Tuesday, December 22, 2009

Copyrights, copylefts, copywrongs...

I recently got into a debate about copyrights with a favourite cousin. He, amazingly, had never heard of Bit Torrent (he lives in the US, could it be that the press there doesn't write about such things??) but when I tried to describe its brilliant concept, he assumed right away that this was merely a way to infringe copyrights and refused to listen. And he got worked up about musicians not being to earn a living because of music piracy. After all that, I thought I'd learn a little about music copyright from the internet.

I've often wondered about copyrights on recorded music, and one of the questions to which I've so far found no answer goes as follows. Let's say in 1975 I purchased an LP record of a Beatles album (this in fact did happen, many times over). Now suppose in 2009 I find myself unable to play the album because LP record players are difficult to access (I actually have a working one, but this is a hypothetical discussion). Having bought the album at one time, I believe I still have the right to personal use of the music and this right is distinct from ownership of the piece of plastic. Can I now legally implement my right by copying a CD from a friend (or enemy) onto my laptop? If someone has a clear answer (please no personal opinions or rants, just facts), they should let me know.

If you search for "music copyright" on Google, you first of all reach sites that advise you how to copyright your own compositions. Beyond those, you find several that purport to give you legal information about copyrights and their possible violation, but in practice end up warning you of dire consequences if you even dare to hum a song to your friends, forget copying anything onto your laptop. I assume many, if not all, these sites are sponsored in some way by the music industry. It takes more work to discover sites advocating modification of copyright laws and supporting some form of file-sharing. The website of the Swedish Pirate Party is one such and I'll come back to it below, but the first place I'd recommend the reader to go is The Economist's debate "Copyrights and Wrongs" from which I partially adapted the title of this post (under the doctrine of "fair use").

Here Harvard professor William Fisher argues for the proposition "This house believes that existing copyright laws do more harm than good." In brief his arguments can be summarised as follows: (i) copyrights last far too long to be justified by the authors' legitimate interests, e.g in the US several decades after the author's death, (ii) just about anything one writes/says/composes is automatically protected under copyright, (iii) it's hard to stop piracy in today's world, (iv) it's often impossible to trace the legitimate author and request permission under copyright, so free expression ends up being stifled.

Predictably Prof. Fisher was attacked on point (iii) for appearing to say that since violations are inevitable, the law is bad. His actual point appears to be that milder and fairer laws might elicit much better compliance.

The opposition view in this debate, in support of existing copyright laws, was provided by Prof. Justin Hughes of Cardozo Law College, New York. Going through his opening statement in response to Prof. Fisher's points, I was struck by how weak and disorganised it was. I won't bother to review it here but you can read it for yourself. Although I'm not particularly on his side, even I could have argued his case more convincingly.

Anyhow at the end, the Economist had a vote and Fisher's anti-copyright motion won hands down with 75 percent of the votes. One may question whether some of the votes were self-motivated ("if he's right then my illegal downloading becomes legal!"). But still, given that the Economist is hardly the Pirate Party and their readership is not quite Joe Six-Pack, it's quite striking that so many readers agree the laws need a change.

I personally feel that drastically reducing the duration of copyright as well as requiring authors who want copyright to explicitly register their work on a globally accessible database, are the very minimum changes called for in our times.

And what of the Pirate Party? The manifesto on their website "http://www.piratpartiet.se/international/english" says that they want to "fundamentally reform copyright law, get rid of the patent system, and ensure that citizens' rights to privacy are respected." I'll continue to quote from their website because they've stated their point of view quite eloquently, as well as economically: "The official aim of the copyright system has always been to find a balance in order to promote culture being created and spread. Today that balance has been completely lost, to a point where the copyright laws severely restrict the very thing they are supposed to promote. The Pirate Party wants to restore the balance in the copyright legislation." They go on to recommend that "A five years copyright term for commercial use is more than enough. Non-commercial use should be free from day one." Though this has not received much attention in India, the Pirate Party received 7% of the Swedish vote in the 2009 European Parliament elections and consequently has two Members of the European Parliament.

