Copyright Industry in the Cyber Age

Introduction

It is circa 2007, and the digital world is overtaking the real world in almost every walk of life. This introspective and analytical paper deals with the copyright issues and concerns faced by the digital infotainment industry. As an illustrative effort, the focus has been kept on the music industry within the broad spectrum of the digital copyright industry.

The growth and development of digital music industry

The skies know no bounds. Neither do the air waves. The digital music industry is riding high on air waves and reaching out to the world to create a seamless unicultural global market for itself. This business platform is devoid of any regional bias or cultural prejudice. It has no geo-political preferences. It has reached out to the farthest corner of the world to embrace the Eskimo and the aborigine alike. It is universally equanimous in nature.

The reach and spread of this industry has been like a mouse race, literally and figuratively. With technology driving this industry’s growth at a break-neck speed, a remarkable trait has evolved. The world has shrunk; in fact it is no more a global village but a global neighborhood, with the air waves acting as super-efficient couriers who deliver a sneak preview or a rave review of a new album to a Manhattan penthouse or a Sheik’s villa with equal objective efficiency and professional indifference.

Such, then, is the world scenario that the digital infotainment industry has created for itself.

Digital music – a blessing or a bane?

But this virtual market is not without its flip side. Like in all businesses, there are honest buyers and there are dishonest cheaters in this market too, who prefer stealing to buying. “Cyber Crime examines a new and terrifying dimension of the Electronic Age, where crime is flourishing without the restrictions of national boundaries. This is a global phenomenon that leaves police struggling to catch up”. (Ref01).

Further, the act of stealing digital merchandise is made all the more tempting for the user and troublesome for the producer because of these unique characteristics:

• It is child’s play, literally, to steal these goods. No advanced housebreaking or lock picking skills required here!

• It is extremely difficult and/or tedious to trace or to ‘reconstruct’ a cyber theft scenario.

• There is a lack of uniform international laws that are universally applicable. “Discrepancies exist even within countries” (Ref02).

• The end user does not have to steal the copyright merchandise himself. There are scores of web entities who steal it for the end user, then circumvent cyber laws and offer it to the user on a silver platter.

So, who cares! “Undeterred by the prospect of arrest or prosecution, cyber criminals around the world lurk over the net as an omnipresent threat…” (Ref02). It is a thieves’ day out, out there in the cyber space.

Challenges faced by the Digital Copyright Industry

Cyber crime is the industry’s perennial curse. The judiciary, the law enforcement agencies and the industry are striving hard to cope with the complexity and intensity of global cyber theft. Never-the-less, the industry-judiciary-law enforcement agency trio has made significant progress in last few years to stem the cyber theft menace. The following chapters analyze and explain how this has been made possible:

• Steps taken by the industry to curb this menace. This chapter will highlight the legal, educational, PR, technological and social perspectives.

• Important advancements made by the judiciary. The chapter will examine the legal provisions and examine the landmark Napster case.

• Conclusion- Supported by an insightful post-injunction study of the Napster case, the conclusion will examine the role of extra-legal perspectives in supplementing the legal issues, and arrive at an innovative concluding thesis.

Piracy Prevention – The Industry Thrust

The e-commerce age

The foundational analysis of this paper makes it amply clear that the world is fast moving towards the virtual business module and increasingly depending on it for transnational commerce or e-commerce, which has been generating business at a higher and faster rate than the conventional business platforms. In the book Intellectual Property: Patents, Copyright, Trade Marks, and Allied Rights By William Rodolph Cornish and David Llewelyn, the authors have emphasized in the preface itself, “Now that the industrialized world operates as a set of knowledge based societies, IPRs have become foreground features of these economies” (Ref03). The Intellectual International Property Alliance-IIPA has noted that in 2001, the US copyright industries jointly accounted for 5.24% of the country’s GDP (Ref04). That’s a whooping USD535.1 billion worth of business!

