[R-G] [BillTottenWeblog] Online Goodies

[Bill Totten]

by John Lanchester

London Review of Books (April 25 2002)


At the Grammy awards the other week, an unusual note was struck by
Michael Greene, a record industry bigwig. The only real point of
interest at most award ceremonies is the frocks (and sometimes,
admittedly, the hair), so it was a break with tradition when Greene and
his tuxedo launched into the subject of Internet piracy. 'No question
the most insidious virus in our midst is the illegal downloading of
music on the Net', he said, firmly putting HIV in its place. 'This
illegal file-sharing and ripping of music files is pervasive, out of
control and oh so criminal'. He went on to reveal that a backstage
mini-sweatshop of three college students had spent the last two days
downloading music files. 'Please say hello to Numair, Stephanie and Ed'.
In their two days the industrious trio had downloaded six thousand
songs. 'The RIAA [Recording Industry Association of America] estimates
that - now listen to this - an astounding 3.6 billion songs are
illegally downloaded every month'.

It is tempting to say: hee hee. For one thing, entertainment-industry
types routinely enjoy horrifying their audiences with tales of the
devastation being brought by advances in copying technology. Jack
Valenti, the impressively lifelike head of the Motion Picture
Association of America - one-time former fixer in the LBJ White House,
recently chair of the Hollywood summit to discuss ways of supporting the
war against terrorism - curdled our blood twenty years ago with similar
threats. 'The growing and dangerous intrusion of this new technology is
to the American film producer and the American public as the Boston
Strangler is to the woman alone'. That was Valenti telling Congress
about Satan's then-recent breakthrough, the videocassette recorder. It
was lucky for the American film industry that no one listened to
Valenti, since video rentals now account for 46.6 per cent of Hollywood
studios' income; the box-office brings in 24.6 per cent. Without the
VCR, the studios would be toast - and they went to the Supreme Court to
prevent the VCR from happening. That's how good industry types are at
predicting the impact of new technology.

The other reason for giving it some hee-hee is that the music industry -
a de facto cartel, with five firms owning over eighty per cent of the
market - did most of the damage to itself. The greatest self-inflicted
wound came, as such things often do, in the form of a huge opportunity:
the compact disc. The new medium was, from the cartel's point of view,
superbly expensive. At first this was because the technology was new and
tricky; later, it was simply because they could get away with charging
high prices. Blank CDs themselves are now more or less free; the act of
copying them is more or less free (I have a machine to copy CDs in the
very computer on which I'm typing these words, and could knock you up a
copy of the Shorter John Cage, gratis, in a matter of minutes); but
recorded CDs are still expensive. The expense is, from the point of view
of the record companies, pure profit. So the cartel loves CDs - why
wouldn't they? The high price of CDs kept sales a lot lower than they
would have been if they had been prepared to pile 'em high and sell 'em
cheap, but the record companies saw no need to do that. They preferred
to stick to the high-margin, low-sales model into which they had been
lured by the CD format. They were reluctant to move from this model in
the same way, and for the same reason, a python is reluctant to move
when it has swallowed a goat.

The cartel was slow to respond when the Internet loomed over its
horizon. In the first instance, the threat was presented by a website
called Napster, the creation of a nineteen-year-old college drop-out
called Shawn Fanning. ('Napster' was his high-school nickname.) The
shaven-headed, deceptively imbecilic-looking Fanning devised software
which let people swap music over the Internet. The way it worked was
this: you put your CDs into your computer, and 'rip' them into digital
files of a type called MP3, which the computer then stores. The legal,
above board use for your MP3 files is that you then either play them on
your own computer, or download them onto a portable MP3 player which you
lug about with you as a Walkman. (As it happens, the MP3 player on my
computer is playing Verdi's Falstaff, in the not-all-that-great John
Eliot Gardiner original instruments version, as I type. So there.)

Fanning, however, came up with a twist on this. Once you had ripped the
files, you could then go online to Napster and see if anyone else had
any MP3 files you wanted to download to your own computer. By going
online to Napster you also made your own files available for anyone else
to use; it was a case of you-download-mine, I'll-download-yours. What
this boiled down to was free music. You could log onto Napster and find
anything you wanted. Not just the narrow, marketing-led catalogues of
the big five, but any music from anywhere; it was a universal online
library of music. Since a good proportion of Napster users had a
particular interest in out-of-the-way music, it was a treasure trove of
oddities, rarities and general good stuff. (A bobcat friend of mine
practically had to be hospitalised with overexcitement after logging
onto Napster for the first time.) Then you could copy your fancy to your
own computer and do whatever the hell you liked: play it back, download
it to an MP3 player, or - since new computers increasingly had drives
which could record, or 'burn', their own CDs - you could turn it into a
CD. The music industry's high-margin, low-sales miracle product had just
turned into a no-margin, no-sales profit abyss.

