Music File Sharing : Genius Technology or Copyright Infringement?

Abstract: Today’s technology of music file sharing in peer-to-peer networks is genius. Peer-to-peer are networks composed of several computers enabling files to be shared among users. A substantial part of the files shared constitute unlawful copies; uploading and downloading of such files infringes copyright legislation. File sharing through peer-to-peer networks is therefore both a genius technology and a copyright infringement. Peer-to-peer technology has been subject to heavy debate in media, both nationally and internationally. The issue of illegal downloads of music is an international dilemma since music is a global commodity. Sweden has been accused of being file sharers’ haven by organisations such as the Recording Industry Association of America (RIAA). Internet access and broadband capacity is very high in Sweden, which is a reason why many Swedes engage in file sharing. The Swedish company, The Pirate Bay, is the creator of one of the most popular file sharing websites in the world, using the BitTorrent application. The website offers free downloading of inter alia music, films and software. Like most peer-to-peer networks the Pirate Bay website includes copyrighted material, which often is published without the consent of copyright holders. As a result The Pirate Bay is facing a lawsuit on behalf of numerous organisations and companies in the music and film industry. The Pirate Bay is accused of contributory infringement and of preparation to commit a copyright infringement according to the Swedish Copyright Act (SwCA).  Contrary to the American copyright legislation, the SwCA does not contain any explicit provisions regarding contributory infringement. The SwCA refers to the Swedish Criminal Code, which states that preparation to copyright infringement and contributing to such infringement is illegal and punishable. There is currently a lack of Swedish case law regarding copyright infringement and there are no cases concerning contributory infringement. One reason is that the field of law is constantly changing; the copyright legislation is adjusted to the technological developments. The lack of case law causes unpredictability of the SwCA, which may be harmful to the rule of law. International organisations, such as the RIAA, consider the SwCA to be somewhat ineffective and that it needs to be amended in order to uphold the fundamental purpose of copyright. Copyright is a partly harmonised area of law from a global perspective. However, since the Internet and file sharing through peer-to-peer networks is an international phenomenon, copyright legislation needs further harmonisation internationally. At the time there is an ongoing process of implementing the European Union (EU) Enforcement Directive into the SwCA, which grants greater rights to copyright holders. The Directive contains provisions that simplify the process of taking action against an alleged infringer, which may in the long run increase the amount of case law in Sweden. At the same time the implementation of the Enforcement Directive has been criticised as being too far reaching and intruding people’s privacy. File sharing through peer-to-peer networks benefits consumers by offering easy access to a wide range of music for a low cost, at the same time enabling artists to reach out to a larger audience. Consumers are vital for the music industry, since they purchase the music. However, the fundamental aim of copyright is to reward copyright holders and function as an incentive to encourage creativity. Consequently, without economic rights the incentive to create is forfeit and music production might decrease. Even if the justification of copyright is primarily to protect creators of a work, it is also essential to emphasise the consumer aspect. Therefore it is of importance to balance the interests of all parties involved. In order to uphold the purpose of copyright and interests of the general public, it is necessary to promote and develop more legal file sharing alternatives. Music in digital formats has to some extent replaced the traditional Compact Disc (CD) format. Therefore the music industry must cooperate with among others Internet Service Providers (ISPs) in order to embrace the digital developments of music and offer better solutions to consumers. Simultaneously, there is a lack of knowledge of copyright among the Swedish population, which is why more education is required. In conclusion, advertisement and education could decrease illegal file sharing and enhance all the parties’ interests.