Although it's a completely distinct entity, the Pirate Party (as well as its name) originated from the website http://thepiratebay.org/ (go ahead and visit it, I don't think you can be drawn and quartered for doing that!) which claims to be the world's largest torrent server. On their "About" page you find the following rather defensively worded para: "Only torrent files are saved at the server. That means no copyrighted and/or illegal material are stored by us. It is therefore not possible to hold the people behind The Pirate Bay responsible for the material that is being spread using the tracker. Any complaints from copyright and/or lobby organizations will be ridiculed and published at the site." Undeterred, the Swedish police did indeed go after The Pirate Bay and in April 2009 its founders were held guilty in a Swedish court of assisting copyright infringement. They are presently in appeal.

In September 2007, emails allegedly leaked from Media Defender (an anti-piracy organisation) suggested that it was planning hacker attacks on Pirate Bay at the behest of its clients. In a case of the litigation boot being on the other foot, Pirate Bay then filed charges in Sweden against the venerable clients of Media Defender: 20th Century Fox, Sony, Universal, EMI et al. However the Wikipedia entry on Pirate Bay lamely ends with "the charges were not pursued" which leaves me a little baffled.

In an intriguing sidelight, open-source movement guru Richard Stallman argues in this article that the Pirate Party's proposal to abolish or reduce copyright would negatively impact copyleft. (Copyleft is when an author of free software retains copyright solely to use it "to defend freedom for every user" in Stallman's words.) In his very nice article he suggests some intermediate solutions and/or patches to Pirate Party's manifesto.

But back to the debate in The Economist, which as I've pointed out before, is not exactly Pirate Party. In his Closing Statements, Prof. Fisher opines thus: "Digital versions of works of all sorts (music, films, television shows, books, etc) should be subject to a blanket licensing system. People should be free to upload, download, reproduce, watch and listen to an unlimited number of such recordings. The owners of the copyrights in those recordings should be compensated, not through direct payments from consumers, but by being paid shares (in amounts proportional to the relative popularity of their creations) out of a pot of revenue. The money necessary to fill the pot and administer the system could be raised in either of two ways. First, national governments could tax internet service subscriptions and devices commonly used to store or play recordings. Alternatively, internet service providers and groups of copyright owners could negotiate voluntary collective licensing arrangements, which would specify the magnitude of the monthly fees that would be paid by the ISPs on behalf of their customers."

I find this a fascinating thought.


Rahul Siddharthan said...

I'm pretty sure you can't claim the right to a digital recording because you have an old scratchy LP. On the other hand, home recording for private use is legal in most places I believe. So you can borrow from your friend and copy it, regardless of whether you own the LP or not. In the US, home taping was legal but things became murky with digital media, and eventually legislation was passed that I don't know much about but you can read the long Wikipedia entry. As I understand, it's ok to home-copy CDs for your use, and the loss in royalties are compensated by a tax on the devices and media used (and this is done in many other countries). It is, I believe, not ok to distribute copied CDs.

The main issue I believe is, as you say, the duration of copyright law. A second issue is the status of "orphaned" works, that is, works whose copyright holder is unknown or untraceable, but which are still covered by copyright laws and therefore can't be reproduced at all.

Realistically, we are not likely to see copyright durations reduced. The best chance in the US was Eldred vs Ashcroft. So people are now arguing for separate laws dealing with orphaned works -- for example, requiring that copyrights be renewed by the claimants every 10th year after the 50th year (say). I believe there was some settlement between Google Books and the Authors Guild regarding such cases, allowing Google to make such books available online, but I don't know whether any general legislation is planned or hoped for.

Basically, it is all a mess, but I think the internet will make a lot of it irrelevant. Either the whole world will have to be treated as criminals or the "content providers" will have to find some other way around it. Also, the amount of high-quality content available is exploding -- newspapers are already suffering in competition with independent media, and independent musicians are happy with the new world order. I expect independent movies to become increasingly sophisticated, and popular, too.