The digital music industry too has emerged as a major revenue generator globally. But as seen earlier, a substantial portion of this revenue is lost vide piracy. Some of the important steps undertaken to control this theft are detailed below:

Digital Rights management – DRM

DRM is by far the most effective counter-piracy measure the industry has evolved. It is preventive in nature and is highly techno-centric. In effect, DRM controls, and to some extent arrests unauthorized access and subsequent duplication of digital copyright material. DRM acts as a filter that allows only authorized users to reach and avail copyright merchandise. Different companies have evolved different means of DRM to safeguard their interests. For example, Apple iTunes, the gigantic virtual music mega mall for iPod uses FairPlay DRM system using digital watermarks. FairPlay is not an interoperable DRM (Ref05), so music procured from iTunes can be played only on iPods, thus limiting its infringed reuse.

DRM is patronized by the World Intellectual Property Organization – WIPO, and is incorporated in its copyright treaty of 1996. WIPO currently has 184 member countries. Subsequently, the US adopted the Digital Millennium Copyright Act-DMCA, which makes it a crime to circumvent anti-piracy measures built into most commercial software” (Ref06).

Controlling peer-to-peer – P2P file transfer

P2P is akin to a decentralized free trade zone for internet file transfers. The technology has made dedicated servers obsolete. In the P2P regime, any individual or a collective body can share, swap or barter files for free. It is an open ended two-way upload and download process that can be accomplished by special software. P2P has come to mean piracy problems personified for the industry, and it is fighting a complicated legal battle to contain it. By far the most significant court injunction on P2P and related issues is the MGM vs. Grokster suit in which the American Supreme Court quashed the earlier rulings of lower courts and held the P2P software distributors Grokster and StreamCast responsible for copyright infringement (Ref07).

Alternative approaches to piracy prevention

The copyright infringement issue is not a clear cut legal matter and hence it can not be sorted out by legal measures alone. It is a very complex psycho-social issue involving the teenagers and young adults who are gullible to the temptation of stealing the merchandise. Hence it becomes tantamount to appeal to the conscience of this age group that piracy is not only illegal but counterproductive to the very music that rocks their world. Therefore, it is imperative that the music fan buy his music rather than stealing it.

Creating such an impassioned and effective communication would require a multi-disciplinary effort involving diverse professionals from the HR, PR, communication, marketing, social science and other fields. The industry is acting on it with due earnest. An ideal example is the virtual panel of industry leaders gathered by BBC News to respond to specific model questions concerning the issue (___BBC ref___). To one such direct question asking what action the industry would take to persuade the 15-16 age group to buy music rather than pirating it, John Kennedy of IFPI had this crisp and profound remark, “To me, if you steal music, you can’t be a real music fan” (Ref08).

Intra-organizational efforts at piracy prevention

Apart from the above measures, e-commerce organizations are investing heavily in security steps to avoid their sensitive database from malicious attack and infringement. This is a high-technology expensive effort that implements multi-strata security measures “such as firewalls, anti-virus software, intrusion detection tools, and authentication services–throughout the organizations’ computer systems” (Ref02).

Piracy Prevention – The judiciary’s role

Fallout of corporate legal action on non-profit and non-commercial entities

This user group of copyright material consisting largely of researchers, academicians, librarians, non governmental aid organizations, etc. is the segment that gets caught in the cross fire between the industry and the cyber law circumventers at times. The industry views their efforts at access to copyright with suspicion too. Under such circumstances, the judiciary has taken a more considerate stand and has granted acquittals to the defendants in such law suits.

A model example of such cases is a series of suits filed by Recording Industry Association of America, RIAA, against internet service providers Bell, Verizon and Charter Communications, whose brief is:

In each of these cases ALA joined amicus briefs filed on behalf of the Internet service providers resisting efforts by RIAA to obtain identities of users alleged to infringe copyright. These cases challenge the propriety of the recording industry serving subpoenas on ISPs without judicial oversight. The U.S. Court of Appeals for D.C. Circuit ruled Dec. 19, 2003, in favor of Verizon. In October 2004, the U.S. Supreme Court denied the RIAA’s petition asking it to review the appellate court’s decision. The other cases are still pending in the appeals courts. (Ref09).

