It seems everyone’s listening to that new Outkast hit, “Hey Ya,” rocking out to Andre 3000’s twangy bop-infused beats and shakin’ it like a Polaroid picture. It’s a hit, a very palpable hit, and I’d like to shake it myself on my very own stereo.
That’s why I stole it.
It was purely in the interest of research, naturally. The fight over the future of digital music, we’re told, is a duel to the death between the music pirates who swap MP3 files over networks such as Kazaa and Grokster and the established record companies and artists who produce that music in the first place-and that duel is taking place inside your computer, and mine, right now. A little experimental sparring seemed in order.
In one corner, the grey-market file-sharing software Morpheus, and in the other, Puretracks, the only Canadian digital music service, which charges a small per-song fee. Morpheus will search thousands of computers and copy my chosen MP3, “Hey Ya,” from someone on the network for free; Puretracks will sell it to me and guarantee that the download is fast, legal, and that Outkast will get their royalty. “Hey Ya” is a popular song, so Morpheus found more than 1,700 people sharing the file-the song downloaded and was playing on my computer in under two minutes. At Puretracks.com, I got my credit card ready, paid $1.39-plus 10¢ GST-and downloaded the track, again in under two minutes. Two services, both offering the same product, at about the same level of convenience. One cost me $1.49, the other cost me-what? Guilt? Karma?
“Anyone who is going on to a peer-to-peer site…should bear in mind that they face potential real legal consequences and, depending on what they’re doing online, potentially criminal consequences as well,” says Richard Pfohl, who is General Counsel for the Canadian Recording Industry Association (CRIA). CRIA is the Canadian equivalent of the Recording Industry Association of America (RIAA), which made headlines last year by suing individuals who used file-sharing software, including a 14 year-old girl and a 75 year-old grandfather.
The cases made headlines in Canada too, including a screamer on the front page of the National Post on Dec. 13, 2003 that read “Music Sharers to Face Lawsuits,” which predicted that Canadians who use peer-to-peer (P2P) programs could find themselves in court as early as spring 2004.
But don’t call your lawyer just yet. Canadian law is different from American law in subtle but important ways.
First is the loophole in Canadian copyright law that allows for people to make copies of music for “personal use,” something which the Copyright Board of Canada reaffirmed in December. Second, in Canada, blank CDs, tapes, and MP3 players are subject to the Private Copying Tariff, a tax that goes into a fund to compensate musicians whose work is copied. If you buy a recordable CD, 21¢ of the cost goes into the fund, which is administered by the Canadian Private Copying Collective.
These two factors make the lawa little less cut-and-dried when it comes to digital piracy in Canada. In December, the Copyright Board ruled that the private-copying loophole might, in fact, cover file-sharing.
“There is no requirement in Part VIII [of the Copyright Act] that the source copy be a non-infringing copy,” they wrote. “Hence it is not relevant whether the source of the track is a pre-owned recording, a borrowed CD, or a track downloaded from the Internet.” In other words, offering the MP3 of your favourite song on Kazaa is definitely illegal, because it’s not a copy made for your private use; but downloading that same song from someone else for your own private listening, may be legal, or more accurately, not quite illegal.
Pfohl doesn’t see it that way.
“The decision clearly states hat distributing or trading files is illegal,” he says. “That’s clearly stated by the Copyright Board. Furthermore, the Copyright Board acknowledges that this is an issue for the Canadian courts, and I’m certain that Canadian courts will come to the same conclusion.”
But Canadian courts won’t get to reach any conclusion until CRIA puts its money where its mouth is and sues a file-sharer. The organization has been vague about when that might happen.
“We don’t need a hard, legal decision to know that jaywalking is illegal,” says Pfohl. “It’s illegal. It says clearly in the statutes. Similarly, the statute clearly says that the sole people who have the right to make reproductions of music are the people who own that music or have properly purchased it or have purchased the licence to make those reproductions. So I don’t think that any [further] clarity in the law is necessary. I think the law is clear today, and we’ve been saying that all along.”
