IP: KaZaA BV lawyers explain why file sharing is not theft

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: gep2 () terabites com
Date: Thu, 09 May 2002 18:23:35 -0500
To: farber () cis upenn edu
Subject: IP: KaZaA BV lawyers explain why file sharing is not theft

> Why the traditional medial companies are concerned
Increasingly, people (particularly younger people) are switching off
their televisions and turning on their computers instead to watch films
and television programmes (often without the hassle of the advertising
which may have paid for or contributed to the cost of making the
programmes in the first place), listen to music (free of course), play
games, have access to news sources from around the world, talk to online
friends and order pizza, all without having to leave the comfort of
their bedrooms!

What scares them the most isn't that they're watching television programs,
but 
that they've found OTHER entertainments online which aren't subject to
entertainment company monopoly control!

> The Record Industry Association of America (the RIAA), in its case
against Napster, produced persuasive statistics to show that college
students were buying fewer CDs because of the availability of software
products like Napster.

Their "persuasive" statistics were fatally flawed.  They compared record
sales 
in retail stores on campus, and since those were down (and Internet usage
up) 
concluded that it was due to rampant student .MP3 file swapping.  What in
fact 
was probably happening is that online-savvy students were buying their music
online in less-expensive, off-campus record/CD/tape stores.

> An alternative view is that the music industry has done little to help
itself by charging high prices for its products

Exactly.  It's ludicrous that they're still charging $15-20 each for CDs
(prices 
not unlike the early-adopter prices we were paying when CDs first came out,
in 
limited production runs and early production technologies) while we all know
that production-pressed CDs cost less than a dollar apiece, complete with
jewelboxes and liners.

> ...and entering into extremely expensive recording deals with artists (and
having to pay to get out of them again),

That's really bogus.  A typical recording artist makes way less than a
dollar on 
the sales of each CD (and a quarter or less is not atypical) so you can't
blame 
the high CD prices on the artists' earnings (and that's why the recording
companies bleating about artist royalties is so hypocritical... the
recording 
companies have themselves been screwing the recording artists for decades).

Fact is that most people have a limited budget that they're willing to
devote to 
buying music.  If the recording companies sold their goods at a fairer
price, 
their sales volumes would be much higher (even if the dollar volume might
not 
change a lot) and more artists would earn royalties.  What's more, if the
CDs 
were priced fairly there would be less incentive for people to find
alternate 
ways of getting the music they want.

> ...so it is not surprising that hard up students
will try to find a cheaper way to access entertainment.

It's certainly true that EVERYONE would buy more recorded music if the
prices 
(and the repugnant policies like these noxious copy-guard methods etc the
industry is using to bludgeon the users) weren't so dissuasive.

> The real problem facing the traditional media is how to harness the
technology and make it pay (and consumers pay for it!). Digital
television companies in the US and the UK have had to file for
bankruptcy. This is mostly due to them trying to attract audiences on
the basis of supplying expensive content (sport and films) which the
limited market cannot sustain or not being sufficiently distinguishable
from other free to air or pay services available to consumers.

I think the problem again is the VALUE equation.  These companies think they
can 
swoop in and fleece the market with exorbitant prices, just because the
technology is new and (arguably) better.  But despite there being some truly
spectacular television sets available out there (for thousands of dollars),
most 
people still go and buy the $100-200 variety at Walmart.  Why?  Because for
most 
people it's VERY sufficient for their needs, and the better quality (while
nice) 
simply isn't worth the difference in price.

> Although there is much talk of convergence, the reality is that
computers have the edge on traditional media in attracting users

...and largely because they're NOT using computers to access only just
'traditional media'!!!!

> ...and that the traditional media companies are struggling to find their way
with the new technology available.

They're going to have to realize that they're no longer the only game in
town, 
and they have to get more realistic with the prices they're charging.
Otherwise 
people are simply going to find other ways to entertain themselves (as for
me, I 
haven't sat down to "a quiet evening in front of the TV" in *years*... I
find 
interacting with others through the Net to be a far more worthwhile use of
my 
time.)

I've also all but stopped buying big-run commercial CDs.  Instead, about the
only music CDs I'm buying these days are small-run CDs by local artists and
performers... where I can be reasonably sure that they're free of obnoxious
"copyguard" schemes and other distasteful bullshit.

> ...The bill requires the entertainment and technology industries to agree
to a technological standard to halt the unauthorised copying of digital
video and film. The standard will have to be included on all digital
media devices (hardware or software) that reproduces, converts,
retrieves or accesses copyrighted works in digital form.

Speaking as a systems programmer, that is *absolutely* unworkable.  There
are 
infinitely many ways that a stream of information can be encoded or
encrypted 
such that what information it contains cannot be determined by anybody
outside 
the encoding envelope.  The only way that this could be controlled would be
to 
take away everybody's PCs (or eliminate their programmability) and nobody
will 
tolerate that.  Besides, the computer business that you'd be crippling is
(what?) 25 times bigger than the movie and recording industry... if we had
to 
give up or harm one or the other, it's the movie and recording industry that
will be left holding the short end of the stick.

> The bill is opposed by many of the large technology companies. They fear
that it will stifle innovation and reduce the effectiveness of any
device capable of playing entertainment content

The fact is that there is no way to identify or bar commercial material from
any 
other material.  Enough of us have personal camcorders and our own
recordings 
that we manipulate that one cannot presume that all video material is
copyright 
and being pirated.

> The battle is likely to be long and drawn out as there are powerful interests
on both sides of the argument.

Again, ultimately, if we have to choose between television/movies/CDs or
computers... it's going to be computers that will win.

> If successful, it is possible that other countries will bring in similar
legislation. 

Possible, but HIGHLY unlikely that ALL of them would be stupid enough to do
so. 
 And if ALL of them don't follow, then you just move the place where the
transfers are done.

> In fact, it is arguable that given the
global scope of the Internet, the entertainment industries will not
benefit greatly unless similar restrictions can be introduced on a
global basis. 

Exactly.

> The problem remains for the entertainment industries that
once a user has the software, there is no effective way to police what
that user does with the software.

Precisely.  And for that matter, there are *millions* of programmers
worldwide, 
any of whom can write software to cloak copyrighted material such that it
cannot 
be determined to be copyrighted.

Gordon Peterson                  http://personal.terabites.com/
Support the Anti-SPAM Amendment!  Join at http://www.cauce.org/
12/19/98: Partisan Republicans scornfully ignore the voters they
"represent".
12/09/00: the date the Republican Party took down democracy in America.




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