When the law catches up

One of the main legal loop holes in booking cyber criminals is that what copyrights protect any way. Is it the intellectual property idea or expression itself, or is it the mode, method and means in/by which it is expressed. On this subject, at least the UK law is clear, and it says, “Copyright does not protect ideas or facts. It only protects the manner in which an idea or fact is recorded…” (Ref10). Further, “the author is the first owner of copyright in any literary, artistic, dramatic or musical work” (Ref10), the only exception being the works that are produced under employment. The copyright ownership by the creators of such works occurs by default, even if it is not explicitly expressed. This is particularly true in an electronic environment (Ref10).

To put the judiciary’s role vis-à-vis the digital copyright industry in its right perspective, a detailed analysis of the famous Napster case along with an innovative post-injunction critique is presented below.

The Napster case – Prosecution charges

The case was initiated in December 1999 by RIAA against Napster, a popular virtual music downloading site (Ref12). The main charges were both direct and indirect in nature:

-That Napster facilitated direct infringement to its users, hence it indulged in contributory infringement. This charge was substantiated by the prosecution by providing as many as 1200 infringed files downloaded from Napster as proof. Further, it was established that Napster had not only the knowledge of such infringement from its site, but in fact provided such facilities on the site that enabled the illegal downloads.

-That Napster was involved in vicarious infringement, which occurs when an entity makes financial profits by virtue of either being incapable of arresting such direct infringement from its site, or it volunteers not to stop such activity on its site though being capable of doing so. It was pointed out by the prosecution that since Napster already had the user blocking feature on its site, it proved that it possessed the capability to arrest infringement, but did not do so, and accrued substantial financial profits by its inaction.

The Napster case – Defense arguments

The Napster defense was based on four sequential arguments:

The constitutional right of speech ought to grant Napster the right to continue their activity. The court ruled that any kind of theft can not be camouflaged as right of speech.

Napster submitted to the court that an injunction against it would land it in heavy debt. The court ruled that it was irrelevant to the interest of the plaintiff.

Subsequently, Napster argued on the grounds of Betamax Defense that frees the new technology creator from the burden of copyright infringement as probable fallout of the technology, though the primary stated object might be its non-infringed use. The court again ruled against, stating that Napster possessed both the knowledge and capability to stop infringement, yet it did not do so.

Finally, Napster resorted to section 512 (a) of DMCA that allows an internet service provider, ISP, to conditionally connect its users to the content that is temporarily stored on its virtual inventory. However, the court dispelled the basic claim that Napster qualified as an ISP under the said section.

Napster case – The injunction

The court concluded the case by ordering Napster to vigilantly exercise access control on its site to enable non-infringement and to promptly block users doing so. Napster was unable to comply and was shut down in July 2001. In the end, Napster went bankrupt in 2002.

Napster case – Post-injunction critique

RIAA emerged a winner in the court and the case was shut. But the matter was not. A very incisive and in-depth study on the case conducted by Amy B. Woszczynski and John Caylor of Kennesaw State University details a unique finding that even though RIAA engineered the collapse of Napster through the case, a move that should have ideally boosted its sales, that same collapse in fact substantially uprooted its sales (Ref11). The authors propose two hypotheses for this unforeseen development. First, the study found that a great number of Napster users were testing music on the site before buying its physical copies. Theft was not their outright motive. This is comparable to a test drive of a vehicle that a prospective buyer would want to conduct before signing the check. But by busting Napster, RIAA also busted this privilege and its sales. Secondly, the touchy teen, with whom Napster was a huge favorite, conducted a self-imposed ban on RIAA as a knee-jerk reaction to its harsh action.

This interesting study substantiates the broader view that the virtual shelf space is very modular, very dynamic, and of course very scarce. It does not operate by the conventional norms, but creates its own, only to break them on a daily basis and to create newer norms. This market is ever-changing.

