Copyright holders like record labels have too much power over what people do with songs, argues technology analyst Bill Thompson.
Record labels fighting illegal sharing and copying of songs
After failing to persuade an appeals court of its case, US ISP Verizon has handed over the names of four of its customers to the lawyers at the Recording Industry Association of America.
The disclosure marks a significant shift in the way that customer privacy is dealt with in US law and will, as with many aspects of the regulation of the internet, have an impact on net users around the world.
The Record Industry Association of America (RIAA) first contacted Verizon last year after finding files being shared through the Kazaa peer-to-peer network from computers with IP addresses on Verizon's network.
They had no way to find who the users behind those computers were, so used a provision of the Digital Millennium Copyright Act to issue a court-authorised subpoena to the ISP, asking for the subscriber names.
Verizon refused, arguing that they were just a communications channel and had nothing to do with the potentially copyright-infringing behaviour of their customers.
They also said that because the DMCA subpoenas were issued by a court clerk and not by a judge they were unconstitutional.
Now a court has ordered them to hand over the names, although the legal arguments will continue for a bit longer as the appeal has not been finally decided.
But it seems pretty clear that under existing law Verizon have little chance of winning.
The DMCA was written to give massive power to copyright owners, and it is working.
There is also little chance of any changes to the law getting through a US political system where many elected representatives rely on campaign funding from the entertainment industry.
So we can assume that from now on any time the record or music industry wants to know whose computer is hosting a pirate version of Spiderman, a few ripped MP3s of some old songs or the odd installation of a piece of unpaid for software, they will be able to find out - at least in the US.
This does not mean all of those people will be prosecuted.
One of the aspects of the law raised by this case is that the RIAA can ask for people's names before they start proceedings - they just have to turn up, say "we think these people are abusing our copyright" and they can get the subpoena.
But it may result in even more nasty and threatening letters going out from the RIAA, and have a chilling effect on the free sharing of music over the net and the growth of the file sharing networks.
Over here we do not have the DMCA, although our very own European Union Copyright Directive does lots of the same stuff.
However this does not mean we should be relaxed about privacy, especially after recent Home Office proposals for storage of and access to data about e-mails sent and web pages visited.
But UK practice does at least involve the police and the courts: a record company cannot just walk into an office, ask an official for a stamp on a form and send it off to an ISP.
Piracy blamed for fall in sales of CDs
US net users should be very worried about the implications of the Verizon case. The techno-optimists say that the next generation of file-sharing services will make it impossible to pin down which computer is hosting a file and so the law will be helpless.
This may work for a while, but just as in the ongoing battle between virus writers and anti-virus tools, each side has clever programmers and an incentive to develop new ways to get what it wants.
The real fight here is political. The record industry wants complete control over what people do with the songs it publishes; the people want some freedom to decide for themselves.
Until we can resolve this difference we will continue to see more court cases, threatening letters, and new releases of file-sharing tools.
We need to rethink what copyright means in a digital world, rather than wasting so much time, effort and money on this conflict.
Is the record industry right to take the legal road? Are there other ways this issue can be tackled? This is what you had to say:
In today's digital world it is stupid to claim for virtual things, so the way copyright is defined today needs to be changed rather then been used as a threat.
Ashok Dawadi, Nepal
Could somebody explain why the record industry feels that they don't have to change their working practices? Most companies nowadays know that they have to adapt and change to keep their market share, the record industry feels that it get around this by bullying. Perhaps if they actual cut some of their overheads they would find that they could cut the cost of a CD album and have more people buy them.
The recording industry needs a paradigm shift in how it does business. It needs to discover how to embrace new technology without suing everyone on the planet. Face it. Songs are now a commodity.
Promote the band or artist, not the songs. For some examples, how about if a CD was produced with four or five different designs printed on them created by the musician You couldn't get this off the net. A true fan would want all the designs and buy more CDs. Put promo codes inside new CD's for merchandise or backstage passes. Stop promoting just the music and start promoting the band. Maybe then the band/artist would last more than two albums.
Tim Kunes, USA
Power over copyright is meaningless because it is easily over-ridden and bypassed by those who could not possibly care less about copyright. This will only ever become an genuine issue once that power becomes real. Up to now, the music companies have proven themselves to be impotent in their battle against the downloaders who have, so far, proved themselves smarter, faster and more determined than the big companies.
Sadly, the obvious answer (cheaper music, easily available over the internet) has bypassed the vast majority of them, so this situation will continues for some time to come.
