At the Grammy awards the other week, an unusual note was struck by Michael Greene, a record industry bigwig. The only real point of interest at most award ceremonies is the frocks (and sometimes, admittedly, the hair), so it was a break with tradition when Greene and his tuxedo launched into the subject of Internet piracy. ‘No question the most insidious virus in our midst is the illegal downloading of music on the Net,’ he said, firmly putting HIV in its place. ‘This illegal file-sharing and ripping of music files is pervasive, out of control and oh so criminal.’ He went on to reveal that a backstage mini-sweatshop of three college students had spent the last two days downloading music files. ‘Please say hello to Numair, Stephanie and Ed.’ In their two days the industrious trio had downloaded six thousand songs. ‘The RIAA [Recording Industry Association of America] estimates that – now listen to this – an astounding 3.6 billion songs are illegally downloaded every month.’

It is tempting to say: hee hee. For one thing, entertainment-industry types routinely enjoy horrifying their audiences with tales of the devastation being brought by advances in copying technology. Jack Valenti, the impressively lifelike head of the Motion Picture Association of America – one-time former fixer in the LBJ White House, recently chair of the Hollywood summit to discuss ways of supporting the war against terrorism – curdled our blood twenty years ago with similar threats. ‘The growing and dangerous intrusion of this new technology is to the American film producer and the American public as the Boston Strangler is to the woman alone.’ That was Valenti telling Congress about Satan’s then-recent breakthrough, the videocassette recorder. It was lucky for the American film industry that no one listened to Valenti, since video rentals now account for 46.6 per cent of Hollywood studios’ income; the box-office brings in 24.6 per cent. Without the VCR, the studios would be toast – and they went to the Supreme Court to prevent the VCR from happening. That’s how good industry types are at predicting the impact of new technology.

The other reason for giving it some hee-hee is that the music industry – a de facto cartel, with five firms owning over 80 per cent of the market – did most of the damage to itself. The greatest self-inflicted wound came, as such things often do, in the form of a huge opportunity: the compact disc. The new medium was, from the cartel’s point of view, superbly expensive. At first this was because the technology was new and tricky; later, it was simply because they could get away with charging high prices. Blank CDs themselves are now more or less free; the act of copying them is more or less free (I have a machine to copy CDs in the very computer on which I’m typing these words, and could knock you up a copy of the Shorter John Cage, gratis, in a matter of minutes); but recorded CDs are still expensive. The expense is, from the point of view of the record companies, pure profit. So the cartel loves CDs – why wouldn’t they? The high price of CDs kept sales a lot lower than they would have been if they had been prepared to pile ‘em high and sell ‘em cheap, but the record companies saw no need to do that. They preferred to stick to the high-margin, low-sales model into which they had been lured by the CD format. They were reluctant to move from this model in the same way, and for the same reason, a python is reluctant to move when it has swallowed a goat.

The cartel was slow to respond when the Internet loomed over its horizon. In the first instance, the threat was presented by a website called Napster, the creation of a 19-year-old college drop-out called Shawn Fanning. (‘Napster’ was his high-school nickname.) The shaven-headed, deceptively imbecilic-looking Fanning devised software which let people swap music over the Internet. The way it worked was this: you put your CDs into your computer, and ‘rip’ them into digital files of a type called MP3, which the computer then stores. The legal, above board use for your MP3 files is that you then either play them on your own computer, or download them onto a portable MP3 player which you lug about with you as a Walkman. (As it happens, the MP3 player on my computer is playing Verdi’s Falstaff, in the not-all-that-great John Eliot Gardiner original instruments version, as I type. So there.)

Fanning, however, came up with a twist on this. Once you had ripped the files, you could then go online to Napster and see if anyone else had any MP3 files you wanted to download to your own computer. By going online to Napster you also made your own files available for anyone else to use; it was a case of you-download-mine, I’ll-download-yours. What this boiled down to was free music. You could log onto Napster and find anything you wanted. Not just the narrow, marketing-led catalogues of the big five, but any music from anywhere; it was a universal online library of music. Since a good proportion of Napster users had a particular interest in out-of-the-way music, it was a treasure trove of oddities, rarities and general good stuff. (A bobcat friend of mine practically had to be hospitalised with overexcitement after logging onto Napster for the first time.) Then you could copy your fancy to your own computer and do whatever the hell you liked: play it back, download it to an MP3 player, or – since new computers increasingly had drives which could record, or ‘burn’, their own CDs – you could turn it into a CD. The music industry’s high-margin, low-sales miracle product had just turned into a no-margin, no-sales profit abyss.

When the industry finally woke up to the threat presented by Napster, they went to court to have it closed down. That happened last year. At the moment, another lawsuit is taking place, as Napster tries to reopen as a legal, fee-paying business. A baroque twist is provided by the fact that Bertelsmann, one of the Big Five cartel, now owns Napster. But it is the Big Five who are suing Napster. So Bertelsmann are effectively suing themselves. A similar thing is happening in the TV industry, where the big US networks are suing a company called SONICblue, which they partly own. Although the media companies harrumph about the dangers of the new technology, they are all well aware of the lesson of the video, and the immense potential profitability of the new digital forms of distribution.

