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Copy wrongs
Lee Dembart International Herald Tribune
Monday, February 17, 2003
Industries' unending battle against software piracy
PARIS Copyright infringement is your best entertainment value," it says on a
wall and on a T-shirt - and that, I admit, sums up the situation. There are
indeed many interesting and high-minded statements made on all sides of the
argument between the producers and consumers of recorded music. But most
people understand that those are makeweight arguments that come after people
have already decided where their self-interest lies.
What is really at issue is that consumers want free music and producers want
them to pay for it.
Consumers favor a kind of communism of intellectual property. ("Intellectual
property is theft," I've read, and not just on walls and T-shirts.) Producers,
on the other hand, are all for property rights, and the industry is doing
everything it can to stop unauthorized electronic copying, which it says is
costing it billions in sales every year and was responsible for a 9 percent to
10 percent drop last year in worldwide sales of music compact disks.
Taking no position on the merits of communism as an overall political and
economic system, it is fair to observe that no society yet organized along
those lines has prospered, and most have failed to survive.
On a more practical level, someone I know - whose children and their
classmates, if I understand correctly, have downloaded a lot of music using
Napster and its successors, such as KaZaa - asked me the other day, "Can the
recording industry ever stop it?" Probably not, but not for want of trying.
The industry is going after the problem legally and technologically. While it
has won important victories in legislatures and courts on both sides of the
Atlantic, the legal battles are far from resolved. In addition, there are
strong technological steps that the music industry would like to take - such
as requiring that all CD players include technology to prevent copying. But
implementing such plans would require laws that would restrict how people can
use their computers. And that would run up against the freedoms of thought and
expression, which have strong constitutional protection in some parts of the
world.
On the legal front, the issue turns on the question of "fair use," which is a
recognized copyright exception. Consumers say that if they buy a CD and want
to make a tape of it so they can listen to it somewhere else, that should be
considered "fair use." The industry has always insisted that such copying,
even for private, personal use, violated its copyright and that if you wanted
a copy of an album in a different medium, you had to buy it.
Though consumers have the better of that argument, their case weakens when
they say that buying a CD entitles you to make endless copies of it and
distribute it free on the Internet.
While the recording industry was able to shut down Napster, it has had a much
harder time against the next generation of file-sharing services. KaZaa is
completely decentralized - just as its file-sharing service is - and there are
jurisdictional questions about where the company can be sued and even where
legal papers can be served on it.
As a result, the industry is going after individual downloaders, and it
recently won a major victory when a U.S. court ordered an Internet service
provider to give it the names of subscribers suspected of large-scale piracy.
The provider, Verizon Internet Services Inc., is fighting the order. That
court ruling came under the U.S. Digital Millennium Copyright Act, which
requires Internet service providers to identify subscribers suspected of
piracy.
In Europe, the law sees "fair use" differently. Last month, the European
Commission presented a draft directive to crack down on piracy and trademark
infringement of all kinds, including that involving music, videos and
software.
But the commission specifically said the measure was aimed at large-scale
commercial pirates, not at individuals who download music on the Internet for
personal use.
Besides the legal front, there is the technological one. Some people have
argued that even if the industry can stop - or at least curtail - music
sharing on the Internet, direct copying of CDs is a much larger problem.
Various copy-prevention systems have been proposed, but in tests they have
proved cranky for legitimate users.
Last month, Microsoft Corp. announced a copy-protection system for CDs that
aims to prevent copying while not getting in the way of some "fair uses."
Here again, the most that the industry can hope for is to limit direct
copying. As soon as a copy-prevention system is implemented, some people set
out to crack it, and when they do, they tell the rest of the world over the
Internet.
Remember Jon Lech Johansen, the Norwegian teenager who figured out how to
break the encryption of DVD movies so he could watch them on his Linux
computer? Under the Digital Millennium Copyright Act, software such as
Johansen's DeCSS is illegal in the United States, and it is illegal to
distribute it.
But when Johansen was prosecuted in Norway - at the urging of the motion
picture industry - the court ruled last month that merely using and
distributing DeCSS was not illegal. Using it to copy something would have been
a different matter; but Johansen got off.
There are hundreds of Jon Lech Johansens - thousands of them - around the
world, sharpening their tools to break other copy-protection systems.
Can the music industry - or the motion picture industry, or the software
industry - stop the electronic copying that lets people gain full use of their
product without paying for it? No. But it can make it more difficult.
Many people ask why CDs are so expensive or why they should have to put up
with the movie studios' worldwide zoning restrictions on DVDs. Both are
legitimate questions, but it's hard to see how they justify what the affected
industries regard as shoplifting.