On the subject of "content providers", also, this article by Paul Graham is worth a read (as always).

Anonymous said...

Presuming you are talking about Indian law, here are two summaries that might help: http://copyright.gov.in/Documents/handbook.html and http://copyright.gov.in/Documents/CopyrightRules1958.pdf.

Anirbit said...

Delighted to see your interest in the open-access movement.

Just thought of sharing a personal side of the story that I have been working at attaining a piracy free life (like not using any pirated material for any of my courses which is very common in India) and my recent achievements in this regard are up on my blog.

Over the past few months I have created a web-page on my home-page dedicated to open-access movement where I collect together materials about this and also have put together an article based on it which can be found there.

Mind Without Fear said...

My understanding of copyright laws is that buying that LP gave u only the right to listen to it for personal use and not eternal right to the song! In other words, whether the LP gets technologically obsolete or whether you stomp over it accidentally, you do not have the right to copy it from a CD -- I am not saying that the law is right but I am just explaining my understanding of the copyright law.

Sunil Mukhi said...

R. Sid and MWF: I realise my query seems absurd at first sight, but it's motivated by the following fact. One keeps hearing that when you purchase a CD (or LP), you are getting two distinct things: (i) ownership of the plastic, (ii) the right to listen to the material encoded on it (as opposed to ownership of the said material). This explains why as per the law you can't distribute the CD or copy it for others etc.

It seems to me that a logical corollary of this picture would be that once The Beatles have received my payment for the right to listen to a particular album, then that right vests in me in perpetuity. Therefore, I reason (even as I'm dragged screaming to jail) that I can obtain any copy of that music in any form from anywhere, as long as it's for myself alone to listen to.

If this isn't how the rules work then evidently the CD is viewed as a "split entity" only when it suits the recording industry, but if the plastic perishes then my right to hear the music perishes along with the plastic, i.e. it is then treated as a single entity. Not consistent, it seems to me?

Mind Without Fear said...


there is no logical contradiction here. Your logical corollary is not an inevitable choice - and to that extent in a mathematical sense it is not logical! - the other "logical choice" is that your rights end in the plastic and the song IN THERE in perpetuity ( for example when you die, your estate can burn the CD in the old sense of the term burn).

Also, u seem to think that once Beatles get their money, all rights to the listening to that song in any media
is vested in u and a lot of people may want it that way, but that is not how the law is now or is interpreted that way.

By the way, this is why framing laws is difficult and also why there are protest against unjust laws -- well, by now I realize u know all this .. so I stop here.

Sandip said...

The way I handle downloading, and this applies to media as well as technical papers from any journal, is do whatever is necessary but carefully define what is necessary.

Just as one would almost never need to download a full issue of a journal for research (you can't ever justify its proper use that way), we seldom feel like listening to all tracks on a CD. Unless you copy-exactly a copyrighted CD, you are not infringing anyone's rights.

How can you enjoy music if you can't share it with others; infact we seek people who would enjoy the music we like. So, I take it to be fine to share the tracks I like. This is not so easy with classical music albums though.

btw, I watched a documentary called Food, Inc., yesterday.

Rahul Siddharthan said...

Sunil - your phrase "the right to listen" sounds ominous and reminiscent of RMS's "The right to read". Even if the record companies would like us to go in that direction, we aren't there yet.

No, as Paul Graham says in that article I link to, what a bookseller or news agent sells you is paper; and what the record company sold you is a piece of plastic (vinyl, polycarbonate) containing a recording. You're paying for the medium. What copyright law deals with is just what it says: copying. You have no right to copy that LP. You bought a piece of plastic; you already have a right to listen to it (for example, you can listen in a friend's house, or borrow his LP and listen at home) and nobody has taken that away yet; but you did not buy a right to copy it, or any other right to it. You bought a piece of plastic, and its packaging -- that's all.

