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History of bootlegging Essay

1. Background on Bootlegging It has been said that “at its real level music belongs to everyone”. To claim ownership over music has been the subject of much analysis since music, after all, is available to each individual through our sense of hearing. Maintaining control or possession of “our” music is not as clear cut as meting out our rights to our land or property. To listen to a song someone else has written, for instance, does not necessarily constitute stealing or trespassing on someone else’s property.

The best way to ensure our right and title over our musical creations is to get a copyright over the original piece. Yet it is not uncommon for a listener or a music lover or fan to record a favorite song or a particularly memorable concert attended. People record songs, concerts, and videos and keep such recordings for personal use, or make copies thereof to give to their friends. Songs and videos are also easily downloaded from the Internet. Fans also record different songs and performances, from different albums or concerts, into one CD or online play list to make their own personal collection.

The problem is when such recordings are distributed and sold for profit without the artist and the record company’s consent. Generally, copyright violations involving musical creations may be distinguished into three different types : 1) professional counterfeit recordings (unauthorized duplication of sound and art work) 2) professional pirate recordings (unauthorized duplication of the sound, but with original art work, usually sold as “greatest hits” compilations 3) bootleg recordings (unauthorized recording of live performances)

Bootlegging, as it was traditionally defined, involves “the illegal distribution or production of liquor and other highly taxed goods” In the 1920s, the United States had a Prohibition against alcohol, thus people resorted to bootlegging, or buying and selling an illegal product, from bootleggers. Organized crime consisting of gangs and mobsters in Chicago and New York, such as Al Capone, were deeply involved in bootlegging. In the music industry, music bootlegging involves the taking and trading of unauthorized live recordings of live musical performers — either from concert or studio outtakes.

Bootleg music albums are recordings transferred from tape to vinyl or CD. They become a bootleg product when a bootlegger undertakes to create an artifact or when a non-commercial recording is transformed into a commercial product in the form of an LP or a CD. Bootleg recordings are usually done without the artist’s consent ; however, making a recording of a concert is not illegal per se. Although an individual cannot legally record an officially release CD or cassette tape on to a blank tape, he or she may make an unauthorized recording of a concert and keep it for personal use. However, the sale of such a recording is deemed illegal. The problems with bootlegging is that it prevents the artist and the record company from maintaining quality control over their product , and it prevents them from collecting their royalties to their right to their music.

2. Changes in Copyright Laws Copyright is defined as “a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of ‘original works of authorship’” . The U. S. has passed significant copyright laws to protect an artist’s right to his or her original creations. These creations include not only musical works, but literary, dramatic, artistic and certain intellectual creations.

The U. S. Constitution itself provides that “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. ” The State thus allows Congress to pass copyright laws to protect an artist’s rights to his or her musical creations. The U. S. Copyright Act was amended in 1976 so that it now covers new technological advancements and extended the term of protection to cover the life of the author plus 70 more years.

Copyright laws allow the author, artist, or whoever holds the copyright to a creation to sue those who infringe on their copyrights for damages. The complainant has to prove infringement of copyright by a) proving ownership of the copyright and b) copying by the infringer-defendant. In compliance with its Constitutional mandate of protecting original works of authorship, the Congress has passed several laws concerning music copyright infringement, piracy and bootlegging. Some of the relevant laws will be discussed in this section. The Audio Home Recording Act allows music retailers to sell all analog and digital recording formats.

It also gives a consumer the right to use such recordings provided such use is for non-commercial purposes, and in such cases, no copyright infringement lawsuit may be brought against a consumer. The consumer and retailer is also exempt from making royalty payments on digital audio recording devices and media; the burden falls on U. S. manufacturers and importers only who must pay for digital audio devices designed or marketed primarily for making digital audio recordings for private use, whether or not these are incorporated in some other device.

These royalty payments are administered and monitored by the U. S. Register of Copyrights and the Librarian of Congress, with the proceeds split between the featured artists and the record company, or between the songwriters and music publishers, depending on the circumstances. Musical artists or musicians thus receive royalties which are based on record sales and airplay during a prescribed period. The U. S. is also a signatory of both the World Intellectual Property Organization Copyright Treaty and the Performances and Phonograms Treaty.

In accordance with these international agreements, the U. S. Congress passed the Digital Millennium Copyright Act which makes it a crime to a crime to circumvent anti-piracy measures built into many of today’s commercial software and even most music CDs. The Act also limits the copyright infringement liability of ISPs for transmitting information over the Internet, but requires that ISPs remove copyright infringement materials found in users’ web sites.

