The Greek Conference - Crete, May 2004 Papers

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THE ETHICS OF ONLINE PIRACY. The Right to Copy? 1

JENNIFER FARRELL

Introduction

"The best obstacle to crime is a society with its ethics intact." 2

If piracy is simply stealing, how can there be anything morally right or ethically acceptable about it? In an analysis of the issue of online music piracy in the context of technological change and legislative amendment, I propose to examine whether a great deal of what is labelled "piracy" is stealing or merely the assertion of rights that are regarded as inherent in the copyright "contract" 3.

Piracy is a word that can be understood in many different contexts online or offline and one that has changed its meaning, particularly since the advent of the technological era. The word originated from the Greek word "peiratia". It is regarded by some as "one of the world's oldest professions" 4 and involved "the practice of attacking and robbing ships at sea" 5.

Piracy was common in the Mediterranean waters of Greek and Roman times 6 and "large-scale piracy made an important contribution to England's economy" 7 during the reign of Queen Elizabeth I when "the English preyed on the Spanish, the Dutch on the English, the French on the Spanish, the English on the French and the Barbary states on everyone..." 8. How then did a word so closely associated with physical violence and the plunder of gold, spices and material goods become one so ideally suited to a war of litigation and rhetoric?

The application of the word 'piracy" to "the unauthorised use or reproduction of another's work" 9 followed the invention of the printing press in 1450's which made copying relatively easy. Before this, "no man thought of having what is now called copyright even in the letters which he wrote". 10 Once the material form in which ideas were expressed became recognised as economically valuable, the owners of this intellectual property demanded control of its unauthorised use. By the early 18th century in England the stationers or publishers, forming one of the earliest copyright lobby groups, requested legislative protection "...with tears in their eyes, hopeless and forlorn...with...wives and children to excite compassion, and induce Parliament to grant them a statutory security" 11. Relief came in the form of the Statue of Anne in 1709 and established the essential elements of the grant of the copyright monopoly. It was to be for a limited term 12 and for the "Encouragement of learned Men to compose and write useful Books" 13. References to the problems of copyright piracy following the enactment of the Statute of Anne emerged in 1769 in Millar v Taylor 14. Lord Mansfield CJ referred to work that "may be pirated upon worse paper" and other publishers who "may print, pirate, and perpetuate the imperfections".

Copyright developed as the domain of statute. Copyright, by 1854 in Jefferys v Boosey 15, was interpreted as "an artificial right not naturally and necessarily arising out of the social rules that ought to prevail among mankind assembled in communities", 16 a right that would enable "an author to reap the pecuniary profits of his own ingenuity and labour." 17 Music copyright, however, did not develop any significant problems of its own until after the invention of the phonograph in 1877 by Thomas Edison. Gradually the right to copy music progressed from the focus on text-based reproduction of sheet music to the reproduction of sound.

The right to control copying for commercial reasons was at its very origins distinguished from the non-commercial value and the importance of innovation and learning to society. The terms were limited to allow creative works to eventually contribute to the public domain 18 of information from which further creativity could emerge. Ownership of knowledge and information being seen as a public as well as a private resource. Technological change, in particular the digitalisation of information and the Internet revolution in the last decades of the 20th century challenged the basic assumptions underlying the right to copy by delivering a more perfect monopoly.

It is within the concept of public ownership of knowledge and information, the public domain and fair use 19 of creative works that the ethical issues can be found. In the context of ethics or the "moral principles that govern a person's behaviour" and the disposition to act in ways that benefits both the person and that person's society, the ownership of information by an exclusive, elite group that prevents access to creativity can only be regarded as detrimental to society's development. In these time "it is legal muscle more than moral entitlement that determines the fenceline" 20 of copyright ownership. John Ralston Saul in describing the modern obsession with intellectual property stated:

"And so our civilization, which says it glories in free speech, is busy tying down for exclusive use or royalty income, every idea which contains any possibility of economic exploitation. But ideas lie at the core of argument and thought. They are the tools of free speech and so of democracy. And the essence of democracy and free speech is not royalty income." 21

Peter Drahos and John Braithwaite in Information Feudalism: Who Owns the Knowledge Economy? equate present day intellectual property rights to a regime of "information feudalism" which is out of balance and econonomically inefficient:

"...it rewards guilds instead of inventive individual citizens. It makes democratic citizens trespassers on knowledge that should be the common heritage of humankind, their educational birthright." 22

A culture of fear has developed over the past twenty years due to the extent of copying made possible by digital means, particularly peer-to-peer ("P2P") file sharing 23. The owners fear that unless all copying is prohibited they will lose control and possibly, as Siva Vaidhyanathna has suggested, the reasons behind this fear and outrage is the implication file sharing has for social change. The users, on the other hand, fear their rights to fair use of music and personal copying will be curtailed. P2P is seen as a symbol of deregulation and dynamic change, a threat to corporate control and particularly to the established business model of the major music companies. This problem has been felt most keenly in the US due to the immense value of its intellectual property and export earning capacity. As Jack Valenti, President and CEO of the Motion Picture Association of American explained to the US House of Representatives Subcommittee, "American's crown jewels - its intellectual property - are being looted." 24

The International Federation of Phonographic Industry (IFPI) 25 which represents the international recording industry with over 1400 record producers and distributors in 76 countries has as part of its mission statement the intention to fight music piracy. From a peak of over 900 million CD shipments, worth $14.6 billion US and increasing by 6% p.a., music shipments fell by 2002 to $12.6 billion, down 10% and falling 26. In its paper "Music Piracy, Organised Crime and Terrorism" 27 there are examples of the connection between piracy, organised crime, "illegal immigrant smuggling, terrorism, extortion and extreme violence", fraud, tax evasion, the triads, the IRA, La Cosa Nostra, illegal weapons, money laundering, pornography, counterfeiting and anti-American propaganda. In fact, a connection between piracy and almost every crime except the possessions of weapons of mass destruction. The report cites examples of successful piracy control in over 28 countries in Europe, Asia and the Americas. There is little doubt that the copying of music on such a massive and highly commercial scale as demonstrated in this paper is neither legally nor morally justifiable.

It is however important to distinguish between music piracy of the dimension described above and home copying, sharing music with friends and copying on a non-commercial basis. While the IFPI "Pocket Guide to Recognising Pirate Music Products" 28 defines piracy as "the deliberate infringement of copyright on a commercial scale" it nevertheless connects simple piracy, bootlegs, counterfeits and Internet piracy together without distinguishing between the commercial and non-commercial copying and uses generalised rhetoric to convince the reader to support its stand, citing "artists whose creativity gets no reward; governments who lose hundreds of millions of dollars in tax revenues; economies that are deprived of new investment; consumers who get less diversity and less choice; and record producers who are forced to reduce their artists' rosters because it is impossible to compete against theft." 29

There is considerable confusion between piracy that is connected to organised crime and the activity of sharing music files between friends. Most people don't think copying for non-commercial use and sharing of music is stealing, perhaps because "people commonly find copyright rules implausible, and simply disbelieve them." 30 In a major music industry survey it was found that 55% of people considered it an inequity that it is against the law to copy CDs for personal use and 81% of those surveyed considered the copyright laws should be changed to allow personal copies to be made of CDs purchased. 31 The New York Times poll showed that 18% of people surveyed considered that sharing music files is always all right, 45% considered it is all right with a few friends, if the person sharing the files owns a CD of the music being shared and only 36% thought it was never all right to share music files. In a survey of 396 people with children between the ages of 12 and 17 years, conducted between 25 February and 4 March 2004, two out of five knew their children downloaded music and movie files and were unaware it was illegal. 32 In Australia a survey by Quantum recorded that in the first six months of 2003, 3.4 million Australians illegally downloaded music files, 33 the under 25-age group being found to be the most common users of file sharing.

The New York Times poll also found that file sharing was considered more acceptable by the under 30-age group but that the practice has spread to nearly every demographic group. The survey found approximately 35 million adults download music and of those 23 million did not care about the copyright on the files copied. This indicated that there is "a stark break between the legal status of file-sharing in the United States and the apparent cultural consensus on its morality." 34 Although, Gigi Sohn, President of Public Knowledge 35, a civil liberties group has found, "Whenever I talk to people about KaZaA 36, they treat it like marijuana...as much as they love it, they have a sense that what they're doing is a little bit wrong." 37

The attitudes within universities was reflected in an article, "You Can't Stop the Music: Music Piracy and Usyd in the Age of Information Technology". 38 The music pirate is defined in that article as, "typically a young, technology savvy university student, who both makes and saves a fortune from copying, trading, selling and otherwise illegally dealing in music copyright material." 39 The article expresses concern at the record companies' 40 aggressive lawsuits and the attack on ISP and university records, including personal details, computer files and e-mail records. The problems identified include the cost of policing and preventing breaches and the stifling of academic enquiry in a highly controlled paranoid environment. The record industry "is as much at fault of 'pirating' information as anyone, "They are pirating your private information in the name of making you afraid and gaining what for them is spare change" 41, justifying their actions by reference to falling company income.

