Copyrights And Copywrongs

Copyright legislation drafted back in the horse & buggy days of the movable type printing press and wax audio recordings are woefully inadequate for the digital era, and some of the band-aid workarounds being proposed and imposed in hope of patching this leaky basket are utterly unsatisfactory solutions to deal with the paradigm shift.

Canada's federal Heritage minister Sheila Copps dropped a big lump of coal in a lot of Canadians' Christmas stockings in December with the Copyright Board of Canada's announcement of rates for her new "levy" on recordable media, which is intended to fund a compensation plan for recording artists whose financial estate is alleged to be harmed by people pirating copyrighted music off records, tapes and CDs

The Canadian government insists that the new charge is a "levy," and not a tax, because it is not collected by any level of government. However, when the government mandates confiscation of your money by force of law, in most people's books that's a tax, whatever euphemism the lawmakers choose to tack on it.

The Independent Canadian Recording Media Coalition (ICRMC), an alliance of small, medium and large businesses as well as individuals, churches and religious organizations who are collectively opposed to Sheila Copps' levy/tax on recordable media argues that it unfairly penalizes millions of Canadians who never tape any music, and is unfair, unjust, and quite likely unconstitutional.

Indeed Ms. Copps' legislation appears to abandon the principle of "innocent until proven guilty," by presupposing that everyone who purchases blank tapes and CDs is a thief. This constitutes a fascinating new innovation in jurisprudence; levy the fine presumptively before the crime.

In fact, making copies of copyrighted material for private use is legal under Canada's copyright legislation, so the new tax/levy is a penalty placed on legal activity in many cases of copying -- and is actually a quid pro quo enacted to get the industry to agree to the "private copying legislation." However, I don't recall any notable public demand to make private copying legal, so who is this law meant to serve? One suspects that few private individuals ever felt any more inhibited by copyright law from, say, taping copies of their LP records onto cassettes, than they would from photocopying pages from a book or magazine -- and virtually EVERYBODY I know does that without the slightest ethical pang.

No, as Canada's Copyright Board concedes, while copying any sound recording for almost any purpose infringed copyright prior to the private copy legislation, in practice, the prohibition in terms of private-use copying was for all intents and purposes unenforceable due to today's copying technologies. Recognizing this, the recording industry convinced the government to set up a straw man in the form of making legal the private copying many people were doing anyway, and then demanding payback in the form of the recordable media levy/tax.

"The tax on recordable media will only serve to further pad the wallets of high- profile artists and will do little to assist struggling, up-and-coming musicians," says the Canadian opposition Reform Party's Heritage critic Inky Mark. Every individual who uses audio cassettes (except for very short ones) to record church services, speeches, meeting minutes, voice letters, secretarial dictation, or other non-music content will have to cough up cash to fatten the wallets of needy folks like Bryan Adams, Shania Twain, Celine Dion, and Alanis Morrisette.

The ICRMC contends that this tax/levy will actually hurt rather than help young startup bands, music students, and working professional musicians who consume large amounts of blank recording media, and who will see their costs for these products increase, without compensation from the revenues raised.

Indeed this scheme may have consequences its authors never envisioned. When told about the levy/tax, a young acquaintance of mine who owns a CD-burner commented: "I guess this means that it's now OK to pirate all we want."

Another issue is whether it's fair to pick exclusively on the cassette and CD industries. Certainly there are many other sorts of computer media from hard disks to Zip drives that can be used to store pirated material, including the big business music industry's latest nightmare -- MP3s.

The US recording industry's anti-piracy organization, the Recording Industry of America Association, Inc. (RIAA) concedes that staying ahead of technologically advanced pirates presents a greater challenge than ever. "Cyberspace poses unparalleled opportunities for the industry -- and unparalleled difficulties in copyright protection," says a RIAA statement "It's estimated that more than 100 million computers worldwide are connected to the Internet and most of them can download and store pirated copies of recorded music." The RIAA says it is channeling most of its anti-piracy resources to Internet piracy, these days, and its weapon of choice is the lawsuit, which is arguably an even more obnoxious workaround than Canada's recordable media tax scheme.

In December, the RIAA filed a contributory copyright infringement lawsuit against California-based Napster, developers of a software product that combines an MP3 player with Web search, FTP and chat facilities, alleging that Napster "is operating as a haven for music piracy on the Internet." "Napster is about facilitating piracy, and trying to build a business on the backs of artists and copyright owners," said Cary Sherman, Senior Executive Vice President and General Counsel, RIAA.

The RIAA alleges in its filing that Napster is responsible for making millions of MP3 files widely available to countless Napster users around the world. As alleged by the RIAA in its complaint, the overwhelming majority of those recordings are pirated, and pirated copies of the recordings of every artist on the current Billboard charts can be located and downloaded from Napster.

