Texting While Driving in a New Age of Automobile Advancements: Legal Implications to Be Determined

By Anna Gotfryd and Jacob Vannette

Introduction

We live in a world with “new age automobiles”—where technological advancements increasingly permeate every aspect of vehicles, from those that affect comfort to those that enhance safety. [1]  No longer are such features found solely in high-end models; they are offered in those purchased by the average consumer.[2]  To some, cutting-edge technology in vehicles is seen as a necessity: recent studies show that “connectivity”—such as dashboard features that provide owners with email access—is now a part of consumer expectations.[3]  From 2014 to 2015, 37% of consumers said that they would be willing to switch car brands simply to achieve improved connectivity.[4]  The push for connectivity while driving is not surprising.[5]  Last year, American commuters spent an average of 42 hours stuck in traffic.[6]  While other reports note that up to 20% of drivers have not used many of the technology features in their vehicles,[7] consumers continue to desire automotive technologies “that enhance the driving experience and safety.”[8]  This means that more advancements in car technology, not fewer, are to be expected.[9]

Many technologies that consumers most desire are “built-in,” and serve a range of purposes.[10]  Some are created with an eye toward luxury enjoyment of the vehicle, and even with a nod toward creativity or pure fun.[11]  Other advancements are aimed at practicality and cost efficiency.[12]  Finally, technological developments that are designed to improve safety are wide-ranging.”[13]  Consider “Forward Emergency Braking”—a technology that will sense and stop for pedestrians located in front of a car.[14]  Some car manufacturers have created “camera and sensor systems” that warn drivers when cars are “in the[ir] mirror’s blind spot.”[15]  Autoliv, for example, has developed a technology for thermal imaging of the area surrounding a vehicle.[16]  This system, like its military forebears, allows drivers to see further than their headlights to avoid tragic collisions with pedestrians or wildlife, which they may not otherwise be able to detect.[17]

This article discusses one type of technological advancement purportedly directed at improving safety—integrated hands-free texting.[18]  Perhaps unsurprisingly, integrated hands-free technology elicits tricky issues, explored below.  First, we investigate the problems associated with texting while driving, and how legislators and car manufacturers have responded.  Second, we discuss what integrated hands-free technology is and how it works.  Third, we examine whether it has any impact on safe driving.  Finally, we analyze how legislators have viewed hands-free texting, and how future considerations could affect this area.

The Pervasive Problem of Distracted Driving and Proposed Solutions

Texting and driving, one of the main causes of what is referred to as “distracted driving,” has been labeled an “American epidemic.”[19]  As many as 98% of drivers believe that “[t]exting while driving is dangerous.”[20]  Most, however, do not practice what they preach:”[21] 74% of drivers admit to having texted while driving.[22]  This has resulted in tragic outcomes: every day, distracted driving kills more than 8 people and injures about 1,161.[23]  Some studies go so far as to suggest that distracted driving is worse than drunk driving.[24]  The American public has reacted—in 2009, 80% of American adults favored banning texting while driving”[25]—and legislators have responded.[26]  “46 states, D.C., Puerto Rico, Guam and the U.S. Virgin Islands ban text messaging for all drivers,” and “[o]f the 4 states without an all driver texting ban[,] 2 prohibit text messaging by novice drivers[, and] 1 restricts school bus drivers from texting.””[27]

With consumers demanding greater connectivity in vehicles,[28] and the concurrent public and legislative outcry to the distracted driving craze,[29] car manufacturers are “racing to make driving less distracting.”[30]  One way they have done this is by offering integrated hands-free technology,[31] which allows drivers to stay connected without taking their eyes off of the road or their hands off of the wheel.[32]  We turn now to a discussion of how automotive companies have sought to meet this demand, and how exactly integrated hands-free technology works.

Integrated Hands-Free Technology Explained

This part explains what integrated hands-free technology in cars is. It then discusses different types of hands-free technology systems that consumers may encounter and how the average consumer uses them.

Generally, integrated hands-free technology is a system that is installed directly into a car.[33]  It works by connecting with a driver’s phone using Bluetooth.[34]  It can then tell whether the driver has an incoming call or message.[35]  Through integrated hands-free technology, the driver could choose to answer a phone call or listen to a message.[36]  Additionally, through the use of speech recognition technology, the driver could dictate a reply or choose another course of action.[37]  The specifics of these types of systems, of course, may vary by car make and model.[38]  We examine briefly the systems produced by some of the largest car manufacturers in the world.[39]

“SYNC” is Ford’s version of integrated hands-free technology.[40]  By connecting her phone with the car’s infotainment system[41] via Bluetooth, a driver can use the software’s voice recognition system to make calls, dictate text messages, and search for music on her phone.[42]  The software is compatible with both Apple CarPlay and Android Auto, allowing a driver to engage Siri or Google to make calls, send messages, navigate, and much more—all without reaching for her phone.[43]

Chevrolet’s “MyLink” similarly allows drivers to connect their phones to their car’s infotainment system through Bluetooth.[44]  Hands-free calling is available in multiple models, allowing a driver to simply press a button on the steering wheel and state aloud the callee’s name.[45]  Text Message Alerts notify a driver when he or she has received a new message, too.[46]  Through this feature, a driver can listen to the message, view it when her car is stopped, and reply to it with stock messages.[47]

As a final example, “NissanConnect” also employs Bluetooth to link the driver’s phone to the car’s infotainment system, “keep[ing] [the driver] in touch while [she] stays focused on the road.”[48]  Nissan likewise uses voice recognition technology, through which drivers can “make and answer calls and send pre-loaded text messages—hands free.”[49]  Drivers may input into the system custom messages, increasing the finite list of stock messages at their disposal while driving.[50]  Through the driver’s phone, the system can also access social media networks, including popular sites like Facebook and Twitter, and read aloud posts from those platforms.[51]

Nearly all of the major players in the automotive industry have developed a way for drivers to access and utilize their phones without actually touching them—by calling, texting, and even keeping up with Facebook posts.[52]  The question remains whether integrated hands-free technology actually makes driving safer. We survey current research in the next part.

Hands-Free Texting and Driving As a Safer Alternative

Integrated hands-free technology is still relatively new, and more research on its safety implications may be warranted.[53]  Current studies have found that texting hands-free is just as unsafe as doing so hands-on.[54]  Some studies even show that the use of hands-free technology is more distracting than hands-on use.[55]

According to the Center for Disease Control and Prevention, there are three types of distraction that concern a driver: (1) visual distraction, which involves what a driver can see; (2) manual distraction, which is implicated when a driver takes her hands off of the wheel; and (3) cognitive distraction, which occurs when a driver is not completely focused on the task of driving.[56]

A driver that is looking at the road while on the phone may “fail to see up to 50 percent of the information in their driving environment” due to cognitive distraction.[57]  A study conducted by the American Automobile Association’s Foundation for Traffic Safety investigated the use of hands-free technology while driving and determined “that potentially unsafe levels of mental distraction can last for as long as 27 seconds after completing a distracting task.”[58]  A different study, conducted by the Texas A&M Transportation Institute,[59] compared the effects of both methods of texting—manually and hands-free—on driving.[60]  The researchers concluded that there was no significant difference between the two methods: “Driver response times were significantly delayed no matter which texting method was used.”[61]  The study also determined that drivers spent less time with their eyes on the road regardless of the method through which they composed text messages.[62]

Critics emphasize that this investigation focuses only on cognitive distraction, which is believed to be less dangerous than manual and visual distraction.[63]  Nonetheless, an amplified cognitive load increases the risk of a crash due to slower reaction times and inattention blindness.[64]  Additionally, research conducted by the Virginia Tech Transportation Institute[65] found that the use of hands-free devices “involved visual-manual tasks at least half of the time.”[66]  Significantly, no research has been able to show that integrated hands-free devices improve safety.[67]

When the safety benefits of integrated hands-free technology were completely unknown, experts believed that it “w[ould] become standard within a few years.”[68]  This prediction held true—hands-free communication technology has become “a central competitive focus of the automotive industry”[69]—despite a lack of demonstrated safety benefits.[70]  Meanwhile, researchers have accumulated considerable evidence indicating that this technology poses significant risks.[71]  The next section examines the cognitive dissonance between the existing research on hands-free texting and the law’s treatment of it.