The copyright owners consider file sharing networks, like Napster, Grokster, KaZaA and Morpheus to be like "a giant online pirate bazaar" 42 allowing massive copyright infringement. Charles Britton, policy officer of the Australian Consumers Association presents another perspective, "The music industry has run down its goodwill" and is unable "to grapple with new technology and new consumer perspectives of the marketplace." The disregard for the needs of music consumers by the record companies was criticised by the EFF staff lawyer, Jason Schwartz, when Bradley A Buckels was appointed as head of the anti-piracy unit. He saw this as another attempt "to treat users as criminals". 43 To solve the piracy problem, he argued, the RIAA should have hired "someone with a business plan rather than a baton and a bulletproof vest." 44

Some of the problems with the music industry, including the economic exploitation of artists through oppressive contracts are discussed in articles by Courtney Love 45, Janis Ian 46, John Seabrook 47 and Steve Albini 48. The Future of Music Coalition also presents a critical analysis of major label contracts. 49 The disillusionment of musicians and purchasers of music with the major music companies has intensified the hostility and made solutions more difficult to find.

As Siva Vaidhyanathan, the director of communication studies at New York University has commented:

"If everyone would cool down the rhetoric we might actually have some helpful discussions...It would be nice to stop demonizing people who think they're doing reasonable legitimate things in their homes and stop demonizing people who are trying to make a living and recoup an investment." 50

An analysis of the technology, the legislation and activities of the music companies and users will show, "It is clear the law, technology and ethics are out of sync." 51

The Internet and Piracy

"On the Internet, everything involves making a copy. It's shifted from a field of presumptive freedom to a field of presumptive control." 52

Technological change, in particular the digitalisation of information and the Internet revolution in the last decades of the 20th century challenged the basic assumptions underlying the right to copy by delivering a more perfect monopoly. Technological protection measures have meant that the only way to access information is by circumvention, an act prohibited by digital copyright legislation.

To understand why downloading and sharing music on the Internet has caused so much conflict it is necessary to put the changes in the context of the Internet architecture and design because this has dictated the development and nature of the copyright environment. In particular it assists in explaining the significance of P2P file sharing, the main vehicle for music piracy today. It is the development of this P2P sharing that has led to the extension of the term piracy from the making and sale of large numbers of copies on a commercial scale to "any unlicensed activity"53. So the moral judgment society passes on 'pirates' is expanded and encompasses what used to be regarded as fair use. As Jessica Litman explains:

"What has changed is not the behaviour but the epithet. Content owners are understandably concerned that in a digital environment, conduct that used to be harmless might have the same effect as the commercial sale of large numbers of counterfeit copies.   They have managed to persuade a substantial segment of the public that if behaviour theoretically could have the same effect as piracy, it must be piracy, even if it is the same behaviour that we all called legitimate before." 54

The Internet began "as the creation of a small band of dedicated researchers"55 to support file and resource sharing and collaboration through the design of protocols which were based on an end-to-end architecture, keeping the intelligence in the ends or in the applications and computers of the network. The open architecture was introduced by Robert Kahn in 1972. Together with Vint Cerf he developed the protocol TCP/IP56 which enabled the Internet to support a broad based communication system. The World Wide Web57, today an important part of the Internet, was made possible by the CERN researcher, Tim Berners-Lee, through the development of HTML, made freely available creating a "universal resource."

The Internet has developed rapidly in the last twenty years and has grown beyond its roots in research to include extensive commercial activity with demands from a multitude of special interest groups, many of whom are demanding a different direction and social structure. Some of the demands for change have come from the development of technology. It is no longer the idealistic world described in 1996 by John Perry Barlow in "A Declaration of the Independence of Cyberspace", where "legal concepts of property, expression, identity...do not apply."58 Today it consists of a technology driven, multicultural, eclectic mix of computer users who are used to searching for what they want rather than having content imposed on them.

The most important technological developments of relevance to the downloading of music files and piracy has been the growth of P2P networks, MP3 files, growth of broadband connectivity, technical protection measures ("TPMs") and circumvention devices. The controversial sections of digital copyright law relate to the misuse of P2P file transfer and to the protection given to digital rights management ("DRM") or TPMs by anti-circumvention provision which do not discriminate between legal and illegal use of copyright material and protect access as much as the right to copy.

MP3 has been "the core of the audio changes" on the Internet59. It is the most popular, although not the only compression format available60 but it is open source and non proprietary. It allows audio compression, reducing the number of bytes needed by a CD without harming the sound quality and so allowing transfer of music files to be dramatically faster.61It became possible for MP3 files to be manipulated and enjoyed in a great variety of ways. The files can be copied from CDs and transferred to portable MP3 players, sent by email, uploaded to a friend or remixed.

The use of P2P for sharing music files has also focussed attention on the alternative uses for file sharing. These alternative uses have also been used as a justification for P2P technology when it has been criticised for making piracy possible.

Some examples of the alternative uses include, the Peer-to-Peer Working Group62which was formed in 2000 to give business the benefit of the technology and includes companies such as Hewlett-Packard, IBM and Intel (Corporation) ("Intel"). One of the main benefits includes harnessing the dormant processing power of computers, and in some projects allowing computers to borrow processing power from others on the network. Intel has been using the technology for ten years with a system called NetBatch to link 10,000 computers. P2P applications for research and education include, Intel's Philanthropic program with research on protein folding and diseases such as Alzheimer's and Parkinson's63. Other uses include: eduCommons which is an open system for creating, sharing and reusing educational content;64the Worldwide Lexicon Project which is an open source initiative to create a multilingual dictionary for the Internet and create a standardized protocol for dictionary, encyclopaedia and translation service on the web;65OceanStore Project, which "is a global persistent data store designed to scale to billions of users"66 and JXTA, a set of peer-to-peer protocols that allow connected devices, including those not part of the same network, such as cell phones, to communicate and collaborate.67

A comprehensive analysis of non infringing use of P2P file-sharing technology can be found in the submission by the American Civil Liberties Union ("ACLU") to the litigation against Grokster.68 The Internet Archive69 is reported as planning to use P2P to replace its web-based publishing of historical collections. This will allow the Archive to pass on some of the costs of maintaining the material to the users by the use of file transfer on the network and a variety of sites instead of relying on the bandwidth of the Archive site alone. Close to 1 terabyte of data or about 200,000 MP3 songs are downloaded from the Internet Archive each day70. Project Gutenberg71 which holds eBooks in the public domain and works to which they have permission to distribute by the authors, including over 5,500 MP3 files and over 9,500 books, supports the use of P2P technology for faster and cheaper distribution of its materials. For about six months in 2002 the Gutenberg files were made available using StreamCast and Morpheus. The ACLU submission also refers to musicians who make use of P2P technology for commercial purposes or allow free downloads to encourage attendance at concerts.   The music companies themselves use Grokster programs to check the popularity of downloads to plan promotion and distribution targets.72It is also possible to use P2P technology for online political campaigning.73 It is also stated that "people living under totalitarian regimes that censor 'unpatriotic' or 'inappropriate' websites will be able to access information from anywhere in the world by using peer-to-peer technology"74 because it can be more difficult to stop the flow of information through P2P networks than to block websites. For example it is difficult in China to access information on sites such as CNN or on controversial subjects like Tibet, democracy or the Falun Gong. Information that has been shared using P2P technology, such as the "Six/Four System", includes the Tiananmen Papers.75

Digital Legislation and Review

"While both subsections present difficulties of construction, the former is drafted with such obscurity that even those used to interpreting the utterances of the Delphic oracle might falter in seeking to elicit a sensible meaning from its terms."76

Digital amendments to copyright legislation, as a reaction to digital change, reveal considerable confusion not only in the subsections of the Acts themselves but over the direction and strength of the legislation necessary to control massive infringement. As Charles C Mann at a Columbia University conference stated:

"Copyright is stronger than ever, which experts say will plunge us into the Dark Ages. Copyright is weaker than ever, which experts say will plunge us into the Dark Ages. The confusing thing is that both statements happen to be true."77

Therefore it can be said that copyright law is stronger, in that there is not only more of it, but it includes more extensive civil and criminal sanctions. It is also weaker in being unable, so far, to prevent large scale piracy.

