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P2P, music and video
This
page looks at intellectual property aspects of online
music and video, in particular P2P.
It covers -
It
is supported by a supplementary profile on filesharing.
introduction
Online music is being presented as the 'canary down the
mine' for both intellectual property and commercial electronic
publishing.
Some pundits acclaim technologies such as Napster and
Gnutella as the death of copyright or of record
companies. That view of 'old media' as a road-kill on
the information highway was represented at the January
2001 Future of Music conference,
in Peer-to-Peer: Harnessing the Power of Disruptive
Technologies (Sebastopol: O'Reilly 2001) edited by
Andy Oram and the populist Sonic Boom: Napster, P2P
& the Battle for the Future of Music (London:
Fourth Estate 2001) by John Alderman. Copyright and the
music conglomerates are dead; artists will make a living
busking. (One of the few
attempts to seriously grapple with the 'busking' model
is The Street Performer Protocol, a provocative
1999 paper
by John Kelsey and Bruce Schneier.)
Martin Williams' thesis
on The Implications of MP3 Technology & Digital
Distribution on the International Music Industry &
Its Stakeholders, the 2002 paper
by Kathy Bowrey & Matthew Rimmer on Rip, Mix, Burn:
The Politics of Peer to Peer and Copyright Law, David
Post's paper
on Napster, Jefferson’s Moose & the Law of Cyberspace
and Stan Liebowitz's sceptical 2002 paper Record Sales,
MP3 Downloads & the Annihilation Hypothesis (PDF)
are also of particular interest.
Others argue that it is merely a matter of time before
law (contract and IP) and technologies put the genie back
into the bottle.
Harold Vogel's Entertainment Industry Economics
(Cambridge: Cambridge Uni Press 1998), Lawrence Lessig's
Code & Other Laws of Cyberspace (New York:
Basic Books 1999) and Understanding the Digital Economy:
Data, Tools & Research (Cambridge: MIT Press 2000),
edited by Erik Brynjolfsson & Brian Kahin suggest
why 'garage' publishing and major recording conglomerates
may co-exist in future, although expect the major players
to get most of the ear-time and most of the revenue
James Coover's Music Publishing, Copyright & Piracy
in Victorian England (London: Mansell 1985) and Adrian
Johns' 2002 Pop Music Pirate Hunters (PDF)
provide a historical perspective on Lessig's question
of what would happen if government actively regulated
IP and other aspects of cyberspace, given what some industry
figures claim is anaemic enforcement of the US 1997
No Electronic Theft Act and 98 Digital Millennium
Copyright Act.
Coover documents how a "determined blend of legislation,
litigation and leg-breaking" snuffed out the thriving
music piracy business at the
beginning of last century. His discussion is placed in
context by The Dissemination of Music: Studies in
the History of Music Publishing (New York: Gordon
& Breach 1994) edited by Hans Lenneberg.
There are other perspectives in our profile on past communications
revolutions, in particular the recording
and broadcasting pages.
For the notion of the music business as unlike other content
industries consult Norman Lebrecht's mordant When The
Music Stops (New York: Simon & Schuster 1996),
Louis Barfe's Where Have All the Good Times Gone?
The Rise & Fall of the Record Industry (Boston:
Atlantic Books 2004) and Fredric Dannen's acerbic
Hit Men: Power Brokers & Fast Money Inside The
Music Business (New York: Vintage 1991). There's a
broader view in the lucid 2000 paper by Martin Kretschmer,
George Klimis & Roger Wallis on The Global Music Industry
in the Digital Environment: A Study of Strategic Intent
& Policy Responses 1996-99 (PDF).
recorded music and copyright
Copyright protection for music has moved from protection
of sheet music - protecting the ink on the paper - to
embrace musical performance, whether that is over the
radio, on a physical entity such as a compact disk, via
the internet or incorporated in a film.
As with other areas of copyright it often involves layers
of rights and a range of rights owners/administrators,
including lyricists, composers, publishers of the scores,
record companies and copyright collecting societies.
Specific UK legislation to protect music dates from 1848.
The French Societe des Auteurs, Compositeurs et Editeurs
de Musique (SACEM) - a copyright collecting
society for creators and publishers - was established
in 1850 and served as a model for other societies such
as the UK Performing Rights Society (PRS), German Gesellschaft
fur Musikalische Auffuhrungs (GEMA) and Australia's Australian
Performing Right Association (APRA).
In the UK and Australia the 1911 Copyright Acts reflected
the Berlin revision to the Berne
Convention, providing a royalty - the so-called 'mechanicals'
- for each wax cylinder, record, or piano roll manufactured.
