Whose responsibility does copyright protection lie with, and what
will be the implications of the forthcoming Napster court
case?
At one time it was easy for the music industry and artists to
keep control of their intellectual property. Records were sold and
royalties could be take from a share in that sale. Radio broadcasts
were easy to monitor and royalties were received whenever a certain
track was aired.
As technology has progressed, legal questions have been raised as
to how to enforce copyright law. When tape cassettes first appeared
there was great concern from artists and music companies over the
problems it would cause with piracy. A similar situation occurred
when VHS launched onto the market, enraging the film industry.
While a degree of piracy still occurs in these areas, the situation
has been kept relatively under control, and both the music and film
industry have been able to take advantage of new recording formats.
But it now seems that the music industry has been caught rather
short with the emergence of MP3 and, if it is to be believed, risks
losing all control of its intellectual property.What started off as
a simple compressed audio file type has turned into an Internet
phenomenon. MP3 is a reasonably quick and simple way to receive
music tracks in electronic format, and what worries the music
industry is that it has no control over it whatsoever. Anyone with
a CD-ROM drive in their PC, connection to the Web and MP3 recording
and playback software - which is freely available over the Internet
- can record an audio track onto their hard drive and send it to
anyone they wish. While this is copyright infringement, it is
almost impossible to trace the movement of these audio files, which
can then be passed on to any number of people who have a reasonable
speed connection to the Web.While this situation is bad enough for
the music industry, it has been made worse by the arrival of
software which facilitates the easy exchange of music files between
the software's users.Early last year, 19-year old Shawn Fanning
launched a website called Napster.com that offered the ability to
download the Napster file-sharing software. Napster basically
allows anyone who logs onto the service to open a part of their
hard drive to the public in order to share their collection of MP3
files. Anyone else who is logged into the service at the time can
then download the files of their choosing directly from the user's
PC. Since then, the site has become hugely popular, especially on
US university campuses. With as many as 4000 users sharing around
500,000 music files at any given time, the loss of money to the
music industry could potentially be enormous.Predictably, lawsuits
have followed, as have copycat services, but Napster believes it is
protected against copyright infringement by an act that was pushed
through by the music industry itself.The Digital Millennium
Copyright Act (DMCA) was passed as law in the US two years ago as a
means to protect the interests of songwriters, artists and movie
directors in the electronic age. But what was originally seen as a
forward-thinking move by these industries now seems horrendously
out of date following the introduction of file-sharing software.
While the DMCA gave the courts new powers to enforce copyright
protection on the Internet, it also introduced so-called safe
harbour provisions. These provisions protected service providers
from being liable for copyright infringement if files were being
passed between users of the service. It was meant to protect the
major ISPs from liability, which could run into billions of
dollars.Napster, however, is using this safe harbour provision
against the music industry. It is claiming that since Napster does
not hold any of the MP3 files then it is not responsible for
infringing copyright law. In essence, it is a service provider that
allows users to share files, even if they happen to be files
protected by copyright. Furthermore, it provides warnings on its
website that copyright protected MP3 files should not be shared,
and if it is informed that illegal sharing of files is taking
place, it will block the user responsible from the
service.Nevertheless, it is obvious to most that the vast majority
of file exchanges that occur over Napster do so without the
permission of the copyright owner, and if the music industry was to
knock this threat of revenue loss on the head, then it must do
something quickly. In December of last year, the Recording Industry
Association of America (RIAA) sued Napster for breach of copyright
law, seeking $100,000 in damages for each copyright-protected song
that has been exchanged illegally using Napster's software. A
result in favour of the RIAA would almost certainly put Napster out
of business and set a legal precedent. But RIAA is not the only
organisation to challenge Napster. Metallica, the once anarchic
thrash metal band turned corporate rock group, has also announced
its intention to sue the start-up for damages. Metallica has also
issued a writ to three US universities claiming they failed to
restrict its users from using the service. Furthermore, rap star Dr
Dre has also threatened to sue Napster unless it removes all the
artist's songs from the service - an unlikely situation as Napster
doesn't hold any of the files. Ironically, Dr Dre has himself been
involved in a legal wrangle with Lucasfilm for his apparently
unauthorised use of the "THX Deep Note", a sound for which
Lucasfilm owns the intellectual property rights.Despite attacks
from all sides, Napster believes it has a strong case and has
several legal precedents in its favour. It is fighting its corner
using the 'Xerox' defence. As Xerox is not responsible for anyone
illegally using its photocopiers to duplicate copyrighted material,
so Napster should not be liable for people using its software to
illegally exchange music files. There was another precedent set in
1998 when CBS tried to sue Amstrad. CBS claimed that Amstrad was
breaking copyright law when it released a high-speed tape-to-tape
machine that was only capable of recording and not playback.