A Mismatch Between Research and How Laws Treat Hands-Free Technology

All over the country, state legislators have noticed the distracted driving epidemic and have racked their brains to find ways that they believe will address the issue.[72]  As discussed above, the vast majority of states have banned texting while driving.[73]  Fourteen states have gone even further, banning any use of hand-held devices for all drivers.[74]  The problem, however, lies in the fact that none of these laws address the concern with hands-free devices,[75] seeming to incorrectly presume that they are a safer alternative.[76]  California, for example, explicitly condoned the use of hands-free devices for texting less than a year after issuing a text messaging ban.[77]  While there have been calls for states to issue bans on the use of hands-free devices, no state has actually done so.[78]

The lack of a legislative response to research demonstrating the dangers of hands-free texting does not, however, mean that states are not seeking novel ways to continue the fight against distracted driving and its dire consequences.[79]  New York legislators, for example, recently introduced a bill (“Evan’s Law”) that arms police officers with a field testing device called a “textalyzer.”[80]  A textalyzer, which is still in development,[81] could check a driver’s phone for recent, unlawful activity.[82]

Setting aside privacy concerns, Evan’s Law and the use of a textalyzer raise additional important, yet unanswered, questions.[83]  Among those is whether the device will have the ability to distinguish between a message sent manually and one sent using hands-free technology.[84]  Hands-free devices are specifically exempted from New York’s texting ban; using them is not a violation of the law.[85]  Some doubt that the textalyzer will be able to differentiate whether a message was sent hands-on or hands-free.[86]  This may complicate the solution by adding, rather than subtracting, steps.[87]  The National Highway Traffic Safety Administration desires a technological solution to the distracted driving problem.[88]  The textalyzer, however, diverges from their vision—one including a device or a vehicle feature that recognizes when a driver is using a phone and deactivates it[89] —and adds procedural requirements.[90]

New York is currently the only state to consider using a device like the textalyzer to combat the distracted driving problem.[91]  If Evan’s Law passes, however, other states may join New York’s lead.[92]  Using technology to combat technology without explicitly considering the new age of automobile advancements and current research assessing their efficacy may prove to further complicate an already difficult area.

Suggestions and Conclusion

Technological advancements in cars are rapid and largely a result of consumer desires.[93]  As car manufacturers and legislators work to find solutions to the distracted driving epidemic,[94] the latter must take a hard look at the adequacy of current measures, while the former should consider its competitive emphasis on integrated hands-free technology.  Importantly, researchers and legislators will need to stop talking past one another, and start comparing notes.

 


[1] New Age Automobiles, Dreams About Car Life of the Future, MURATA, http://www.murata.com/en-us/about/newsroom/techmag/metamorphosis17/special/life (last visited June 7, 2016).

[2] See, e.g., Brian Cooley, Tech Watch: Top 5 Inexpensive High-Tech Cars, CBS SFBayArea (Oct. 2, 2012, 8:58 AM), http://sanfrancisco.cbslocal.com/2012/10/02/tech-watch-top-5-inexpensive-high-tech-cars/; Doug DeMuro, 7 Great High-Tech Cars Under $35,000, AUTOTRADER (Aug. 2014), http://www.autotrader.com/best-cars/7-great-high-tech-cars-under-35000-229215.

[3] Hans-Werner Kaas, Andreas Tschiesner, Dominik Wee & Matthias Kässer, How Carmakers Can Compete for the Connected Consumer, MCKINSEY & COMPANY (Sept. 2015), http://www.mckinsey.com/industries/automotive-and-assembly/our-insights/how-carmakers-can-compete-for-the-connected-consumer.

[4] Id.

[5] Reuters, U.S. Commuters Spend About 42 Hours a Year Stuck in Traffic Jams, NEWSWEEK (Aug. 26, 2015, 12:31 PM), http://www.newsweek.com/us-commuters-spend-about-42-hours-year-stuck-traffic-jams-365970; see also Ashley Halsey III, Automakers Embrace Hands-Free Text-Messaging Technology, WASH. POST (Oct. 24, 2011), https://www.washingtonpost.com/local/automakers-embrace-hands-free-text-messaging-technology/2011/10/19/gIQAg0fjDM_story.html (“The demand for all this comes, in part, because the amount of time Americans spend stuck in traffic has more than doubled since 1982 . . . .”); The Editorial Board, Editorial, Hands-Free Distractions, N.Y. TIMES (June 23, 2013), http://www.nytimes.com/2013/06/24/opinion/hands-free-distractions.html (“A spokeswoman for the auto industry told The Times that ‘people want to be connected in their car just as they are in their home or wherever they may be.’”).

[6] Reuters, supra note 5.

[7] Built-in Connectivity Among Least Used Technologies, Creating Lost Value, J.D. POWER (Aug. 25, 2015), http://www.jdpower.com/press-releases/2015-driver-interactive-vehicle-experience-drive-report (“[A]ccording to the J.D. Power 2015 Driver Interactive Vehicle Experience (DrIVE) Report,” which “measures driver experiences with in-vehicle technology features during the first 90 days of ownership . . . at least 20 percent of new-vehicle owners have never used 16 of the 33 technology features measured.”).

[8] Paul Murrell, The Technology People Want in Their Cars, and What They Don’t . . ., PRACTICAL MOTORING, https://practicalmotoring.com.au/car-news/what-car-tech-people-want-and-what-they-dont/ (last visited June 7, 2016).

[9] John Brandon, 10 Major Tech Advancements in Cars for 2016, COMPUTERWORLD (Jan. 12, 2016, 10:38 AM), http://www.computerworld.com/article/3021856/personal-technology/10-major-tech-advancements-in-cars-for-2016.html.

[10] Id.

[11] See, e.g., id.

[12] Id. Back-up cameras in cars, for example, are a practical advancement that will be mandated by law in any new car produced or sold in the United States after 2018. Wayne Cunningham, U.S. Requiring Back-Up Cameras in Cars by 2018, ROADSHOW BY CNET (Mar. 31, 2014, 11:04 AM), http://www.cnet.com/roadshow/news/u-s-requiring-back-up-cameras-in-cars-by-2018/ (“The rule applies to all road-legal vehicles under 10,000 pounds” and “requires a back-up camera to show a field of vision at least 10 feet wide directly behind the vehicle, going back a minimum of 20 feet.”).

[13] Id.

[14] Id.

[15] Rick Newman, Forget Self-Driving Cars—This Technology Is Way Cooler, YAHOO FINANCE (Apr. 22, 2016, 1:42 PM), http://finance.yahoo.com/news/forget-self-driving-cars-night-vision-technology-is-cooler-162552501.html.

[16] Id. Autoliv is a safety technology company and automotive supplier. AUTOLIV, About Us, https://www.autoliv.com/AboutUs/Pages/default.aspx (last visited June 7, 2016).

[17] Newman, supra note 15.

[18] See, e.g., Halsey III, supra note 5.

[19] Dr. Nina Radcliff, Distracted Driving Is an American Epidemic, WASH. TIMES (Apr. 26, 2015), http://www.washingtontimes.com/news/2015/apr/26/nina-radcliff-distracted-driving-american-epidemic/?page=all.

[20] CTR. FOR INTERNET & TECH. ADDICTION, IT CAN WAIT COMPULSION SURVEY 3, http://about.att.com/content/dam/snrdocs/It%20Can%20Wait%20Compulsion%20Survey%20Key%20Findings_9%207%2014.pdf (last visited June 7, 2016) (using a national telephone survey consisting of 1,004 respondents who meet the following criteria: are between 16-65, own a cell phone, text at least once a day, and drive, at a minimum, almost every day).

[21] Justin Worland, Why People Text and Drive Even When They Know It’s Dangerous, TIME (Nov. 6, 2014), http://time.com/3561413/texting-driving-dangerous/.

[22] CTR. FOR INTERNET & TECH. ADDICTION, supra note 20.

[23] Distracted Driving, CDC, http://www.cdc.gov/motorvehiclesafety/distracted_driving/ (last visited June 7, 2016) (noting that there are three types of distraction: visual, manual, and cognitive).

[24] Radcliff, supra note 19.

[25] Andrew Lavallee, Consumers Favor Texting-While-Driving Ban, WALL ST. J. (Sept. 1, 2009, 8:04 AM), http://blogs.wsj.com/digits/2009/09/01/consumers-favor-texting-while-driving-ban/.

[26] Radcliff, supra note 19.

[27] Distracted Driving Laws, GHSA (Apr. 2016), http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html.

[28] Kaas et al., supra note 3; Halsey III, supra note 5.

[29] See supra notes 18–26.

[30] Jayne O’Donnell, Some Cars Will Read Texts and E-mails or Take Dictation, USA TODAY (Mar. 28, 2013, 12:06 AM), http://www.usatoday.com/story/news/nation/2013/03/27/some-cars-will-read-texts-and-emails-or-take-dictation/2026823/.

[31] Halsey III, supra note 5.

