MP3 and copyright
One of the most commonly downloaded type of file is the MP3. Almost every song ever performed, no matter how obscure, can be found somewhere on the Internet. Even the most recent Top 100 songs can be easily downloaded from various websites. And even if a particular song cannot be found on the Web, then there's always the peer-to-peer file sharing networks like KaZaa. In summary, every song is freely available to anyone with a reasonably fast Internet connection.
An annoying detail is that music is copyrighted. This means that the maker of a work must grant permission before his work may be distributed over the Internet. In the vast majority of the cases the copyright holder has not granted such permission, because most artists make money by selling CDs with their music. The music industry not surprisingly is complaining loudly about all the lost sales they claim to suffer because of all those free downloads.
MP3 is an abbreviation for MPEG-1 level 3. The Motion Pictures Expert Group (MPEG) is a committee responsible for developing various standards for storage and transmission of audio and video. MPEG-coded information is stored in different layers. Layer number three contains audio information, hence the name "level 3". MP3 is a very efficient way to encode music. Anything that isn't detectable by the human ear is simply not stored. Stereo signals are stored in mono, with a little bit of extra information to make it sound like stereo upon reconstruction. And MP3 uses many more clever tricks to get rid of a large portion of the original audio signal, without substantially affecting the result.
Musical works ("with or without words", as Dutch copyright law puts it) are protected by copyright. A copyrighted work may not be distributed or published without the author's permission. It does not matter in which format the work is distributed or published. Distribution in the form of an MP3-file therefore infringes on the author's copyright. This means that MP3s may not be offered on websites, distributed via a peer-to-peer file sharing network or even be distributed by e-mail.
A performing artist can also claim exclusive rights on his performance of a musical work. These rights are known as "neighboring rights". They hold even if the copyright on the work has already expired. For example, it is perfectly legal to reproduce one of the works of Beethoven (1770-1827). However, recording somebody else's rendition of the work and distributing that recording is not permitted. This infringes on the neighboring rights of the artist.
Websites which do not offer MP3's, but which only offer links to MP3's on other servers, are a difficult case. By itself there is nothing wrong with linking to files on a Web server (no matter where that server is located), even if the files just happen to have the extension .mp3 or contains MPEG level 1 layer 3 coded information. What is not permitted is offering copyrighted third party works without their permission. It does not matter whether these works are offered in the MP3 format, or in any other format. Someone who offers music without permission can expect nasty letters from the RIAA or the Dutch BUMA/Stemra and may even get sued if he does not co-operate with the demands of the letter.
To avoid these problems, servers with MP3's are today usually located in China or some other place where there are more pressing concerns than copyright infringement. Copyright holders and their representatives now also try to tackle websites which merely link to these servers. Copyright law has no express provisions regarding hyperlinks. It is this up to the case law to determine whether linking to infringing materials is allowed. In some cases this is permitted, in some cases it isn't. In the Netherlands the case of Scientology vs. XS4All held that if a website provider is put on notice regarding the presence on his site of hyperlinks to infringing materials, he is liable for any damages if he does not subsequently remove them. It seems logical that the same applies to the author of the site. A requirement is that there has to have been actual notice regarding the infringing nature of the hyperlinks, and there must be no room for reasonable doubt regarding the accuracy of the notification.
As of 1998 the Digital Millennium Copyright Act (DMCA) has come into force in the USA. This law forbids -amongst other things- knowingly linking to material that infringes on another person's copyright. If the person offering the link didn't and couldn't know that the material linked to was infringing, he cannot be sued. In practice this means that the person offering the link must act upon being put on notice of the fact that he's linking to infringing material.
Famous search engines like Google, Altavista or Ilse try to build up a nearly complete overview of all material on the Web. Users can enter search queries and receive an overview of all resources that match the query. Usually it doesn't matter whether the resource is a web page, a Word document or a PDF document. Sometimes it is also possible to search for other file types, like images, audio or video. One can use such a search engine to look for MP3's, although the results are usually not very accurate.
There also are many specialized search engines for MP3's. These are designed to allow people to search for certain musical works in MP3 format. Because these search engines only need to maintain an overview of selected works, and not of all material on the Web, they can update their database much more quickly and offer more relevant results. Except for the occasional promotional offering, today none of the major labels offer musical works in MP3 format on the Internet. It therefore seems reasonable to assume that any MP3 file currently online is offered without permission unless there is evidence to the contrary. This would mean that -given the above case law- MP3-specific search engines are almost by definition acting in the wrong, because all their results provide links to infringing material.
MP3s may be protected by copyright, but copyright law contains several provisions that limit the rights of the copyright holder. Dutch copyright law for example states in article 16b that it is allowed to make a few copies of a copyrighted work, if those copies are only used for private practice, study or use. This is called a "home copy". Under Dutch law it is permitted to convert your CD collection to MP3, and to play those MP3's at work, as long as they are not played back publicly so all your colleagues can hear them.
The same applies for rented or borrowed CDs, because the law does not require that you must be the legal owner of a work in order to be allowed to make a home copy. By analogy this also applies for music in other formats, such as MP3's as found on the Internet. According to Dutch law it is therefore legal to copy a rented or borrowed CD, or to download music from the Internet for one's private use.
Such a home copy may not be distributed any further, because it may only be used for private practice, study or use. Downloaded music may thus not be put on the Internet or be transmitted to anyone else.
There is of course nothing special about the file format MP3 as opposed to formats like WMA or Ogg Vorbis. MP3 is currently the most popular format, and it is common to equate MP3 with "music in digital form". For this reason I have use the term MP3 even though the legal situation is no different for other digital formats for music.