Despite legislative acts and proposed bills by well meaning members of the U. S. Congress, and jurisprudence laid down by the U. S. Supreme Court, infringers still find a way of getting around copyright laws by invoking the “fair use” doctrine. The U. S. Code provides that the public is entitled to the “fair use” of copyrighted material. “Fair use” is “a privilege to use copyrighted material in a reasonable manner without consent, notwithstanding the copyright monopoly granted to the owner. ” A copyrighted original creation may be reproduced for purposes of criticism, news reporting, comment, teaching, scholarship and research.

The Code further provides that there are four factors in determining whether there is “fair use” of a copyrighted material or not : 1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes ) the nature of the copyrighted work itself 3) the proportion and substantiality of the copyrighted work actually used without authority 4) the potential economic detriment on the value of the work caused by such unauthorized use thereof. What makes it especially difficult to enforce the copyright is that information is so readily available through the Internet. As music is downloaded courtesy of digital technology, consumers are turning to the Internet to get their music rather than going out to music stores to buy the CDs. Bootlegged albums are also easily transmitted and shared through the Internet.

Digital technology allows consumer to reproduce identical copies of digital music files, most commonly in compression formats such as MP3s. Such digital advancements not only pave the way for more widespread bootlegging, but for music piracy as well.

3. Advancements in Piracy Technology: File Sharing Piracy, as earlier discussed, is differentiated from bootlegging in that the former involve the unauthorized duplication of the sound, but with original art work. Piracy involves the reproduction and distribution of copies of original recordings. Advancements in digital technology have allowed music piracy to develop at an alarming rate.

MP3s enable consumers to compress digitized music into smaller files, while ripping software allows them to copy music from CDs, store these on their hard drives, and then convert these files into compressed formats. Digital file reproduction devices, like CD players, in turn allow consumers to write these files into a CD and in effect create their own albums and compilations of copyrighted creations. Peer-to-peer (P2P) networks have also allowed increased music dissemination, as well as file sharing, as introduced by the infamous Napster software company.

P2P networks basically offer users to access the hard drives of other users anywhere in the world by the installation of a piece of software. These networks allow users to search, copy and transfer music files typically through MP3 files. After Napster, subsequent P2P networks version, like KaZaA and Grokstar, which are collectively known as the FastTrack providers, allow users to access multiple individual computers instead of accessing just one single, centralized database of music files.

The digital audio workstation (DAW) on the other hand, allows users to indulge in “sampling” – original music recordings, converted from analog to digital format, which users can import, cut, copy, layer and manipulate to create new musical work. Since samples may be in a band’s entire song, or merely passages from an instrument, in effect it allows not just users but even musicians and DJs to create, layer, expand and redefine music. Recording companies have resorted to copy-protection technology to protect themselves from piracy committed through file sharing and P2P networks.

Copy-protected CDs is one answer, but public backlash and concerns about the technology’s effectiveness, have forced recording companies to limit use of such CDs in the U. S. and instead opted to release such CDs abroad in Europe and countries such as Japan. Five major recording companies in the U. S. use copy-protected CDs: BMG Entertainment, Universal Music Group, Warner Music Group, EMI, and Sony. BMG in particular has made us of copy-protection advancements such the MediaMax CD-3 technology from SunnComm Technologies, Inc. located in Phoenix, Arizona. Through MediaMax CD-3, each song is written onto a CD twice.

One format is readable by standard CD players while the other format is readable as a Windows media file playable on a computer. The technology allows consumers of BMG records to burn each track only three times per computer. The songs in BMG albums embedded with the MediaMax CD-3 technology may also be emailed to a limited number of people. However, each person in that limited list may only listen to ten times to each song in the album. In other words, songs in such CDs are locked and won’t be played even if they are downloaded from file-sharing networks if it exceeds the allowable number of times a person may listen to the track.

Other developments are even more rigid. The CDS-300 developed by Macrovision, located in Santa Clara, California, allows CDs to be burnt and listened to online, but blocks other attempts to make copies or share music online. Recording companies thus are faced with a difficult balancing act. On the one hand, there is the need to respect a consumer’s desire to share, copy and hear songs in different ways. But on the other hand, there is the copyright to take note of and the bottom line – earning revenues through royalties by limiting the number of copies consumers make of copyrighted musical creations.


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