Copyright legislation in the US can to be found in a number of statutes, including The Copyright Act (1976), the Audio Home Recording Act (1992) the No Electronic Theft Act (1977), the Federal Anti-Bootlegging Statute, Digital Performance Right in Sound Recordings Act (1995) and the Digital Millennium Copyright Act (1998) ("DMCA")78. It is with the provisions of the DMCA that this paper will be largely concerned because its provisions have been considered the most effective weapon against Internet piracy.

As soon as the DMCA was passed it was considered by some to have gone too far in restricting fair use and that in the 70 pages it contained few exemptions to circumvention prohibition.79 Section 1201 bans the act of circumvention80 and the manufacture, distribution and trafficking of tools, technologies and devices primarily designed to circumvent technological protection measures. The litigation so far has involved the contravention of this section and s 512 which relates to Internet service providers' liability. These sections were not intended to prevent fair use. However a broad interpretation of the anti-circumvention provision was adopted in Universal City Studios, Inc. v Reimerdes81 and fair use was not accepted as a defence. The sections intended to prevent copyright piracy have been used to stop legitimate activities, as discussed later in this paper (p 14).

In Australia, the digital amendments to the Copyright Act 196882 were introduced to adapt copyright law to the digital world. The sections of most relevance to Internet music copyright being Part V, Division 2A dealing with action in relation to circumvention devices and electronic rights management information, s 116A in particular with technological protection measures and Part VB, Division 2A dealing with the reproduction of works that are in electronic form, as well as the right in Part IV Division 1, s 85(1)(b) "to communicate the recording to the public" and Division 6, s 101 which deals with the infringement by doing acts comprised in copyright. As with the digital amendments to copyright in the US, provisions have made for review of the changes to ensure compliance with basic copyright principles.

In Australia, a review of the Copyright Amendment (Digital Agenda) Act 2000 began in April 2003 to ensure "an appropriate balance...between the rights of copyright owners and the rights of copyright users" had been maintained in the "unchartered waters" of "online copyright reform."83 The submissions reflect the uncertainty and conflict evident internationally and within Australia in relation to intellectual property and technological change. I will discuss them in some detail because they encapsulate the essential arguments on both sides of the digital divide.

The groups represented by the copyright owners contended that the owners were not being fairly remunerated and only by the introduction of home copying schemes would "rightsholders" achieve parity with international schemes.84 Further that the amendments are seen as not complying with Australia's obligations under the Berne Convention Three-Step Test and the TRIPS Agreement or the WIPO Copyright Treaty (1996). The publishers considered that the amendments protected the "user at the expense of publishers and copyright owners."85 Widespread caching of copyright works was seen as posing a "substantial danger".86 Possible amendments to Part VA were represented as a threat to payments and incentives to create, while the present system was viewed by some as an "economically efficient scheme of remuneration for a valuable use" rather than "rent seeking."87

The submissions advocated adopting the DMCA's prescriptive approach which provides a "safe harbour" for carriers and Internet service providers ("ISPs") and DMCA-style subpoenas to quickly and efficiently identify copyright infringers, a vital strategy in the piracy battle. The preliminary discovery under the Federal Court Rules was presented by some as slow and expensive, allowing piracy to continue during the proceedings.88 It was also considered that ISPs had to assist in the battle against piracy by taking some responsibility for the infringements. Copyright owners could not implement new business plans and "deliver competitively priced products" while the "pipeline is 'poisoned' by pirates."89 While the Australian Film Industry Coalition did not think the DMCA's provisions were appropriate, nevertheless the Australian solution places the "entire burden on copyright owners to identify infringing material"90. It recommended instead that an industry code of practice and further legislative amendments be adopted, including takedown procedures and formal notice to be issued to relevant ISPs. Privacy arguments were dismissed as threatening "anti-piracy Internet enforcement efforts worldwide"91 Furthermore, it was alleged in the Australasian Performing Right Association Ltd/Australasian Mechanical Copyright Owners Society Limited ("APRA/AMCOS") submission that "confidentiality should not be a barrier to enforcement"92 despite the issue of privacy emerging as a significant concern for Internet users.

While recognising the importance of providing economic data to support submissions there was a confession that it was extremely difficult to provide accurate economic data about emerging markets.93 It was further argued that "quantification of loss should not be a prerequisite for recognition of infringement and damage", especially where the infringement was so common as to be the "subject of daily media reports."94 The removal of the personal use exception was considered vital to restrict the demand for piracy devices and reduce the "scope for unauthorised access to and use of digital material."95

Economic rationalisation for restrictive legislation was analysed in a number of submissions. Market failure has been held to be largely responsible for piracy. The "commercial players" have been presented as having failed to adapt to changed market conditions, so that the failure to offer consumers what they want, music at a reasonable price, has led them to seek alternatives to the highly priced copyright goods.96 "Criminalisation of consumer behaviour as a response to monopoly market failure" has been characterised as "poor public policy". The Copyright Review Issues Paper stated that, "When intellectual property is supplied at its marginal cost it is either inexpensive or free, which would mean that there is no commercial incentive to create it". The economic analysis was challenged in the Australian Consumers' Association ("ACA") submission. A danger was recognised in analysing the copyright market changes in isolation as opposed to a 'multi-variate analysis", particularly with "entertainment and cultural goods". Products such as music CDs are recognised as discretionary purchases which should be analysed in the context of the general entertainment market, taking into consideration new categories of expenditure that compete. The statistics for music downloads and CD piracy have been used to show that they cannot be directly related to loss of CD sales and that it is possible that some sharing of music files could lead to CD sales, particularly if factors such as demographic trends and cultural changes are considered.

The Copyright legislation has been presented as failing to maintain a balance between the protection of copyright works and reasonable access because there is no 'fair use' provision allowing the owner of a music CD or legally downloaded music CD to make a copy to a hard disc, MP3, iPOD or to make a back up copy. The permitted purposes exemption in s 116A(7)(b) does not include fair dealing. Private, non-commercial use of copyright material could be deemed to be non-infringing or a broad definition of fair use incorporated into the Copyright Act to ensure future access, particularly for education and research with an explicit sanction on the use of contract or TPMs to restrict fair dealing and access to works in the public domain.

The use of technology and anti-circumvention provisions have become the new and effective weapons of piracy destruction in the war against digital downloading. TPMs or Rights Management Information ("RMI") together with the use of legislative anti-circumvention provisions can not only be used to prevent illegal copying but also to prevent the exercise of rights which copyright users expect under fair use provisions and access to information creating a "chilling effect...on creativity, community and democracy."97 This limitation could be extended to public domain materials that have become part of an aggregated collection.

The Electronic Frontier Foundation98 ("EFF") made a submission to the Australian Digital Review ("The Review") supporting privacy and free speech for Internet users and as well supporting the end-to-end architecture which has encouraged technical innovation. The unintended consequences of the DMCA and the misuse of s 1201, as well as the misuse of the s 512 safe harbour provisions are discussed. Section 1201 being described as throwing out "the baby of fair use with the bathwater of digital piracy"99. The submission concludes that the anti-circumvention provisions of the DMCA intended to protect anti-piracy protection measures have been used to stifle legitimate activities, including free speech and scientific research, as seen in the case of 2600 magazine, actions against Professor Edward Felten and the Russian programmer, Dimitry Sklyarov.100 Furthermore, the DMCA provisions have been seen as a threat to innovation and competition particularly when used by companies such as Lexmark to eliminate competition in the production of toner cartridges and Chamberlain Group to eliminate competition in the manufacture of remote openers. Provisions of the DMCA have also been used to harass ISPs by the use of the subpoena provisions demanding the release of private information.101

In relation to the Australian legislation, the EFF submission called for the preservation of the balance between the rights of copyright owners and users by restricting the definition of "circumvention device" to those measures used for copyright infringement that have no other purpose. The EFF submission recommended also that fair dealing should be incorporated as a "permitted purpose' under s 116A to preserve the ability of users to exercise fair use under the Copyright Act 1968. It recommended against the adoption of the US subpoena process and called for "judicial oversight and procedural protections"102 due to errors such as mistaken identity and the potential for error.103

Despite the recommendations of the submissions and before the review's report was finalised, Australian entered a Free Trade Agreement ("FTA") with the US104 in which, along with agreements on commodities such as beef, dairy products and motor vehicles, Australia has agreed to 'harmonise' its intellectual property legislation with that of the US, a country which owns more intellectual property than any other nation.105 This agreement may result in the adoption of US style subpoenas which is of concern due to the restrictions the procedure provides on judicial review of discovery.