[32] See, e.g., Ford SYNC Technology, FORD, http://www.ford.com/technology/sync/ (last visited June 7, 2016).

[33] Peter DeMarco, Top 7 Hands-Free Driving Devices, BOSTON.COM, http://www.boston.com/cars/gallery/top_handsfree_driving_apps/ (last visited June 7, 2016).

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] See, e.g., Tara Baukus Mello, Rating Hands-Free Calling in Today’s Cars, BANKRATE, http://www.bankrate.com/finance/auto/rating-hands-free-calling-in-todays-cars-1.aspx (last visited June 7, 2016).

[39] Of the 10 largest car manufactures in the world, General Motors is #2, Nissan-Renault #3, and Ford Motor Company #6. See John LeBlanc, The Top 10 Largest Automakers in the World, DRIVING (Apr. 25, 2014), http://driving.ca/toyota/corolla/auto-news/news/the-top-10-largest-automakers-in-the-world.

[40] Ford SYNC Technology, supra note 32 (discussing “SYNC 3 plus Apple CarPlay Support,” which lets owners “use [their] voice to make a call, listen to music, voice-control, select apps with SYNC AppLink and much more,” while “keep[ing] [their] eyes on the road and [their] hands on the wheel”).

[41] See In-Vehicle Infotainment (IVI), WEBOPEDIA, http://www.webopedia.com/TERM/I/in-vehicle-infotainment-ivi.html (last visited June 7, 2016) (“[T]ypical tasks that can be performed with an in-vehicle infotainment system include managing and playing audio content, utilizing navigation for driving, delivering rear-seat entertainment such as movies, games, social networking, etc., listening to incoming and sending outgoing SMS text messages, making phone calls, and accessing Internet-enabled or smartphone-enabled content such as traffic conditions, sports scores and weather forecasts.”).

[42] Ford SYNC Technology, supra note 32.

[43] Id.

[44] Chevrolet MyLink, CHEVROLET, http://www.chevrolet.com/mylink-radio.html (last visited June 7, 2016).

[45] Id.

[46] Id. (noting Text Message Alerts are “available on 2015 Impala models”).

[47] Id.

[48] NissanConnect Features, NISSAN, http://www.nissanusa.com/connect/features-app.html#_features-communication (last visited June 7, 2016).

[49] Id.

[50] Id.

[51] Id.

[52] See supra notes 37–49. Buick, Toyota, Volkswagen, Chrysler, Hyundai, and Mazda all have similar systems. See also New Hands-Free Technologies Pose Hidden Dangers for Drivers, AAA NEWSROOM (Oct. 22, 2015) [hereinafter Hidden Dangers], http://newsroom.aaa.com/2015/10/new-hands-free-technologies-pose-hidden-dangers-for-drivers/.

[53] Peter Bigelow, Feds Recommend Ban of Hands-Free Phone Use to Curb Epidemic of Distracted Driving, AUTOBLOG (Mar. 28, 2012, 10:49 AM), http://www.autoblog.com/2012/03/28/feds-recommend-ban-of-hands-free-phone-use-to-curb-epidemic-of-d/ (“[Department of Transportation Secretary Ray] Lahood has said the issue with hands-free devices needs more research.”).

[54] David Pogue, Hands-Free Texting Is No Safer to Use While Driving, SCIENTIFIC AMERICAN (Nov. 1, 2013), http://www.scientificamerican.com/article/hands-free-texting-is-no-safer-to-use-while-driving/ (discussing a study conducted by the Texas A&M Transportation Institute that examined “people driving a closed course under three conditions: while texting by hand, while texting by voice . . ., and without texting at all,” and finding that there is “no difference whether [one] text[s] hands-free or by voice”). Notably, this study only used 43 subjects. Id.

[55] Hands-Free Is Not Risk-Free, Nat’l Safety Council, http://www.nsc.org/learn/NSC-Initiatives/Pages/distracted-driving-hands-free-is-not-risk-free-infographic.aspx (last visited June 7, 2016) (discussing a study conducted by the AAA Foundation for Traffic Safety).

[56] Distracted Driving, supra note 23.

[57] NAT’L SAFETY COUNCIL, UNDERSTANDING THE DISTRACTED BRAIN: WHY DRIVING WHILE USING HANDS-FREE CELL PHONES IS RISKY BEHAVIOR 2 (2012), http://www.nsc.org/DistractedDrivingDocuments/Cognitive-Distraction-White-Paper.pdf.

[58] Hidden Dangers, supra note 52 (summarizing a study in which 257 drivers between the ages of 21 and 70 tested 2015 model-year vehicles, and 65 other drivers between the ages of 21 and 68 “tested the three phone systems”). The study represented a third phase of the Foundation’s investigation into the effects of hands-free technology use in vehicles on a driver’s cognitive distraction. Id.

[59] The Texas A&M Transportation Institute (TTI) is “one of the premier higher education-affiliated transportation research agencies in the nation,” which “conducts over 600 research projects annually with over 200 sponsors at all levels of government and the private sector.” About TTI, Tex. A&M Transp. Inst., http://tti.tamu.edu/about/ (last visited June 7, 2016). This particular study was sponsored by the Southwest Region University Transportation Center. Voice-to-Text Driver Distraction Study, Tex. A&M Transp. Inst. [hereinafter Distraction Study], https://tti.tamu.edu/enhanced-project/voice-to-text-driver-distraction-study/ (last visited June 7, 2016).

[60] Distraction Study, supra note 59 (summarizing a study in which 43 drivers first drove through a closed course without using any cell phones, then did so “three more times performing a series of texting exercises—once using each of two voice-to-text applications (Siri® for the iPhone and Vlingo® for Android), and once texting manually”).

[61] Id.

[62] Id.

[63] See, e.g., Mitch Bainwol, Letter to the Editor, Using Hands-Free Devices to Chat and Drive, N.Y. Times (July 4, 2013), http://www.nytimes.com/2013/07/05/opinion/using-hands-free-devices-to-chat-and-drive.html.

[64] See RICHARD HARKNESS, SUMMARY OF RESEARCH FINDINGS INDICATE SIGNIFICANT CRASH RISKS ASSOCIATED WITH HANDS-FREE TEXTING WHILE DRIVING 1 (2013), https://www.adeptdriver.com/assets/resources/Hands_free_texting_while_driving_poses_great_crash_risk_4-25-13.pdf.

[65] The Virginia Tech Transportation Institute (VTTI) is “the second largest university-level transportation institute in the U.S. with more than 475 employees.” About VTTI, VA. TECH TRANSP. INST., www.vtti.vt.edu/about/about-vtti.html (last visited June 7, 2016). The institute “has more than $36 million in annual sponsored program research expenditures and is conducting more than 270 active projects.” Id. The study in question was sponsored by the National Highway Traffic Safety Administration. New VTTI Study Results Continue to Highlight the Dangers of Distracted Driving,VA. TECH TRANSP. INST. (May 29, 2013) [hereinafter VTTI Study], http://www.vtti.vt.edu/featured/?p=193.

[66] VTTI Study, supra note 65 (summarizing a study in which cameras and other equipment were used to observe participants in their personal vehicles for a combined total of six million miles driven).

[67] See HARKNESS, supra note 64.

[68] Jenny Che, How Car Companies Are Combatting Texting While Driving, Huffpost Business (June 9, 2015, 6:14 PM), http://www.huffingtonpost.com/entry/how-car-companies-are-combatting-texting-while-driving_us_55771263e4b0317a2afd3fdc.

[69] Robert Rosenberger, The False Sense of Safety Created by Hands-Free Devices in Cars, Slate (March 5, 2012, 3:15 PM), www.slate.com/blogs/future_tense/2012/03/05/hands_free_devices_don_t_make_it_safe_to_talk_text_and_drive_.html.

[70] See HARKNESS, supra note 64.

[71] See id.

[72] Distracted Driving Laws, supra note 27.

[73] Id.

[74] Id. Those states are California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, New Hampshire, New Jersey, New York, Oregon, Vermont, Washington, and West Virginia. Id. The District of Columbia, Puerto Rico, Guam, and the Virgin Islands also ban hand-held devices while driving. Id.

[75] See generally id.

[76] See, e.g., Halsey III, supra note 5.

[77] Dante D’Orazio, California Passes Bill Legalizing Voice-Activated Hands-Free Texting While Driving, THE VERGE (July 17, 2012, 9:06 PM), http://www.theverge.com/2012/7/17/3165461/california-legalizes-voice-activated-hands-free-texting.

[78] Bigelow, supra note 53.

[79] See Matt Richtel, Texting and Driving? Watch Out for the Textalyzer, N.Y. Times (Apr. 27, 2016), http://www.nytimes.com/2016/04/28/science/driving-texting-safety-textalyzer.html.

