“Somebody posted a Whitney Houston’s new album all over the Internet over the weekend a full month before it was due to be released.”


When stuff like that happens, it makes it very difficult for file-sharing advocates. Does this fall in line with open communication of ideas?I don’t think I agree that this is allowable.  This is tantamount to somebody walking into my studio, taking pictures of my unfinished robots, and then posting them on multiple websites around the world.

This fails, in my unqualified estimation, every notion of the fair use test:

  1. Purpose and Character of Use – the owner of the sites on which the album was posted presumably generated additional traffic to his site.  If the site happened to have banner ads, then he’s sunk since it was a commercial gain.  It’s possible the sites could make an argument that they posted the album for critiquing, but then the “unfinished” aspect rears its head: how can you critique a private artwork in a public forum?  If Whitney was operating in an open source environment, then this would be ok becaue she could incorporate feedback; however, she would relinquish exclusive copyright and this wouldn’t be an issue at all.  Finally, there was zero content modification of the original work, so this use fails because it did not try to change the meaning.
  2. Nature of Copyrighted Work – Taste in music aside, is Whitney’s work “worthy” of copyright?  Music, especially original composition, is well within the spectrum of thing copyrightable.
  3. Relative Amount – This act was the worst case: 100% of the album was released.
  4. Effect on the Market – Is releasing the album a full month before schedule (and before marketing, etc, kicks in) going to affect the reception of this work in the market.  Of course it will…

Copyright law was meant to protect an individual’s economic incentive to create.  I don’t believe that this act is defensible; mostly, this is going to hurt the record company’s release of this album… Their right was violated.

I would guess somebody at Arista is going to be in deep trouble over this.

So what is my take on file sharing?

File Sharing as a technology is extremely valuable and powerful.  With that power and leverage must come responsibility from the user.  That’s all I’ll say about that until I can do some more research.