Scuba Diving club, Southern
California
Blame Canada
|
|
|
|
By Jay
Currie |
|
A desperate American recording industry
is waging a fierce fight against digital copyright infringement seemingly
oblivious to the fact that, for practical purposes, it lost the digital music
sharing fight over five years ago. In Canada.
"On March 19, 1998, Part VIII of the (Canadian)
Copyright Act dealing with private copying came into force. Until that time,
copying any sound recording for almost any purpose infringed copyright,
although, in practice, the prohibition was largely unenforceable. The amendment
to the Act legalized copying of sound recordings of musical works onto audio
recording media for the private use of the person who makes the copy (referred
to as "private copying"). In addition, the amendment made provision
for the imposition of a levy on blank audio recording media to compensate
authors, performers and makers who own copyright in eligible sound recordings
being copied for private use."
-- Copyright Board of
Canada: Fact Sheet: Private Copying 1999-2000 Decision
The
Copyright Board of Canada administers the Copyright Act and sets the amount of
the levies on blank recording media and determines which media will have levies imposed. Five years ago this seemed like a pretty good deal for
the music industry: $0.77 CDN for a blank CD and .29 a blank tape, whether used for recording music or not. Found money for the music moguls who
had been pretty disturbed that some of their product was being burned onto CDs. To date over 70 million dollars has been collected through the levy and
there is a good possibility the levy will be raised and extended to MP3 players, flash memory cards and recordable DVDs sometime in 2003.
While
hardware vendors whine about the levy, consumers seem fairly indifferent. Why?
Arguably because the levy is fairly invisible - just another tax in an
overtaxed country. And because it makes copying music legal in Canada.
A year
before Shawn Fanning invented Napster, these amendments to Canada's Copyright
Act were passed with earnest lobbying from the music business. The amendments
were really about home taping. The rather cumbersome process of ripping a CD
and then burning a copy was included as afterthought to deal with this acme of
the digital revolution. The drafters and the music industry lobbyists never
imagined full-on P2P access.
As the RIAA
wages its increasingly desperate campaign of litigation in terrorum to
try to take down the largest American file sharers on the various P2P networks,
it seems to be utterly unaware of the radically different status of private
copying in Canada.
This is a
fatal oversight, because P2P networks are international. While the Digital
Millennium Copyright Act may make it illegal to share copyright material in
America, the Canadian Copyright Act expressly allows exactly the sort of
copying which is at the base of the P2P revolution.
In fact,
you could not have designed a law which more perfectly captures the peer to
peer process. "Private copying" is a term of art in the Act. In
Canada, if I own a CD and you borrow it and make a copy of it that is legal
private copying; however, if I make you a copy of that same CD and give it to
you that would be infringement. Odd, but ideal for protecting file sharers.
Every song
on my hard drive comes from a CD in my collection or from a CD in someone
else's collection which I have found on a P2P network. In either case I will
have made the copy and will claim safe harbor under the "private
copying" provision. If you find that song in my shared folder and make a
copy this will also be "private copying." I have not made you a copy,
rather you have downloaded the song yourself.
The premise
of the RIAA's litigation is to go after the "supernodes," the people
who have thousands, even tens of thousands of songs on their drives and whose
big bandwidth allows massive sharing. The music biz has had some success
bringing infringement claims under the DMCA. Critically, that success and the
success of the current campaign hinges on it being a violation of the law to
"share" music. At this point, in the United States, that is a legally
contested question and that contest may take several years to fully play out in
the Courts.
RIAA spokesperson
Amanda Collins seemed unaware of the situation in Canada. "Our goal is
deterrence. We are focused on uploaders in the US. Filing lawsuits against
individuals making files available in the US."
Which will
be a colossal waste of time because in Canada it is expressly legal to share
music. If the RIAA were to somehow succeed in shutting down every
"supernode" in America all this would do is transfer the traffic to
the millions of file sharers in Canada. And, as 50% of Canadians on the net
have broadband (as compared to 20% of Americans) Canadian file sharers are
likely to be able to meet the demand.
The Canada
Hole in the RIAA's strategic thinking is not likely to close. While Canadians
are not very keen about seeing the copyright levy extended to other media or
increased, there is not much political traction in the issue. There is no
political interest at all in revisiting the Copyright Act. Any lobbying attempt
by the RIAA to change the copyright rules in Canada would be met with a howl of
anger from nationalist Canadians who are not willing to further reduce Canada's
sovereignty. (These folks are still trying to get over NAFTA.)
Nor are
there any plausible technical fixes short of banning any connections from
American internet users to servers located in Canada.
As the
RIAA's "sue your customer" campaign begins to run into stiffening
opposition and serious procedural obstacles it may be time to think about a
"Plan B". A small levy on storage media, say a penny a megabyte,
would be more lucrative than trying to extract 60 million dollars from a music
obsessed, file sharing, thirteen year-old.
If American
consumers objected -- well, the music biz could always follow Southpark's lead
and burst into a chorus of "Blame Canada". Hey, we can take it?.We'll
even lend you Anne Murray.
Jay
Currie is a Vancouver writer whose writing and blog is at www.jaycurrie.com
(Home) (Boat Dives) (Buddy List) (Campouts) (Diving Links) (Dive Spots) (Diving Time Line) (Email) (Meetings) (Membership) (Recipes) (Safety and Education) (News Letters aka Snorkel Talk) (Non Sequitur) (Recipes) (Updates)
Posted August 21, 2003