There's new and compelling evidence that judgesin Germany are bonkers. Dave Shapton explains.
I can hardly believe I'm writing this. The computer press reported on 24th November 2000 that Hewlett Packard has been told by a German court to pay an undisclosed sum for having manufactured CD writers which could be used to create pirate copies of audio CDs. The money is intended to compensate artists and authors whose CDs may have been copied.
Now, we've been through all this before in Cutting Edge. We've talked about how you really can't blame Ford for making Transit vans, a very small percentage of which are used in bank robberies. You also can't sue maternity hospitals for allowing future bank robbers to be born there. But in a world where you can blame Hewlett Packard for piracy, you must presumably blame everyone who at some point has failed to stop piracy from taking place. And that's... well, everyone.
It could be that the German judge is unaware that Hewlett Packard is, by anyone's standards, amongst the top manufacturers of computer backup devices — of which CD‑ROM drives are an example. In which case, why is it only Hewlett Packard that is plagued by this ludicrous litigation? Surely if you were really intent on putting an end to CD Audio copiers you'd have a go first at a company whose products are specifically designed for copying audio CDs. Philips, for example. What on earth is going on here?
Well, I think there is a pattern to this chaos, and it all goes back to the start of copyright itself.
Copyright theory is both complex and simple. Here's the simple bit. When you write a piece of music or the words to a song, you own the copyright. It really is that easy. You don't have to register it, or 'copyright' it in any way. You should, though, be able to prove that you created the work, and when you created it.
Forget about the word 'copy' in 'copyright' for a moment. Think about 'right' instead. Note, as well, that it's 'right' and not 'rights', and that PRS is the Performing Right Society. The right in question is the legal right to control the circumstances in which your work is performed. Quite simply, without recourse to any sort of legal procedure, you can specify absolutely any conditions that must be fulfilled before your musical work can be performed.
You could say, for example, that your song 'People think I've got a trifle on my head' can be performed in public if, and only if, the performer does indeed have a trifle on his or her head. Or it's just possible you might accept a fiver instead.
In the days before recording, or any kind of mass distribution of music, arrangements like this worked very well. That's because composers were either always aware of where and when their works were being performed, or they had no idea, in which case there was nothing they could do about it.
Now jump forward in time to the second two‑thirds of the 20th century. What's different is that we have records, radio and TV. So if you want to play a record of copyright music on your pub jukebox, what do you do? Obviously, you've got to get permission. Chances are that you don't have the mobile phone number of the composer and copyright owner. So you either play the record illegally, or you don't play it at all.
Luckily, you don't have to face up to this dilemma. And that's because of the Performing Right Society. These days, if you're a composer, it's very much in your interest to give — or, more accurately, assign — the right to perform your music to the PRS. If enough people do this (and in practice they do), the PRS is in a position to say that it effectively controls all British copyright music. PRS has alliances and reciprocal agreements with similar organisations in the rest of the world. Which means that they can, by proxy, control the entire worldwide repertoire. So all you need to do when you want to perform music in public is get a licence from the PRS. Any copyright music you play will be controlled by them, and the money from your licence goes to the composers of the music.
And it works pretty well. Even if it didn't work that well, it would certainly work a lot better than if there was nothing but individual composers.
Although it's a gross oversimplification of their history, PRS had to be invented to cope with a change in the way people had access to music. Without it the concept of copyright would have broken down completely.
Does that last statement have a ring of familiarity about it? If not, Welcome to this Planet. While you've been away, the entire music industry has worked itself into a state of apoplexy over the fact that you can type the name of any recorded work into almost any computer in the world, and within minutes be playing it from your hard disk. Then, when you've got several thousand downloaded tunes, together with your entire CD collection, occupying as much as 20Gb (that's a hard disk worth just over a hundred pounds), you can take it round to your mate's computer and copy the whole thing onto his disk in the time it takes to chill a can of lager.
What we're seeing now, as evidenced by this absurd German court case, is that the music industry, which has never understood the implications of new technology (not even Digital Audio Tape) is in an utter panic. It's blanket bombing what it perceives to be the enemy without a single thought for civilian casualties — who in this case are computer users that want to back up their data, and musicians who want to make CDs of their demo tracks to send to record companies (or possibly just their girlfriends).
We are, in fact, going through a change as big as the one that created the need for the PRS in the first place.
