Last update: 2011/08/21
The many ways technology changes rights and their enforcement, as seen from the lesson of MP3.
Rights to anything are defined by the public authorities of a country in which the thing is located. Therefore, rights to a literary or artistic works can only apply to works in a particular country. The Berne Convention for the Protection of Literary and Artistic Works of 1886 was the first attempt to create a basic set of rules with a validity extending beyond national borders. The architecture of the Convention is heavily influenced by the "author's rights" approach to protection and indeed the United States only joined the Convention in 1988.
Besides a broad definition of "Literary and artistic works" that applies to every production in the literary, scientific and artistic domain using a variety of expressions (Art. 2.1), the Convention sets a number of important principles, e.g.:
Other international treaties relevant to rights of literary and artistic works are the Universal Copyright Convention of 1952, the International Convention for the Protection of Performing Artists, Producers of Phonograms and Broadcasting Organisations (Rome Convention) of 1961 and the Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of their Phonograms of 1971.
Often it makes practical sense to uphold a "right", either as nationally or internationally defined, only when there are practical means to enforce it. This was not really an issue in the early times because works, first books but later other media as well, were fixated on physical carriers and their duplication required costly equipment that only professionals could afford. Keeping professional "pirates" in check was a task for which the traditional setting of courts of law and police forces was adequate, and the infringement of the author's or publisher's rights could be kept below an acceptable threshold.
Progress of technology, however, has gradually reduced the entry level to those wanting to make copies and the law dealt with the lowering thresholds by introducing "exceptions" so that persons making a copy of a few pages of a book, or of a song, would not automatically be reduced to criminals and manufacturers of copiers, recorders and cassettes would not become their accomplices. Even though rights holders feared that the home recorder had become a potential tool for mass piracy, the reality of analogue technology was such that the quality of copies of records and films has been worse than the original and fast degrading at each copy.
Therefore most European countries grant consumers the right to make private copies, the principle being that these are not likely to compete with, and so reduce the market for, the original works. But at the same time a levy is applied on recording equipment, including blank tapes. The proceeds of this levy go to rights holders in order to compensate them for the "loss of revenues" caused by such private copying. In the United States the Audio Home Recording Act (AHRA) grants consumers the ability to make private copies of broadcast music.
The US Copyright Law has adopted the notion of "fair use", a compromise between the strict application of the publisher's rights and a "reasonable" use of the work. This is be assessed on the basis of four parameters:
Probably the first encounter of content with digital technologies under the auspices (so to speak) of law happened in the US Congress with the AHRA. This was triggered by the appearance on the market of the Digital Audio tape (DAT). This CE device is capable of recording up to 2,048 kbit/s of data in real time and an obvious, although not unique, use of the DAT was for copying the stream of bits leaving a CD. This was of concern to the music industry, because of the ability of the DAT to make perfect copies, a major departure from the self-degrading feature of the Compact Cassette. A major innovation of the AHRA is that digital recording devices like DAT be equipped with a Serial Copy Management System (SCMS) allowing only one copy. An apparently innocent footnote is that the AHRA only applies to CE devices, not to IT devices.
Fearing the arrival of more digital technologies, with their ability to allow a limitless number of perfect copies of a digital original, the World Intellectual Property Organisation (WIPO) started work designed to extend some provisions of the Berne Convention and provide responses to the challenges brought about by information and communication technologies. In December 1996 the Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions adopted two Treaties, namely the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Some of the features of these Treaties are:
The treaties have been converted into national laws: e.g. the US Digital Millennium Copyright Act (DMCA) of 1998 and the European Directive on Copyright and Related Rights in the Information Society of 2001. The Copyright Directive, however, needs to be converted into national laws by national parliaments.
No matter how well the future is prepared for, something unexpected is always bound to happen. No better example of this sample of wisdom can be found than MP3 . The story started in November 1992 when the then still largely unknown ISO WG called MPEG approved MPEG-1. The Layer I and Layer II portions of that standard had very clear application targets: Digital Compact Cassette (DCC) and Digital Audio broadcasting (DAB), respectively. The performance of Layer III was significantly superior to the other two Audio Layers but the algorithm was deemed by someto be "too complicated" for consumer applications and for some time its use was confined to professional environments.
Towards the mid 1990s, however, a number of concurrent events materialised:
In a matter of months, more and more PC users converted to MP3 users, as MPEG-1 Audio Layer III was soon christened. With good encoding software, a music track of average duration could be reduced from the utterly unmanageable - at that time - 40-50 Mbyte to a still imposing but reasonable 2-3 Mbyte. There were wide variations in music quality depending on the encoder and the bitrate, but apparently users did not care because it was not just the music they were interested in, but also new ways of experiencing it.
Users began to rip off music tracks from their CDs, compress them and store them on their PC hard disks. Enthusiasts could make compilations to their own liking, not the record companies'. With the ever-increasing bitrate made available by telephony modems, users soon discovered that it was also easy to send MP3 files to their friends as email attachments.
Some entrepreneurs immediately saw the opportunities offered by the new technology. The first portable MP3 player, the RIO, manufactured by Diamond Multimedia, was a technology jewel. Made up of the necessary amount of flash memory to store the MP3 files and a DSP for decoding the bitstream, D/A conversion and computer interfacing, the whole thing weighed just a few tens of grams, most of them coming from the case of the device. Users could upload their MP3 files on their RIO players and listen to their songs the way they liked with a freedom never enjoyed before.