[80] Id.

[81] David Kravets, First Came the Breathalyzer, Now Meet the Roadside Police “Textalyzer”, arstechnica (Apr. 11, 2016, 3:00 PM), http://arstechnica.com/tech-policy/2016/04/first-came-the-breathalyzer-now-meet-the-roadside-police-textalyzer/.

[82] Richtel, supra note 79.

[83] See, e.g., Bryan Chaffin, On Being Skeptical of ‘Textalyzer’ Technology to Detect Smartphone Use Before Accidents, MAC OBSERVER (Apr. 12, 2016, 8:25 PM), http://www.macobserver.com/tmo/article/on-being-skeptical-of-textalyzer-technology-to-detect-smartphone-use-before.

[84] The current iteration of Evan’s Law does not provide an answer. See S.B. S6325A 2015–2016 Leg. Sess. (N.Y. 2016).

[85] N.Y. VEH. & TRAF. LAW § 1225-c(3)(c) (Consol. 2016).

[86] Kravets, supra note 81 (stating that further testing will be required to determine whether integrated hands-free technology was the method of phone usage).

[87] Id. (stating that further testing will be required to determine whether integrated hands-free technology was the method of phone usage).

[88] Damon Lavrinc, The Feds’ ‘Ultimate Solution’ to Curb Distracted Driving, WIRED (June 6, 2013, 7:00 PM), http://www.wired.com/2013/06/feds-ultimate-solution/.

[89] Id.

[90] Kravets, supra note 81 (stating that the additional testing “may require a warrant”).

[91] Richtel, supra note 79.

[92] Id.

[93] See, e.g., James Liu, Aluminum in Automotive: This Is Just the Beginning, Novelis, http://novelis.com/aluminium-in-automotive-this-is-just-the-beginning/ (last visited June 7, 2016).

[94] Radcliff, supra note 19.

Search Engines under Attack: Examining the European Union’s Right to be Forgotten (Parts II & III)

By Tisunge (Sunga) Mkwezalamba*

Part II: Interpreting the Right to be Forgotten

This section provides a case summary of Google Spain v. González. In its holding, the Court of Justice of the European Union determined that search engines are responsible for the removal of personal data upon request, regardless of how the data was obtained, so long as processing of the personal data would not be in compliance with the principles of Directive 95/46/EC.

(a). Google Spain v. González[1]

In 2010, Mario Costeja González, a Spanish citizen, filed a complaint against a local Spanish newspaper with the Spanish Data Protection Authority (AEPD).[2] González sought to have the newspaper remove a disfavoring news article published in 1998 regarding an auction of his home in connection with the recovery of his debts. González argued that the matter concerning his debts had been fully resolved for a number of years, and therefore, the contents of the article, which were his personal data under the definition of Article 2(a) of Directive 95/46/EC, were now irrelevant and should be erased and blocked pursuant to Article 12(b) of the same directive.[3] González named Google Spain and Google as co-defendants in his complaint. González argued that Google should remove all links to the article pursuant to the same provisions of the directive.[4]

The AEPD rejected the complaint as it related to the newspaper, reasoning that the newspaper was legally justified in publishing information regarding the auction because it took place under the order of a government authority and was intended to achieve maximum publicity in order to secure as many bidders as possible.[5] Astonishingly, the AEPD did not extend the same coverage that it afforded the newspaper to Google Spain and Google, and in fact ruled against them.

Google Spain and Google appealed the decision before Spain’s National High Court (Audiencia Nacional).[6] Google argued that Directive 95/46/EC did not apply to Google Spain because Google Spain’s activities in the EU were advertising, which Google contended was not processing of personal data pursuant to the directive.[7] Further, Google argued that even if the court found Google Spain to have engaged in the processing of personal data, the company was established outside of the directive’s jurisdiction.[8]

Spain’s National High Court decided to stay the proceedings and referred questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling regarding Directive 95/46/EC.[9] The questions submitted to the CJEU were: (1) whether Google Spain was established in Spain within the meaning of Article 4(1)(a), and therefore subject to the directive; (2) whether Google’s activities in Spain fell under the Article 2(b) definition of processing of personal data; and (3) if the aforementioned questions were in the affirmative, whether Article 12(b) obligated Google to erase or block the processing of personal data lawfully published by a third party.[10]

On May 13, 2014, the CJEU reached a decision against Google. The decision opened the floodgates for similar claims against large search engines.

Regarding whether Google Spain was established in Spain within the meaning of Article 4(1)(a), the court found that Google was subject to its jurisdiction because it was established in Spain through the activities of its subsidiary in a member state. The court reasoned that application of the directive did not require that Google Spain, the entity established in the EU, carry out processing. The court held that processing by the established entity was not a requirement so long as the established entity’s activities were closely linked to the processing activities.[11]

Next, concerning whether Google’s activities fell under the Article 2(b) definition of processing of personal data, the court concluded that a search engine’s activity of finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily, and making it available to internet users according to a particular order of preference must be classified as “processing of personal data” within the meaning of Article 2(b), and the operator of the search engine must be regarded as the “controller” with respect to that processing, within the meaning of Article 2(d).[12]

As a result, the court held that a search engine is obligated to remove personal data pursuant to Article 12(b) to comply with the rights in the directive regardless of whether the data was obtained lawfully. In its holding, the court expanded the scope of personal data that is to be erased or blocked outside of personal data that is particularly inaccurate or incomplete in nature. The court, through its decision that the right to be forgotten exists where the personal data is not in compliance with the rights of the directive, provided circumstances that it believed were in accordance with the principles of the directive. The court held that the right to be forgotten should be afforded when the personal data is “irrelevant or no longer relevant, or is excessive in relation to the purposes of the processing at issue carried out by the search engine, even if the information is not erased beforehand or simultaneously from those web pages, and even when its publication in itself on those pages is lawful.”[13] Interestingly, the court found that its list of circumstances included disfavoring personal data such as the auction, which it found fell under relevance.

(b). Aftermath of González

Though the right to be forgotten previously did not explicitly exist in EU law, the CJEU interpreted it in Article 2(b) of Directive 95/46/EC.[14] In its holding, the court expanded the definition of processing to include closely related activities such as advertising, and held that the activities of a search engine in providing links to websites with personal data constituted the processing of the personal data available through those links. Further, the court provided a list of circumstances where the right to be forgotten could be exercised, which included disfavoring information that was no longer relevant.

Most troublesome in the court’s interpretation of when the right could be exercised was its determination that search engines are to remove personal information that is lawfully obtained and privileged to the original publisher. Thus, if an individual wanted to remove his or her personal data online, he or she could simply apply to search engines, which are then to remove the link. Considering the number of individuals who use search engines to locate personal data, it only makes sense that individuals will be inclined to appeal to search engines directly.

As it relates to the GDPR, this is problematic because the language about the right to be forgotten is similar to the broad definition provided in González. Thus, search engines remain the misguided targets of the right to be forgotten.

Part III: Why the Right to be Forgotten is Bad Policy and Bad Law

In this section, I argue that the EU’s creation of a right to be forgotten is bad policy and bad law. First, the EU’s interpretation of the right to be forgotten is bad policy and bad law because its application does not remove access to the personal data that has been requested for removal. Second, it is likely to lead to instability in capital markets where investments and extensions of credit rely on personal data of an individual’s market participation. Third, as currently interpreted, the right compels large search engines to enforce the international right at their burden. This is significant because search engines then have to create a judiciary to judge EU law where only one precedent stands for a broad interpretation of a newly created privacy right. Lastly, the CJEU’s interpretation of the law disregards guaranteed freedoms, mainly the freedom of expression, in favor of the right to be forgotten.

1.The EU’s interpretation of the right to be forgotten does not remove access to the personal data that has been requested for removal.

The EU’s creation of a right to be forgotten is bad policy and bad law because it does nothing to actually restrict access to personal data. In a globalized society, search engines with the capabilities of Google provide regional services. However, access to the search engines’ services across regions remains possible. For instance, following the decision in González, no links to the newspaper article containing the auction of González’s home should have been available by searching González’s name in Google’s Spanish search domain URL (google.es). Despite the article’s removal from Google’s Spanish domain, the newspaper article remained available through Google’s US search domain URL (google.com). Essentially, once a search engine is required to remove the link, it is only the link that is removed, and the content remains. Further, other search engines will still provide links to the personal data that has been requested for removal. Thus, following González, a search through Yahoo! would have provided access to the article detailing the auction. Consequently, by the CJEU providing protections to the publisher and not search engines as it had done in González, the right to be forgotten is left for search engines to deal with.

