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A long blog on music copyright

by Chris UnLimited 24. January 2010 11:22

STUFF BY ME WEEK-ENDING 23 JAN 2010

It's been nearly a month since I last posted here on my blog, meaning this is the first entry of 2010, and also that the list of links below to stories I've written for CMU and the Creative Business News-Blog since my last post here is really rather long.

Do they have an award for longest blog post ever? Or is brevity more admired in the blogosphere? I suspect so, and rightly so. That's something I might return to in a few weeks time. But first a blog post so lacking in brevity, I might just send the internet over capacity.

The reason for my no-show on this blog for the last four weeks is that on Friday I finally finished my law degree, a milestone that required me to sit an examination on wills, submit an essay on immigration, and finish my 15,000 word dissertation on protecting music copyrights against online piracy. All of which proved something of a distraction. The latter in particular, the least rushed of my final dabblings with academic assessment.

My dissertation was deliberately timely, though that a key court case would be concluded just 48 hours before my paper was due in was not part of the plan. The focus of my copyright study was something called 'authorising infringement', a legal concept at the heart of the so called Oink case. Well, not, actually, though it should have been. I consider why the prosecution in that case made it a side issue in this CMU piece here.

'Authorising' is what you might be accused of if you provide a technology or service that helps others to 'infringe' a copyright. That is to say someone else makes a copy of a creative work - so, say, a song - without the permission of the person (or company) who owns the copyright (or copyrights) in that song. You provide a product or service which helps that someone else make their 'illegal copy'.

In the case of Oink, by providing a platform that firstly enables the someone to locate the songs they might want to illegally copy (which are stored on the computers of other Oink users) and secondly by assisting in the 'BitTorrent P2P transfer' of those files - where the PCs of the someone and other Oink users are directly linked over the internet, allowing the song copying to take place.

Crucially in the Oink case - and in all the other legal cases involving the providers of such 'P2P' services, like Napster, Grokster, Kazaa and The Pirate Bay - the service providers do not make any illegal copies themselves. Nor do they host any illegal copies of songs on their servers.

Plus, their services, whether they be a 'P2P client' like Kazaa or a 'file-sharing community' like Oink, also have legitimate uses. Copyright owners can use said services to legitimately distribute their content, and some do.

These two facts mean the providers of these services cannot be done for so called 'direct' or 'secondary' copyright infringement.

Authorising Infringement
But if an individual or company provides a service that can help others infringe, and most people use it for that purpose, then there might be a case for 'doing' that individual or company for this thing called 'authorising infringement'. The name comes from the idea that those who provide these services are, by implication, authorising others to make infringing copies of songs, when it is not their place to give such permission.

(In many other countries this concept is called 'contributory infringement', which is a slightly more user-friendly term, and also tends to be easier to prove in court, because you only have to show a defendent 'contributed' to an infringement occurring, rather than they somehow implied authorisation).

The concept of authorising infringement gets just five words in the current UK Copyright Act, and therefore our understanding of it relies on precedents set in past court cases.

Unfortunately all of the key court cases regarding the provision of P2P file-sharing services have taken place outside of the UK. And pre-internet efforts to use the concept to stop the sale of high-speed tape-to-tape cassette recorders (which the music industry thought would further boost already rampant home-taping piracy) were unsuccessful. Which makes this whole area a bit grey, which is probably why the prosecution didn't charge Oink founder Alan Ellis with authorising infringement.

Control And Communication
What we do know about authorising in English law, by taking what we can from the pre-internet cases and key court rulings elsewhere in the world (especially in Australia, where copyright laws also refer to authorisation), is that for someone to be guilty of this kind of infringement you must first prove two things - control and communication.

With regards control, you must show that the offending service provider could, in theory, have done something to stop the illegal uses of their service, but chose not to (normally because doing so would lead to a mass exodus of their users, who are there for the illegal and not legit potential of the product). Said control need not be 100% effective, but enough to at least have some impact on the infringement the service enables.

With regards communication, you must show that the service provider failed to communicate to its users their obligations under copyright law, or to explicitly state that by providing the service they were not giving the OK for users to infringe. In most P2P cases there is actually evidence that the service providers went out of there way to imply (and in some cases explicitly support) that their service should be used to infringe, making it much easier to prove fault.

These two points are important, because they distinguish the P2P file-sharing cases from the aforementioned home-taping cases, where the record industry failed to prove that Amstrad were guilty of authorising infringement for selling high-speed tape decks. Amstrad could not realistically control how their technology was used, and did - albeit in the small print - specifically state they could not and did not authorise the making of illegal copies of music with their tape-to-tape recorders.

Was Oink Liable?
Ellis made no efforts to stop Oink being used for illegal purposes, nor to communicate copyright law to his members, so the case for authorising infringement was strong. Though he could have argued that had the record industry told him to control and communicate he would have done so, but that he was never given the chance.

