Copyright in the 21st century - problems by Shem - solutions by Shaun


I have been trying to put together a piece on music pirating over the past few weeks. It's a topic that interests me deeply and unfortunately it requires some knowledge of copyright payments that I've not yet been able to get to the bottom of (waving frantically to Howie). The thing that interests me most about it is how widespread the illegal copying of music has become of late and how that is related to the primarily digital nature of music these days: what we might term the dematerialisation of music. I use the word dematerialisation in the sense that there is no requirement for physical (material) property to be exchanged nowadays when music changes hands. I mention this only to introduce a more general topic that I'd like to discuss today and that is the increasing prevalence of unfair or incomprehensible contracts that are being foisted on consumers and the reaction that such contracts are having on the behaviour of those consumers. If I ever get the details I'll certainly write the piece on music piracy and the bankruptcy of the copyright system one day but for now you'll have to make do with this more general piece.

My major contention is that, as consumers, we are being deliberately misled about what exactly it is that we are buying when we commit to a range of purchases these days. The corollary of these types of contract is a growing resentment among consumers that somehow makes the consumer willing to break the contract, in some cases actively motivates the consumer so to do. Lawrence Lessig has written about this topic and I think that he has something fundamentally correct in his argument when he says that there is a breakdown in trust between the parties to such contracts that exempt them from accepted behaviour.

There are 2 examples that present themselves immediately and it is instructive to examine what they have in common. The first is the entire realm of primarily digital entertainment - music, video, and broadcast. The second is the personal computer software industry. Both of these areas suffer from large scale piracy or theft. I shall continue to refer to this as piracy rather than theft because I personally believe it is morally different - it is a difficult argument but hang on in here with me and we'll try to do it - later.

Piracy of music, film, broadcast material, and software all existed before the internet became widely used to promote and enable the relatively painless piracy that people nowadays take for granted. This is indicative. It would seem that it is not the big bad internet that made it happen but rather that the internet made it possible on a scale and with a qualitatively improved veracity previously only dreamed of. Analog reel to reel recordings of originally analogue disc recordings might have preserved most of the original recording quality but were time consuming to make, physically cumbersome to exchange and were not infinitely repeatable without any further effort but still they changed hands. The advent of the consumer cassette recorder eased the production burden but at the cost of the recording quality - and piracy increased by an order of magnitude. Increased to the point where a levy was charged on blank cassette tapes because everyone knew that they were being used chiefly for music piracy. I remember, every Sunday as a child, recording directly the Radio Luxembourg broadcast of the top twenty records for exchange at school the following day. Likewise, in the early days, software would change hands on painstakingly produced piles of floppy disks. Most early purchasers of CD recorders for PCs were would be pirates - either of software or of music. And with software it was seldom a trade off of quality against production effort it was mainly a steadily increasing easing of the production and distribution burden that saw software piracy burgeon.