A recent British Phonographic Industry press release would have you believe the music industry is in freefall decline with spending on albums down by 32% and singles down by 59% over the previous year. The blame is laid squarely at the door of illegal file sharers and the networks or Web sites which facilitate them.
The film industry, having the benefit of perceived wisdom from the music industry’s experience, has been wise enough to utilise a new recording media (ie the DVD – Digital Versatile Disc) and, from the outset, has incorporated anti-copying techniques. The resulting development of the Content Scramble System (“CSS”) must be one of the media industry’s greatest collaborative success stories. The CSS will prevent unlawful copying of video DVDs but permit the lawful user of such DVD unimpeded playback of its content. Not surprisingly, such software encryption and decryption processes necessitate collaboration between all interested parties including the film and broadcast distributors, the consumer electronics industry and the computer industry.
The need for such a high level of collaboration has meant that most music on CD is not encrypted. CD players currently owned by many consumers would not play if the record companies started encrypting music files. There is an initiative to launch the SDMI (Secure Digital Music Initiative), but implementation seems far off given that consumers would have to purchase new SDMI compatible CD players. The failure to provide for secure distribution from the outset has led to widespread abuse of the opportunity to make perfect copies (or copies from copies) via digital replication. Whilst this has traditionally taken the form of unlawful copying and distribution of hard copies of original CDs, it is the widespread use of compression technologies such as MP-3 which has facilitated the growing trend of sharing CD software (including music files) over the Internet. The record companies recognise that advances in compression technology mean it will become increasingly more convenient to transmit audio (and video) over the Internet and that there are any number of intermediaries, such as Kazaa and Grokster, willing to test the legal boundaries of file sharing. The lack of encryption on CDs only exacerbates this difficulty, leaving control to copyright law and the legal prohibitions on copying. There is much disquiet and debate surrounding the recent decision of the European Commission to endorse the Intellectual Property Rights Enforcement Directive in its quest to assist intellectual property rights holders in their fight against counterfeiting and piracy. However, the news can only be welcome to the BPI which claims that the British music industry could become obsolete within a decade if the “anarchistic free-for-all” is allowed to continue.
WIPO have given much thought to the ethics and limitations of both technical and legislative prevention measures. WIPO accepts that there will be those who are prepared to act outside the law (for which sanctions under national law can include fines, damages, injunctions and even imprisonment) but that measures can be set in place “to keep honest people honest”. WIPO also accepts that technological protection measures (eg encryption or flag setting) cannot prevent unscrupulous parties from reverse engineering or creating “work-arounds”. Indeed, the very existence of protective devices may entice some programmers to work on a problem in which they previously had little or no interest. After all, anything for a challenge.
It can therefore be of little surprise to learn that decryption software for the CSS, aptly named “DeCSS”, has been devised and, for some time now, has been available on the Internet. The Norwegian Jon Johansen has been largely accredited with authoring (or at least part authoring) DeCSS, though there will be several other “hackers” who also take great pride in their contribution to DeCSS and its widespread availability.
The CSS was originally devised by Matsushita Electronic Industrial Co., Ltd and Toshiba Corporation but the licensing control and operation has now been turned over to the DVD Copy Control Administration (DVD CCA). Uniquely, authorised users of the CSS have been granted a royalty free licence (subject only to administration charges). The DVD CCA has direct rights to enforce use or misuse of CSS as licensor but individual licensees of the CSS have also been given rights to enforce as “third party beneficiaries” – providing a right to equitable relief including injunctive relief. The DVD CCA have not shown themselves to be reluctant to proceed against those jeopardising the effectiveness of the CSS. However, it has not always been successful in its actions against the authors or Web site publishers of DeCSS software. Most recently, the California Supreme Court has ruled that Web site publication of DeCSS did not in itself substantiate an injunction unless it could be justified under trade secrets law. Since there was evidence that both the CSS and DeCSS had been widely published prior to the particular Web site publication, any injunction restricting the Web site sponsor from doing so would be an infringement of his freedom of speech, a First Amendment right for citizens of the
These circumstances and the decisions of the various courts bring up some interesting questions. Software patents in the
There are competition issues in question here too. Whilst the media industry argues strongly that the practical and legislative measures are required in order to protect their dwindling profits, a slightly sceptical view might be that the industry has collaborated in an attempt to control competition. There already exists (lawfully as things stand) regional playback controls meaning that a DVD bought in one territory may not be used on playback hardware bought from another territory (though the DVD manufacturers and distributors argue a practical case for this) but the fact remains that there are some media giants out there able to impose considerable control over the distribution of their products. There are some inroads and attempts to limit the competition stranglehold. Notoriously, Microsoft Corporation has recently been found by the European Commission to be in breach of Article 82 of the EC Treaty by abusing its dominant position in respect of its Windows Media Player.
The widespread availability of Broadband and projected improvements in processing speed and software compression devices will mean that file swapping via the Internet and other networks will continue to gather pace. The combined music, film and media industry must at some point acknowledge that teenagers are the most prolific of file sharers, and of course, the next buying generation. Some artists have publicly stated that they have no objection to their tracks being exchanged over the Internet and it could be argued that in the future this will be one of the most effective promotion means. Indeed many bands or artists on the brink of fame are delighted to have their tracks posted on the Internet and exchanged freely.
The music, film and media industry is wise to this but has yet to settle on means to profitably exploit the situation but will likely have to endure the prevalence of file sharing (whether lawful or unlawful) over the Internet. The film industry must steel itself for a fight to prevent unlawful file sharing – to some this is a crusade for freedom against the might of the media moguls – for others it is just a means to cheap (or free) films.
Gary Fotios is a Solicitor in the National Intellectual Property, Technology & Media Group of Laytons Solicitors (www.laytons.com)