There are also other concerns with the impracticality of the rule. These days, embarrassing information is shared on many mediums. At any moment, embarrassing content can be rapidly disseminated throughout the internet, reaching far and wide in a small amount of time. When content is disseminated rapidly throughout the internet, it is said to “go viral” or be “trending”. Locating personal data to de-link it becomes a long, painstaking process, particularly when the data can become undetectable or irretrievable due to the rate at which that information is shared. For instance, a trending photo that identifies an individual could be traced easily when those sharing the information share it with identifiers such as the name of the individual who the photo belongs to. However, once it is shared numerous times, that name may be misspelled or omitted, making it more difficult for search engines to locate it. This is the case in an age when embedding content rather than linking or sharing is gaining ground in digital information sharing. Further, it is unclear from the ruling in González and the text of GDPR as to what mediums controllers are supposed to remove content from and to what extent. Assume a video from a news channel discussing González’s auction was spliced into a video that is uploaded onto YouTube.com. Would Google, an owner of YouTube, be required to take down the entire video? These answers are still left unanswered, and are likely to lead to a slippery slope for search engines.

2. Removal of lawfully published personal data linking individuals to market decisions affects markets and democratic decision-making.

We live in a world where markets make decisions based on personal data. Thus, the availability of personal data, whether or not it is disfavoring, has significant value in the market. For example, decisions in the labor market are becoming increasingly influenced by personal data published willfully on social media sites. CareerBuilder, a US-based employment website, reported that more than 40 percent of employers research job candidates’ personal data on social media sites.[15] Employers use the personal information available on social media accounts to evaluate candidates. Some may argue that employers only look for information that reveals a candidate’s moral character. However, CareerBuilder’s report found that employers are more concerned with information that supports a candidate’s qualifications for the job to ensure they are able to recruit the best available candidates.[16] In a competitive job market, this is a good thing. If individuals are able to remove personal data when it is disfavoring or does not attest to their qualifications, such as personal data indicating that an individual did not work in the capacity his or her résumé attests, then employers may risk making costly employment decisions.

The most important reason why we need markets to have access to personal data relates to capital investments and extension of capital. Buyers need confidence in personal data available in the market to make purchasing decisions. Personal information is needed in order to ascertain the fair market value of an item,[17] such as a vehicle’s history. The history of the vehicle is personal data because it identifies the vehicle’s conditions under its prior owners. Thus, buyers should be able to retrieve all information necessary regarding their purchase before making a decision. If the right to be forgotten is exercised to detach a seller’s identity from a market decision because it is disfavoring, such as González’s home auction from bad debts, then the buyer will not be able to make a well-informed decision.

Alexa, a company that provides web traffic and data analytics, publishes a list of the most frequently used websites. Of the top ten, three are search engines.[18] This is significant because it indicates how much individuals trust the information available on search engines. In 2011, more than 75 percent of individuals used search engines to find local business information.[19] Thus, proponents of enforcing or creating the right to be forgotten seem to overlook how reliant individuals are on the information available on search engines. As it relates to making decisions in the market, this is of particular concern where individuals are likely to perform their own market research to save costs. For instance, if a homeowner is interested in purchasing the services of a lawn care business owner they may be interested in conducting market research on previous works of the lawn care provider before contracting for her services. Researching all potential lawn care providers in her area will be time consuming. Thus, the homeowner is likely to visit websites that offer reviews of lawn care providers. If the lawn care owner has received unsavory reviews on her work and exercises her right to be forgotten arguing that the reviews are disfavoring and excessive, the information will be removed and the buyer will be unable to make an informed decision.

Further, by extending the right to be forgotten to personal data such as debt history, creditors could be less willing to extend credit. Creditors extend credit based on personal data regarding an individual’s ability to repay them with interest. A history of bad debts is a type of personal information that creditors rely on. By allowing individuals to remove personal data relating to bad debts that have already cleared, as was the case in González, creditors may suffer if they extend credit to individuals who are unable to repay them.

In addition to the necessity of personal data in the market, personal data is needed to make decisions in matters where an individual’s moral character is significant. In a democratic society, we rely on a person’s past to make judgments as to whether it is supportive of a high position in society. For instance, individuals who run for public office must provide access to some of their public records. In addition, lawyers have to complete a character and fitness report where they disclose their personal data, whether or not it is disfavoring. If the public no longer has access to or cannot rely on the information made available, we will be unable to make informed decisions and distrust the democratic process.

3. The EU’s interpretation of the right to be forgotten asks search engines to enforce EU privacy law and risk liability for content published by third parties.

A quick overview of the resources Google has added in response to González helps demonstrate the burdensome consequences of the decision. In response to González, Google has had to employ a full-time staff to review applications to de-link content sources.[20] Google has also established an advisory council which includes legal, data protection, and human rights experts. The advisory board assists the staff responsible for effecting the right to be forgotten. Google has essentially been forced to serve as the judge and jury of what are still unclear privacy terms with not much case precedent. This is alarming considering Article 8 of the Charter of Fundamental Rights of the European Union (which affords the right to protection of personal data) states that compliance with the protection of personal data is subject to control by an independent authority.[21] In Directive 95/46/EC, the regulation provides for data protection authorities who are to determine data privacy matters on multiple levels. Nonetheless, the language of GDPR and the González court’s opinion interpreting the right to be forgotten never considered that member states’ privacy authorities should act as the judiciary to determine whether applicants for the right to be forgotten should be afforded that right, which unfairly places the burden on search engines like Google.

The EU’s neglect of the text of the law will undoubtedly lead to an insurmountable case load appearing before Google’s newly appointed judiciary. Since the González ruling, Google has received nearly half a million requests to have personal data removed.[22] Google’s costs go up if it fails to comply adequately with the brazen regulation. If Google does not de-link all content it can reasonably de-link, the GDPR could fine it an amount equivalent to two percent of Google’s annual worldwide turnover for noncompliance with the rule.[23]

4. The right to be forgotten disregards other guaranteed freedoms, mainly freedom of the press.

Article 11 of the Charter of Fundamental Rights of the European Union provides for a right to freedom of expression.[24] Free speech, alongside freedom of assembly, facilitates open discussion, which is seen as a necessity for a functioning democracy such as the US. However, as was the case in González, the right to privacy appears to trump the right to free speech in the EU.

Most search engines are based in the US, where the right to free speech is strong.[25] A fundamental right, free speech is closely protected in the US, with few exceptions such as the famous “clear and present danger” rule. This is problematic to search engines acting as a judiciary because they would be required to exercise censorship that they do not support in the name of privacy rights granted in the EU. There is a danger that search engines, when faced with a country’s demand to comply with privacy regulations they do not agree with, may choose to say “no thanks” instead of continuing operations in that country. This occurred in 2010, when Google decided to abandon its operations in China because it fundamentally disagreed with China’s level of censorship.[26] If in the future search engines decide not to do business in countries enforcing the right to be forgotten, citizens will be the ultimate losers.

 


*Tisunge (Sunga) Mkwezalamba. University of Illinois College of Law, J.D. candidate, Class of 2016. Data privacy focus. Many thanks to Maxwell and Hilda Mkwezalamba.

[1] Directive 95/46 was transposed into Spanish Law by Organic Law No 15/1999 of 13 December 1999 on the protection of personal data (BOE No. 298 of 14 December 1999, p. 43088).

[2] “Agencia Española de Protección de Datos”

[3] Case C-131/12, Google Spain v. González, 2014 EUR-Lex CELEX-LEXIS 317, ¶ 15 (May 13, 2014).

[4] Id. at ¶ 14-15.

[5] Id. at ¶ 16.

[6] Id.

[7] Id. at ¶ 51.

[8] Id.

[9] Id. at ¶ 20.

[10] Id. at ¶ 21.

[11] Id. ¶ 52.

[12] Id. ¶ 41.

[13] Id. at ¶ 94, 62; Council Directive 95/46, art. 12(b), 14(a) 1995 (L 281) 31 (EC) [hereinafter “Directive 95/46/EC”], available at http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:31995L0046&from=en.

[14] Case C-131/12, Google Spain v. González, at ¶ 20.

[15] Press Release, CareerBuilder, 35 Percent of Employers Less Likely to Interview Applicants They Can’t Find Online, According to Annual CareerBuilder Social Media Recruitment Survey (May 14, 2015), available at http://www.careerbuilder.com/share/aboutus/pressreleasesdetail.aspx?sd=5%2F14%2F2015&id=pr893&ed=12%2F31%2F2015.

[16] Id.

