COMMENTARY--Trying to find a path through the music copy and share debate is a continuing battle, but should it be?In the "Have your say" section of The Australian newspaper on May 1, a reader put forward the idea that if software producers were responsible for the uses made of their software, wouldn't it mean that gun makers were responsible for murders and armed robberies?
What he was referring to of course were the actions being taken by the music industry to stop peer-to-peer file sharing on the Internet. In spite of the fact that millions of users--mainly younger people who have little concern for the sensitivities and economic viability of major record labels--obviously want to download and share music, the music industry is vehemently opposing this sort of use. Rather than harnessing the potential audience of millions so that both the record companies and the artists continue to earn some money, the record industry is taking quite extraordinary measures to stop people doing what the Internet does best--copy and share.
In Australia, as in the US where the legal campaign against peer to peer-to-file sharing has a nasty and expensive history, police have recently laid charges against three Sydney students for running a Web site from which they allegedly distributed copyrighted material. On the surface at least, the record industry is insisting the software producers as well as their users be brought to account.
But it seems neither legal action against students and software producers nor the locking up of digital music with sophisticated technological controls will work. Both seem to backfire against industry moguls who are ridiculed for their paranoia and undermined by hackers who not so long ago used felt-tip markers to override the protection on Sony's copy-protected Celine Dion CDs.
And in a recent decision from a US Federal Court judge, two companies with file swapping programs have been let off the hook and found not responsible for copyright breaches carried out by users of their software. They claimed that unlike Napster, they only provide software and technical assistance and do not host directories of users' files. While the decision may be appealed, it signals a real change of direction from the otherwise tough line on digital copyright that the US legislature has pushed in the recent past.
In fact, the Federal Court decision reflects the decision of the Supreme Court 20 years ago that ruled the sale of videocassette recorders did not on its own constitute copyright infringement. And there is no need to point out that rather than destroying it, videocassette recorders introduced a new business model and new income streams to the movie industry.
And so it will surely go with peer-to-peer file sharing. There is already evidence that while they argue the letter of the copyright law, the music industry is recognising that what John Perry Barlow said years ago is still true: "No law can be successfully imposed on a huge population that does not morally support it and possesses easy means for its invisible evasion."
Thus while some artists and the occasional copyright lawyer actually claim that the free and unlimited exposure of musicians and their work increases their commercial value, few advocate a system that completely undermines the principle that copyright owners need and deserve remuneration. We will inevitably see artists and record companies coming to a new understanding and developing new business models. This is already being demonstrated by Apple, AOL, PressPlay, Altnet, Listen.com, and others who are trialling subscription or pay-per-use models for music.
It is clear to those of us who work in digital content that there is no future in making enemies and felons of software companies and networked music lovers. As David Boies, who once defended Napster, said:
An industry that goes to war with its customers is not an industry that will ultimately prevail.
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