In the meantime, CRIA has been running advertising campaigns, putting thank-you notes in the CDs (“for people who still go to stores and buy music that way,” Pfohl notes dryly) and sending messages out over the file-sharing networks, to let people know that what they’re doing is illegal.
A big part of that educational campaign is KeepMusicComing.com, a Web site run by CRIA that features interviews with musicians on the importance of copyright, airs public service announcements, and lists legitimate ways to buy digital music in Canada. It also features a bulletin board where anyone can post their thoughts on the matter. A quick read through these messages gives a microcosmic view of the ideological battle being waged over the future of music, technology and copyright: One user who goes by the name Jah writes “Stealing music is stealing music, regardless if it’s on CD, cassette, or digital. Bottom line: If you haven’t paid for the right to own it, you are stealing.” But Jah seems to be in the minority. Most messages are like this one, from Al at the University of Guelph, presented with incorrect spelling and grammar intact: “I would like everyone to know, that I dont steal music, I only download it. If I couldnt download it, I wouldnt buy it….How can i steal something that i cannot touch, or see? I am strongly against stealing music though, so please, dont rip off companies by swiping cd’s from stores, thats wrong.”
Tension is high on the site; one user named Jamie is a frequent poster against file-sharing and, because of it, just as often a target of abuse from others. “jamie,” wrote an anonymous user in December, with a sentiment and style that frequently shows up on the message board, “you lick so much di*ck, you are a stupid little bitch who has no penis you fagget”
University students have been early adopters of file-sharing and digital music from the beginning, when Shawn Fanning, a university dropout in Boston, released the legendary Napster software. University networks-higher speed, bigger bandwidth than most Internet users had at the time-quickly became centres of music swapping, and just as quickly bogged down under the weight of all that traffic. Napster was sued out of existence in 2000, but along came Kazaa, Morpheus, Grokster, winMX, Limewire, BearShare-the list got longer and the names got cuter.
“Our industry has faced losses of $425 million since 1999,” says Pfohl. “Those are devastating losses. Across Canada they’ve laid off 20 per cent of their employees.” Punishing the music industry for its perceived corruption is a frequent justification for music sharers, and seems to bring out a sadistic streak in some.
“yeah yeah bitches!! I love everyone out there that downloads music. Keep up the good work, keep on fighting the greedy corporations that steal from us and try to manipulate us. Fight the power!!” wrote “downloader4life” on the Keep Music Coming message board.
“I frankly think that those sort of remarks are disingenuous,” responds Pfohl. “The idea that someone is spending hours and hours online downloading music because they think there’s something wrong with the way that music is made just doesn’t make sense to me. Perhaps there’ll always be a sentiment to ‘stick it to the man'” It’s not an ideology, he says, just theft.
Jeffrey Shallit isn’t so sure.
“An older group of people view it as a criminal act, and younger people don’t,” says Shallit, vice-president of Electronic Frontier Canada (EFC) and a professor at the University of Waterloo. “The people who are making money off copyright right now are grey-haired eminences.” Shallit believes that the change may run deeper, that there are larger generational forces at work.
“It’s not like copyright is a god-given prohibition on people’s ability to act,” he says. “Copyright…is completely artificial. He believes that the old system of music distribution is on its last legs, and that the future is still unclear.
“It’s certainly the most insane process in the world. You record something in the studio, then send it to a factory to be stamped onto plastic discs, shipped by truck to the store, then you have to get in your car and drive to the store and bring it home. It’s a crazy way to distribute things.” Apple iTunes or Puretracks, that allow people to download single tracks for 99¢, may be part of the picture, he says, but it will also include touring, voluntary payments, and levies on blank media.
File-sharing has been reduced on the U of T network by restricting the amount students on the residence networks can download and upload, and U of T is meeting with CRIA to discuss education campaigns and promotions. But for now, file-sharing is a fact of life for most university students, whether it’s legal or not. But everyone seems to know there’s a change coming-and it could come in the form of a lawsuit.
“I don’t know what’s going to happen in the shakeout,” says Shallit. “If copyright were destroyed tomorrow, there could be five or ten artists with a devoted following to support them enough. I don’t know. On the other hand there could be thousands.”
“I don’t’ have that crystal ball.”