[17] John A. Enahoro and Jumoke Jayeoba, Value Measurement and Disclosures in Fair Value Accounting, 3(9) ASIAN ECON. & FIN. REV. 1170 (2013), available at http://www.aessweb.com/pdf-files/3(9)%201170-1179.pdf.

[18] The Top 500 Sites on the Web, ALEXA, http://www.alexa.com/topsites (last visited Mar. 22, 2015).

[19] As Media Habits Evolve, Yellow Pages and Search Engines Firmly Established As Go-To Sources for Consumers Shopping Locally, PR NEWSWIRE (June 13, 2011, 9:10 AM), http://www.prnewswire.com/news-releases/as-media-habits-evolve-yellow-pages-and-search-engines-firmly-established-as-go-to-sources-for-consumers-shopping-locally-123740559.html.

[20] The Advisory Council to Google on the Right to Be Forgotten, GOOGLE, https://www.google.com/advisorycouncil (last visited Mar. 22, 2016).

[21] 2000 O.J. (C 364) 1, available at http://www.europarl.europa.eu/charter/pdf/text_en.pdf.

[22] European Privacy Requests for Search Removals, GOOGLE, https://www.google.com/transparencyreport/removals/europeprivacy/?hl=en (last updated Mar. 22, 2016). Since last visited on March 22, 2016, Google has evaluated 1,420,812 URLs for removal based on 406,329 requests. Google has removed 42.6 percent of those URLs.

[23] Press Release, European Commission, Stronger Data Protection Rules for Europe (June 15, 2015), available at http://europa.eu/rapid/press-release_MEMO-15-5170_en.htm.

[24] Charter of Fundamental Rights of the European Union supra note 21, at art. 11.

[25] See, e.g., The Florida Star v. B.J.F., 491 U.S. 524 (1989) (holding that imposing damages on a newspaper for publishing the name of a rape victim violates the First Amendment).

[26] Henry Blodget, China Surprisingly Rattled by Google’s Clever Pullout, HUFFINGTON POST, http://www.huffingtonpost.com/henry-blodget/china-surprisingly-rattle_b_509428.html (last updated May. 25, 2011).

Curing Americans’ Kleptomania: An Empirical Study on the Effects of Music Streaming Services on Piracy in Undergraduate Students

By John G. Moustis Jr.* & Austin Root*

I. Introduction

Music piracy is widely considered to be the greatest problem faced by the music industry worldwide.[1]  According to a 2007 study conducted by the Institute ty Policy Innovation, Americans’ music pirating habits have caused:

• An annual reduction in the U.S. economy by $12.5 billion;
• The loss of 71,060 jobs in the sound recording industry and downstream retail;
• The loss of $2.7 billion in annual earnings by workers in the sound recording industry and downstream retail; and
• The loss of at least $422 million in state and federal tax revenue.[2]

Studies suggest new technologies like internet radio and interactive streaming services could significantly reduce piracy.[3]  Although this topic is at the center of many legal comments, little empirical research has been conducted to answer this question.

In response to this gap in the literature, the author conducted a survey on the music consumption habits of 252 college students.  The results demonstrate that while music piracy is still widespread on college campuses, streaming services have already begun to reduce the amount of music pirated per year.  If streaming is in fact responsible for this shift away from piracy, Congress would do well to implement a compulsory licensing system for music streaming webcasters.  Such a structure could help music distributors stabilize their business model and incentivize music consumers to use their services in place of alternative, illicit means.

After briefly discussing the modern tools of music pirates and the current state of digital music distribution technologies, this study presents empirical data showing that music piracy is alleviated by internet streaming services.  The methodology used for data collection follows, along with a statistical analysis.  The paper concludes with a discussion on the effects of internet technologies on music piracy and how enacting a compulsory licensing scheme would help streaming services to succeed, in turn lowering music piracy.

II. America’s Addiction to Music Piracy

A. What is Music Piracy?

While music piracy may be committed in a number of ways under copyright law, this study focuses on digital music piracy.  Digital music piracy is committed specifically through the copying, distributing, transmitting, or making available of copies of digital audio files.[4]  This may be done by uploading or downloading a copyrighted song from an unlicensed or unauthorized webpage, P2P network, or file-exchange server;[5] burning a CD, other than for archival use;[6] or converting a video hosted on a webpage into a digital audio file.[7]

B. The Extent of Music Piracy Today

Illegally downloading music is rampant throughout the United States today.  Forty percent of Americans aged eighteen and older have copied CDs or downloaded music files for free.[8]  Eighty-seven percent of students currently in college conduct some form of illegal copying, with each college student maintaining on average over 800 illegally downloaded songs.[9]

Torrent file trackers estimate that around 70 million people have been found across all formats of file-sharing programs on a daily basis,[10] while 30 million people engage specifically in torrent file-sharing every day.[11]  It is safe to conclude that music piracy is more prevalent in America than ever before.

Media piracy is most common among youth.  Specifically, undergraduate college students are the most active music pirates.[12]  However, while young people are the most active pirates, they are also more likely to adopt new technologies.[13]

III. Today’s Music Technologies

The physical size of consumers’ music libraries and listening devices has continuously shrunk over time.  From records and phonographs to ephemeral radio waves and pocket-sized stereos, it is now easier for people to access as much music as possible, at all times, wherever they are.

MP3s were the original solution to the demand for portable music until MP3 players and phones became integrated.  The age of the iPod was quickly brought to a close as the smart phone era was ushered in.[14]  However, the desire for smaller, slimmer smart phones, in addition to the presence of tens or hundreds of apps on a phone, reduced the amount of hard drive space available for music storage.  This drove the need for a music format that took up even less physical space.

People today are switching by the millions[15] to new music streaming services such as internet radio,[16] interactive streaming services,[17] and on-demand music videos.[18]  Via these distribution mediums, consumers are able to access all of the music they desire without having to store the music files directly on the device they are carrying.  We can see the high demand for music streaming today as the market continues to shift from CD and digital purchases, while streaming and internet radio revenues continue to increase.  In 2014, the number of paying streaming subscription users rose by 46 percent, while digital downloads decreased by eight percent.[19]  In the same year, the streaming service webcasters alone earned $1.6 billion.[20]  Streaming is gaining popularity at a rate that is even faster than the rate at which digital downloads overtook physical mediums.[21]

IV. The Uncertain Future of Interactive Music Streaming Services

Copyright law compartmentalizes streaming services into three distinct groups:[22] (i) interactive;[23] (ii) non-interactive, subscription;[24] and (iii) non-interactive, non-subscription.  In accordance with copyright law, streaming services that fall under categories (ii) and (iii) are subject to compulsory licensing, meaning those types of webcasters may stream a copyrighted sound recording so long as the webcaster pays the licensing fee set forth by the copyright royalty board.[25]  In contrast, category (i) services must negotiate directly with sound recording copyright owners to obtain digital performance licenses.[26]  These interactive services suffer from the increased transaction costs that come with having to deal with each copyright owner individually,[27] such as unpredictable price schemes.[28]  For example, in 2012 the interactive streaming company Spotify came to an agreement with record labels to pay the higher of $200 million or 75 percent of total revenues.[29]  It is expected that Spotify and other interactive streaming webcasters’ costs will continue to rise as their revenues continue to increase.[30]

The current licensing scheme for interactive streaming services has resulted in the concentration of certain artists’ music within some streaming services and not others.[31]  If sound recording copyright holders do not want their songs played via an interactive streaming service, they are not required by law to issue a license to the service.  Under the current scheme, for example, if a person purchases a subscription to Spotify, that person will not be able to listen to almost all works by mega-artists such as Taylor Swift, Jason Aldean, and Garth Brooks, who either pulled their music from Spotify or never made it available on Spotify to begin with.[32]  This current scheme forces consumers to use multiple channels or mediums to listen to their favorite songs. Many individuals turn to piracy as an alternative to this cumbersome process.

V. Previous Literature on Music Streaming Services and their Effects on Music Piracy

As new music consumption technologies began to develop, researchers shifted their focus towards the effects of these new services on music piracy.  So far, the results have been mixed.  One study asked respondents to self-report how much they pirated music before and after starting to use the Spotify streaming service.[33]  Seventy-five percent of subjects reported pirating music less after beginning to use the interactive streaming service.[34]  Other studies have shown that streaming and internet radio users are the demographic most likely to purchase physical or digital albums after hearing music via online mediums.[35]  However, one survey of college undergraduates found that those who use streaming services are more likely to engage in music piracy.[36]

Legal scholars have written a number of articles on this topic.  Some suggest that supporting interactive streaming service growth in the music industry by developing a compulsory licensing scheme for interactive webcasters can help combat diminishing revenues in the music industry.[37]  How exactly these schemes should look is widely debated. Most articles published by legal scholars on this topic are limited in scope to policy analyses and do not make use of empirical data.[38]

VI. The Present Study

This study hopes to build upon and inform previous legal comments through the use of empirical data. In the current study, the author attempts to expand on existing research by asking the following question:

What effects does the rapid popularization of music streaming services have on (a) the amount of students who pirate music and (b) the amount of music illegally downloaded?

