This week several record companies took several Australian universities to the Federal Court seeking orders to search university computers for what they say are illegally copied music files.
Several universities have complied and one has resisted. It is yet another episode in the seemingly endless chase between copyright law and technology.
As the law catches some form of illegal copying, technology invariably moves on and the owners of copyright find they have yet another chase.
The technology seems to get ever smarter while the law remains costly, cumbersome and time-consuming.
In the 1960s, when I was in my teens, my father had what was then a cutting edge reel-to-reel tape recorder. Now such things are obsolete. On Friday nights we put the microphone next to the radio set and recorded the top 10 hits of the week. The result was at best mediocre because while the recording was being done, the whole family and had to remain silent lest any noise was picked up by the microphone.
Later, the cassette tape-recorder, with microphone jacks going directly from a record player to recording tape, made microphone silence unnecessary and your friends’ favourite vinyl records could be taped with fairly good reproduction. Legal action against individuals was rare or non-existent, though shops and restaurants playing material in public were hit for royalties.
It was technology not the law which came into the record companies’ rescue up in the form of the invention of the CD. CDs could be copied, but the resultant tape was not as good as the original, nor as convenient. Music lovers having been exposed to the clarity and purity of CD quickly became dissatisfied with tape technology.
Record companies were delighted. But their joy was short-lived as CD burners became commonplace. Initially, they cost of thousands of dollars but now they are less than $100. And they can be fitted to virtually any computer enabling people to copy not only the computer files but also music CDs.
It made a dent in the recording companies’ profits, but you still had to have friends with the original CDs, so sales were still quite buoyant.
That changed dramatically with the internet and a technology called mp3.
Initially, the internet posed little threat because the average CD contained 600 megabytes of data which was too big for most people to handle. Then the development of mp3 meant music files could be condensed to just 50 megabytes. Coupled with ever faster internet connections it meant these files could be shot about the world via the internet and easily expanded in the home and burned on to a music CD. This has posed a grave challenge to the record companies.
The development of a site called Napster made the record companies look like dinosaurs heading for extinction. Napster comprised several large servers with a huge number of mp3 files. It was open to anyone with an internet connection to link into Napster and download any number of these files to build for free quite a large music collection in a short time.
The record companies moved quickly and successfully in the in the United States courts to have Napster closed down. Game. Set. But not yet match to the record companies.
The Napster case was typical of successful copyright-protection cases: large, widespread commercial exploitation of the other people’s work by a single corporate entity was restrained.
But the law has been utterly impotent in the face of widespread individual and non-commercial copying. And now a newer technology once again threatens the record industry.
This technology comes in the form of some artful shareware available quickly and for free on the internet. It overcomes the fatal legal flaw of the Napster arrangement. The new shareware programs in effect make every individual computer part of a huge server network. Anyone who loads and runs the shareware has part of their hard disk assigned in a folder to be open to anyone else with the shareware. As I download mp3 files they go into my share folder. I can also create mp3 files from my own music CDs and put them in the shared a folder.
In the past year or so millions of mp3 files have been made available to millions of people.
The Australian Record Industry Association (ARIA) is rightly concerned. Record and CD sales fell 4.4 per cent in 2002 and sales revenue fell 8.9 per cent to $573 million. ARIA puts much of that decrease down to “the widespread proliferation of unauthorized copying via CD burning and downloading”.
In 2002, “recorded music sales continued to be hit adversely by online and offline piracy, a problem that is of increased concern to the local market with the emergence of backyard CD-R piracy”, ARIA says.
With the backyard shareware – notably Kaaza, Shareaza and Gnutella – you can search for old or the latest pop music or even classical music. The software burrows around millions of shareware computers all over the world at the speed of light and pops up a list of mp3 files ready for downloading. As this network grows there will be more copies of each song available for downloading so if some people do not have their shareware running or their computer not connected to the internet, there will be another copy elsewhere available for downloading.
The composite technical result is equivalent to having a large server with all the songs on it, but the legal result is the absence of one server owned by one corporation that is susceptible to lawsuit. Instead, the songs are stored by millions of people beyond the practical reach of the law.
It is impossible for the record companies to attack the shareware program itself, because the copyright in that program is not held by the record companies but by the person who compiled it. Possession of the shareware program is no more a breach of copyright than possession of a tape recorder or a CD burner.
But the record companies do not want to be seen to remain idle hence this week’s court action. They might be successful. Many poverty-stricken students not have their own computers and they frequently use university computers. Perhaps they are putting illegally copied mp3 files on university computers. The university computers are large and centralised and so susceptible to legal attack.
However, even if the record companies win this case and the universities clean out the mp3 files, it will not help the record companies in the larger war. Illegal copying by individuals will continue with legal impunity because it is extremely hard for the law to visit of the loungerooms, bedrooms and studies of the nation.
But perhaps the last word should go to a music performer. Some years ago, I had the good fortune to go to Vietnam with the Fred Hollows Foundation and singer songwriter Neil Finn, a patron of the foundation. He it took an extraordinarily generous view about piracy. So what if someone pirates one of his songs, he argued. That sort of person was not going to buy the legitimate version anyway. But eventually they would get to like his stuff and it would sound in the purchase of a concert ticket or a book or even a real CD when the fellow got some money and could not be bothered making illegal copies.
Finn has a point. Despite piracy, 63 million units (records, CDs, music DVDs) were sold in Australia in 2002. That’s not a bad record.