything from software to movies to TV shows are being shared; the RIAA is like the Dutch boy with his finger in the dike.

It’s tempting to download files, but many of us want to do the right thing, and are willing to restrict ourselves if the law is definitive.

However, it’s important to remember that the Supreme Court did not rule on file-sharing itself; it ruled against Grokster and Morpheus because they encouraged users to share files.

The Grokster web site in fact, still says you can use a version of its program to “publish and share your music and movies with the world.”

And although you are asked to agree not to infringe on copyrights, statements like the above (as well as the fact that Grokster is advertiser supported, and many of those ads are for premium Web sites where you can download copies of digital media and software) means that the company is well aware of what people are doing with its software.

Contrast that with the BitTorrent web site which specifically says its software is not to be used to infringe on copyrights. Would BitTorrent be covered by the Supreme Court decision?

Without getting too technical, the precedent cited in the case – a successful defense of the Betamax video recorder against a similar lawsuit decades ago – would seem to indicate that, as far as the Court is concerned, the question of the legality of file sharing is still open.

More about the legal – and moral – aspects of file sharing another time, as well as ways to expand your music collection without having to resort to file sharing, which may or may not be legal, but makes many people uncomfortable.

Dennis Turner