Even without FTAs, "an international trend toward convergence on many of the basic principles"106 has been noted in the recently released iTunes Green Paper by the Berman Center for Internet & Society at Harvard Law School107. However, some international divergence on anti-circumvention, fair use rights, consumer protection laws and law enforcement was outlined in the research. The findings on fair use are of particular interest in emphasising the effect fair use doctrines have on "users' expectations regarding what they can and cannot do with purchased digital content." It is this expectation of users which is in direct conflict with the expectation of copyright owners that has led to the creation of an irreconcilable conflict.

Litigation war - Copyright Control

"What we have come to call the conventional entertainment industries - movie studios, music publishers, record companies - have declared war on the new digital media, and the courtrooms are battlefields."108

Before the struggle for copyright control over the Internet began, in the days when the home videotape recorder (VCR) enabled millions of people not only to play pre-recorded films but to record television programs for "time-shifting" 109or "library-building"110, it was not the users of the machines who had infringed copyright who were sued but rather the manufacturers, the more accessible targets, who were sued for contributory infringement.

The US Supreme Court held in Sony Corp v Universal City Studios Inc, the "Betamax" case,111 that the sale of the VCRs to the public was not contributory infringement if "the product is widely used for legitimate, unobjectionable purposes, or, indeed, is merely capable of substantial noninfringing uses." In a leading UK case112, following four years after the Betamax decision, the House of Lords found that the provision of equipment, in this case, a twin cassette machine, was not in itself an infringement where that equipment has other legitimate uses. For the next fifteen years this became the standard defence to claims of contributory infringement and it was also perceived by the general public that "time-shifting" and "library building" were acceptable practices, something that everybody did, and was not copyright infringement at all or at least fair use of copyright material.

With the development of the Internet, the entertainment industry sought more diverse targets than manufacturers and identified new targets, those providing the means used for copyright infringement - the ISPs, the telecommunications companies and providers of software. For a while, at least, those individuals actually doing the copying were left in peace. The Napster113 decision by the US District Court came as a shock to those who had relied on the Betamax defence. Extensive copying, downloading, uploading, transmission and distribution of copyrighted music, in fact "as many as 10,000 files per second"114 including eighty-seven percent copyrighted files115, were being transferred by peer-to-peer file sharing using Napster's MusicShare software which was available free on the Napster site. The US Court of Appeals 9th Circuit held that Napster "knowingly encourages and assists the infringement"116 and had actual and constructive knowledge of copyright infringement. A distinction was made between the "architecture of the Napster system and Napster's conduct in relation to the operational capacity of the system." Betamax was applied to the extent that it was recognised that "a computer system operator cannot be liable...merely because the structure of the system allows for the exchange of copyrighted material"117 but distinguished in that the VCR in Betamax only exposed the recording to the original user whereas in Napster the time or space-shifting also "simultaneously involve distribution of the copyrighted material to the general public."118

The copyright owners were also successful in their battle against Aimster (Madster case)119 for providing a service for downloading and uploading music files. It was held by the US District Court that Aimster had contributed to the copyright infringements because the company had clear knowledge of the illegal activities, and could have supervised and prevented the activity but contributed by facilitating infringement and benefiting financially from it.

By mid 2003 the Recording Industry Association of America (RIAA) had begun to target the users of P2P networks, identifying users who upload considerable amounts of copyrighted music or allow their computers to be "supernodes" by using software that scans P2P directories and identifies the ISPs. The ISP is then subpoenaed to provide the user's details.

One such case involved a 71 year old grandfather, Durwood Pickle120, who was sued in 2003 for copyright infringement after his grandchildren used his computer to download songs when they visited him. Another involved, Brianna Lahara, a 12 year old 7th grade student who lives in subsidised housing in New York was among a group of over 260 individuals sued in September 2003 for downloading approximately 1,000 songs from KaZaA. Her mother settled for a payment of $2,000.121 Fourteen year old Annie Leith from Staten Island was charged with illegally downloading over 950 music files over three years. Her case settled for $3,000 because, like many of the individuals sued, she could not afford the litigation. Assistance to pay the money came from a new promotional campaign for Pepsi Cola in which she was asked to participate. The litigation against such individuals has been seen as counterproductive by an industry that is dependent for its income on the goodwill of consumers.

The Sony - Betamax reasoning has been revisited more recently in the RIAA case against Grokster,122 KaZaA and the StreamCast Networks for contributory copyright infringement. The US District Court found in favour of the networks because the software had non-infringing uses and distinguished Napster because there was no centralised system which could have enabled the networks to supervise or provide information about the illegal file transfers. The case is currently being heard by the Federal Appeals Court 9th Circuit. The submissions supporting Grokster and the networks, emphasise the importance of the Sony-Betamax decision. The submission made by 40 intellectual property and technology law professors123stresses the importance of maintaining certainty, simplicity and clarity in the law, maintaining public access to new technologies and encouraging the development of technological innovation by following the Sony-Betamax reasoning. Further the submission advocates the legislature, not the courts, as the appropriate forum for arguing for changes. The Supreme Court judges have acknowledged this in Sony-Betamax when it was stated, "it is not our job to apply laws that have not yet been written."124

The most recent wave of lawsuits in the US by the RIAA has targeted 21 university networks, including universities in New York, California, Maryland and Washington.125 The lawsuits against universities have raised concerns relating to academic freedom and privacy in the disclosure of information. This can be illustrated with reference to Sony Music Entertainment (Australia) Limited v University of Tasmania [2004] FCA 532 which involved the University of Tasmania, the University of Sydney and the University of Melbourne. In this case Sony, Universal Music Australia Pty Limited and EMI Music Australia Pty Limited sought discovery and inspection of records in electronic backup tapes and CD ROMs to discover the identity of copyright infringers who were sharing MP3 files and sound recordings protected under s 85 of the Australian Copyright Act 1968 (Cth). Furthermore it was alleged that there had been authorisation of the infringement under s 101(1) of the Act. Snapshots of the computer records were taken and contained extensive records of relevant and irrelevant material. The issue determined by Justice Tamberlin was whether the Court had power to order discovery, how this was to be conducted and the extent of the discovery, considering the extraneous and private nature of some of the contents of the material. The public interest in having full and proper disclosure was weighed against the public interest in protecting the privacy of individuals using university facilities, privileged or sensitive information. Discovery was permitted with conditions regarding non-disclosure and confidentiality, supervision, inspection and the availability of legal advice.

Other features of the courtroom battles have included a discussion of the meaning of digital terms such as TPMs and circumvention devices. This has significance for the music companies and manufacturers of software used over the Internet in determining what technological measures they can use to lock up copyrighted material and for the users, to what extent it can be unlocked to provide access.

The decision of the Federal Court of Australia in Kabushiki Kaisha Sony Computer Entertainment v Stevens126indicates that the definition of "technological protection measure"127needs clarification by the legislature. As French J has suggested at [25]:

"There may be all manner of powerful policy considerations which can be extracted from the legislative history and other materials referred to in this case which favour the narrower reading of the definition of 'technological protection measure'...In the end, in my opinion, it is for the legislature to spell out the limiting words which may respond to such considerations. It is not for the Court to cage the ordinary meaning of the words which have been adopted by reference to policy considerations of its own diving."

Section 116A of the Copyright Act 1968 provides that a copyright owner has a right of action against a person who knew, or should have known, that a circumvention device would be used to circumvent a TPM and provides such a device or service. In Sony the Court considered whether a regional access code together with the operation of the Boot ROM installed on the PlayStation by Sony came within the definition of technological protection measure. The primary Judge in Kabushiki Kaisha Sony Computer Entertainment v Stevens [2002] FCA 906 at [19] held that a TPM "must be a device or product which utilises technological means to deny a person access to a copyright work, or which limits a person's capacity to make copies of a work to which access has been gained, and thereby 'physically' prevents or inhibits the person from undertaking acts which, if carried out, would or might infringe copyright in the work." (emphasis added) He did not find anything in the definition of a TPM which prescribes it to be designed exclusively to prevent or inhibit copyright infringement.

The Full Court disagreed and held that it would be "sufficient that Sony's device inhibits infringement by rendering the resulting unauthorised copies unusable." This interpretation confers a broad set of rights on copyright owners and confers control over all copying where a circumvention device128 applied to works, whether there is copyright infringement or circumvention of a technological protection measure. It also adds confusion to s 47 and the exception for reverse-engineering of software to create interoperable products. Also in Sony the meaning of "material form" in s 10 of the Copyright Act 1968 was discussed in relation to whether the reproduction of the program from the CD-ROM to RAM fell within the definition. This finding would relate to whether the protection devices directly prevented infringement. Finkelstein J's approach was preferred to that taken by Sackville J at first instance, because his Honour found that the requirement of material form would be satisfied if there were means by which the contents of RAM could be reproduced. The difficulties in the interpretation of this term also suggest a need for legislative clarification.