Other Web "enthusiasts" saw lucrative uses of this technology. By ripping off thousands of music files from CDs, compressing them in MP3 and posting them on their web sites, they could lure Internauts to their sites, where they would be encouraged to download music files for free. While the files were slowly downloading, the visitor would be exposed to advertisements posted on the site and the advertisement space could be sold to interested companies. Some other enthusiastic entrepreneurs saw the opportunity to host MP3 files on their servers. A user would prove by some means that they had legitimate possession of a CD (already a considerable progress in respecting the value of musical assets) and the web site would then make the tracks on that CD accessible anytime and anywhere to that particular person.
The most enthusiastic entrepreneurs of all thought that they could develop a P2P protocol. Users would install an application on their computers that would enable them to "share" the MP3 files present on the users' disks with other users with the same application installed. The entrepreneurs would then "just" manage a directory, listing which file was available where. People would access the directory, get the information about the closest peers and download the MP3 files they were interested in. Some P2P protocols did not even require a central directory service to operate.
Even artists, both well established and new, tried the chance of getting in touch with their fans directly by posting their own MP3 songs on their websites. But it is one thing to use the web as an advertisement medium and quite another to use it as a place to post wares for free. Artists could possibly become famous, but they would remain penniless.
The history of the web so far has taught some important lessons, even if one considers some limitations - mostly bandwidth - and the history of MP3 in particular. Artists are keen to be able to access their public directly. Consumers are keen to be able to find the songs they are interested in on the web, download them and listen to them when and how they like. Some intermediaries - the lazy ones, I mean - fear the disintermediation brought by the web, because they see it as leading to the annihilation of their role. Other intermediaries - the smart ones, I mean - know very well that web disintermediation is nothing more than an urban legend, because old forms of intermediation are simply being overtaken by new ones. The idea that the web signals the end of intermediation is just a fairy tale, has is proven by the many music distribution services whose role is exactly that: intermediaries between music companies and consumers.
It is understandable that people owning the rights to hundreds of thousands of songs feel nervous and that for them MP3 is not the tool that provides new experiences in music and makes people happy, but a tool that can be used to rob rights holders of their property. The Recording Industry Association of America (RIAA), the trade association of the USA record industry, reacted strongly to the RIO and filed an injunction against the sale of the device. They claimed it did not meet AHRA requirements, because it did not have a Single Copy Management System (SCMS). Diamond countered with the position that the RIO was not a recording device, but simply an IT device with playback functionality, outside the scope of the AHRA. The judge sided with Diamond, which got it its way and today it is probably impossible to count how many MP3 players are commercially available.
A similar story, but with a different ending, happened with the personal MP3 file repository offered by MP3.com. The RIAA sued the company and eventually succeeded. Today MP3.com exists in name and offers services but only after having paid huge fines and after negotiating business deals with each of the record companies. Interestingly MP3.com was been acquired by Universal, at that time the largest record company.
Napster is the name of the company that developed the first and for some time very successful P2P protocol. Here again the RIAA sued the company complaining that Napster was promoting large-scale copyright infringement and successfully made its case in the courts. As a result the number of users of the "service", that in its heyday numbered over 80 million, dwindled to near zero leading the company to bankruptcy. Similar battles were waged against other incarnations of P2P companies.
Another case has affected the DVD. A Norwegian hacker found the encryption keys on a faulty implementation of a DVD player and the information was posted on the web. In the MPAA vs 2600.com case, an American judge ruled that it was not just illegal to post the code of the DeCSS, as the ripper of Content Scramble System (CSS) was called, but in addition it was a crime to post hyperlinks to it. Some civil liberties associations say that posting computer code on the web, or printing it on a T-shirt, is a manifestation of the free speech right granted by the US Constitution. In the meantime people can download programs from the web for doing DeCSS and MPEG-4 Video + MP3 encoding. Users can then "copy" a movie from a DVD and burn it on a CD-ROM in the form of an MP3/MP4 compressed movie.
While it is clear that people have the right to make recourse to law to protect their rights and that judges must rule on the basis of what the law is at the moment the sentence is issued, I find it disheartening that the rights and the wrongs be determined by whether something is considered to be a playback or a storage device or a CE or an IT device or if a company is based in one country or in another or if a computer code is printed on a T-shirt or is a computer file. It looks like going back 22 centuries in China when Emperor Qin Shi Huang-ti ordered all philosophers' books to be burned. Were those books lost? No. Because disciples of those philosophers had learnt those works by heart. So, shall we see hackers memorising the DeCSS code and communicate the code as word-of-mouth?
I believe society must recover the sense of ridicule. Electronic engineer and computer scientist are not standard bearers of the sense of ridicule, but the sample distinctions quoted above do not make any sense at all, at least to normal people. It seems that keeping these distinctions alive serves the interests of people who make a living out of confusion. The losers are the entrepreneurs who are deprived of their opportunities to try new businesses if they want to remain good citizens and end users who are deprived of the benefits brought by the wonders of technology, if they want to stay good citizens. Quite a few people, I dare say. And - sorry for forgetting them - rights holders as well.
