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Is All File Sharing a Crime?
By Eric de Fontenay (Founder & Publisher)
(more articles from this author)
2003-05-01
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Amidst college students opting for 'slap-on-the-wrist' settlements from the RIAA and Michael Robertson's lamenting the "multiple attempts to limit consumers' rights via DRM (digital rights management) technology" since his tenure at MP3.com ("These are schemes which add "big brother" restrictions to what you can do with your own music library"), I thought I'd share a short email exchange I had with Bruce Iglauer from Alligator Records.

The discussion was in response to my April 30th editorial "Music Industry Uses IM To Warn Pirates" where I wondered what are a "significant numbers of copyrighted songs," which would trigger copyright warning messages sent by the RIAA, was anyway: "Should we expect a friendly 'warning' for sharing 10 files? 50? 100? How about 50 files, but they're from just 4 albums? And who's to ensure that individuals are not harassed for exerting their fair use rights by overzealous copyright holders?"

Bruce - "You ask a good question. The law defines petty larceny and grand larceny. But both are crimes. How many files is too many? From a legal point of view, you can't be a little bit pregnant. All file sharing is illegal, which I think you would agree on.

"The law works by prosecuting blatant criminals and hoping the prosecutions will discourage petty criminals. That sometimes works and sometimes doesn't. Legally, all file sharers should be prosecuted. Practically, they won't. I suppose the answer is to start with the biggest you can find and work downwards until the message is clear. If it were up to me, I would prosecute some big ones and some small ones, just to make the legal point."

My follow up query - "If I understand you correctly, sharing my music files from my laptop here in Paris to my desktop in NY is a prosecutable act? What about music professionals that use p2p for professional purposes, such as a Jazz pianist researching various renditions of a specific standard?"

Bruce's repose - "Are you asking me if I think that if you possess a legitimate file, you should be able to send it to yourself? Yes, I'm fine with that, as long as you either paid for it or have it with the owner's permission. Of course, you could create an MP3 file, attach it to an email, and send it to yourself without making it available to anyone else."

"I suppose somebody could use p2p for some kind of research, though it seems a remarkably haphazard way to do that, as vs. for example going to the BMA and ASCAP web sites and searching for all recorded versions."

"So, do I think that 1% of p2p might be for legitimate use? Yes, and probably 1% of burglar tools are used by the police for people who are breaking into their own cars because they forgot their car keys. But possession of burglar tools is illegal even if you don't commit a burglary."

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