US recording legislation dates from 1909, when a campaign
by John Philip Sousa and Victor Herbert (the Andrew Lloyd
Webber of the day) gained a royalty of two cents per recording,
in line with royalties for concert or other commercial
performances.
The American Society of Composers, Authors, & Publishers
(ASCAP) was established in 1914 and survived creation
by broadcasters in 1939 of a competing organisation, Broadcast
Music Incorporated (BMI). In 1926 the national rights
management bodies formed an international confederation,
the Confederation Internationale des Societes Auteurs
& Compositeurs (CISAC).
The most recent landmark has been the US Audio Home
Recording Act of 1992 which imposed levies on digital
audio-recording devices and media. Record companies get
38% of the royalties, featured performers 26%, publishers
and writers get 17% each, and the remainder is divided
among unfeatured musicians and vocalists.
Similar US legislation is in place for digital broadcasting.
Lawrence Lessig's The Future of Ideas: The Fate of
the Commons in a Connected World (New York: Random
01) seems to envisage compulsory licensing of digital
content - in particular music - with authors and publishers
being remunerated through a flat copyright levy administed
by a new copyright collecting
society.
Ruth Towse's 2001 Copyright & the Cultural Industries:
Incentives and Earnings (PDF)
notes a UK Monopolies & Mergers Commission (MMC) study
suggesting that for a major record company the outlay
for an album is around £0.25m to £0.75m, of which £25,000
to £0.4m are recoupable from artists' royalties if they
are great enough.
In aggregate, the five major record companies in the UK
- BMG (Bertelsmann), EMI, Polygram (Vivendi), Sony and
Warner (Time Warner) - recouped around 50% of their A&R;
expenditure in 1993. A&R; expenditure written off came
to 15.4% of gross sales; marketing accounted for 15.9%.
The figures have, however, been criticised as representing
an unusually good year.
net radio
The public performance of prerecorded music usually involves
a bundle of rights, typically
- copyright
in the musical work (initially owned by the composer
and lyricist but usually assigned to a music publisher)
and
-
copyright in the sound recording, the particular fixed
performance of that musical work, typically owned by
the record label.
Any
broadcast or transmission that includes the musical work
is a public performance, for which the broadcaster would
have to pay royalties to the owner of the musical work
in the form of a collective license. Licenses vary from
jurisdiction to jurisdiction.
In the US for example if the broadcast/transmission is
analogue the sound recording copyright owner gets nothing
but must be remunerated if the broadcast or transmission
is digital. Under the DMCA a digital radio broadcast (over-the-air)
is exempt from having to pay royalties to the sound recording
copyright owner, but internet radio is not. Net radio
is subject to a compulsory license, the rates of which
are set by the Librarian of Congress.
The
US compulsory license regime for net radio involves payment
by the broadcasters to copyright owners for use of recordings.
The regime has been criticised because royalties for net
radio are on a per song, per listener basis rather than
a percentage of gross revenues. That has meant that if
a net radio station has a lot of listeners but insufficient
revenue from advertising or other sources it can't afford
the royalties.
US licensing mechanisms have yet to come fully engage
with Podcasting.
piracy
As discussed later in this
guide, figures for piracy and one-off infringements are
contentious.
In 1982 the International Federation for the Phonographic
Industry (IFPI)
- the record industry advocacy group - estimated piracy
at 11% of the total market in North America, 21% in Latin
America, 30% in Africa and 66% in Asia. In 2000 it estimated
(PDF)
that 36% of the disks and cassettes sold across the globe
were pirated - around 1.8 billion items.
We've highlighted debate about the Digital Millennium
Copyright Act (DMCA) earlier in this guide. A starting
point for considering US discussion about anti-circumvention
provisions is Dan Burk's 2002 paper (PDF)
on Anti-Circumvention Misuse.
A separate profile points
to studies of consumer attitudes about music filesharing
and estimates about the incidence of online copying.
MP3
Paul Rapp's 2001 Somewhat Legal Look at the Dawn and
Dusk of the Napster Controversy commented
that
the wagons are circling. The music industry, over the
past several years, has experienced unprecedented corporate
consolidation.
There were some eight major record labels a few years
ago; soon there will be only four. This consolidation
has resulted in a uniformity in the industry's response
to the perceived dangers lurking on the internet, and
a marked lack of creativity in that response.
In addition, this concentration of power has greatly
affected the content of the music that the majors have
offered to the public. In short, there is less variety
and much less volume, in terms of the number of titles
and artists, in the music being offered. Artists have
been handed their walking papers, dropped by labels
that have decided to concentrate on chart-topping, manufactured
content providers like Brittany Spears and N'Synch.
Any college kid with an ear to the ground of popular
music has a favorite band that has gotten the boot.