When the industry finally woke up to the threat presented by Napster,
they went to court to have it closed down. That happened last year. At
the moment, another lawsuit is taking place, as Napster tries to reopen
as a legal, fee-paying business. A baroque twist is provided by the fact
that Bertelsmann, one of the Big Five cartel, now owns Napster. But it
is the Big Five who are suing Napster. So Bertelsmann are effectively
suing themselves. A similar thing is happening in the TV industry, where
the big US networks are suing a company called SONICblue, which they
partly own. Although the media companies harrumph about the dangers of
the new technology, they are all well aware of the lesson of the video,
and the immense potential profitability of the new digital forms of
distribution.

The story of the music industry's troubles does not end with Napster,
however. The courts were able to close Napster down because it had a
central server. The list of files that were available to be shared was
held on Napster's computer; the way the software worked was that you
contacted Napster, who then put you in touch with the person who had the
music you wanted. But the newer competitors of Napster do not have any
central server. Instead, they rely on what is called Peer-to-Peer, or
P2P, distribution. You contact the person you wish to get in touch with
directly, via software which you have downloaded to your own computer.
There is no centre, or rather, there are only centres; everyone logged
onto the service is at the centre of the network. This makes the network
unpoliceable, and extraordinarily difficult to shut down. This in turn
is why Mr Greene at the RIAA is so grumpy. There are now legally
sanctioned, cartel-approved sites from which fans can download music,
but they are slow, inefficient, and you have to pay for them. The P2P
sites are free. Guess which type of site is busier. So the RIAA is doing
what comes naturally, and launching lawsuits against P2P sites such as
Grokster and Morpheus. The legal basis of the RIAA's suits may seem
shaky, since what they are doing is suing for the closure of websites on
the grounds that they distribute software which damages the interests of
the music industry. When the video recorder case came before the Supreme
Court, it ruled that the video was legal because it had 'substantial
potential for non-infringing use'. Potential is the key word here; it
didn't matter that the VCR could be used illegally, only that it had the
potential for legal use. I fail to see how P2P software fails the same
test - but then, the Supreme Court is a long way to the right of where
it was when it made the ruling which permitted the VCR and in so doing
saved Hollywood from its own control-freak stupidity.

More legal action is bound to come. The EU and the USA both now have
draconian anti-piracy laws, which are going to be all the more
energetically enforced because the P2P software that enables people to
swap music files now also lets them exchange video, TV programmes and
software. Earlier this year police all over Europe made a series of
arrests on a group called Drink or Die, who are now facing criminal
charges and extensive sentences over their dealings in 'warez' - as
these online goodies are known. Paralleling this practical,
on-the-ground work, the big media conglomerates have also been lobbying
to tighten and extend the laws on copyright. In the USA, these measures
include a provision to extend the term of copyright to seventy years
after the death of a work's creator. This would bring the USA into step
with the EU, which 'harmonised' its copyright period in 1995. The UK was
one of the countries which had to extend its copyright term, from fifty
to seventy posthumous years, as part of the process of 'harmonisation'.
The procedure happened rapidly, and with almost no public debate.
Incidentally, the reason European copyrights tended to be longer was
because many authors and their estates lost all revenue during the Third
Reich - it was a 'copyright holiday'. I have to say, that is my absolute
favourite euphemism for the Nazi period. I like to think of the
Wehrmacht marching into the Sudetenland singing: 'We're all going on a
copyright holiday / We're all gonna burn a book or two ... '

As it happens, I saw some of the effects of this 'harmonisation' at
close hand. On 1 January 1992, the work of James Joyce and Virginia
Woolf, both of whom died in 1941, came out of copyright. I was working
at Penguin at the time, and my colleagues had commissioned Penguin
Twentieth-Century Classics editions of both writers, with a feminist
twist to the Woolf editions and an Irish twist to the Joyce ones. The
editions were a big hit, notwithstanding that they were competing with,
I think I'm right in remembering, five other new Woolfs and Joyces. In
the case of the only book for which Penguin already held a licence,
Ulysses, sales went up by about thirty per cent. The overall sales of
both writers must have gone up considerably; by at least half, and
perhaps in the case of some books to double what they were selling
before. I remember thinking that this abrupt increase in sales was a
fortunate event for a long-dead writer, one which Joyce and Woolf would
have been happy to look down on from the heaven in which neither of them
believed, even if their estates were no longer benefiting from their
copyrights.

In 1995, however, harmonisation was introduced - with, as I've said, no
debate - and these books went back into copyright (as did Yeats, Hardy,
Kipling and others). This created a formidable headache in the case of
those books where an editor had expended months or years of work in
preparing a new edition of a book, on the assumption that it was in the
public domain. It clearly wouldn't be fair for all that editorial work
simply to be abandoned at the whim of the estate, and for these new
editions to be suppressed. After some manoeuvrings, it was decided to
proceed on the basis that editions which had been compiled in good faith
would be allowed to stay in print, so long as the publisher in question
paid a royalty to the copyright-holder. So the Penguin Joyce and Woolfs
are still in print, and (or but) are now paying royalties to the
respective estates. This solution has now been tested in the case
involving the Joyce estate, in which Mr Justice Lloyd agreed that it is
legally sound. (He ruled against Macmillan, the publishers on the
receiving end of the suit, on the other crucial issue in the case,
deciding that Macmillan must withdraw its edition on the basis of 250
words which the editor in question, Danis Rose, had drawn from a source
which was still in copyright at the time the edition was published. As I
write, Macmillan are considering whether to appeal.)

