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Pursuing liability for MP3 downloads

"The students do not have any legal privileges. They're adults over 18 years old and should take responsibility for their actions."

Chang Shau-ping, a Taipei district prosecutor

While recent rulings of US courts against MP3.com and Napster have cast doubt on the future of the online MP3 music business, a debate has just begun in Taiwan over the legality of downloading MP3 files following a search at a university in southern Taiwan last week.

"If it is determined that it is illegal for students to download MP3 files for their own use, I guess over 90 percent of university students could be held liable for that," said an electronic engineering postgraduate student at National Taiwan University, referring to the search by the Tainan District Prosecutors' Office last Wednesday.

"We're aware of the controversies surrounding the online swapping of MP3 music files and that misuse of the technology may infringe on copyrights. But it has only just occurred to me that simply downloading MP3 music could get one into big trouble," he said, adding that he disapproved of the actions taken against the students of National Chengkung University (成功大學).

MP3, a technology for compressing audio sounds or music on a computer, has become extremely popular with PC users in Taiwan, and especially university students, who have easy access to computers and feel that music CDs are too expensive.

It is all too common for students to grab MP3 music files from the Internet and keep them handy in their hard drives. And with dozens of Web sites providing free downloads of MP3 files, music can be obtained for almost nothing.

Moreover, where a full five-minute song would normally take up to 60Mb at a 44kHz sampling rate, it only takes 4 or 5Mb using MP3 compression, with no noticeable loss in quality.

Using the MP3 format, over 100 songs with different copyright ownerships can be kept on a single CD, but legally this often involves infringement of copyright.

In Taiwan, there have been cases where students who made a profit from selling pirated CDs produced using MP3 technology were found guilty of violating the Copyright Law.

Robin Lee (李瑞斌), secretary-general of the non-official International Federation of the Phonographics Industry (國際唱片交流協會), said that in 2000 there were 1,460 cases of crackdowns on the sale of pirated CDs at night markets, CD stores, as well as on campuses.

Lee said quite a few students set up their own Web sites providing free downloads of MP3 music files, while many more frequently use the free services without thinking of the legal consequences.

In the wake of the search at Chengkung University, a debate has emerged over whether students will be permitted to access MP3 music files for their own entertainment if they do not attempt to profit from it.

Chen Jen-chieh (陳人傑), a legal researcher at the Science & Technology Law Center of the Institute for the Information Industry (資策會科技法律中心), pointed out that the Copyright Law prohibits unauthorized "reproduction" of literary works, sound recordings, photos and computer programs.

The forms of online reproduction include uploading, downloading, posting, forwarding, pasting, digitalizing, browsing and printing.

In theory, one could be held liable under the law for simply downloading or printing material from the Web without authorization.

However, Chen said the law allows exemptions under the circumstances of "fair use," which include the use of copyrighted materials for educational purposes, in the judicial process, or for personal non-profit use.

Therefore, the Chengkung University students could be exempted from liability if they keep the MP3 files only for their own use and do not try to profit from them.

In contrast, Chang Shau-ping (張紹斌), a Taipei district prosecutor who specializes in intellectual property cases, made it clear that downloading without authorization of the copyright's owners is illegal.

Chang said that no pop music CDs are currently produced in MP3 format in Taiwan.

It follows that the online MP3 files themselves are illegal reproductions and, needless to say, downloading the illegally-reproduced files constitutes an infringement of copyrights.

"The students do not have any legal privileges. They're adults over 18 years old and should take responsibility for their actions," the prosecutor said, in light of the growing uproar among the university students against Wednesday's search.

While law enforcement agencies seem eager to put an end to what they view as illegal acts, there are scholars warning that an all-out crackdown might pose a threat to the development of the Internet.

Liu Ching-yi (劉靜怡), assistant professor of law at the National Central University, noted that technology advances by leaps and bounds and that following music-swapping software such as Napster's is leading to such things as Gnutella -- a new Internet protocol for transferring files.

"While they are seeking to apply the existing copyright regulations to developing technologies, they should also think a step ahead about what will come next and think carefully whether their decisions today will hinder possible development of the Internet," she concluded.
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