Classical and jazz divisions are being eviscerated.
The industry looks less like a vehicle to deliver culture
and more like, well, an industry, one devoted to the
lowest common denominator and to hell with everything
else.
It's little wonder, then, that the music industry's
cries of righteous indignation about the horrors of
the Internet have been met with unstifled yawns and
a few snickers of disgust. The industry has made itself
into the boogey-man, and music aficionados, especially
college kids, could care less whether the industry lives
or dies.
A fundamental reason why there is an MP3 phenomenon
is that the music industry has failed, refused, to pick
up the ball. There is no way to receive the vast majority
of major label music digitally over the Internet except
for free. Even if you wanted to buy major label music
over the Internet, you can't, because the major labels
have yet to offer their music digitally in a downloadable
format.
MP3
(Moving Picture Expert Group 1 Audio Layer 3) is a standard
for the compression of audio recordings, with that music
being played on personal computers and special MP3 devices.
It has proved significantly more popular than proprietary
formats such as Microsoft's Windows Media Audio Player
(WMA).
It dates from 1987, when collaboration between Germany's
Fraunhofer Institute and the University of Erlangen resulted
in a music compression/decompression algorithm that could
shrink sound files by 90% without unduly sacrificing quality.
In 1992 it was approved as an MPEG standard.
However it didn't take off for another six years, when
consumer access to a new generation of faster personal
computers and modems - and the example of peers - encouraged
the large-scale download of MP3 files. In 1999 Wired
magazine claimed
that
about
846 million new CDs were sold last year. But at least
17 million MP3 files are downloaded from the Net each
day. That adds up to almost 3 billion in the first six
months of 1999.
Compression
means that files - generally a single song - can be distributed
over the net, whether from a central repository or between
individual personal computers. That means performers and
publishers can go direct to consumers. It has also meant
that consumers and commercial pirates can ignore concerns
about intellectual property: use a search
engine to find an authorised or illicit copy of the
particular recording and download it for free.
Many consumers consider that the loss of sound quality
during compression is offset by the convenience of accessing
the music. And for many there's a frisson in appropriating
the property of the evil record companies.
Estimates about the use (and misuse) of MP3 are problematical.
Overall it is likely that there are over a billion files
in cyberspace, with a considerable number of duplicates.
The economic impact is unclear. Research by the independent
Pew
Internet & American Life project suggests that about
13 million US citizens (14% of US internet users) have
downloaded free music files that they do not own in other
forms, although figures for 'repeat' downloading are less
certain. Perhaps less than 2% of internet users have paid
for downloading music. A perspective is provided by the
music industry's claim in the IFPI Music Piracy Report
2000 (PDF)
that one in three music recordings worldwide is pirated.
Chris Gilbey's The Infinite Digital Jukebox: Everything
You Need To Know About Downloading CD-Quality Music From
The Internet (South Yarra: Hardie Grant 2000) is an
introduction for consumers to MP3.
There is a more nuanced examination of intellectual property
issues in Paul Goldstein's Copyright's Highway: The
Law & Lore of Copyright from Gutenberg to the Celestial
Jukebox (New York: Hill & Wang 1994).
Napster
The ease with which digital music can be copied means
that record companies have been reluctant to distribute
music online from central repositories, pending the establishment
of effective copy protection systems such as SDMI. Their
perception has been that placing a recording on the web
means kissing goodbye to the intellectual property.
That has not stopped businesses such as Napster, now within
the Bertelsmann
orbit, which sought to act as commercial intermediaries
in the 'peer-to-peer' distribution of recordings between
personal computers. That distribution is often described
as 'swapping', although most studies suggest that 93%
of the traffic is one-way (ie most consumers only download).
An October 2000 paper
by Eytan Adar & Bernardo Huberman on Free Riding
on Gnutella for example argues that 70% of Gnutella
users share no files, with 50% of activity involving the
top 1% of hosts. That's consistent with the analysis in
Mancur Olson's bleak The Logic of Collective Action:
Public Goods and the Theory of Groups (Cambridge:
Harvard Uni Press 1971).
Others have noted the high incidence of mislabelled, defective
or partial files on Napster and P2P systems and concerns
about viruses and privacy abuses.
The "pro-artist" StopNapster
site advocated sabotage through mislabelling of files:
"Just think of the reaction you'll get from users who
think they're downloading the new Beastie Boys track but
instead get four minutes of dogs barking, sirens going
off, etc."
Napster (like rivals such as Scour) established a central
server to facilitate identification of and access to MP3
files held on the personal computers of its subscribers.
The server identified each machine and the MP3 files,
becoming what some of the more starry-eyed described as
"nothing more than the world's largest music directory".