Another feature of the litigation has been the use of discovery procedures to determine the identity of individual infringers and the liability of intermediaries, such as software manufacturers and ISPs. This has also raised more complex issues of invasion of privacy, rights to free speech under the US Constitution and the extent of judicial supervision necessary for discovery procedures.

In February 2004,129 under the direction of music industry lawyers and computer forensics investigators130, Anton Piller orders were used to raid 12 properties, including the homes of Sharman Networks' ("Sharman") employees, ISPs, Telstra and a number of universities to seize documents owned by Sharman, owner of KaZaA131, the biggest music-sharing company on the Internet with a claimed 60 million users. The Music Industry Piracy Investigations ("MIPI") claimed over 200 million illegal music files were being downloaded every month. The Record Industry Association representative, Stephen Peach, claimed the raids were part of a program to end the "free ride...at the expense of the owners and creators of the music". The spokesperson for Sharman alleged it was just "a knee-jerk reaction...to discredit Sharman Networks and the KaZaA software."132 Wilcox J, in dismissing the two notices of motion seeking discharge of the Anton Piller orders, recognised that "some material was taken that fell outside the authority of the Anton Piller orders"133 and directed the parties to agree on a regime of management of the materials seized which would "minimise intrusions into personal privacy and commercial confidentiality."134 The documents and computer files seized will be held until a hearing in May 2004. In the meantime, overseen by a forensics expert and independent solicitor, the material will be sorted to ensure that irrelevant material taken during the raids is not included in the discovery process.

A public view of the KaZaA litigation and reflecting cultural attitudes was expressed in a letter to The Australian newspaper135:

"If KaZaA is found guilty of breaking copyright laws, all makers of guns should be tried for murder, all road builders charged with drink diving, and the makers of lighters charged with arson.

The fact that a product can be misused doesn't mean the maker is at fault, does it? The music industry as we know it is dying. Record labels just aren't needed any more. Musicians can create, record and distribute music on their own."

Sharman sees the music majors as trying to stop the P2P revolution because they see it as a threat to their control of the distribution, sale and promotion of music. It is market driven technology and represents a "massive and complex change to traditional music and movie industry models"136. It is possible that P2P applications like KaZaA will provide the majors with "the ability to protect, promote and sell their work"137. However, by changing business practices to "payment per transaction, or a commission" everyone can benefit from the new technology. This is a technology that provides more than just the sharing of music files but also makes possible the exchange of ideas, collaboration, more efficient communication by allowing the distribution of large volumes of information and access to a global audience for established performers as well as new. Users can sample tracks and the artists can decide how their works are to be presented and protected. In July 2002, Sharman invited the music majors to work with KaZaA but instead, by August 2002 Sharman had been joined as a party to the Grokster and Morpheus case in the US.

It is doubtful whether shutting down or controlling KaZaA will end the further development of the technology. There are many alternative programs and sites such as Bearshare, Blubster, iMesh and AudioGnome138 and it is unlikely that the 60 million users of KaZaA will not find an alternative. Hopefully, the growth of commercial sites offering music downloads at reasonable prices may provide a positive movement away from piracy.

The total number of law suits to March 2004 was 1977 with settlements in about 400 cases. Legal action against 247 alleged illegal file-sharers in Denmark, Germany, Italy and Canada began in January 2004. The Canadian Federal Judge, Justice von Finkenstein, has denied the application by the Canadian Recording Industry Association (CRIA) for information regarding the identity of 29 customers of five ISPs for alleged copyright infringement. It was held that the applicants did not make out a prima facie case of infringement and that the public interest in disclosure of the information was outweighed by the concern for privacy. The Judge referred to the decision in CCH Canada Ltd v Law Society of Canada 2004 SCC 13 and failed to find a distinction between placing a photocopier "in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service." Furthermore, he held that "downloading a song for personal use does not amount to infringement."

The cases in the US, Australia, Europe and Canada have not resulted in any consistent, clear directions nor have they provided a solution to the conflict. This is due to a number of factors, including the complexity of the legislation and its technological terms, as well as political interference in the form of lobbying by major music companies for additional restrictions and criminal sanctions.

Civil Disobedience

"Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which as constantly refused to negotiate is forced to confront the issue."139

The use of civil disobedience as a form of protest over copyright control has emerged partly due to the legislative failure to provide sufficient access and fair use. Grey Tuesday was a day of protest on 24 February 2004 following the attempts by EMI to prevent the distribution of an ingenious hip-hop140 remix music album known as The Grey Album. It was created by a Los Angles DJ-producer, Danger Mouse141, who used sound samples from the vocal tracks of Jay Z's The Black Album and mixed them with reworked tracks from the Beatles' White Album, creating a musical collage. Danger Mouse intended this album to be an "artistic expression" created because of his love for the Beatles and Jay-Z142. About 3,000 copies were released and shared through networks such as Morpheus, Soulseek and KaZaA. EMI responded by issuing "cease and desist" letters143. Instead of removing the album, in protest over 400 sites,144 led by the music activist site, Downhill Battle, hosted the album. In one day over 100,000 copies were downloaded making it the number one album in the US on 24 February 2004.

Downhill Battle co-founders, Holmes Wilson and Nicholas Reville, in a response to EMI145 alleged that the efforts to suppress the Grey Album were an attempt to "stifle creativity and harm the public interest" and claimed that they had a "fair-use right to post this music under current copyright law and the public has a fair-use right to hear it."146 The intention of Downhill Battle in holding the Grey Tuesday protest was to ensure the music was widely available "so that the public can make informed decisions." It recognised that filesharing networks are "a necessary and legitimate means of defense...against a music industry that consistently attacks the public interest."147 The CEO of Waxpliotation, Jeff Antebi, the manager for Danger Mouse, saw Grey Tuesday as "a watershed moment" where "the rapid speed of peer-to-peer come [s] head-to-head with a rabid, worldwide consumer demand for forbidden fruit."148

The organisers of Downhill Battle were also behind earlier protests including a call for a one week boycott of major label music on 20th October 2003 by StopRIAAlawsuits149in response to RIAA letters demanding settlements of copyright disputes. On 23 December, using the site www.WhatACrappyPresent.com, Reville and Wilson warned parents not to buy pre-recorded CDs when their children could download music for free using such children's reactions to a CD gift as "The company that makes this sued my friend".

Fight for Fair Use Week, 1 March to 4 March 2004 was led by 321 Studios, a company that provides software tools to assist users to protect their DVD collection, including backup, recovery and creation software. The aim of the campaign was to raise public awareness of the current legal restrictions on fair use and followed a decision by the Northern District Court of California in February 2004 that 321 Studios violated the DMCA when the company's software, DVD X Copy Platinum, was distributed with a DVD movie encryption descrambler.150 The protest included the sending of emails to 600,000 customers, the provision of a website facility for consumers to send emails to the studios, a phone campaign, the contacting of Members of Congress, contact with other online forums and message boards and a truck travelling around Los Angeles with a banners, "You're no pirate, but some Hollywood executives say you are. Tell the studios you'll fight for your right to backup DVDs you own."151

Civil disobedience is far from a new form of political protest and can be seen in the actions of Mahatma Gandhi in his protest against British rule of India, Martin Luther King Jr152 in his civil rights leadership and more recently by Greenpeace in their environmental protests. The writer Henry David Thoreau considered apathy more of a problem than disobedience and lawlessness, justifying civil disobedience by asking the questions:

"Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience then?   The only obligation which I have a right to assume is to do at any time what I think right...Unjust laws exist: shall we be content to obey them, or shall we endeavour to amend them, and obey them until we have succeeded, or shall we transgress them at once...If the injustice...is of such a nature that it requires you to be the agent of injustice to another, then I say, break the law."153

Peter Singer has held that civil disobedience can be justified in a democracy if it is thought that the decision "is not a genuine expression of majority opinion",154 when the usual methods for obtaining reform have not worked, members of Parliament have been unduly influenced by lobbyists and special interest groups, and the public are not sufficiently informed about the problem and so have not had the opportunity of making an informed decision. In such a case the balance has to be struck between stopping something that is morally wrong and allowing a protest that could lower respect for the law and democracy. "The difficult issue is not whether the end can ever justify the means, but which means are justified by which ends."155 Socrates argued that a citizen must obey the laws or persuade the state that the laws are unjust.156 Online civil disobedience is being used as a weapon to persuade the legislature that the copyright laws are in need of amendment.

Solutions?