The major record companies made few formal approaches to Ellis, possibly fearing that doing so would give him time to prepare for the subsequent police raid that resulted in his service going offline. Similar preparations by The Pirate Bay have assured all efforts to shut that file-sharing service down have so far been unsuccessful.

Although ignorance of the law is not usually a defence, that the music business made no effort to do a deal with Oink would have gone in Ellis' favour in court, even though we really know that the chances of the labels and Oink finding a way of working together were pretty damn low.

Why not go for direct infringement?
But why do we need to go after the likes of Ellis to start with, given that the legal concept we employ in such action is so unclear? Why not just go after the people who use Oink, or similar services, to make illegal copies of music? The case against them is clear, strong and pretty uncontroversial, and we have recent English law precedent that says so.

That's an argument also used against another anti-piracy system currently being considered - so called 'three-strikes - which is another reason why my dissertation was so timely.

The boss of internet service provider TalkTalk, Charles Dunstone, a major opponent of three-strikes (because of the obligations it would put on companies like his) is always arguing: "If a record label knows one of my customers is infringing its copyrights, why doesn't it just sue that person directly?" Indeed the government's original Digital Britain report shared that viewpoint, and it's only more recent intervention by Peter Mandelson that has put three-strikes onto the government's agenda.

The reason why authorising infringement claims and/or three-strikes is needed is that those sorts of lawsuits against individual infringers just don't work when what you're combating is what I like to call 'widespread non-commercial infringement'. This is the phenomenon of which both home taping in the 1980s and 1990s and file-sharing in the last decade have been the most high profile examples. It's the sort of infringement we all do, and from which nobody obviously profits (other than by getting content for free).

The fact is suing such infringers is pointless, for three reasons.

First, this kind of infringement is so widespread there are thousands and possibly millions (certainly worldwide) of infringers. Realistically, it's not logistically viable to sue all these people.

Second, even if you do sue large numbers of people, and even if you do so successfully (which the Recording Industry Association Of America have), these infringers are generally individuals of limited means, meaning realistically out of court settlements and damages payments are going to be nominal, and probably less than the cost of pursuing such action in the first place.

And third, anything that involves suing young music fans, who probably are or will be some of your best customers, has all sorts of PR challenges.

You might think successfully suing a relatively small number of such infringers will provide a deterrent that stops others from infringing. That's what the RIAA thought. But by suing over 30,000 people in less than a decade while watching the file-sharing phenomenon continue to grow they disproved that theory.

Which is why so called direct infringement lawsuits don't work. Which is why the law needs to provide other ways for copyright owners to protect their copyrights. Because, after all, unprotectable rights aren't really rights at all.

Alternatives
Both authorising infringement and three-strikes are such alternatives. The latter is a key part of the UK government's Digital Economy Bill, the former doesn't even get a mention. Despite the record industry requesting legislative clarification of the concept in their submission to the government's own Gowers review of copyright back in 2006.

I have mixed opinions about three-strikes. I don't think it's as evil and human-rights-unfriendly as the pro-file-sharing lobby claim, but nor do I feel it is the uber-solution to piracy woes that some in the content industries suggest it is.

However, I do believe that the liabilities of providers of technologies and services which may aid infringement should be more clearly defined in law. Both to protect legitimate service providers offering exciting content distribution and consumer engagement tools. And to give copyright owners the power to stop others building businesses that are - when all is said and done - basically based on authorising others to infringe.

The Digital Economy Bill was a great opportunity to do this. An opportunity missed.

PS: Of course some argue that 'piracy protection' is not the solution to the music industry's recent woes. Or that major content owners don't deserve such protection, certainly not without new 'conditions of access' coming hand in hand. I don't entirely disagree, and will no doubt return to that topic in a future blog. But I do think that if copyright law is going to give intellectual property rights to those who invest time or money into the creation of content, then it has a duty to help those investors protect those rights, and I am of the opinion that clarification on authorisation, in one way or another, is key to fulfilling that duty.

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STUFF I DID THIS WEEK
In between my various visits to London Metropolitan University this week to submit coursework and sit exams, I also paid a visit to the London School Of Economics to do my annual 'how to get a job in the media' stint. I always get really good feedback from this seminar, though one of the ten tips in it is to use every opportunity going to schmooze potential employers, so I do wonder whether the positivity on display at the end of the event is because my audience genuinely think it's an informative, well delivered presentation, or whether they are just putting my advice into action. Let's assume both, shall we? As previously mentioned here, my pretty self-explanatory slides for this seminar are on the CreativeStudent.net website here.

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STUFF I WROTE THIS WEEK
A round up of some of the news stories and articles I have written for UnLimited's media so far this year (three weeks worth, so rather a lot)...

Stuff By Me

A blog of sorts from Chris Cooke of UnLimited Media

A long blog on music copyright

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