The story of the music industry’s troubles does not end with Napster, however. The courts were able to close Napster down because it had a central server. The list of files that were available to be shared was held on Napster’s computer; the way the software worked was that you contacted Napster, who then put you in touch with the person who had the music you wanted. But the newer competitors of Napster do not have any central server. Instead, they rely on what is called Peer-to-Peer, or P2P, distribution. You contact the person you wish to get in touch with directly, via software which you have downloaded to your own computer. There is no centre, or rather, there are only centres; everyone logged onto the service is at the centre of the network. This makes the network unpoliceable, and extraordinarily difficult to shut down. This in turn is why Mr Greene at the RIAA is so grumpy. There are now legally sanctioned, cartel-approved sites from which fans can download music, but they are slow, inefficient, and you have to pay for them. The P2P sites are free. Guess which type of site is busier. So the RIAA is doing what comes naturally, and launching lawsuits against P2P sites such as Grokster and Morpheus. The legal basis of the RIAA’s suits may seem shaky, since what they are doing is suing for the closure of websites on the grounds that they distribute software which damages the interests of the music industry. When the video recorder case came before the Supreme Court, it ruled that the video was legal because it had ‘substantial potential for non-infringing use’. Potential is the key word here; it didn’t matter that the VCR could be used illegally, only that it had the potential for legal use. I fail to see how P2P software fails the same test – but then, the Supreme Court is a long way to the right of where it was when it made the ruling which permitted the VCR and in so doing saved Hollywood from its own control-freak stupidity.

More legal action is bound to come. The EU and the USA both now have draconian anti-piracy laws, which are going to be all the more energetically enforced because the P2P software that enables people to swap music files now also lets them exchange video, TV programmes and software. Earlier this year police all over Europe made a series of arrests on a group called Drink or Die, who are now facing criminal charges and extensive sentences over their dealings in ‘warez’ – as these online goodies are known. Paralleling this practical, on-the-ground work, the big media conglomerates have also been lobbying to tighten and extend the laws on copyright. In the USA, these measures include a provision to extend the term of copyright to 70 years after the death of a work’s creator. This would bring the USA into step with the EU, which ‘harmonised’ its copyright period in 1995. The UK was one of the countries which had to extend its copyright term, from 50 to 70 posthumous years, as part of the process of ‘harmonisation’. The procedure happened rapidly, and with almost no public debate. Incidentally, the reason European copyrights tended to be longer was because many authors and their estates lost all revenue during the Third Reich – it was a ‘copyright holiday’. I have to say, that is my absolute favourite euphemism for the Nazi period. I like to think of the Wehrmacht marching into the Sudetenland singing: ‘We’re all going on a copyright holiday/We’re all gonna burn a book or two . . .’

As it happens, I saw some of the effects of this ‘harmonisation’ at close hand. On 1 January 1992, the work of James Joyce and Virginia Woolf, both of whom died in 1941, came out of copyright. I was working at Penguin at the time, and my colleagues had commissioned Penguin Twentieth-Century Classics editions of both writers, with a feminist twist to the Woolf editions and an Irish twist to the Joyce ones. The editions were a big hit, notwithstanding that they were competing with, I think I’m right in remembering, five other new Woolfs and Joyces. In the case of the only book for which Penguin already held a licence, Ulysses, sales went up by about 30 per cent. The overall sales of both writers must have gone up considerably; by at least half, and perhaps in the case of some books to double what they were selling before. I remember thinking that this abrupt increase in sales was a fortunate event for a long-dead writer, one which Joyce and Woolf would have been happy to look down on from the heaven in which neither of them believed, even if their estates were no longer benefiting from their copyrights.

In 1995, however, harmonisation was introduced – with, as I’ve said, no debate – and these books went back into copyright (as did Yeats, Hardy, Kipling and others). This created a formidable headache in the case of those books where an editor had expended months or years of work in preparing a new edition of a book, on the assumption that it was in the public domain. It clearly wouldn’t be fair for all that editorial work simply to be abandoned at the whim of the estate, and for these new editions to be suppressed. After some manoeuvrings, it was decided to proceed on the basis that editions which had been compiled in good faith would be allowed to stay in print, so long as the publisher in question paid a royalty to the copyright-holder. So the Penguin Joyce and Woolfs are still in print, and (or but) are now paying royalties to the respective estates. This solution has now been tested in the case involving the Joyce estate, in which Mr Justice Lloyd agreed that it is legally sound. (He ruled against Macmillan, the publishers on the receiving end of the suit, on the other crucial issue in the case, deciding that Macmillan must withdraw its edition on the basis of 250 words which the editor in question, Danis Rose, had drawn from a source which was still in copyright at the time the edition was published. As I write, Macmillan are considering whether to appeal.)