Napster, says the RIAA, provides its users with all the facilities and means to engage in massive copyright infringement. "No other service on the Net has generated as many calls of outrage from artists, managers and artists' representatives and others representing the music community's interests," said Mr. Sherman.

I have no doubt that all of the statements by the RIAA and Mr. Sherman are true. Like this was a big surprise? Anyone who is even casually familiar with the MP3 phenomenon knows that it is being driven to a large extent by piracy. Ever been to Hotline? Without piracy, I suggest that we wouldn't be seeing another new MP3 player application being introduced every week or so.

The developers of Napster claim that since they host no MP3 files, they are not responsible for what people do with their software, pretty much the same stance adopted by Toronto-based Hotline Communications Inc., whose software is used to access what amounts to the Spanish Main of cyberspace.

"We do not, and cannot, control what content is available to you using the Napster browser," says a company statement, quoted by The Register. "Napster users decide what content to make available to others using the Napster browser. Therefore, it is the users' sole responsibility to comply with all applicable federal and state laws applicable to such content, including copyright laws."

Yes, Napster obviously does a more efficient job of seeking out MP3 content on the Web, much of it pirated, but you can do the same thing less conveniently with a standard browser or ftp client. It is a matter of degree and not kind.

The operative question here is: should a company that makes software that may be used in the commission of illegal activities, but that also has legitimate and lawful uses, be held liable for what individual users do with it? There are those who argue that gun manufacturers should be held legally liable for crimes committed with the weapons they make. I profoundly and vehemently disagree with this line of rationalization. If the gun-maker is held responsible for, say, a bank robbery committed with one of its weapons, why not the manufacturer that made the getaway vehicle? After all, infamous depression-era bank robber Clyde Barrow (partner of Bonnie Parker) once wrote a letter to Henry Ford telling him what a great getaway car the Ford V-8 made. Reductio ad absurdem.

Apparently undeterred by the RIAA's lawsuit against Napster, Blackhole Media announced late last month a preview release of Macster -- a port of Napster for the MacOS.

Like Napster, Macster allows users to search and download music from participating music groups, as Blackhole puts it: "offering a revolutionary way for upcoming bands to broadcast their music in MP3 format to millions of users.... Macster will allow Macintosh users to demo new and upcoming music from all over the world."

The Macster release was received enthusiastically by the Mac online community. O'Grady's PowerPage noted that its crew had "been salivating" over Windows-only Napster since its debut, and posted some thoughtful musings on MacSter's significance, observing that "The whole reason for Macster's existence is to effortlessly pull a dynamite MP3 collection together," while acknowledging that "some of the files you most probably will be downloading are copyrighted, and are not legal authorized copies."

The piece further notes that "here at PowerPage World HQ you might occasionally see an eye patch here and there.... North Americans... are independent folk that like flying the Jolly Roger from time to time."

PowerPage says it tends "to side with Napster on [the RIAA suit]. Merely making something available is not a reason for the shooting the messenger strategy RIAA seems to advocate. The Internet would be shut down as just one big porn site using this logic... Macster and Napster are not the problem."

On December 30, David Noack of APBnews.com reported that a judge in California had denied a request from movie industry interests to order the removal from certain Web sites of information and links to a software program that can reportedly facilitate making high-quality digital copies of movies.

Santa Clara County Superior Court Judge William Elfving ruled that the Websites may continue linking to other Web sites that include the source code of this movie "cracking" program, called DeCSS, as well as posting information about the program's use.

The DVD Copy Control Association (DVD CCA) a trade association for movie distributors and manufacturers of video CD-ROMs similar to the RIAA had filed a lawsuit claiming that the Websites in question had posted "trade secrets" and "proprietary information" on defeating anti-piracy measures that inhibit copying movies. The lawsuit also cited hundreds of "John Does" globally that have posted information about the piracy software online.

The DVD CCA bases its argument on alleged the financial and commercial harm that the piracy information might cause the DVD industry. The defendants argue that the lawsuit is an attempt to abrogate free speech.

Speaking for the defendants, Peter L. Katz of the Washington-based online rights group Electronic Frontier Foundation is quoted by Mr. Noack as saying:

"Although this is only a temporary victory, as we do have a long road ahead of us, it's great to know that we have stood united and strong and that we have not been suppressed by the DVD industry and the actions that they taking to try to shut down certain aspects of the Internet,"

Mr. Katz himself was named in the lawsuit, since his Web site includes an extensive list of information and links about the software program.

The DVD CCA's legal complaint reportedly claims that making information about the movie pirating software available is harming the DVD industry and its ability to protect its intellectual property.