Paul Harper, UK
There are many ways to address a problem. Unfortunately in the USA we've allowed an industry to take a legal and invasive approach. I have a degree in engineering. In engineering, failure in a system is expected. In a good design you anticipate and mitigate the effects of the failure. From an engineers perspective, if you "assume" music will be pirated, then there are things you can do to address the problem.
Ultimately you would want to be able to easily identify pirated material and trace its distribution back to the offender. There are ways to do this. It can be done without limiting an individual's "fair use" of the material. The recording industry has never designed their content for use over the internet. For years the recording industry has been ignoring the internet. Instead of embracing it and using it effectively to market their products, the industry has been resisting natural change. We can either fix the problems or let the legal remedy get worse.
I buy three or four CDs a month but I also use file-sharing as a means of hearing albums before I fork out money. The recent practice of providing extras to improve the overall package as is quite common recently is a great step. In fact I've bought more CDs recently due to being exposed to a greater variety of music.
As an American I am greatly disturbed by what happens in the political scene in my country. Our elected officials are supposed to work for us, the people that actually vote them into office, not the lobbyists from the record industry. I wish there would be some politician who was concerned about doing their job rather than getting richer and richer.
I hate hearing the record companies and RIAA bleat on about falling CD sales. Want to know why CD sales are falling? Because most of the albums released in the last year or so have been rubbish. I'd like to see a breakdown of CD sales by artist. I bet that the sales of manufactured boy/girl bands have dropped off.
The music industry is a dinosaur when it comes to new technology. I'd rather see a sales model where I could pay 50p to download a track that I liked and be sure that most of the money (90%) actually went to the artist/song writer and not the greedy publisher/record company.
Jason Salter, England
This story is very worrying, however it doesn't show the final position that the entertainment industry wishes to adopt. Eventually they wish to control not only the content, but what you play it on. Using what is called "Digital Rights Management" you will only be able to play a piece of music (say) on the unit it was bought for. So if you'd like to listen to a CD in the car as well as at home, you need to buy another copy. They have openly stated that they wish to overturn the "fair use" provisions of current law so they can sell more copies of their content. It is time that people generally were aware of what is happening....all the new exciting technologies we keep being told about come bundled with ways of preventing you using the content you have purchased in the way you might have expected.
John Smith, UK
My opinion is that the record companies are acting like children who want their toys back. I do not believe that free downloads truly affect sales, in fact there have been many reports that suggest
the opposite: that being able to hear music downloaded from the net before you buy it is a large part of file-sharing and that, in that respect, it encourages people to buy music. The most galling aspect is that record companies are simply worried about profits. How a large record company could ever lose money is beyond me. Profits on CD sales are huge, especially in
markets, such as the UK, where music is priced way above any reasonable profit margin. But the simple truth is clear. Record companies are interested in money, not music.
Tom Day, England
Bill Thompson is right. The most disturbing trend in US law these days is the shift toward corporate powers and away from consumer rights. Our legal system was based on the premise that you are innocent of criminal charges until proven guilty in a court of law, and so judged by a panel of peers. In the past, copyright violations were civil matters. Party A could sue party B and have a hearing before a judge who would decide for one party or the other (or throw the case out). Now, all it takes is for a copyright holder to accuse you (fairly or not) of violating their rights, and you end up a) being forced to comply with their demands, or b) paying huge legal bills to prove your innocence (or guilt, as the case may be).
The RIAA is using the law to scare people. Is this standard practice for a "free society"?
It took 80 years for the music industry to refine its business model and become used to the high level of control they came to exert over their "properties." Outstripping this model, current technology leapfrogged over existing legalities to allow the "freedom" for individuals to make virtually unlimited use of content as they pleased, bypassing the controls and restrictions which protected copyright holders "rice bowl."
I'd like to see the artists get their due, and marketeers make their fair share, while allowing individuals greater freedom to use their data. The problem is the archaic business model which allowed free reign for distributors and marketeers to reap increasingly larger profits for the "middle men," while creators often got the short end of the stick.
The debate breaks down, on one side, to the industry's crocodile tears over losing millions they've become used to commanding, and on the other, consumers whining that they can't do anything they want with protected content. Somewhere in the undiscovered middle ground the industry will be able to make a fair profit, and users will be able to make fair use of the content. It's a healthy debate that will set standards for many fields in addition to music.
Michael Baron, Virgin Islands (U.S.)
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Bill Thompson is a regular commentator on the BBC World Service programme Go Digital.