Remember the stoush over blank cassettes? All kinds of threats of legal action against little 12-year-olds (like myself) who were taping songs off the radio. It was ultimately solved upstream, at the technology end, rather than consumer end. The solution – which may have been more of an uneasy industry truce – was to add a royalty component to the cost of the tape.*
So what happens now? Very minor players (consumers) are made an example of, to scare everyone else. A little girl in the US gets sued for tens of thousands of dollars that she doesn’t have.
Napster and other large peer-to-peer players were driven to the ground by copyright suits; Napster has re-emerged with a legitimate paradigm where royalties are paid.
But even today. I have a friend who mentioned an old track he liked (by Fetus Productions). His flatmate searched for it via LimeWire. And promptly found it. A very obscure track. I was amazed by the power of the tool. LimeWire is a peer-to-peer network where that track just happened to be made available by someone who just happened to have the original. If you can find that with LimeWire, surely you can find most things. (which begs the question: why is LimeWire alive and well where Napster was hounded to submission?)
But my point relates to the bloke who found the track. I asked him about copyright issues. His response: well, it’s there, I can get it, so I get it. Simple.
It was a copyright infringement, but it was simple.
Why don’t the publishers apply the same principles as for blank tapes? Incorporate a royalty into every medium, every exchange?
Every aspect of the problem is wrapped up in the fact that we're dealing with emerging technologies. Taping a song on the radio wasn’t a high-tech enterprise, and tape, being a contact medium, would deteriorate every time it was played (I can vouch for that). However, CDs, and computer files, are non-contact, and generally reproduce perfectly. Further, although royalty costs may be built into blank CDs, I doubt that they’re yet built into MP3 players and the like.
The technology emerges, is unleashed, so rapidly these days that the large corporations and their lawyers can't keep up. I say large corporations, because that's where the battle lies, and that's where the average punter's sympathy dies. We see so many fresh new bands these days are making their songs available on the web for free, simply to get the exposure. And from that small end, it's a great marketing tool.
Getting the message out that copying is illegal isn’t enough. If it’s there, and easy, people will do it. The LimeWirer’s attitude above is mainstream, especially for under-30-year-olds, who are the main consumers. Exemplary prosecutions are unhelpful victimisation. It needs to be handled upstream. At the distribution points, the reproduction technology, royalty needs to be incorporated.
Australia is lagging so much that we don’t even have the fair use provisions that the US has. We can’t even make a backup copy of music we legally bought. Well I have, for example, made a backup of The Sporadic Recordings by Durutti Column mainstay Vini Reilly. Only 1000 copies were ever produced, and I won’t find it (nor most of my other CDs) in my local CD shop.
An aside: the downside of downloads
The advent of downloading has actually pushed down the price of CDs, but there are downsides:
a) Cherry-picking the most popular – not the best – tracks from an album can mean few people hearing an album in its entirety. Everybody loses.
b) You lose the high-quality packaging that comes with a CD.
Another aside: film
The film industry is particularly worried. Not because someone will wander into a cinema with a video camera and pirate the film. Those pirates are shocking copies and insufficient threat. However, plans have been underway for some time to fully digitise film, so those large metal canisters won’t need to be whizzed around the world. Cinemas will eventually project computer files rather than film reels. So far, the holdup has been the large capital costs of the new equipment for every cinema. But they also have to deal with computer files that are widely distributed and thus can be loosed on the world, in perfect quality. Will cryptography be sufficient? I doubt it.
*However, what is then done to this is insidious. The following also applies to mechanical royalties – those paid by radio stations for broadcasting the music. Royalties are pro-rated according to sales, then just sit there waiting to be claimed. Artists typically sign to publishing companies which are, for the most part, not really publishing companies. They mostly just collect royalties from the big bin that is put aside for them. My beef is that smaller bands don’t get a lookin. I once worked for a community radio station; every so often we were asked to complete a survey of the tracks played on a given hour/day. However, that wouldn’t have been representative enough, because the variety was so wide that some bands missed out. Bulk royalty collection really work best for big selling, high rotation artists, who probably need the money less.
14-May-06 Update: Fair Use provisions imminent
The Sun-Herald reported today that federal cabinet had approved changes to copyright law, to allow "format shifting" in personal collections. Slow, but at least they're getting there. Now what about legalising personal backup copies?
15-May-06 Here's an article on this development, from the Herald.