Again however, as with the RIAA's claims about Napster, the DVD CCA seems to be asserting a right to censor and control technological knowledge, rather than addressing the much more difficult task of going after people who are committing actual copyright crimes using the technology. In this instance, it would seem that the DVD CCA might have a stronger case against the Websites than the RIAA has against Napster, since Napster actually does have legitimate and lawful uses. It would be a big stretch to say the same about a crack that allows people to make pirate copies of DVD movies. It will be interesting to see how the respective cases play out.

Last month, MacWorld has published a comprehensive look at the MP 3 phenomenon by Christopher Breen, who says that the MP 3 audio-compression format is "the biggest musical shift since the CD"

Mr. Breen notes: "the idea that unsecured, highly transportable, high-quality audio files can be swapped across the Web is a daunting reality for many record-company executives who fear losing both money and control over distribution, and he acknowledges that MP3 music files have been placed on the Web in violation of copyright laws -- uploaded by individuals who have no legal right to distribute them, and that downloading these files is illegal as well.

Mr. Breen shares my skepticism that the recording industry will ultimately be able to fend off the MP 3 tidal wave. ÒThe genie is out of the bottle, and the efforts of all the massed legal departments of the record companies canÕt put it back,Ó he writes, further noting that some Òmajor recording artists who understand the promotional value of free music are beginning to release selected cuts-or portions of cuts-in the MP3 format."

"MP3," Breen concludes, "is here to stay."

I fully understand why the established recording industry is even more unhappy about the MP3 revolution than they are about private copying, the fact remains that it IS a revolution, and I am skeptical that they will ever be able to effectively fight it. The Internet and MP3s have "democratized" the dissemination of music as well as other forms of intellectual property, and as I noted at the beginning of this article, copyright legislation as we have known it is no longer adequate to deal with the new technological realities.

These musings are not intended as advocacy or endorsement of music, software, or literary piracy. I am a producer of copyrighted material myself, and I don't dispute that piracy is illegal. I am merely observing what I believe to be fact. Tight legal control over ownership of intellectual property is no longer possible in this digital age. It really hasn't been since Xerox popularized the photocopier.

Linda Harrison of The Register reported this week that 40% of schools in the UK are pirating software, according to a survey by Microsoft.

Apparently half of British primary schools and one quarter of secondary schools claimed ignorance of the fact that it is illegal to make multiple copies of software without buying licences for each computer. Ms. Harrison says that UK Software piracy blamed for over £400 million in industry losses annually.

The operative issue is not whether or not making copies of copyrighted material is a crime. Under existing copyright legislation it is -- unambiguously. However, there is a common law aspect to the development and evolution of legal conventions, and when schoolteachers and college professors routinely photocopy copyrighted material to use in class, and advise their students to do the same; when ministers of religion routinely photocopy copyrighted material to distribute in church services; when everybody and their dog photocopies stuff from magazines and library books for personal reference or to hand out to their friends (not to mention all the stuff that gets scanned into computers and distributed over the Internet); I submit that the law is no longer working or workable.

According to a recent report in the Canadian newsmagazine Maclean's, an estimated 40 per cent of business software in use last year in Canada was pirated, and about 25 per cent of business software in the United States. While few people will outright candidly admit to being pirates, my son operates a small Mac repair and consulting business, and I can't recall one computer I've watched him work on, including those belonging to clergymen, lawyers, and schoolteachers, that didn't have pirated software on its hard drive.

The workaround rationalization among some of those who fly the Jolly Roger in cyberspace, or in other venues of software piracy, is that "all software ought to be free," which is easy to say when you aren't the one writing the code or paying big bucks for someone else to write it. And while it may soothe the pricks of one's conscience to mutter "How rich does Bill Gates need to be?" the fact is that 60 per cent of the Software & Information Industry Association's 1,400 members have yearly revenues under $3 million.

Nevertheless, last fall when I interviewed an informal panel of Hotline users for an article the appeared here on Applelinks, they forcefully insisted that piracy actually helps, rather than hurts the software and music industries.

The RIAA notes that: "The downloading of an unauthorized MP3 file constitutes copyright infringement. It is equivalent to going into a record store and taking a copy of a single (or album) without paying. It deprives artists, writers and producers, among others, of compensation for their creations."

Well, not quite equivalent. For one thing, literally millions of people who would never dream of shoplifting a book, album, or packaged software item, seem to have no ethical qualms about photocopying, and making unauthorized music or software copies. How do we explain this? I think one reason is that going into a store and pocketing a tangible piece of physical property is perceived as something quite different from copy piracy. Another is that in the case of shoplifting, the author or recording artist does still get paid -- it is the retailer who gets ripped off, so the RIAA's analogy is faulty. Yet another is that the human mind finds the concept of intellectual property considerably more abstract, slippery, and nebulous than the concept of physical property. I think it would be accurate to suggest that when most consumers buy a book or CD recording, their gut perception is of having purchased a physical item, more than the concept of its intellectual content. Of course, with say, a CD, the cost of the physical medium represents a small fraction of the purchase price, but that gut-perception is still that property is something one can touch, even for people who intellectually know better.

