File sharing

(or piracy, if you prefer)

Publication date: 23 February 2004.
Last modified 03-Dec-2011.


Hands up everybody who never buys CDs any more?

Go on. I know you're out there. You don't have to be nervous about it, either; you're not necessarily a copyright infringer just because you download all of your music. Maybe you use iTunes or some other legal pay-to-download service, but even if you only download music for free, there's tons of free, legal music out there these days. And it's easy to find, too; check out iRATE, for instance.

Most people who don't buy music any more, of course, are copyright infringers. The law says that they should have paid for most, or all, of the music on their computer's hard drive, but they didn't.

The primary justification for this activity is that you can get away with it. The Recording Industry Association of America (RIAA) and its equivalent bodies in other countries have been playing Wack-A-Mole with peer-to-peer (P2P) file sharing services and even with users of those services, but the number of users of the various networks continues to climb, week by week.

Legally and politically, music sharing (and the increasingly popular video sharing) is a very interesting issue. According to some of the world's largest corporations, it's cutting them to the heart.

Such claims should be taken with a grain of salt, though, because copyright infringement by consumers has, historically, done the movie and music industries no harm at all.

Jack Valenti, the president of the Motion Picture Association of America (MPAA), testified to the US House of Representatives back in 1982 that "the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone".

The VCR, of course, turned out to be the best thing that ever happened to the film industry in America and elsewhere, so it's probably just as well that Jack didn't manage to get them banned.

He's still MPAA CEO, though, and you can probably guess what his opinion is about P2P.

Before the developed world had so many cheap, fast, Net-connected computers in it, music and video piracy was difficult. Individuals simply couldn't pirate large amounts of anything; you needed expensive, bulky equipment to infringe copyright on a grand scale.

Today, though, it's easy to send lots of copyrighted material to complete strangers all over the world without lifting a finger, and the incremental cost of doing so is often zero, bandwidth limits permitting. So lots of people do it just out of the goodness of their hearts.

The word "piracy", with its connotations of bloodshed and theft, is misleading in this context. No P2P user makes any money from file sharing - well, OK, maybe from very dumb people - and the amount of money it's costing the copyright holders is questionable.

Anti-"piracy" organisations like to take the retail value of the material illicitly copied, multiply it by the number of illicit copies made, and claim that the result is the amount of money the copyright holders have lost.

But a copied file most certainly does not equal a lost sale. Many P2P users download all kinds of obscure and improbable things that they're not at all sure they'd like, and delete most of them shortly afterwards. This does not suggest they'd be willing to pay for that stuff on CD or DVD if the download wasn't available.

Many P2P users simply don't have the money to buy the stuff they download. There are lots of teenagers with downloaded music collections "worth" many thousands of dollars. Again, if the downloads weren't available, they wouldn't have bought all that music.

The P2P battle is made stranger by the oddness of the commodity it's being fought over.

Recorded music is a very strange product. Some of it costs incredible amounts of money to make, some of it costs close to nothing (cheap personal computers have also made it cheap to set up a multitrack home recording studio), and there's little correlation between this cost and what many people think it's worth.

This is partly because "corporate music" is, more and more, aimed at a less and less discerning mass market, but it's also because music is, in some senses at least, a huge glut on the market.

Even if you restrict yourself to albums listed in the All Music Guide, and even if you assume each album is only half an hour long, there is at the moment a total of about 35 non-stop years of recorded music out there waiting for you.

Yes, a particular listener doesn't necessarily like every genre of music, and there's some redundancy in the All Music database. But even if you only listen to a tenth of the music in the Guide listings, eight continuous hours of listening a day will still give you more than ten years before you have to repeat a song.

And that'll still be the case even if P2P drives every single recording artist to starvation. The absence of new music would be a bit of a bummer, but it wouldn't leave us in a world without melodies.

Of course, P2P isn't about to destroy the enterprise of recording music.

It's unquestionable that music sharing does hurt the income of some artists, but most of those artists are the ultra-famous elite. They're the ones who have enough leverage that they actually receive significant income from their record sales (and those of other artists whose copyrights they've bought - Michael Jackson makes a lot of money out of John, Paul, George and Ringo).