It did not differentiate between authorised and illegal
copies, with critics alleging that 87% of files on the
server were illegal copies. At its peak Napster probably
had over 40 million subscribers, with perhaps 600
000 songs available via its server and as many as a billion
MP3 files located somewhere in cyberspace.
Although the Napster server was not a permanent repository
of MP3 files it was the basis of a large-scale commercial
operation based in in a particular jurisdiction and thus
subject to a range of law. In December 1999 the Recording
Industry Association of America litigated against Napster,
MP3.com, Scour and similar bodies. It was joined by other
rights owners and gained the support of performers such
as Metallica.
The rights owners successfully charged that Napster and
similar intermediaries were contributing to copyright
infringements by facilitating the distribution of illegal
MP3, video recordings and other files. The RIAA for example
claimed US$100 000 in damages for each infringing file.
That provoked the usual cyberselfish
rhetoric that we live in an age where copyright and freedom
of speech cannot coexist, so goodbye copyright. One example
was Jaron Lanier's alarmist article
asserting that copyright is "a massive government-sponsored
protection racket" and "if we make Napster-like
free file sharing illegal, we'll have to rid ourselves
of either computers or democracy". Oram's Peer-to-Peer,
noted above, collects such views.
In response to the litigation some of facilitators, such
as Scour, closed after investors withdrew funding. Some,
such as MP3.com, changed their operation after US courts
imposed multi-million dollar fines and rejected claims
that activity was protected by the 1992 Audio Home
Recording Act (AHRA). Caught between unsympathetic
courts and waning investor support, Napster succumbed
to the uncertain embrace of Bertelsmann,
one of the three global music giants, and is apparently
now expiring.
gnutella
'Free Music' advocates have dismissed Napster as irrelevant,
argung that the future lies in regimes that don't involve
an intermediary and don't involve any payment, thereby
evading detection.
Despite the hype about an irresistible "earthquake"
that will sweep away traditional publishing (in particular
the satanic record companies), file-swapping systems such
as Gnutella
arguably remain a fringe activity.
That is partly because the software - like Linux - is
not consumer friendly. As one insider says "Gnutella
is not for mainstream users who don't understand what
an IP address is".
And it is partly because network problems - among them
the lack of a central directory, so that each machine
on the network needs to be searched - mean that access
to the music is very slow. So slow, indeed, that most
casual users simply give up.
Analysts Clip2 estimate that Gnutella's users, at peak
times, haven't been larger than 200 thousand per day,
compared to Napster's 8.5 million. Another estimate was
that 3.05 billion files were shared on Gnutella in August
2001. Michael Mehta, Don Best & Nancy Poon's rather
thin 2002 paper
on Peer-to-peer sharing on the Internet: An analysis
of how Gnutella networks are used to distribute pornographic
material suggested significant variation in the amount
of data shared in October 2001: the number of files ranged
from 115,000 to 21 billion (with a mean of 4.3 billion
files and mean amount of data at 6.1 terabytes).
P2P also poses significant privacy challenges, with evidence
that direct marketers are actively exploiting the ability
to track consumption patterns and send 'real time' messages
to selected consumers as the music downloads.
Despite the hype, much of the growth of Napster has been
about economics and ease of use, rather than against copyright.
Our expectation is that faced with a choice between mastering
gnutella and a small monthly for high quality legal access,
most consumers will simply plump for the subscription.
That will reduce the number of copyright violators, enhancing
industry enforcement measures, encouraging growth of subscriptions,
and so on.
file swapping schemes
There are a large number of 'swapping' schemes, many
of which have not attracted a significant audience.
Sourceforge offers a Register
of Sharing Protocols other than Napster. There
is a similar listing on the AfterNapster site,
which as of April 2002 identified 111 alternatives to
Napster. Some include -
- Madster
(the fileswapping service formerly known as Aimster)
- AudioGalaxy
- Blocks
- Blubster
- Espra
- FastTrack
- Freenet
- Gnutella
- Groove
- iMesh
- Limewire
- Mojo
Nation
- Morpheus
- OnShare
- Publius
- Scour
- SongSpy
Some
text-oriented sites are highlighted
in the Electronic Publishing guide elsewhere on this site.
The major music groups and some independents have
been cautiously launching services that offer access to
music on a per-item or subscription basis. The most successful
so far has been Apple's iTunes. Other services include
MusicNet (RealNetworks, AOLTW's
Warner Music, EMI
and Bertelsmann's
BMG), Pressplay (Universal Music and Sony)
and Rhapsody (Listen.com).
Ring tones
An
note on intellectual property aspects of licensing and
downloading music for personalised mobile phone ring tones
is here.
next page (plagiarism)
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