Which is why I have to shake my head when I hear software and recording industry spokespeople talk about "educating" the public to understand that piracy is wrong. Perhaps repeating this to themselves makes them feel better, but they're whistling past the graveyard. How dumb do they think people are? My guess is that most people know that software/music/whatever piracy is illegal, but I'm not going to hold my breath waiting for Microsoft and the RIAA, et al., to succeed in making vast numbers of people feel guilty about it.

As for hardball tactics, the RIAA may or may not succeed in making an example of Napster. They played the litigation card unsuccessfully in 1998 against Diamond Multimedia, alleging that Diamond's Rio portable MP3 recording device violates the Audio Home Recording Act (AHRA).

The RIAA did manage to convince a federal court to grant a 10-day temporary restraining order to enjoin sale of the Rio device, but at a subsequent hearing their request for a preliminary injunction against Diamond was denied. The judge concluded that although the Rio is likely to be covered by the Act, the absence of serial copyrighting technology -- the feature designed to prevent unauthorized duplications -- was merely a technical violation and the Rio would likely be certified by the Secretary of Commerce as complying with the AHRA. The RIAA and other industry interests have since filed an expedited appeal; Diamond has filed a countersuit against the RIAA.

As with the photocopying issue for print publishers, it's hard to imagine how the music recording industry can ultimately win this one, however much the letter of the law is on their side. They might succeed in getting a US court to rule against a pipsqueak company like Napster, but even if they do, other Napsters will spring up in its place in areas outside US jurisdiction. Ditto for Websites and/or Hotline sites that archive pirated MP3s. The US courts do not and cannot control the entire Internet.

It's kind of like prohibition. A lot of legitimate-looking Websites and Hotline sites operate like speak-easies did in the '20s and '30s, with a "dry" restaurant operating as a front, and an illicit bar in the back room or basement. Similarly sites are set up with only innocent and legitimate content visible to the casual visitor, but vast libraries of pirated MP3s and computer software available to insiders.

Just as the full weight of government enforcement proved impotent to stop the bootleg liquor trade, it is likely to meet with about the same degree of success against music and software piracy, and for the same reasons. As with the photocopying situation, the question must be asked: when lawbreaking reaches levels like this, is the law workable anymore?

The RIAA concedes that "the Internet culture of unlicensed use means that theft of intellectual property is rampant... Unauthorized Internet music archive sites using compression technology such as MP3 provide illegal sound recordings online to anyone with a personal computer. They can be downloaded and played indefinitely, without authorization of or compensation to the artists... What is certain is many individuals see nothing wrong with downloading an occasional song or even an entire CD for their personal use, despite the fact it is illegal under the recently enacted NET Act."

Given these practical dynamics, the RIAA seeking to bust the chops of little startup companies like Napster, out of all the suppliers of software and hardware products that facilitate piracy, with its bizarre reported demand for $100,000 damages for each song pirated using the software, seems more than a little like spiteful and vindictive bully tactics against little guys with shallow pockets. As Tony Smith of The Register observed: if "Napster can be declared guilty of contributory copyright infringement on the basis of what other people do with its software... then the manufacturer of every tape deck, floppy drive, CD-R unit is equally culpable." One has to ask, why is the RIAA not suing Microsoft? Doubtless a lot more people download pirated MP3s with Internet Explorer than with Napster.

One gets the distinct impression that the RIAA and its industry members would like nothing better than to turn back the clock to the days of LP records and factory-recordable only CDs, when they had *control.* However, that's not going to happen. You can't uninvent technology, as desirable as that would be in some cases.

The real conundrum is how to come up with a way to ensure that creators of intellectual property can be fairly compensated for their work given the technological realities of our time. If I had the answer to that question, I would likely not be writing this column. However, I do know that taxing recordable media and suing software developers because it is impossible to get at the actual pirates is not only not the answer, it is unjust and plain wrong.

Perhaps the orientation should be to abandon the futile fixation on prohibiting unauthorized private copying and think of more innovative means of compensation and protection. As I said, I haven't got the answer, but it surely isn't the tactics and strategy being pursued by the Canadian government, the RIAA, and the DVD CCA.

Charles W. Moore

Appendix
For more information about copyright issues:

http://www.law.cornell.edu/uscode/17/106.shtml

http://www.law.cornell.edu/uscode/17/106.shtml

http://www.law.cornell.edu/uscode/17/114.shtml

http://www.obscure.co.nz/articles/mp3copyright.htm

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Sunday, 05-Jul-2009 00:15:45 EDT