"Milk, two sugars and a customised CD" 157

The solutions offered to the problem of piracy are almost as varied and complex as the issues digital downloads have raised. It has been suggested that the solution to piracy may lie in offering alternatives and giving people what they want, rather than prosecuting them and recognising that the digital world is an "on demand world". Consumers want music available at the time, place and in the format they choose. The record companies have recently recognised this particularly following the extraordinary success of iPod and the iTunes158 model which offers music for 99c-per-song and more than 200,000 songs from major record labels159 to choose from160. By September 2003, 20 million songs had been sold. Record labels delayed the introduction of legal online music themselves by fighting over rights and artists. Apple succeeded with iTunes because it was uncomplicated. In the first week 1 millions songs were downloaded. The profit for Apple has not been in the sale of the music but in the sale of the iPods. Those music companies that do support legal downloads see it as a way of winning over users "to a new law-abiding habit."161 The managing director of Festival Mushroom Records has recognised that file-sharing will not go away and the establishment of legal services may provide part of the answer.162 From the consumer perspective, a letter in the Los Angeles Times explains the frustration:

" How many times do I have to buy the same song? I bought the LP, the cassette tape and then the CD. Do I have to buy the MP3 version too? And how come when I buy a new album on CD, the old LP-length limitation (about 45 minutes) is still being used? How come new albums in general don't contain more songs than LPs did, since CDs can hold more music?" 163

By early 2004 there were many online stores, such as Rhapsody, MP3.com, BuyMusic, Musicnet, PressPlay, Destra and Bigpond 164 to choose from with a range of prices, varying quality of access and at times limited variety. Hewlett-Packard has music sites in four Asian markets. Firms such as Coca-Cola, LG Electronics and Starbucks are using online music as a marketing strategy,165 although it is still questionable whether users will support such companies not usually associated with the supply of quality music. It has taken considerable time for the music companies to find "a comfortable business model", the right price, the variety and format for the files. It was not until the end of 2003 that the music companies provided more than legal sites that asked for subscription fees to access limited offerings. The more pessimistic view is that "...old-world business will only win when it finds a magic potion that persuades us to pay for something we can get for free."166 The music   companies are also beginning to use DVD-SA (super audio) with more secure copyright control in preference to CDs as a music platform. They have also marketed anti-copy CDs which use technological devices to prevent the CDs being read or played on computers and some audio systems. This product has not only alienated consumers, but in France they have been held to be faulty goods.167

The Magnificent Union of Digitally Downloading Artists (MUDDA) has been launched by Peter Gabriel and Brian Eno to assist artists to sell their music online and give musicians more options. Some musicians, such as Phish, have been very successful using online marketing, recording more than $2.25 million US in sales since 2002.168

A more radical approach to piracy has been proposed by US Senator Orrin Hatch which would involve amendments to the copyright legislation. This involves the use of technology to damage any computers illegally downloading copyright material. He is unlikely to gain much support for this suggestion.169

The Free Music Philosophy170 proposed to give the freedom to copy, distribute and modify music for personal, non-commercial use. Artists would be paid from concerts, the sale of merchandise and donations. The argument is supported by the success and quality of free software such as Linux and GNU and the economic importance in the US of tipping. The GNU project171 doesn't put software in the public domain but applies copyleft, ie allows anyone to redistribute software with or without changes, but it must be passed along with the freedom to further copy and change it, so giving every user freedom. The successful singer, George Michael, has recently shunned the music industry and embraced the concept of donations for creativity as opposed to sale.172 He plans to give any money he receives from songs downloaded from his web site to charity. The Creative Commons aims at providing access to creative works for people to share by using, for example, a music sharing licence. The works issued under such a licence cannot be sold or remixed but can be shared, downloaded and copied. A variety of licences can be issued to cover all forms of creative works.173

William M Landes and Richard A Posner have proposed an indefinitely renewable copyright with a short initial term and the right of indefinite renewal. This, they suggest, will mean more works will fall into the public domain sooner than before because of the response to economic incentives.174

Legislative amendments to copyright legislation have been proposed in the US in the form of the Public Domain Enhancement Act. Support for this comes from the Copy Left movement which aims to Reclaim the Public Domain and the Public Knowledge group. A number of organisations, lawyers and academics have proposed legislative amendments and solutions. These include the Berkman Center for Internet and Society at Harvard Law School and the Center for Internet and Society (CIS) at Stanford Law School, which recently filed a suit on behalf of a University of Denver conductor, and others, challenging legislation that reclassifies works that have already passed into the public domain. The Eldred web site175 is the centre of the campaign to restore balance in copyright legislation by enhancing the public domain. This campaign followed the Eldred v Ashcroft176 decision. In Australia, the Australian Competition and Consumer Commission has been granted leave to appear in a number of cases including Kabushiki Kaisha Sony Computer Entertainment v Stevens [2001] FCA 1379 as amicus curiae at the final hearing. The involvement of lawyers and intellectual property academics such as Lawrence Lessig, particularly by amicus curiae representations in the US, raises the question of the extent to which lawyers in other jurisdictions should participate in the promotion of public awareness, law reform and the achievement of social justice or whether they should be merely passive observers of social change.

An alternative compensation system has been proposed by William Fisher177. Under the compulsory licensing proposal described in detail in Professor Fisher's book, "Technology, Law and the Future of Entertainment"178, ISPs and devices used to play music would be subject to a government tax. The funds would be distributed to musicians on the basis of the amount of use or transmissions of their music, tracked by using their registered file name. A scheme similar in principle to that described by Professor Fisher is an unrestricted noncommercial use levy to allow free file sharing proposed by Neil Weinstock Netanel.179 The advantages of such schemes can be found in the certainty of payment for artists and the elimination of piracy, which would no longer exist because music would be "free". The problems lie in the reliance on government agencies to collect and distribute funds and the international application of such taxes. They may work well in some countries. The general manager of the Australian Information Industries Association (AIIA), James McAdam was reported as finding the refund scheme attached to such a tax to be cumbersome and dangerous in that it could give the public the perception that copying is allowed.180

Education of the public concerning basic copyright concepts has also been embraced by the music companies as a possible solution. An example is the use of multimedia educational programs to teach the ethics of copyright to young students,181 although one can only speculate about the success of teaching abstract concepts at such a level. The reaction of a 14 year old to attempts at education perhaps best sums up the expectations and ethical attitudes of the digitally downloading class. When it was explained that it is illegal to upload and download unauthorised content, the student replied, "If it's illegal in America, host it in Uzbekistan."182

The Future

Perhaps like Vladimir and Estragon in "Waiting for Godot", we have lost our rights because "We got rid of them'183. We have discarded the freedom to copy music for personal use, the rights of fair use and the value in the public domain through the introduction of oppressive legislation.   The commercial contract has become more important than the moral obligation to provide for access to information. According to John Ralston Saul "...we've reached the stage when we actually can't differentiate properly between the social contract and the commercial contract".184

The control of music by an elite group, neither the artists nor creators, using technology and "legal muscle" for economic exploitation has turned home copying citizens into "pirates". The confusion between commercial piracy and non-commercial copying has intensified the hostility without providing solutions. Fair use and copyright users' expectations have not found sufficient expression in the digital amendments to copyright legislation. The much promised balance between the rights of copyright owners and copyright users has not been adequately maintained.

There is no panacea. The solution will be found in a multifaceted approach involving a recognition by governments of the cultural shift in user demands. The best solution to copyright crime and piracy in a society is the application of ethical principles to the formulation of business models and to the use of creative materials. The expansion of civil and criminal sanctions and procedures for discovery with limited judicial supervision can only inflame what is already a bitter and destructive battle.

This text is was delivered in conjunction with a powerpoint presentation to the Conference. To view the powerpoint presentation to the Conference, click here - Jennifer Farrell's Powerpoint - Ed.

NOTES

1 A paper delivered by Jennifer Farrell at The Greek Conference, Crete 23 - 29 May 2004.

2 John Perry Barlow, "The Economy of Ideas. Selling Wine without Bottles on the Global Net." see at www.eff.org/~barlow/Economyof Ideas.html.

3 the cultural bargain or the granting of a limited monopoly in exchange for access, inspiration and fair use.

4 P Drahos, J Braithwaite: Information Feudalism - Who Owns the Knowledge Economy? 2002 Earthscan Publications Ltd at p 21

5 The New Oxford Dictionary of English (1998) at p 1411

6 Homer:"The Illiad and the Odyssey" trans. Robert Fagles (1996) The Odyssey 3.81-83

7 fn 4

8 fn 4 at p 23

9 fn 5

10 Jefferys v Boosey 10 ER at 685

11 Donaldson v Becket (HL 1774) as reported in 17 Hansard, Parliamentary History of England 953, 995 (1813)

12 Act of 1709 (the 'Act of Anne') - preamble - "...the sole Right and Liberty of printing such Book and Books for the Term of one and twenty Year, to commence from the said tenth Day of April, and no longer; and that the Author of any Book or Books already compose, and not printed and published, or that shall hereafter be composed, and his Assignee or Assigns, shall have the sole Liberty of printing and reprinting such Book and Books for the Term of fourteen Years, to commence from the Day of the first publishing the same, and no longer..."