We non-Americans like to take the piss about the USA’s chronically legalistic culture, but it seems to me an entirely good thing that this issue is being fought out in public there. Lawrence Lessig, a Stanford law professor who is a bit of a hero in the field of Internet law, contends that an extension of copyright to 70 posthumous years is not in the public interest, and has written a book to argue so, called The Future of Ideas.* In February, the Supreme Court agreed that it would hear his case against the extension of copyright. This public airing of copyright issues, taking place in the context of an earnest, high-stakes debate about the public interest, seems to me greatly superior to what happened over here. Lessig makes the point that ‘in the last forty years, Congress has extended the term of copyright retrospectively 11 times. Each time . . . Mickey Mouse is about to fall out of copyright, the term of copyright for Mickey Mouse is extended’ – a hard case to answer, since it is, in the case of the Mouse, manifestly true. Lessig points out that Uncle Sam himself would not have been available to the US Government if the current law on copyright had appertained at the time.

Lessig argues that the grip of copyright holders should be loosened, while their right to be paid for use of their copyright should be upheld. In other words, they don’t have property rights over their creations: anyone who wanted would be able to use the work in question, provided they pay a royalty. What he is proposing is similar to the situation which has accidentally come about in British publishing, courtesy of the harmonisation fuck-up. (Except that in Britain the only people allowed to publish in this way are the companies who brought out editions of the relevant writers in good faith between the end of the old copyright term and the introduction of harmonisation in 1995 – so it’s hardly a free-for-all.) The proposed system is analogous to the one used for music on the radio, where music stations can play what they like provided they pay the agreed fee. The music business, incidentally, hates this arrangement, and loses no opportunity to complain about it. This is bizarre, given that the system is such an uproarious success. It sometimes seems that the big music companies want so much to control everything about everything we listen to that, given a choice between profit and control, they’ll choose control every time.

Speaking as someone who makes his living through his own words, it seems to me that a copyright period of 70 years after a creator’s death is too long. I wish Lessig luck in his attempt to fight the good fight in front of the Supreme Court, and make this prediction: intellectual copyright is going to be one of the most contested issues of our newish century. I’ve just bought a new computer, and have also stumped up £30 a month for a broadband connection to the Internet. It’s great – but a lot of what this new combination allows me to do is, in terms of copyright law, illegal. In fact, if I wanted to, I’d be in the position of never having to pay for any music ever again. Before long, as the process of ‘ripping’ DVDs and TV programmes gathers pace, I’ll be able to watch any movie I want for free, too. But I probably won’t, for the same reason I don’t use the P2P sites for music: because I don’t quite trust them to work or to be uncontaminated by viruses; because I feel shifty about taking things without paying for them; and because I can’t be arsed.

The entertainment industry is panicking, big-time. Senator Hollings of South Carolina and five of his colleagues have proposed an industry-sponsored Bill called the Consumer Broadband and Digital Television Promotion Act (the sonorous title alone is a clue that the public is getting fucked over). Hollings’s Bill may be the stupidest ever proposed to the US Congress. The idea is to rewrite all the computer software in existence so that it would be impossible to copy anything without legal permission, via a device known as Digital Rights Management. Since copying is essential to the way computers function, this manages to be destructive and impractical at the same time; if implemented, it would destroy the US computer industry at a stroke. So it isn’t going to be implemented, but it does give a clue to the way that industry types are thinking: they want to control copyright by controlling what goes on in computers. This is even stupider than something else they’re currently engaged in trying out, releasing music CDs with a feature which prevents them from being played (and therefore copied) on computers. These CDs are effectively broken by the manufacturer before being issued. Michael Jackson’s recent megaflop Invincible was one of these auto-vandalised artefacts. Let’s hope its failure wasn’t a coincidence. The music companies seem not to have twigged that it is bad business to make your customers hate you.

The solution to the industry’s woes is simple – not easy, but simple. When the cassette recorder was invented, the music industry announced a moral panic over the fact that people could simply steal music from the radio, or copy it from each other. Some people did, too, but not nearly as many as the people who simply bought the stuff. That’s because tapes were relatively cheap, and it was more of a shag to steal, copy or bootleg them than it was to buy them. It was the same with videos. The entertainment business needs to make it easier, and more convenient, to pay for this stuff than it is to steal it. Until they do that, the illegal exchange of copyrighted material over the Internet will continue to be pervasive, out of control and oh so criminal.

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Vol. 24 No. 10 · 23 May 2002

John Lanchester (LRB, 25 April) says that the music industry can solve the problem of online piracy by making ‘it easier, and more convenient, to pay for [the] stuff than it is to steal it’. I can’t see how this will change anything. Ease of payment is not going to persuade people to stop downloading free stuff. Neither would dropping the price of CDs by half do anything to resolve the fundamental problem facing the entertainment industry: that their business is based on an approach to selling physical goods that does not work when those goods become digital. Lanchester argues that because video and audio tapes were relatively cheap, it was more of a bother to copy them than it was to go out and buy them. More to the point, if I made a copy of a cassette, the copy would be inferior to the original. In the digital world, where reproduction is perfect, a recorded song may be copied without loss of audio quality an unlimited number of times and distributed across a network with ease – and that reduces the dollar value of any one copy almost to zero. The entertainment industry has little to offer the hard-core music fan that he or she can’t get already: namely, unfettered access to the largest catalogue of recorded music that has ever been available.

Alex Finlayson

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