In exploring the previous question the following hypotheses are proposed:

H1 – A student’s use of music streaming services does not affect whether that student pirates music.

H2 – A student’s use of music streaming services does affect the amount of music that student pirates.

VII. Experimental Design & Methodology

This study is based on a survey conducted in the fall of 2015 at the University of Illinois in Champaign, Illinois.  In total, 252 participants responded.  The participants’ ages range from 18 to 32 years old, with the mean age of the sample being approximately 20 years old.  Of the sample population 140 participants were male, 107 participants were female, and 5 gave no response.

The data were collected through a questionnaire distributed to the students near the end of classes they were currently attending.  The survey consisted of 11 questions.  The first part of the survey gathered general information concerning the music consumption habits of the respondent.  The second part collected asked the respondents about their use of streaming service account subscriptions and piracy habits.[39]  The third part of the survey measured the respondent’s knowledge of policy and punishment, along with perceptions of their peers’ piracy habits.  The last section gathered demographic information.

To capture the undergraduate students’ levels of participation in music piracy, the survey asked respondents to indicate approximately how many files they had illegally downloaded in the past year.  Potential responses included: not applicable (none); 1–10; 11–100; 101–1000; more than 1000 files.

The next variable measured how respondents consumed music.  Individual respondents were given a list of distributional mediums (e.g. CDs/Vinyl Records, Analog Radio, Satellite Radio, Internet Radio, Interactive Streaming Services, MP3s, and Other) and asked to mark all that apply.

The next variables were based off more specific data regarding the respondent’s use of internet radio and streaming service accounts.  To measure the students’ habits regarding the use of internet radio and streaming service accounts, the survey asked them to indicate whether they had ever purchased a streaming service account subscription.  These data allowed us to categorize individuals as account purchasers or those who just use internet radio and streaming services to consume music.

To analyze the data, the study used descriptive statistics, inferential statistics, and regression analyses.  First, the descriptive statistics of the sample population were analyzed.  Then each dependent variable was analyzed using inferential statistical techniques and regression analysis.

VIII. Results

The most common medium used by participants was Interactive Streaming Services (75.79 percent).  Digital MP3s (65.87 percent) and Internet Radio (63.10 percent) are the next most popular mediums.

Approximately 40.48 percent of the participants reported that they had purchased a streaming service subscription, meaning a majority of the participants (59.52 percent) either choose to use the free version of streaming services or not to use such mediums at all.  Of the participants who purchased streaming service subscriptions, 38.24 percent allowed others to use their account while 59.80 percent said that they do not.  Further, 42.46 percent of sample population indicated that other people allow them to borrow a streaming service subscription.

A vast majority of the respondents (82.94 percent) reported that they have pirated music.  Only 17.06 percent indicated that they have never engaged in the activity. Of those who have engaged in music piracy, most students (38.76 percent) pirated 11-100 files in the past year, 29.29 percent pirated 101-1000 files, 12.92 percent pirated 1-10 files, and 9.57 percent pirated more than 1000 files in the past year.  7.18 percent of the respondents who said they have pirated music reported they had pirated zero music files in the past year.  This indicates that they likely have stopped engaging in music piracy.

A. Pirates

The first dependent variable analyzed was undergraduate students’ tendency to be a music pirate.[40]  In order to discern which variables, if any, affect the probability that a person is a music pirate, a regression analysis was conducted.[41]  The analysis showed no correlation between using a streaming service and whether a person engages in music piracy.[42]

Table 1
Table 1

B. Amount of Music Pirated

To determine which variables, if any, affect the probability that a person illegally downloads a certain amount of music, a Pearson’s chi-square statistic was conducted.  According to that test, consuming MP3s, either legally or illegally,[43] affected the probability that a respondent pirated more music per year.  In contrast, purchasing a streaming service subscription[44] affected the probability that a respondent pirated less music per year.  Further, the analysis revealed that those who do not purchase a streaming service subscription pirated more music per year than subscribers.

Table 2
Table 2

The statistical significance of these results was again confirmed through a multiple regression analysis (see Table 3 below).[45]  Further, this regression analysis revealed a negative correlation between purchasing a streaming service or internet radio account and the rate of music piracy,[46] meaning that purchasing a streaming subscription was less likely to cause a respondent to pirate music in large quantities per year.

Table 3
Table 3

IX. Discussion

Students who have purchased a streaming service subscription illegally download fewer songs per year.  The inferential statistical analysis and regression analysis confirm this conclusion because there is a negative relationship between purchasing an account and the amount of music pirated.  Although the data tended to show that purchasing a streaming subscription is related to the amount of music a student pirates, the results do not enable the author to confirm the hypothesis that using a streaming service affects the amount of music a student pirates.[47]

Further, the inferential statistics tend to show that individuals who purchased a streaming account were less likely to continue illegally downloading music altogether.  Of the individuals surveyed, 4.27 percent of students who have pirated music in the past, but have not purchased a streaming subscription, no longer pirate music.  11.50 percent of people who have pirated music and have purchased a streaming subscription no longer pirate music.  Further, only 5.07 percent of students who said they consume MP3s no longer pirate music.  In contrast, 12.12 percent of students who do not consume MP3s no longer pirate music.  These statistics demonstrate that subscribers who pay for their streaming accounts are less likely to pirate music, and that those who are not dependent on MP3s are less likely to pirate music.  Therefore, as more consumers purchase streaming subscriptions, a significant number of individuals will reduce the number of songs they illegally download per year or will eliminate their pirating habits altogether.

However, streaming subscriptions, in their current form, are far from a panacea to music piracy.  88 percent of streaming subscribers still engage in music piracy.  The author hypothesizes that this is largely because the song choices within streaming webcasters’ libraries are limited.

Currently there is no effective solution to bring music listeners all of the songs that they want to listen to on one platform that is accessible by any device, anytime, anywhere.[48]  Because sound recording copyright owners are not compelled by law to license to streaming services, many major streaming services like Spotify lack comprehensive song libraries.  In a market where streaming services lack the most popular songs, consumers will be forced to use multiple streaming platforms or turn to alternative, often illicit, technologies.  Absent affordable licensing agreements, streaming services will never be able to provide the vast amount of content desired by consumers.

These failures of copyright law could be remedied with a new licensing scheme.  Many variations on a compulsory licensing system have been proposed to remedy the issues caused by the current scheme.[49]  One compelling system, crafted by James Richardson, suggests a three-part model which secures a minimum royalty rate to sound recording copyright owners, sets a maximum licensing fee for webcasters, and then taxes the licensing fees collected by content owners based on a webcaster’s net revenue.[50]  This system provides content owners with a guaranteed licensing fee, protects webcasters from excessive licensing rates, and incorporates a tax penalty, thereby incentivizing both parties to negotiate fairly.  Such a system acknowledges the rights of both content owners and distributors equally.

X. Conclusion

In conclusion, the results of survey data collected on undergraduate students’ music consumption habits tend to show that those who purchase music streaming service subscriptions are less likely to download large amounts of music illegally.  This evidence supports the conclusion that music streaming subscriptions can help to reduce music piracy.  For the moment, as streaming services becomes more popular, digital audio formats will continue to phase out, concurrently decreasing music piracy.  If music streaming services are not provided with adequate legal footing, however, they will continue to slip further into debt and eventually fold.[51]  This will leave consumers with few desirable, legal music platforms and rouse consumers to pirate more music.  If music creators and webcasters can come to a compromise with regard to a fair compulsory licensing scheme for interactive streaming services, webcasters will be able to provide more comprehensive services to music listeners, removing the temptation to pirate music.  Therefore, policymakers should introduce a scheme similar to Richardson’s three-part compulsory licensing model.

 


*John G. Moustis Jr. University of Illinois College of Law, J.D. candidate, class of 2016. Former intern for SESAC, a US performance rights organization. Current member of a touring cover band.

*Austin Root. University of Illinois College of Law, J.D. candidate, class of 2016. Avid music listener and infamous music pirate. Many thanks to Professors Jennifer K. Robbennolt and Robert M. Lawless for their help and guidance on empirical methods.