13 fn 12

14 4 Burr 2303; 98 ER 201 at 252 - 253

15 4 HLC 815; 10 ER 681

16 fn 15; Lord Chief Baron Pollock at 935-36

17 fn 15

18 The public domain is a term that refers to "a space where intellectual property protection does not apply". Works fall into the public domain when copyright expires. It is seen as a source inspiration for future generations. Papers, articles and speeches on the public domain can be found at www.centerpd.org/public_domain.htm.

19 the principle that copyrighted works can be used without permission for news reporting, research, teaching or criticism without interfering with the owner's market for the work.

20 fn 4 at p 26

21 J R Saul, On Equilibrium 2001 at p 281

22 fn 4 at p 219

23 peer-to-peer software enables users to access "a type of network in which each workstation has equivalent capabilities and responsibilities. This differs from client/server architectures, in which some computers are dedicated to serving the others." - www.webopedia.com.

24 13 March 2003, testimony by Jack Valenti to the House of Representative SubCommittee on Court, the Internet and Intellectual Property see at www.webopedia.com.

25 see at www.ifpi.org.

26 USA Today, September 19, 2003 at p 14A

27 see at www.ifpi.org.

28 fn 27

29 fn 27

30 Jessica Litman, "Digital Copyright" Ch 2 The Art of Making Copy Laws" at p 8 see www.msen.com/~litman/digital-copyright/ch2.html.

31 Statistics compiled by Ashley Dowdel, see at www.immrfia.com.au.

32 AustralianIT 18 March 2004, "Parents learn piracy from kids."

33 The Australian, "IT Alive" October 28, 2003 at p 6

34 fn 26 at C1

35 see at www.publicknowledge.org a public interest advocacy and educational organization which promotes balance and the "cultural bargain" in intellectual property.

36 a popular peer-to-peer software company that is currently being sued for contributory copyright infringement in the US and Australia, see at www.kazaa.com

37 see www.washingtonpost.com, 19 November 2003 "Kazaa Launches Legitimacy Campaign."

38 eXpress Vol 7 Issue 3 at p 011. (Journal of the Sydney University Postgraduate Representative) Association. Usyd - University of Sydney.

39 fn 37

40 a reference to Sony Music Entertainment, Universal Music and EMI involved in a Federal Court case with the University of Sydney, University of Melbourne and the University of Tasmania

41 fn 38 at 011

42 www.law.harvard.edu/faculty/tfisher/music/Napster.html.

43 see www.eff.org Breaking News "RIAA Hires Head of ATF for Piracy Enforcement" December 10, 2003.

44 fn 43

45 Courtney Love, "Courtney Love does the math", article by this controversial singer at www.salon.com/tech/feature/2000/06/14/love.

46 Janis Ian, singer songwriter, "A freedom that works: The upside of download" at www.opendemocracy.net or at her web site http://janisian.com which features free downloads.

47 John Seabrook, "The Money Note. Can the record business survive?" The New Yorker, 7 July 2003 at p 42

48 Steve Albini, the influential indie (independent label) rock recording engineer known as a member of Big Black and Rapeman and Shellac, "The Problem With Music", see at www.negativland.com/albini.

49 "Major Label Contract Clause Critique", 3 October 2001 at www.futureofmusic.org.

50 New York Times 19 September 2003 at p C2

51 Pablo Soto, developer of the P2P site Blubster, in The Australian, October 7 2003 at p 31

52 Prof. Lawrence Lessig "Lessig on Markets and Culture" cyber.law.harvard.eud/home/home,

at p 2

53 Jessica Litman, "War stories" see at www.law.wayne.edu/litman.

54 fn 53 etc at p 15

55 the Internet Society All About The Internet: History of the Internet , see www.isoc.org/internet/history.

56 Transmission Control Protocol/Internet Protocol which was adopted as the host protocol for ARPANET in January 1983.

57 The responsibility for evolving the various protocols and standards associated with the Web has been taken on by the World Wide Web Consortium (W3C) at www.w3.org.

58 see at www.eff/org/~barlow/Declaration-Final.html.

59 L Lessig: The Future of Ideas at page 123

60 another example of a compression format for music distribution is RealAudio; see at www.realaudio.com. Compression formats are also used to compress text files

61 "A song which is 3-minutes in length will take up about 32 million bytes of space on a CD. Over a 56 kbit modem, it would take almost 2 hours to download one song...MP3, for example, allows a 32 megabyte song to be compressed down to about 3 megabytes of sound."

62 e2epi.internet2.edu/projects_list.html.

63 www.intel.com/cure.

64 /www.educommons.org

65 pcito.weblogger.com

66 oceanstore.cs.berkeley.edu/info/overview.html

67 www.sun.com/software/jtxa/

68 see MGM v Grokster at www.eff.org.

69 www.eff.org.

American Civil Liberties submission at page 4

70 fn 68 at p 11

71 fn 68 at p 5. Project Gutenberg was founded in 1971 by Michael S Hart to make books and materials available on computers in a reader friendly form free of charge. See www.gutenberg.com.

72 BigChampagne Is Watching You, Wired Magazine, Issue 11.10, Oct 2003; www.wired.com/wired/archive/11.10/fileshare.html

73 www.eff.org. ACLU submission at p 14

74 fn 68 at p 14

75 fn 68 at 15. These are documents which record 1989 meetings following the Tiananmen Square protest and massacre on June 4 1989..

76 Justice Graham Hill commenting on former capital gains tax provisions in Federal Commissioner of Taxation v Cooling 90 ATC 4472 at 4488

77 www.nytimes.com/2002/11/26/arts/26CENS.html.

78 a more complete list can be found at www.copyright.gov/legislation/

79 Comments by the Digital Future Coalition in October 2000 see at www.dfc.org

80 DMCA s 1201(a)(1)

81 111F.supp.2d 294 (S.D.N.Y.)

82 introduced by the Copyright Amendment (Digital Agenda) Act (Cth) 2000

83 see Digital Agenda Review, terms of reference and submissions see at www.ag.gov.au

84 fn 83, Screenrights submission

85 fn 83, CAL Digital Agenda Amendments Report

86 fn 83, Viscopy Ltd Submission to the Digital Agenda Review 30 September 2003

87 fn, 83

88 fn, 83, MPA submission p 6

89 fn 83, Interactive Entertainment Association of Australia p 2

90 fn 83, AFIC submission p 8

91 fn 89

92 fn 83, APRA/AMCOS p 2

93 fn 83, APRA/AMCOS submission p 1

94 fn 83, APRA/AMCOS p 9

95 fn 83, Deacons submission p 2

96 fn 83, Australian Consumers' Association submission p 1

97 Siva Vaidhyanathan, Copyrights and Copywrongs (2001) p 152-153

98 The Electronic Frontier Foundation (www.eff.org) was founded in 1990 as a non-profit public interest organization dedicated to the protection of civil liberties and free expression in the digital world. It represents the interests of Internet users in court cases, participates in public debates, publishes information concerning digital civil liberties on its web site. It has participated in all the leading cases involved with the interpretation of the anti-circumvention provisions of the DMCA.

99"Unintended Consequences: Five Years under the DMCA" see at www.eff.org, at p 7

100 In Universal City Studios v Reimerdes111 F.Supp 2d.294 (SDNY 2000), AFF'D 273 f.3D 429 (2D Cir.2001) a suit was brought against 2600 Magazine to prevent it from publishing the DeCss software program which defeats the encryption used on DVD movies: Professor Edward Felten and a team of researchers accepted the challenge of the Secure Digital Music Initiative to defeat watermarking technology used to protect digital music. When the team prepared to present their finding at an academic conference they were threatened with action under the DMCA; Russian programmer, Dimitry Sklyarov, was detained and jailed in the US after he spoke at a conference because he had worked on a program of his employer, ElcomSoft that could remove restrictions on e-Books.

101"MIT Names Student As Alleged Infringer", The Tech, 9 Sept, 2003 see at www.tech.mit.edu MIT released the name of a Romanian student and other information, despite the facts which showed that the student couldn't not have infringed the DMCA.

102 fn 83, EFF report at p 8

103 fn 102. Since July 2003 the RIAA has issued more than 1600 subpoenas and in September 2003 filed lawsuits against 261 individuals, including young children.

104 The Weekend Australian, "The Trade Deal: What It All Means" February 14-15 2004, at p 22

105 In 2001, the total US copyright industries' accounted for 5.24 per cent of US GDP (larger than that of any non-copyright manufacturing industry) ...the estimated revenues generated by foreign sales of selected US core copyright industries was US$ 88.97 billion.

