Does the free downloading of music on the Internet hurt or help the music copyright owner?

　　There is a grinding debate on this issue despite a latest court's decision that declared downloading music free on the Internet is illegal.

　　On may 10, the Shanghai No. 2 Intermediate People's Court ordered a leading literature Website to pay 15,000 yuan (US$1,800) in compensation to Warner Music, the Taiwan branch of Time Warner, for having offered free downloading of certain Warner musical works without prior consent or royalty payments.

　　The warner Music versus Rongshuxia.com case brings home the debate over whether copyright should be protected and whether free trial listening of music on the Internet is positive promotion of a copyright owner's product or a violation of its copyright.

　　Despite the judgment in its favor, Warner Music said it was not satisfied with the result and that it would appeal to a higher court.

　　The pending case would be important for about 7,000 Chinese Websites, which need to know whether or how to pursue free downloading services.

　　China amended its copyright law in 2001 to endorse the "right of dissemination through Internet." It means that a copyright owner has the right to spread their work on the Internet. In other words, music dispersed on the Web enjoys copyright protection, as do works distributed via other media like a publishing house or film studio.

　　In the above case, defendant Shanghai Rongshuxia Computer Co Ltd apparently violated Warner Music's copyright according to the amended copyright law.

　　But rongshuxia argued that its actions were reasonable and lawful. One big supporter was Fang Xingdong, a well-known IT critic.

　　He says the Internet's fast growth relies more on grassroots support, than on a few big companies. In other words, the Internet would not have developed so fast if online surfers had not shown great interest in its convenience.

　　Research shows that what attracts most Web surfers is its free access to various and vast resources difficult to find elsewhere.

　　Many music fans say they just like the easiness with which they can download music for trial listening. If the music is good, then it's more likely they will buy the copyright protected CD. After all, sound quality is much inferior on the Internet.

　　Aside from concerns over sound quality, music fans hope to buy authentic CDs with their idol's liner notes and photos.

　　From this perspective, both free downloaded music and CDs are not identical products. Getting the first for free should not severely hurt the sales of the latter.

　　In this sense, free music downloaded on the Internet is more like promoting a song than a violation of its copyright.

　　Defendant rongshuxia was the first Chinese Website to be sued for copyright violation. In 2000, Rongshuxia won its case against China Social Publishing House for publishing its online literature without prior consent.

　　That case was rightly decided. The publication of Rongshuxia's copyrighted literature works absolutely reduced readers' willingness to register on Rong-shuxia's Website for the same content.

　　In the Warner Music case, however, it is inherently difficult to conclude that free trial listening will absolutely affect CD sales.

　　But legal scholars argue the other way, citing the amended Copyright Law that adopts "the right of dissemination through the Internet." This is actually an exclusive right reserved for copyright owners.

　　As such, legal experts say Rongshuxia has infringed the copyright owner's right without prior consent or royalty payment.

　　Well, that's what the law says. But is the law backed by rational reasoning? It's hard to say.

　　Intellectual property law gives authors some monopoly rights to encourage them to create and spread good work. But this monopoly should not go unchecked.

　　Lawrence lessig, a renowned professor of law at Stanford Law School, criticizes abused protection of intellectual property right. If too much is given to copyright owners, it stands to limit people's rational use of intellectual products.

　　As the professor argues, free downloads for trial listening (sampling content before buying it) and non-profit purposes does not harm the copyright owner.

　　As a matter of fact, this kind of free downloaded music can never be prohibited. In the US, CD makers sued the famous Website Napster in 2001 for its free music download service, and the court ordered the Website to be closed. However, Kazaa and other Websites with the same service emerged. The number of users has exceeded 7 million, far more than the 2 million users of Napster.

　　Another legal dispute is whether a hyperlink to free download sites constitutes an infringement.

　　Some experts think that only those which provide downloads on their own servers constitute an infringement, and those providing a hyperlink should be free of copyright infringement violations.

　　Otherwise, search engines such as Google and Baidu will be judged to be big violators of copyrights, which is unfair.

　　On april 22, in a case where Chinamp3.com was sued for copyright violation, the Beijing No. 1 Intermediate People's Court decided that hyperlinks provided by Chinamp3.com were not just ordinary hyperlinks, but were hidden in such a way that users could not identify them as hyperlinks. Visitors would normally think it was Chinamp3.com's server that provided the free downloads.

　　Therefore the court said Chinamp3.com was deliberately participating in information processing, thus constituting a copyright violation.

　　The court opinion shows that judges have not declared a hyperlink to be illegal per se.

　　This judgment should leave breathing space for innocent search engines. Free music downloading on the Internet should be reasonably restricted to non-profit purposes, but not flatly prohibited.

　　Spring liu is a lawyer with Lehman Lee and Xu Law Firm Shanghai office