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Last Updated: Friday, 20 August, 2004, 15:47 GMT 16:47 UK
Fight for the right to copy
Who wins in the battle over peer-to-peer networks will shape the digital world, argues technology analyst Bill Thompson.

CD burner
Record industry trying to stop file-sharing of copyrighted music
It is somewhat depressing when the mere fact that a court has shown some common sense is newsworthy.

But we should applaud the 9th US Circuit of Appeals in Los Angeles for making it clear that file-sharing is not illegal.

This is just as well, since file-sharing, which is just copying data from computer to computer, underpins the entire operation of the internet, from e-mail to viewing web pages to downloading the 72Mb of Windows XP SP2.

But of course the argument was not about that sort of data copying.

The court had been asked to rule in a case brought against Grokster and StreamCast Networks over the use of their peer-to-peer networks to make unlicensed copies of copyrighted music.

It is certainly true that they can be used in this way. I had a copy of Kazaa on my laptop until recently, and a quick search revealed thousands of unlicensed MP3s of songs by a wide variety of artists.

But there is a well-established precedent in US law that just because something is capable of being used illegally, that does not mean its manufacturers can be sued or prosecuted.

Creativity and innovation

A peer-to-peer network can be used to share family photos, free software, licensed music and any other sort of digital content. The mere fact that it could in principle be used to exchange dodgy copies of a Britney song is therefore irrelevant.

Since both Grokster and StreamCast's Morpheus programs are true peer-to-peer offerings, with no central index of files shared and no central node through which requests or data about transfers is passed, the court ruled that the manufacturers of the software could not themselves be asked to stop infringing activities.

Bill Thompson
The arguments over copyright are the first skirmishes in a serious battle over the shape of our digital world

After all, they do not know it is taking place.

The judge even bothered to point out that just because closing down P2P networks would satisfy "the copyright holders' immediate economic aims", it might turn out to be bad for creativity and innovation generally, and so any such decision should be left to Congress who can pass new laws if they want to.

This might seem to settle the matter, but the Recording Industry Association of America says it is going to appeal yet again. And, more worryingly, Congress seems to be thinking about doing what the judge suggested.

A bill introduced by Senator Orin Hatch, a long-term friend of the music industry, and recipient of large campaign contributions from the same industry, would make it a criminal offence to induce anyone to break copyright.

Senator Hatch's Inducing Infringements of Copyright Act would allow the record industry to sue Grokster because their service makes it so easy to copy music files that it counts as an "inducement".

It would, as the Electronic Frontier Foundation points out, probably allow the record companies to sue Apple for making and marketing the iPod since it indirectly encourages us all to copy our friends' CDs.

We might think that such an absurd law would never be passed by the US Congress, but it is important not to underestimate just how much influence the record companies have.

They employ expensive lobbyists and make significant contributions to campaign funds, so they may get what they want.

Global concerns

Although this is currently a US copyright battle, the results will affect everyone.

European legislation like the EU Copyright Directive is often directly modelled on US law, in this case the Digital Millennium Copyright Act, and the record companies are just as concerned about protecting their European markets as they are about the US.

Britney Spears in concert
Even Britney cannot tempt Bill Thompson to buy music online
It is not just an abstract discussion either. The arguments over copyright are the first skirmishes in a serious battle over the shape of our digital world.

If the big rights holders have their way then copyright will become a real property right, like the rights I have over the laptop I am writing this on.

You cannot make me lend it to you. It is mine forever unless I sell it or give it away, and if you take it from me without asking, then that is theft and you could go to jail.

Intellectual property is not like that. It was never supposed to be like that. Copyright is a time-limited monopoly on certain forms of use of a book or recording, and was not to be treated in the same way as ownership of a house or car or pair of shoes.

But persuading the record companies that they cannot expect to exert complete control over every recording, forever, is not proving easy to do.

Perhaps they will be persuaded if we refuse to give them our money.

Rights and wrongs

I have never bought a music file online, even though I am a big music fan. I do not do it because I do not want music files which are crippled by the digital rights management tools that every online store uses to limit what purchasers can do with the songs they buy.

I do not do it because much of the music I want to listen to is available as a CD for around the same cost.

I can then rip that onto my hard drive and download it to my portable music player myself, keeping a safe copy on disk for when my system crashes and has to be rebuilt.

In fact, I do not do it for the same reasons I do not eat meat. I am vegetarian because I do not want to be part of a system that raises animals in inhumane conditions and kills them with cruelty.

And I will not buy music online because I do not want to support a system that is trying to lock down our creative heritage, stifle innovation and claim ownership of our common culture.

The Grokster decision has given me hope that the law around copyright is still understood by the judges.

We need to make sure that this does not change, and we also need to make sure that lawmakers on both sides of the Atlantic realise that they cannot give the big rights holders everything they want.

Bill Thompson is a regular commentator on the BBC World Service programme Go Digital.

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