Another feature of the e-commerce space is that it is not essentially virtuous. Here, decisions are not made on basis of rightfulness or wrongfulness. Therefore, an impatient, irreverent, highly opinionated teenager would in all probability say, “to hell with right or wrong, I’m gona test that piece on Napster before I buy it”. With Napster gone, the teenager now probably applied the term ‘to hell’ to RIAA.

Conclusion – extra-legal angle to copyright infringement

In presenting this angle, the intention is not to deviate from the legal focus, but to examine and to bring to light the extra-legal angle that may well act as complementary and supplementary to the legal platform.

Apparently, the court’s ruling in Napster case had a primary intention of stopping the illegal infringement on the site, in which it succeeded, and a secondary intent of helping boost RIAA’s legitimate sales by facilitating a curb on the illegal theft from the site, in which it failed. This development seems to indicate that legal action, however harsh, may not be the ideal and effective way to deal with this issue. Instead, a mix of legal and alternative approaches as defined earlier in this paper may have brought about a heartier ending to the Napster matter, without annoying the end user. After all, more in the virtual market than in the real one, he is the king. Period.

References:

• Ref01: Book title: Cyber Crime. Publishers: Mason Crest Publishers Author: Andrew Grant-Adamson ISBN 978-1-59084-369-7
• Ref02: Report title: Cyber Crime . . . and Punishment? Sub title: Archaic Laws Threaten Global Information Publishing date: December 2000. Report prepared by: McConnell International LLC.
• Ref03: Book title: Intellectual Property: Patents, Copyright, Trade Marks, and Allied Rights Fifth edn. Authors: William Rodolph Cornish, David Llewelyn Thomson. Publisher: Sweet & Maxwell. Citation from preface page VI.
• Ref04: Report title: Copyright Industries in the US Economy. Prepard by: Stephen E. Siwek. Prepared for: The International Intellectual Property Alliance. ISBN: 0-9634708-0-9. Citation taken from Foreword written by Eric H. Smith, President, Intellectual International Property Alliance.
• Ref05: Web page title: How FairPlay Works: Apple’s iTunes DRM Dilemma. Publishing date February 26, 2007. Web site: www.roughlydrafted.com URL: http://www.roughlydrafted.com/RD/RDM.Tech.Q1.07/2A351C60-A4E5-4764-A083-FF8610E66A46.html
• Ref06: Organization: The UCLA Online Institute for Cyberspace Law and Policy. Web page title: The Digital Millennium Copyright Act. Sb:8Feb.2001. Web site: www.gseis.ucla.edu URL: http://www.gseis.ucla.edu/iclp/dmca1.htm
• Ref07: Publication: PC World> Web site: www.pcworld.com URL: http://www.pcworld.com/article/id,119396-page,1/article.html Web page title: Tech Groups File Brief in Grokster Case Author: Grant Gross IDG News Service Date: January 24, 2005
• Ref08: Organization: BBC web site: http://news.bbc.co.uk URL: http://news.bbc.co.uk/1/hi/entertainment/4642376.stm#8 Web page title: Digital music: Industry answers
• Ref09: Organization: American Library Association. Web site: www.ala.org URL: http://www.ala.org/ala/washoff/woissues/copyrightb/copyrightcases/copyrightcourt.cfmWeb page title: Copyright Cases. Last update: Last update: 28-July-2006
• Ref10: Web site: http://archive.cabinetoffice.gov.uk URL: http://archive.cabinetoffice.gov.uk/e-government/resources/handbook/html/1-10/1-10-3.asp Web page title: Legal issues – Copyright and the notices for government websites. Publishing date: May 2002
• Ref11: PDF file name: http://sais.aisnet.org/2006/Woszczynski-SAIS2006-paperb.pdf Title: Winners and Losers in the Napster Case. Authors: Amy B. Woszczynski, John Caylor
• Ref12: Web site: http://law.freeadvice.com URL: http://law.freeadvice.com/intellectual_property/copyright_law/napster.htm Section: Intellectual Property – Copyright Law – Copyright Violations/Infringement. Title: What was the Napster case about and what does it mean?