Harvard Journal of Law & Technology Volume 18, Number 1 Fall 2004 THE MORALITY OF MP3S: THE FAILURE OF THE RECORDING INDUSTRY’S PLAN OF ATTACK Stacey M. Lantagne* TABLE OF CONTENTS I. INTRODUCTION..............................................................................270 II. THE RISE OF MP3S, NAPSTER, AND A NEW NATIONAL PASTIME........................................................................................271 A. The Birth of File-Sharing.........................................................271 B. Music Downloading Sweeps the Nation...................................273 C. The Appeal of P2P ...................................................................274 III. THE RECORDING INDUSTRY’S FIRST ROUND OF ATTACKS AGAINST FILE-SHARING ...............................................................275 A. Attacking P2P Vendors ............................................................276 B. Appealing to Morals.................................................................277 IV. THE FAILURE OF THE RECORDING INDUSTRY’S APPEAL TO AMERICAN MORALS .....................................................................277 A. Shrugging Off the Moral Argument .........................................277 1. High CD Prices......................................................................279 2. Perceived Hypocrisy .............................................................280 3. Public Apathy........................................................................281 4. The Mores of the Internet......................................................281 B. Copyright and Moral Rights in the United States ....................282 V. LAWSUITS AGAINST INDIVIDUALS...............................................284 A. The Decision to Bring the Lawsuits .........................................284 B. The Impact of the Lawsuits ......................................................285 VI. THE FUTURE OF MUSIC DOWNLOADING ....................................288 VII. CONCLUSION .............................................................................292 * Ms. Lantagne received her J.D. from Harvard Law School in June 2004 and is currently a law clerk to The Honorable Martin L.C. Feldman, District Judge for the Eastern District of Louisiana. She wishes to thank Professor Arthur Miller for supervising this project; Helen Lantagne for editorial input; and Nathalie Abreu for research assistance.270 Harvard Journal of Law & Technology [Vol. 18 I. INTRODUCTION The popularity of downloading music over the Internet began in-auspiciously enough in a college dorm room with the creation of Nap-ster, the first peer-to-peer (“P2P”) network that brought MP31 file-sharing into the mainstream.2 In the span of a few short years, so many students in college dorm rooms spent so much time download-ing music that university bandwidth was quickly becoming over-loaded by file-sharing.3 The widespread use of Napster, and successor programs like Kazaa and Morpheus, was perceived to be suffocating the music industry,4 which soon fought back against music download-ing. The Recording Industry Association of America (“RIAA”) at-tacked the legality of P2P networks that enabled the vastly popular practice of file-sharing.5 The RIAA also appealed to the moral values of the millions of Americans who were downloading music every day, hoping to attach a moral stigma to actions that the recording industry viewed as illegal copyright infringement.6 Both the attempt to eradi-cate file-sharing software and the attempt to appeal to the moral con-sciousness of American music downloaders largely failed. The RIAA’s appeal to American morals was unsuccessful partly because American copyright law focuses on pecuniary rewards and generally fails to recognize moral rights.7 Americans usually do not perceive copyright law as implicating moral issues. Thus, the RIAA’s charge that downloading music is immoral has failed to resonate with many in the American file-sharing community. While the RIAA’s lawsuits successfully educated Americans about the illegality of file- 1. “MP3” is an acronym for Motion Picture Experts Group (“MPEG”) Audio Layer 3, the compression technology used to create MP3 files. See Fraunhofer IIS, Audio & Multimedia: MPEG Audio Layer 3, at http://www.iis.fraunhofer.de/amm/techinf/layer3/ (last visited Dec. 5, 2004). “File-sharing” refers to the practice of uploading and downloading files (e.g., MP3 files) between different computers over the Internet. See FindLaw’s Modern Practice, Glossary of Technology, at http://practice.findlaw.com/glossary.html (last visited Dec. 5, 2004). 2. See Maggie A. Lange, Digital Music Distribution Technologies Challenge Copyright Law: A Review of RIAA v. MP3.com and RIAA v. Napster, BOSTON B.J., Mar.–Apr. 2001, at 14. 3. See id. at 15; Kimberly Kerry, Music on the Internet: Is Technology Moving Faster than Copyright Law?, 42 SANTA CLARA L. REV. 967, 969–70 (2002); Calvin R. Trice, VMI Targets File Sharing: Illegal Downloading Is Now an Offense That Can Lead to Expulsion, RICHMOND TIMES-DISPATCH, Oct. 27, 2003, at B1. 4. See infra Part III. 5. See infra Part III.A. 6. While the recording industry clearly perceives music downloading as illegal, the legal-ity of file-sharing is a topic of debate among legal scholars. See Jon Healey & Jeff Leeds, Tone Deaf to a Moral Dilemma? Millions Download Songs Illegally But Don’t Feel Guilty, L.A. TIMES, Sept. 2, 2003, at A1; Christopher Yasiejko, Downloading Ethics, NEWS J. (Wilmington, Del.), Oct. 14, 2003, at A4. 7. For a list of moral rights, see 3 MELVILLE B. NIMMER, NIMMER ON COPYRIGHT § 8D.01[A] (2004).No. 1] The Morality of MP3s 271 sharing, their success in changing perceptions about the immorality of copyright infringement is questionable at best. Since the phenomenon of music downloading appears unlikely to go away, the recording in-dustry must find a way to deal with the problems that file-sharing has engendered. However, attacking music downloaders on moral grounds is an ineffective way of solving these problems, particularly when viewed against the background of the history and development of U.S. copyright law. Part II of this Note describes the history of music downloading and examines some of the reasons for its enormous popularity. This section also discusses the decline in music sales that has been blamed on the rise of Napster and subsequent P2P networks. Part