Amstrad won this case and Napster hopes to use this example to its
advantage. One additional argument in Napster's favour revolves
around a case in 1984 when VHS was in its infancy. The film
industry pushed for VHS sales to be blocked because of the threat
of piracy. The US Supreme Court refused to do so and now VHS sales
count for a significant part of the film industry's revenue.In
general, courts have always tended to leave the responsibility of
the copyright holder to enforce compliance with copyright law and
avoided clamping down hard on new technologies. Yet, despite
Napster's strong case and all the legal precedents it has behind
it, the threat to the music industry is perceived to be so large
that the outcome of the case is very unclear.If the RIAA wins the
case then it will put the music industry in a very strong position
to protect its intellectual property and would make a whole host of
other Internet organisations potentially liable for breach of
copyright. But the battle would not be won straight away, as a
whole host of Napster imitators have cropped up since the success
of Napster, many with different ways of getting around existing
copyright law.Scour.net has recently launched software called Scour
Exchange that works in a similar way to Napster, while WiredPlanet
has launched an application that allows users to share songs via
streaming technology. WiredPlanet hopes to avoid the legal pitfalls
that Napster has encountered as it does not allow users to download
others files but only to listen to them. Unfortunately, this could
be undone by the emergence of software that can grab streaming
media and save it onto a user's hard disk.One of the biggest
alternative threats to intellectual property, and a much more
subversive one, is the introduction of Gnutella. This system was
introduced on March 14 by a group of programmers from AOL, and the
threat was perceived to be so enormous that its website was torn
down within 24 hours of its introduction. Yet, in that time, enough
users had got hold of the software that was posted to other
websites and newsgroups, and from there it started to spread like
wildfire. Gnutella allows computers to connect together in a
file-sharing community similar to Napster, but without the need for
a central service that could be liable to court action. The
networks that run Gnutella can form and disappear without a trace,
via pre-arranged movements with instructions being given on
newsgroups or the larger Gnutella network. This makes it
practically impossible for copyright owners to trace the piracy and
clamp down on it.Gnutella not only allows the transfer of MP3 files
but of a whole range of files and software, broadening the piracy
threat to a much greater number of industries. Gnutella isn't the
only software to do this however, as another recent introduction to
this ever expanding file-swapping market is Wrapster. The Wrapster
software allows the transfer of a wide range of file types using
the Napster service, something that Napster itself cannot do at the
moment. The success of Wrapster depends heavily on the outcome of
the Napster case, but if the court does rule in favour of the
start-up, then the implications of the judgements could be much
further reaching than the music industry.If Napster does come out
of this triumphant, the RIAA will have to rethink its strategy
towards the Internet somewhat. Some believe that if the case is
lost by the RIAA, then it will simply go the US congress in order
to get changes in the law, as it has done before. Others believe
that it would be better for the music industry to work with Napster
and its imitators, and that it was the music industry's fault for
not realising the potential of the Internet and MP3 earlier.The
music industry has stuck doggedly to its traditional business model
while other industries have jumped at the opportunity that the
Internet provides. A recent UK Government report warned that
musicians and songwriters were set to lose millions of pounds in
revenue through piracy unless it makes it easier to buy music
online. It highlighted the fact that music's most devoted fans were
teenagers, yet they could not purchase online until they were 18;
and that many adults were still wary of passing credit card details
over the Internet. If the music industry is to have success in
drawing music fans away from the Web, then it needs to look at new
ways to market its online activities and make it much easier to
purchase music online.It may seem unlikely that if the RIAA loses
this case that it could work with Napster, but it may be of
advantage to them. It could be argued that Napster gets music to
those who would never before have thought of purchasing that
artist's recordings. It is also believed that many music
enthusiasts do not want to bite the hand that feeds it, and will
continue to purchase music whether there is an easy form of piracy
or not. There are certainly marketing opportunities there that
could be explored rather than for the industry just to continue
fighting a battle it may never win. Piracy exists in all sorts of
forms in many areas, but rarely does it do so much damage that it
causes companies to go bankrupt. Protecting the rights of an
artist's intellectual property is important, but if examples from
other markets are put into this context, Napster and its clones
should not be held responsible for the piracy that occurs. In this
case, it may be of greater advantage to work with or around these
services, or at least provide one that can challenges it.
Paul
Grant