[1] See, e.g., Jason R. Ingram & Sameer Hinduja, Neutralizing Music Piracy: An Empirical Examination, 29 DEVIANT BEHAV. 334 (2008); Jyh-Shen Chiou et. al, The Antecedents of Music Piracy Attitudes and Intentions, 57 J. BUS. ETHICS 161 (2005); Neil S. Tyler, Music Piracy and Diminishing Revenues: How Compulsory Licensing for Interactive Webcasters Can Lead the Recording Industry Back to Prominence, 161 U. PA. L. REV. 2101 (2012); Karla Borja et. al, The Effect of Music Streaming Services on Music Piracy Among College Students, 45 COMPUTERS IN HUM. BEHAV. 69 (2015).

[2] Stephen E. Siwek, The True Cost of Sound Recording Piracy to the U.S. Economy, INST. FOR POL’Y INNOVATION (2007), available at http://www.ipi.org/docLib/20120515_SoundRecordingPiracy.pdf (last visited Mar. 14, 2016).

[3] See, e.g., Borja, supra note 1; Tyler, supra note 1.

[4] 17 U.S.C. § 106. See also George E. Higgins et. al, Music Piracy and Neutralization: A Preliminary Trajectory Analysis from Short Term Longitudinal Data, 2 INT’L J. OF CYBER CRIMINOLOGY 324 (2008); Ingram, supra note 1.

[5] Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 919 (2005). See also In re: Aimster Copyright Litigation, 334 F.3d 643, 645 (7th Cir. 2003) (“If the music is copyrighted . . . swapping . . . infringes copyright.”); A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1014 (9th Cir. 2001) (“Napster users who download files containing copyrighted music violate plaintiffs’ reproduction rights.”).

[6] Resources and Learning: About Piracy, RIAA, https://www.riaa.com/resources-learning/about-piracy (last visited Mar. 14, 2016).

[7] Id.

[8] JOE KARAGANIS & LENNART RENKEMA, COPY CULTURE IN THE US & GERMANY (2013), available at http://piracy.americanassembly.org/wp-content/uploads/2013/01/Copy-Culture.pdf.

[9] Zhiyong Yang & Jingguo Wang, Differential Effects of Social Influence Sources on Self-Reported Music Piracy, 69 DECISION SUPPORT SYS. 70 (2015).

[10] Ray Delgado, Law Professors Examine Ethical Controversies of Peer-To-Peer File Sharing, STANFORD REPORT (Mar. 17, 2004), http://news.stanford.edu/news/2004/march17/fileshare-317.html.

[11] Ernesto Van der Sar, Top BitTorrent Trackers Serve 30 Million Peers Across 4.5 Million Torrents, TORRENT FREAK (July 6, 2013), https://torrentfreak.com/top-bittorrent-trackers-serve-30-million-peers-across-4-5-million-torrents-130706.

[12] Rajiv K. Sinha & Naomi Mandel, Preventing Digital Music Piracy: The Carrot or the Stick?, 72 J. MKTG. 1 (2008). See also Yang, supra note 9.

[13] Tiana Tucker, What Influences Young Adults’ Decision to Adopt New Technology, 2 ELON J. OF UNDERGRAD. RES. IN COMM. 147 (2011); PETER ZOLLO, GETTING WISER TO TEENS: MORE INSIGHTS INTO MARKETING TO TEENAGERS (2004).

[14] See Sean Hollister, The Age of the iPod is Over, THE VERGE (Jan. 27, 2014, 7:57 PM), http://www.theverge.com/2014/1/27/5351918/apples-ipod-rides-into-the-sunset.

[15] IFPI, IFPI DIGITAL MUSIC REPORT 2015: CHARTING THE PATH TO SUSTAINABLE GROWTH (2015), available at http://www.ifpi.org/downloads/Digital-Music-Report-2015.pdf.

[16] E.g., Pandora, Slacker Radio, and iHeartRadio.

[17] E.g., Spotify, Apple Music, Google Play, Tidal, and Amazon Prime Music.

[18] E.g., Vevo.

[19] IFPI, supra note 15.

[20] Id.

[21] Charles Sykes, Album Sales Are Looking Up, USA TODAY, Jan. 5, 2012, at D3.

[22] Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336; Digital Millennium Copyright Act, Pub. L. No. 105-304, §§101-02, 112 Stat. 2860, 2861-63.

[23] These services are offered by webcasters like Spotify, Tidal, Rhapsody, Apple Music, Amazon Prime Music, and Google Play, among others.

[24] These services are offered by webcasters like Pandora, Slacker Radio, and iHeartRadio, among others.

[25] 17 U.S.C. § (c)(3)(A) (2012).

[26] 17 U.S.C. § 114(d)(3)(A) (2012).

[27] Tyler, supra note 1.

[28] James Richardson, Create a Compulsory Licensing Scheme for On-Demand Digital Media Platforms, 31 ENT. & SPORTS LAWYER 9 (2014), available at http://www.americanbar.org/content/dam/aba/publications/entertainment_sports_lawyer/esl31-2.authcheckdam.pdf.

[29] Eric Eldon, Spotify Is Having a Good 2012: Revenues Could Reach $500M As It Expands the Digital Music Market, TECH CRUNCH (Nov. 10, 2012), http://techcrunch.com/2012/11/10/spotify-is-having-a-good-2012-revenues-could-reach-500m-as-it-expands-the-digital-music-market.

[30] Richardson, supra note 28.

[31] See Steve Knopper, Taylor Swift Pulled Music from Spotify for ‘Superfan Who Wants to Invest,’ Says Rep, ROLLING STONE (Nov. 8, 2014), http://www.rollingstone.com/music/news/taylor-swift-scott-borchetta-spotify-20141108.

[32] This fact can be observed by visiting http://www.spotify.com and http://www.tidal.com and searching for “Taylor Swift” within the websites. Observe how limited the song selection of Spotify is compared to that of Tidal.

[33] Mehmet Delikan, Changing Consumption Behavior of Net Generation and the Adoption of Streaming Music Services: Extending the Technology Acceptance Model to Account for Streaming Music Services (June 1, 2010) (unpublished master’s thesis, Jonkoping International Business School), available at http://www.diva-portal.org/smash/get/diva2:324142/FULLTEXT01.pdf.

[34] Id.

[35] Kaitlin M. Pals, Facing the Music: Webcasting, Interactivity, and a Sensible Statutory Royalty Scheme for Sound Recording Transmissions, 36 J. CORP. L. 677, 692 (2011).

[36] Borja, supra note 1.

[37] Borja, supra note 1. See also John Eric Seay, Legislative Strategies for Enabling the Success of Online Music Purveyors, 17 UCLA ENT. L. R. 163 (2010).

[38] Tyler, supra note 1.

[39] In another paper the author discusses the how undergraduates’ knowledge of school and federal policies affect their propensity to pirate music. Those topics are not discussed in this paper. See John Moustis & Austin Root, Who Knows the Rules?: How Internet Technology and Perceptions of Policy Affect Music Piracy in Undergraduate Students (December 2015) (unpublished manuscript, University of Illinois College of Law).

[40] I.e., someone who currently pirates music.

[41] The independent variables accounted for were gender, streaming users, MP3 users, those who use others’ purchased streaming accounts and do not purchase their own, and overall knowledge level of government and university policies. The formula can be described as follows: Pirate = α + b1(Gender) + b2(Modern) + b3(Digital) + b4(UseNoPurch) + b5(OverPolicy) + ε.

[42] The analysis did reveal a correlation between being a music pirate and being male (p = 0.029) and also consuming MP3s (p = 0.035).

[43] p = 0.004

[44] p = 0.0018

[45] The variables accounted for were gender, MP3 users, those who purchased accounts, streaming users, and overall knowledge level of university and federal policies. The formula can be described as follows: PirateAmount = α + b1(Gender) + b2(Digital) + b3(PurchaseAccount) + b4(Modern) + b5(OverPolicy) + ε. There was a statistically significant relationship between gender and the level of participation in music piracy (p = 0.015). Also, we found that there is a positive relationship between consuming MP3s and the level of participation in music piracy (p = 0.010).

[46] p = 0.024

[47] H1: A student’s use of music streaming services does not affect whether that student pirates music (ACCEPT). H2: A student’s use of music streaming services does affect the amount of music pirated by that student (REJECT).

[48] Steve Knopper, Islands in the Stream: The 10 Biggest Holdouts in Digital Music, ROLLING STONE (Jan. 2, 2015), http://www.rollingstone.com/music/news/artists-refuse-stream-music-20150102.

[49] See, e.g., Richardson, supra note 28; Seay, supra note 37; Tyler, supra note 1.

[50] Richardson, supra note 28.

[51] See, e.g., Richardson, supra note 28; Seay, supra note 37; Tyler, supra note 1.