Smaller independent artists have, on numerous occasions, discovered that making their music available for free download is a great promotional strategy. If you don't have a big record company to promote you, P2P and a Web site are great advertising. None of these artists are making millions of dollars a year, but more and more of them are making a living. It certainly beats playing pubs for $100 a night.

Back on the more conventional side of the fence, though, are the recording artists who're contracted to a major label, but don't regularly crack the Top 40. These artists are, practically as a truism, unlikely to ever see significant income from their record sales. Or, quite possibly, from anything - record sales, touring, or merchandising. The money all gets soaked up by their record company, and it's actually common for artists to end up owing the label a lot of money - even if they don't trash any hotel rooms. It can be a high price to pay for a rock-and-roll lifestyle.

An argument can be made that the usurious nature of most recording contracts is necessary, because record companies run a considerable risk every time they lay down money to give an unknown act the recording, promotion and touring that's needed to tell whether the fickle listening public will make them actual stars.

But the fact remains that when the average P2P user copies popular music, the copyright that's being infringed, and whatever income is being lost, probably belongs to a big record company, not a recording artist.

The recording industry has carefully, and progressively, slanted the legal situation towards themselves over the years. Most recently, US law was changed to redefine music recorded under contract as a "work for hire", meaning its copyright can be held in perpetuity by the record company. It never reverts to the artist, even if the record company hasn't felt like pressing any of their CDs for the last 25 years.

(Followers of US politics will be unsurprised to learn that this amendment sneaked into law by the time-honoured method of being added as an eleventh-hour rider to an enormous, unrelated appropriations bill.)

The movie and music industry has also backed legal amendments in Europe and the USA - the WIPO Copyright Treaty and the Digital Millennium Copyright Act (DMCA), respectively. These laws and others have, among other things, extended copyright terms yet further (Mickey Mouse would have finally become a public domain character this year, if not for these changes), and specifically prohibited the circumvention of copy-control technology, in and of itself.

Even if the "circumvention" is no more complex than holding down Shift when you put a CD into your computer, and even if you're doing it purely so that you can make a legal copy of something you own, for yourself, the DMCA makes your action illegal - though that doesn't mean trigger-happy lawyers will be dumb enough to go through with their threats.

And all of this is coming to the rest of the Western world - Europe, and us here in Australia.

Our recently-signed Free Trade Agreement with the USA includes an undertaking to "harmonise" our copyright law with the USA's, including our own DMCA-style WIPO-compliant legislation.

The Australian music and movie industries aren't waiting for the new laws, though. Australian universities, Internet Service Providers (including the 800 pound gorilla, Telstra) and other companies have already been raided by court-order-equipped copyright enforcers, most recently "Music Industry Piracy Investigations", backed by the Australian Recording Industry Association, ARIA.

The new laws will make it easier for individual P2P users to be raided and sued, too, as has already happened in the USA. Whether or not it's a good idea, and whether or not they're doing the music industry any actual harm.

It doesn't have to be this way, though.

In Canada (and many other countries), there's a levy on blank audio recording media (including CD-Rs), which goes to music companies. What the Canadian consumer gets in return is not just the legal right to copy any music he or she wants for private use (which already existed, though the music industry clearly wishes it didn't), but to do so whether or not he or she owns the original.

In Canada, it's not legal to make a copy of a CD and give it to a friend. But it is legal to give your original CD (or maybe even a copy - the law's not clear) to a friend, and let them make the copy, and then give your CD back.

This legislation doesn't apply very elegantly to P2P file sharing, but so far as it does, it says that downloading music is legal, but making music available for download isn't, because that counts as "broadcasting".

So P2P users who want to stay legal can simply "leech" - download, but not share anything.

Surprisingly, similar legislation to this exists in the USA - but there, "data" CD-Rs aren't classified as audio recording media. The levy's only collected on media like "audio" CD-Rs (for stand-alone home CD recorders) and Digital Audio Tapes.

Maybe the future holds a file sharer's utopia, where less restrictive laws, a new licensing scheme, or simple mass civil disobedience stymie the music and movie industry's attempts to keep a death-grip on their properties.

Or perhaps the big Intellectual Property companies will get their wish, and make us all use computers that will only copy files if the copyright holder says it's OK.

In the meantime, P2P is a wild frontier where society, law, politics and technology are blending in a way never seen before.

Give Dan some money!
(and no-one gets hurt)