We non-Americans like to take the piss about the USA's chronically
legalistic culture, but it seems to me an entirely good thing that this
issue is being fought out in public there. Lawrence Lessig, a Stanford
law professor who is a bit of a hero in the field of Internet law,
contends that an extension of copyright to seventy posthumous years is
not in the public interest, and has written a book to argue so, called
The Future of Ideas (Random House, 2001).  In February, the Supreme
Court agreed that it would hear his case against the extension of
copyright. This public airing of copyright issues, taking place in the
context of an earnest, high-stakes debate about the public interest,
seems to me greatly superior to what happened over here. Lessig makes
the point that 'in the last forty years, Congress has extended the term
of copyright retrospectively eleven times. Each time ... Mickey Mouse is
about to fall out of copyright, the term of copyright for Mickey Mouse
is extended' - a hard case to answer, since it is, in the case of the
Mouse, manifestly true. Lessig points out that Uncle Sam himself would
not have been available to the US Government if the current law on
copyright had appertained at the time.

Lessig argues that the grip of copyright holders should be loosened,
while their right to be paid for use of their copyright should be
upheld. In other words, they don't have property rights over their
creations: anyone who wanted would be able to use the work in question,
provided they pay a royalty. What he is proposing is similar to the
situation which has accidentally come about in British publishing,
courtesy of the harmonisation fuck-up. (Except that in Britain the only
people allowed to publish in this way are the companies who brought out
editions of the relevant writers in good faith between the end of the
old copyright term and the introduction of harmonisation in 1995 - so
it's hardly a free-for-all.) The proposed system is analogous to the one
used for music on the radio, where music stations can play what they
like provided they pay the agreed fee. The music business, incidentally,
hates this arrangement, and loses no opportunity to complain about it.
This is bizarre, given that the system is such an uproarious success. It
sometimes seems that the big music companies want so much to control
everything about everything we listen to that, given a choice between
profit and control, they'll choose control every time.

Speaking as someone who makes his living through his own words, it seems
to me that a copyright period of seventy years after a creator's death
is too long. I wish Lessig luck in his attempt to fight the good fight
in front of the Supreme Court, and make this prediction: intellectual
copyright is going to be one of the most contested issues of our newish
century. I've just bought a new computer, and have also stumped up
thirty GBP a month for a broadband connection to the Internet. It's
great - but a lot of what this new combination allows me to do is, in
terms of copyright law, illegal. In fact, if I wanted to, I'd be in the
position of never having to pay for any music ever again. Before long,
as the process of 'ripping' DVDs and TV programmes gathers pace, I'll be
able to watch any movie I want for free, too. But I probably won't, for
the same reason I don't use the P2P sites for music: because I don't
quite trust them to work or to be uncontaminated by viruses; because I
feel shifty about taking things without paying for them; and because I
can't be arsed.

The entertainment industry is panicking, big-time. Senator Hollings of
South Carolina and five of his colleagues have proposed an
industry-sponsored Bill called the Consumer Broadband and Digital
Television Promotion Act (the sonorous title alone is a clue that the
public is getting fucked over). Hollings's Bill may be the stupidest
ever proposed to the US Congress. The idea is to rewrite all the
computer software in existence so that it would be impossible to copy
anything without legal permission, via a device known as Digital Rights
Management. Since copying is essential to the way computers function,
this manages to be destructive and impractical at the same time; if
implemented, it would destroy the US computer industry at a stroke. So
it isn't going to be implemented, but it does give a clue to the way
that industry types are thinking: they want to control copyright by
controlling what goes on in computers. This is even stupider than
something else they're currently engaged in trying out, releasing music
CDs with a feature which prevents them from being played (and therefore
copied) on computers. These CDs are effectively broken by the
manufacturer before being issued. Michael Jackson's recent megaflop
Invincible was one of these auto-vandalised artefacts. Let's hope its
failure wasn't a coincidence. The music companies seem not to have
twigged that it is bad business to make your customers hate you.

The solution to the industry's woes is simple - not easy, but simple.
When the cassette recorder was invented, the music industry announced a
moral panic over the fact that people could simply steal music from the
radio, or copy it from each other. Some people did, too, but not nearly
as many as the people who simply bought the stuff. That's because tapes
were relatively cheap, and it was more of a shag to steal, copy or
bootleg them than it was to buy them. It was the same with videos. The
entertainment business needs to make it easier, and more convenient, to
pay for this stuff than it is to steal it. Until they do that, the
illegal exchange of copyrighted material over the Internet will continue
to be pervasive, out of control and oh so criminal.

_____

John Lanchester is a contributing editor at the LRB. His latest book is
Family Romance (2007), a memoir.

Copyright (c) LRB Ltd., 1997-2008

http://www.lrb.co.uk/v24/n08/lanc01_.html

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