If any representative of a record company can present me with a coherent and viable account of how they are going to deal with the threat — no, the actuality — of uncontrolled copyright music swapping on the Internet, I'll report it here. Until then I'll continue to wonder, in public, why so few people and organisations in the music business seem to realise that the nature of the Internet is that it's open and uncontrolled. It's actually designed that way. And you can no more stop people swapping data than you can stop them saying 'Hello' to each other as they pass in the street.
And don't forget that we're dealing with ones and noughts here. Yes, when these strings of digits are decoded they can reproduce music, but it doesn't take much ingenuity to disguise a piece of data as something else, or at least as something meaningless. Here's a method off the top of my head: take two songs of roughly the same length, and swap alternate bits in the data that make up the first song with the corresponding bit from the second song. Since they won't ever be exactly the same length, insert extra, random bits at the end of the shorter song.
Most programmers could write a very simple program to decode songs encoded in this way, and such a simple scheme isn't going to stop a cryptographer for very long, given access to both songs. But the important point is that data encrypted like this doesn't represent music. If anyone found an unauthorised copyright song encoded like this as a file on your PC, you couldn't be prosecuted for it, because it is meaningless by itself.
You can close down Napster and Scour (the latter is a song‑swapping site that actually seems to work better than Napster). What you can't close down is the knowledge to recreate them. There are already alternatives, such as Gnutella, which seems to have a far less centralised structure than Napster. It's just 'Out There', and trying to close it down would be like trying to make a vacuum around a planet by putting some of its atmosphere in a Tupperware container.
The music industry, and to some extent the consumer electronics industry, seem to be taking the Secure Digital Music Initiative seriously. I would too, except that in the first place the 'watermarking' techniques being tried appear to be easily crackable (according to reports in the computer press), and, secondly (excuse me if I'm missing the point here big time), why do we need a watermark to tell us that David Bowie's 'Heroes' is copyright? Surely the best watermark of all is the music itself!
All of which means that watermarking actually fails to address the real issue: that since most ordinary people don't care whether stuff they download from the Net is copyright, they're not going to care if it's watermarked either.
There are, though, people who might care whether their music is watermarked. These are the people with good ears. I know the point is largely academic, but I find it hard to reconcile the emergence of the new 'Super Audio' formats with a watermarking technology that relies on altering (I'm trying to restrain myself from using the term 'corrupting') the audio data itself.
Of course, I really am missing the point here, to play devil's advocate, because the idea behind the SDMI is to prove whether or not a digital file representing a piece of music is an authorised (licensed, or paid for) version. But that's still not going to stop people disguising the data, or, much more likely, simply not caring where it came from at all.
Meanwhile, as I write this, I find that www.scour.com is no more. They've voluntarily turned off their servers because of massive legal threats. There was a US legal case a few years ago in which a company in a small American town polluted the water supply with a carcinogenic form of chromium. (The case was the subject of the film Erin Brockovich.) Hundreds of people were affected and many lives were ruined. The judge awarded three hundred million dollars as punitive damages against the company. It was the biggest award in American corporate history.
Add up the damages being claimed by music industry representatives against the likes of Napster, Scour and MP3.com, and the figure comes to many times this. Where's the justice in that?
Ironically, the PRS is the copyright organisation that has least to lose from the Internet. That's because what it actually licences is the right to perform a work. A performance, for the purposes of the PRS, is either a live presentation by a musician or band, or the act of making copyright music available to anyone outside your circle of family and friends by anything that drives a loudspeaker. (There are other rights, but these are the primary ones.) As far as I can see (and someone please correct me if I'm wrong on this), as long as you have a PRS licence it doesn't matter whether the music you play in your restaurant or pub has been obtained from Napster or not. (Although this so clearly contradicts the spirit of copyright in general that I very much doubt if the PRS would feel comfortable with it. Maybe they could put a clause in their licence‑contracts to exclude this possibility.) PRS itself takes a realistic view on the organisations, like Napster and Gnutella, that facilitate Peer–to–Peer music sharing. This is from their website, www.prs.co.uk:
"PRS funds British Music Rights, the body that exists specifically to lobby government and discuss rights issues created by such software. Specifically, PRS would not license Napster and the like because in effect they are not the content providers. It would be very difficult for a collecting society like PRS to sue any software provider who is not actually presenting music to the public. We would, however, take action on sites that use PRS members' music, without obtaining a PRS licence."