106 see at cyber.law.harvard.edu/media/itunes.

107 see at cyber.law.harvard.edu/home.

108Jessica Litman, "War Stories" Cardozo Arts & Entertainment Law Journal (2002)

109 this occurs where the user records a program to watch it later and usually to erase and rerecord another program on the same tape.

110 where the user records a program for repeated viewing.

111 Sony Corp. v Universal City Studios, Inc., 464 U.S. 417 (1984)

112 CBS Songs v Amstrad (1988) RPC 567

113 Recording Industry of America v Napster (2000)

114 Napster 114 F. Supp.2d at 926

115 Napster 114 F.Supp.2d at 911

116 fn 113 at 26

117 fn 113 at 31

118 fn 113 at 24

119 In re: Aimster Copyright Litigation, Docket No.02-4125 (7th Circuit June 30, 2003)

120 USA Today, September 19, 2003 at page 14A

121 The Globe and Mail, "Music industry hails $2,000 win over child" - www.globeandmail.com/servlet/story/RTGAM.20030909.udede0910.

122 Metro-Goldwyn-Mayer Studios, Inc v Grokster, 259 F. Supp.2d 1029 (C.D. Cal. 2003)

123 submissions and amici curiae brief available at www.eff.org.

124 Sony 464 US at 440

125 Alex Veiga, "RIAA sues 532 over swapping" AustralianIT March 24, 2004.

126 [2003] FCAFC 157

127 s 10 "technological protection measure: means a device or product, or a component incorporated into a process, that is designed, in the ordinary course of its operation to prevent or inhibit the infringement of copyright in a work or other subject matter or exclusive licensee of the copyright."

128 s 10:"circumvention device: means a device (including a computer program) having only limited commercially significant purpose or use, or no such purpose or use, other than the circumvention or facilitating the circumvention, of a technological protection measure."

129 6 February 2004 The Sydney Morning Herald, Weekend Edition 7-8 February p 3

130 These are investigators who are involved in the "preservation, identification, extraction, documentation and interpretation of computer data." Monitor p 20 June 2003

131 www.kazaa.com.

132 fn 132 at p 3

133 Universal Music Australia Pty Ltd v Sharman License Holding Ltd [2004] FCA 183 at [82].

134 see fn 134 at para [82]

135 The Australian IT Today March 9 2004 at p 34

136 www.kazaa.com/revolution/revolution.htm.

137 fn 136

138 Audiogalaxy; www.audiogalaxy.com; AudioGnome: www.audiognome.com Bearshare: www.bearshare.com (which offers free promotion to indie artists) Blubster: www.blubster.com; eDonkey2000: www.edonkey2000.com; FileNavigator: www.filenavigator.com; Grokster: www.grokster.com; iMesh: www.imesh.com (this site emphases the availability of different languages); Limewire: www.limewire.com (advertised as faster than Kazaa); Morpheus: www.morpheus.com; Rapigator: www.goldenshareware.com; WinMX: www.winmix.com; Overnet: www.overnet.com; Qtraxmax: www.qtrax.com (which has a notice that "In support of recording artists, Qtrax has voluntarily suspended access to its product until the release of a new generation of music download software which will distribute royalties to the artist.")

139 Martin Luther King, "Letter from Birmingham Jail" see almaz.com/cpbe;/peace/MLK-jail.html.

140 fn 140

141 www.djdangermouse.com. Danger Mouse, born Brian Burton, features information on the making of the Grey Album on his site as well as free downloads.

142 Interview with Danger Mouse at www.eonline.com/News/Items/0,1,13563,00.html?tnews.

143 Under s 512F of the Digital Millennium Copyright Act EMI's lawyers, Cowan, Liebowitz & Latman sent about 150 emails threatening anyone who did not "cease and desist from the actual or intended distribution, reproduction, public performance or other exploitation of The Grey Album and any other unauthorized uses of the Capitol Recordings or any other sound recordings owned and/or controlled by Capitol; identify the names and addresses of any third parties who have supplied you with physical or digital copies of The Grey Album or who are otherwise involved in The Grey Album's unauthorized distribution, reproduction, public performance, or other exploitation; Provide Capitol with an accounting of all units of The Grey Album that have been distributed via your website, either physically or digitally, and of instances of public performance of The Grey Album rendered via your website; and Preserve any and all documents and records relating to this matter, including but not limited to electronic data and other information which may be relevant/discoverable in the event of litigation."

144 some of the sites that hosted the album included: www.abunai.com/greyalbum; www.lyricalwar.com; www.kingcanyon.org. Other sites that turned grey on 24 February included; www.academixrecords.com; www.belitamusicmedium.com; www.skratchlab.com; www.eff.org; www.blogography.com; and, www.govtechnews.com.

145 EMI controls all Beatles sound recordings for Capitol Records.

146 www.downhillbattle.org - "Downhill Battle's response to EMI"

147 fn 146

148 Danger Mouse Responds to Controversial 'Grey Tuesday'; see also at www.waxploitation.com/html/news_greytuesday.html.

149 www.StopRIAAlawsuits.com.

150 www.321studios.com.

151"321 Studios calls For 'Five Days of Protest'" see file at www.protectfairuse.org/pres_rel_5days_02-01-04.html.

152Dr Martin Luther King Jr's, "Letter from Birmingham Jail" (16 April, 1963) advocated breaking unjust laws that are "out of harmony with the moral law."

153 Henry David Thoreau, "Civil Disobedience", (1849) in which he argued for an individual antislavery tax boycott and disobedience to the Mexican War. He was jailed in 1846, although stated "Under a government which imprisons unjustly, the true place for a just man is also a prison."

154 Peter Singer, "Practical Ethics", 2nd ed.1999 at p 302.

155 fn 155 at p 292

156 The argument recorded by Plato in the Crito which takes place when Socrates was in prison awaiting his death sentence. Socrates rejects Crito's plan to escape from prison to seek refuge in Tessaly.

157 The AustralianIT IT Alive 23 March 2004 at p 3

158 www.apple.com/itunes.

159 The five main music companies, Bertelsmann, EMI, Sony, Universal and Warner had signed an agreement with Apple

160 Time, September 22, 2003 at p 45

161 Time, September 22, 2003

162 The Sydney Morning Herald, Weekend Edition Nov 22 - 23 2003 News Review at p 29

163 Letter to The Times, Los Angeles Times September 13, 2003 at p B26

164 www.listen.com; http://www.mp3.com; www.telstra.com; www.musicnet.com;. www.buy.com.

165 The Australian, IT Alive October 28, 2003

166Mark Hollands "Software piracy fight becomes a battlefield" The Australian, IT Today August 5, 2003 at p 31

167 "France rules anti-copy CDs faulty" AustralianIT 4 September 2004.

168 see at www.livephish.com.

169 see at www.siliconvalley.com "Hatch takes Aim at Illegal Downloading" 17 June 2003?

170 "The Free Music Philosophy" at www.ram.org/ramblings/philosophy/fmp.html.

171 see at www.gnu.org/copyleft/copyleft.html.

172 "George Michael shuns music industry" see at http://news.bbc.co.uk

173 Lawrence Lessig has recently released his book "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity" under such a licence.

174 William M Landes and Richard A Posner: "Indefinitely Renewable Copyright" U.Chicago Law & Economics. Olin Working Paper No 154.

175 www.eldritchpress.org.

176 (01-618) 239 F.3d 372

177 William Fisher III, Professor of Intellectual Property Law, Harvard Law School; Faculty Director and Faculty Director, The Berkman Center for Internet & Society.

178 a forthcoming publication in 2004 by Stanford University Press.

179Neil Weinstock Netanel, "Impose a Noncommercial Use Levy to allow Free Peer-to-Peer File Sharing." At www.utexas.edu/law/faculty/nnetanel/cv.htm#publist or Harvard Journal of Law & Technology Volume 17, Number 1 Fall 2003.

180 fn 83

181 Alison Stuebe, "The Struggle to Teach Virtual Ethics" - a discussion of "Chip and Friends", "Don't Copy that Floppy", the Kickstart initiative and other programs for teaching online copyright ethics at mbhs.bergtraum.k12.ny.us/cybereng/nyt/mbhs-nyt.htm.

182 Ron Harris, "Hollywood preaches anti-piracy in schools", AustralianIT October 24, 2003.

183 Samuel Beckett: Waiting for Godot (1956 ed Grove Press Inc.) Act I at p 13.

184 John Ralston Saul, The National Institute of the Humanities, Showcase Lecture, at page 14 29 May 2002

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