Debaters wrestle over legality and ethics of online music swapping

Tracy Mitrano, left, debate moderator and Cornell director of information technology policy, listens while Matthew Oppenheim, J.D. '93, with the Recording Industry Association of America, makes a point. Oppenheim was debating Robert Hamilton of the law firm Jones Day in Hollister Hall, during the Cornell Computer Policy and Law Program-sponsored event on online music file sharing, Oct. 24. Nicola Kountoupes/University Photography

By Sharon Cleary

In the world of music, this was a war of words.

Matthew Oppenheim, Cornell Law '93 and senior vice president of business and legal affairs for the Recording Industry Association of America (RIAA), squared-off with attorney Robert Hamilton, a partner in the international law firm of Jones Day, in Hollister Hall Oct. 24. in a debate on the law and ethics of online music swapping.

Billed as "What Part of 'Jailhouse Rock' Don't You Understand?" the debate was sponsored by the Cornell Computer Policy and Law Program. Tracy Mitrano, Cornell director of information technology policy, was the moderator.

Recent well-publicized lawsuits and lawsuit threats by the RIAA, the music industry's main trade group, were at the center of the debate. In August, the RIAA sued the Massachusetts Institute of Technology, seeking to require the school to identify a network user alleged to have illegally offered hundreds of copyrighted music recordings for Internet downloading. The suit against MIT, and similar lawsuits against other universities to identify users, came after some schools balked at the RIAA's requests, which were made under the 1998 federal Digital Millennium Copyright Act.

Oppenheim contended that in the last three years the recording industry has lost about one-third of its market. "For an industry that was approximately $18 billion in the United States annually to lose the percentage they've lost, after being in a stable industry for years, has had a profound impact," he stated.

Dwindling market share has resulted in job losses, he said: "It is everybody from the guy who is an upcoming star, to the businessman whose job it is to promote music, to the fellow who works in the record store, to the woman who drives the truck to deliver the music, to the people who work in the CD manufacturing plants. We're talking about tens of thousands, if not hundreds of thousands, of jobs lost," said Oppenheim.

Comparing downloading and distributing digital music to robbing a bank, he declared, "It is theft, pure and simple."

Hamilton, a veteran participant in the growth of law pertaining to the Internet, worked the crowd, showman-style, in responding to Oppenheim's points. He asked the audience of 150, mostly students and faculty members, "Raise your hand if you think stealing a CD out of a bin at Tower Records is morally wrong?" Everyone raised a hand.

Hamilton then asked how many believed that taping a song off the radio was morally wrong. Two people raised a hand. He asked: "How many think downloading a song off the Internet is morally wrong?" About 15 people raised a hand. So why do most think downloading is legal? "Because it's not theft pure and simple," he answered.

Citing the 1984 Supreme Court case Sony Corporation of America v. Universal City Studios Inc., Hamilton explained why downloading music was not theft. He explained that the court established that taping television programs for the home was fair use of copyright, which would do minimal harm to the television industry.

But Oppenheim corrected Hamilton on one central fact. "The legal issue is distribution, not downloading of music," he noted, a point to which his adversary agreed. And Oppenheim vehemently disagreed with one questioner following the debate who argued that downloading technologies "have let the genie out of the bottle [and] music wants to be free."

That view, snorted Oppenheim, "is ridiculous."