You are permitted to copy under the "fair use" provisions of copyright law. This includes home recording to some extent, using short excerpts in research, parodies, and some other things. But you bought no rights that you didn't already have.

Today record companies are trying to figure out how to deal with digital downloads, and are talking about "rights" to the audio file; but the transaction was never about "rights", and to the extent that laws are being made now to rephrase it in terms of "rights", they're a mess.

Sandip -- it doesn't matter what you believe is legal or not. Ignorance of the law is not an excuse.

Sunil Mukhi said...

R. Sid: Your comment has helped me understand what I originally meant to say, and I can now say it more clearly. As long as "fair-use" doctrines continue to apply on recorded material, I have no problem. But as you say, record companies are now talking about rights to the audio as a distinct entity, and they would like the law to be re-phrased or re-interpreted in that direction.

My point is that within such a re-phrasing (which is as abhorrent to me as to you or Paul Graham) consistency requires that the customer possess the right to listen and be allowed to implement that right at will regardless of the actual media involved. So claiming (as they do) that recorded media are a split entity is rather risky to them.

For an enunciation of the "split entity" theory see Laurence Borden's 2005 article at stereophile.com, and also a rebuttal of some of its points by a lawyer writing in the same publication.

Rahul Siddharthan said...

Sunil - yes, thanks for the links. If record companies in India succeed in framing music purchases in terms of buying "rights" rather than buying particular copies of recorded music, I think "what about the LPs -- don't I have a right to that music in any form, having paid for it once" is a legitimate question.

Part of the problem, of course, is that copies of digital files are indistinguishable, like electrons. You can home-tape an LP but the quality is inferior. You can copy a CD and lose no quality, but the packaging will be inferior and many people buy CDs just for the packaging. But if you buy an MP3, and someone else copies it from you, there is no difference in what you and the copier have. This is a first in history and, I would agree, a legitimate cause of concern for record companies. The answer has to be, continue to sell attractive packages; make money off nice box-sets (look how many people are buying the new Beatles boxsets despite the stiff prices) and, in the case of artists, off concerts; don't try to make money of purely digital media.

Quality will continue to sell, but the singles-driven marketing of popular music may be at an end: singles will stay but will not be money makers; they will only be, at best, engines of publicity that entice you to buy albums or go to concerts.

Sandip said...

Isn't the emotional value and the commodity value of music being mixed up here? The 'right to the music' by inheritance, becomes a 'legitimate point' only when you are considering the emotional value of music. From the commodity side, its equivalent to saying that, because you bought a Maruti 800, you also have a right to the newer Swift or whatever model. At a music store you buy entertainment not technology.

It is the perception of the Law, by the crowd, that is the only useful metric in a democracy. Thus, what we believe is all that really matters. You either like music because of its emotional value in our evolutionary history or, you like it because of its 'packaging'. Its when our belief, about these two things get mixed up, the law has to be enforced - a very expensive process. In Food Inc., you'll find discussions of copyrights in the context of food.

Sunil Mukhi said...

Sandip: I don't believe my discussion had any connection to emotions, only to law and rights.

I do think I unwittingly created confusion when I used old LP's in my example, suggesting (more than one person interpreted it that way) that I sought a kind of "upgrade from analog to digital" as a legal right.

My example in fact works fine if I start out by buying a CD and then lose it. I am certainly NOT seeking that the lost CD be replaced for free, but instead asking: IF as record companies seem to claim, the CD I bought was separately two things, a piece of plastic as well as the right to hear the encoded music, then surely I have only lost the former?

Rahul Siddharthan said...

Actually, if the record companies decide to tell us that we are licensing copies of their music rather than buying it, then we should be justified in demanding replacements for LPs that we have already paid for.

Traditionally if you break an LP or a CD, you can't go and demand another; but sites like emusic let you download an MP3 multiple times, in case you delete it by mistake or your hard disk crashes. This seems convenient, but it also looks like the thin end of the wedge, depending on your level of paranoia.