Office Memo 3
Office Memo 3
19 September 2002
A conversation on intellectual property, morality and markets
“An industry begins with the customer and his needs, not with a patent, a raw material or a selling skill.”
Theodore Levitt, 1960
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You really shouldn't be doing all this file swapping, you know.
Why not?
It's theft.
Of what?
Of intellectual property.
What's that when it's at home?
Copyright, trade names, stuff like that.
That's property? Who says so?
Most national governments, and the EU.
You mean it's made-up crime, not a real one like stealing a car or robbing a bank?
It's real enough for you to be sent to prison for.
Just for swapping a few MP3s and MPEGs?
Maybe not for one or two but possibly for doing it in large enough volume.
Incredible. Who's behind all this?
Mainly the US government but the EU, again, will not be far behind.
Yes, you Americans always been strong on this sort of thing, haven't you?
Now you mention it, not always. In fact, the USA refused to sign the Berne Convention on international copyright fees until 1989.
Why not?
Mainly because of lobbying by US printers who wanted to protect their monopoly.
But I thought protecting copyright was in the US constitution.
Aha! You do know something about the subject, after all. Yes it was, but only for American authors and inventors.
So foreigners don't have 'inalienable' rights? No surprise there.
Don't be sarcastic.
Sorry.
Now, under the 1989 arrangements, a published work receives the same basic length of protection in the USA as elsewhere -- 70 years from the author's death.
That's a long time. Anyway, I'm glad they've regularised the situation for us foreigners.
Except for “anonymous and pseudonymous works”, such as those made by US corporations. Protection for these now lasts 95 years from date of publication or 120 years from date of creation. In the EU, it's still 70 years.
That's an eternity! Why did they do that?
Because the publishing industry (again) wanted more time to extract profit from works they had rights in.
Typical. What did the publishers do to convince legislators?
Oh, the usual -- propaganda, pressure groups, 'factual' advertising, sponsored politicians, that sort of thing.
Clearly this method works. Is that what's happening with digitised music?
Very much so, except this time the US governments is being 'helped' by the RIAA.
Who they?
The Recording Industry Association of America, a trade body that represents the US music publishing industry.
Why were they involved?
Because they think that music 'pirating' (note their use of emotive terminology) is reducing their profits.
This sounds familiar; haven't we hear this 'plaint before?
Yes, in the 1970s over blank cassette tapes, in the 1980s over blank VHS tapes and DAT (Digital Audio Tape), in the 1990s over recordable CDs, etc.
And were they right to do so?
Hard to say. At best there's only circumstantial evidence. Any falling off in sales is, it seems, never the industry's fault or the result of changes of fashion or of economic trends. Blank media is a convenient scapegoat.
It seems the music industry screams "unfair" whenever there's an advance in consumer recording technologies.
You could say that.
So, what's new this time?
Two things. First there's the Digital Millennium Copyright Act, of 1998. In plain language, this makes it a crime in American to abuse online copyrights. It also makes it a criminal act to try to crack any protective mechanism, such as software, that a copyright holder may put in place.
Bummer!
Adobe Systems invoked this act last year to get a Russian programmer of CD lock-picking software put in jail when he visited the USA.
I bet that made them popular.
Is that an example of the famous British irony? Yes, there was quite a furore.
Only in America!
Don't get smart. You obviously don't know that the EU Copyright Directive makes it compulsory for European governments to create similar legislation in the near future.
How depressing. Got any more good news?
Is that irony again? Anyway, the second new thing is also legislative. Congressman Howard Berman, from California, has introduced a bill to let music companies legally hack into file swapping networks like Gnutella to protect their intellectual property, if they have a "reasonable basis" to believe piracy is occurring.
Is doing that that legal at the moment?
Nope.
Let me get this straight. In order to protect their share price, a group of American businesses first succeeded in getting a previously legal act defined as a crime.
Yep.
Now they are now trying to gain exemption for carrying out presently illegal (and some would say immoral) acts of their own.
That's right.
And they're doing this whatever the cost in personal privacy or freedom of action to any user of the Internet, anywhere in the world.
Right again.
And they think that these same people will want to buy their industry's copy-protected products in increasing number as a result?
In a nutshell.
And this is all happening in the land that President Bush II recently suggested[1] is not materialistic, selfish, self-absorbed and greedy?
Now hold on there....
Notes:
1. See the text of Resident Bush's broadcast speech of 28 August here. The referenced material is near the end.
2. Vocalist Courtney Love's response to the RIAA's actions is well known. You can (re)read it here.
3. Another singer, Janis Ian, has two articles about the matter at her Web site -- http://www.janisian.com.
4. Folksy singer Wood Guthrie reportedly put this folksy copyright notice on one of his songs: "This song is copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin' it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do." Bless.
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Roger Whitehead
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Copyright Roger Whitehead, 2002. I hereby assert and give notice of my right under section 77 of the Copyright, Designs and Patents Act 1998 to be identified as the author of these publications.
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