Copyright is Not Equal to 'Activities Are Unauthorized'

By Russell McOrmond 10/12/05

There's always more behind some of the stories reported in the media, and some recent p2pnet stories deserve to be expanded.

Being under copyright != activities are unauthorized != copyright infringement. (For non-computer folks, != means "is not equal to" )

A current headline story is about Michigan lawyer John Hermann who represents several victims of the EMI, Sony BMG, Warner and Universal sue 'em all marketing campaign.

Russell McOrmond
While it's great to have a lawyer defending these victims, it's important that he uses language that doesn't harm our rights in the longer term.

Hermann accidentally perpetuated one of the most common and most dangerous misconceptions about peer-to-peer distribution: that if something is "under copyright," it's appropriate to assume it's not authorized to share.

The fact is, there's a growing number of authors who either explicitly (through Creative Commons types licenses) or implicitly (through where they publish the works, such as on the royalty-free anonymous part of the Internet) are authorizing activities such as non-commercial verbatim redistribution (p2p sharing, etc).

We need to separate out the concepts of being under copyright, being authorized by a copyright holder, and something being an infringing activity because these are three very separate concepts.

Something can be under copyright and authorized for use under specific circumstances. An activity might not be authorized by the copyright holder, but this activity may not be infringement because copyright law doesn't grant absolute rights to either the copyright holder or the general public.

Copyright regulates specific activities which can be done with a work that's under copyright. This includes production, reproduction (copying), publishing , performing, communicating to the public by telecommunications, and other such activities, but not ithings such as reading (books), listening to the music, or other such uses.

Prior to digital copyright, most activities were non-infringing because copyright didn't regulate didn't regulate those activities. The few things which were regulated (copying, distribution, communication via telecommunications) were not things the general public wanted to do (share/rent/loan/resell physical media, access using any tools to assist and under any conditions, use media as furniture, whatever).

I debated digital copyright with an Access Copyright lawyer recently. The ways under which digital copyright was different from historical copyright was a very contentious part of the debate. We, as Canadians, need to better understand these issues, and help articulate them to politicians. We need to challenge the language used by lawyers, otherwise they (and not just the recording industry lawyers) will deliberately - or accidentally - be eroding our rights.


There's an article about Apple's iTunes which included reference to the fact that iTunes music isn't compatible with other players.

It mentions incompatibility caused by Apple's use of access control technical protection measures that tie the "unlocking" of purchased digital content to keys embedded within Apple player software. This incompatibility isn't a side-effect. This is the entire purpose of this highly controversial technology - Digital Restrictions Management (DRM).

When we hear the CRIA (Canadian Recording Industry Association) lobbying strongly to amend Bill C-60 to provide additional legal protection for "access controls", we need to realize this incompatibility is precisely what they're lobbying for.

The CRIA and its owners are technology illiterates: they have no credibility or competence in the modern copyright debate. This alone should wake politicians up.

When the record companies attack another new media, subscription satellite radio, they're not merely ignorant of the technology: they're ignoring the basic economic differences between retail and broadcasting brought up in the story on how subscription satellite radio may be the next RIAA/CRIA victim.

This article should remind us that the satellite radio issue isn't really about Canadian content rules (CANCON) as falsely claimed, but about the fact the major labels (CRIA and the RIAA are controlled by the EMI Group, Vivendi Universal, Warner Music and Sony BMG) fear they'll loose control in this emerging market for music.

CANCON rules currently apply to broadcast radio, but they don't apply to retail sales of recorded music.

This has served CRIA well because it's not regulated by CANCON rules for its owners' major retail markets, allowing these primarily foreign labels to push their European and American products through these retail channels.

Subscription satellite radio has far more in common with this retail market but, unlike the retail market and traditional broadcast radio, is controlled by the satellite radio companies rather than by the Big Four labels which, seeing a competitive threat to their (questionably legal) market domination for recorded music, attack this new media just as they've attacked the Internet.

In Canada, they had a ready-made ally in the Friends of Canadian Broadcasting who are far more friends of the legacy "broadcasting" method of distribution than they are of Canadian creativity.

They seem happy to prop up the excessively concentrated broadcast media which is seen as a great threat to Canadian creative diversity.

Given how CRIA reports control over 95% of the market for Canadian recorded music with less than 2% of Canadian musicians signed to them, it shouldn't be unexpected that they'd team up with promoters of media concentration.

The threat of litigation by the cartel in the United States should be paid attention to.

Even if the conflict winds up in court, Crockett said in his report, he did not believe such a suit would succeed because so-called 'fair use' laws allow users to record songs for their own use.

The problem for Canadians is that we don't have a 'fair use' law, but a far more limited 'fair dealings' law.

Devices that allow Canadians to time-shift (such as a VCR) or space-shift (such as portable mp3 players) haven't been verified to be legal in a Canadian court. We may all be assuming that what we're doing is legal, and there are clearly very legitimate uses for our property. But these legitimate assumptions haven't yet been tested in a Canadian court.

In all these so-called "modernizations" of copyright we're told Bill C-60 represents, there's nothing to legalize the legitimate common uses of consumer electronics. This makes Canadians vulnerable to dishonest legal attacks from the legacy content industry associations.

It's important to understand what happened when CRIA lost their discovery case against p2p filesharing.

It wasn't that unauthorized sharing of music is legal in Canada. Instead, the recording industry's CRIA didn't provide adequate evidence of alleged infringing activities.

Unauthorized downloading for private is part of the private copying regime, but even that becomes infringing if you share the download with anyone else because it's no longer a "private copy". The appeal court documents were quite clear on this critical point.

In the US, there's no need for the Big Four to provide evidence to force the disclosure of names, and thus it's able to more easily scare people into settling out of court.

In Canada we have privacy protection laws (such as PIPEDA) which meant that the ISPs could not disclose the customer names without a court order.

While I Am Not A Lawyer (IANAL), and This Is Not Legal Advice (TINLA), there's nothing in fair use (in the US) or fair dealings (Canada) that authorizes a private citizen to communicate music to the public without authorization from the copyright holder.

What happens with public p2p distribution is very different from loaning of physical media with a few friends, and any courts that have deliberated on this point have agreed.

Whether unauthorized p2p of music is harmful to musicians, and whether there should be some voluntary collective license to appropriately monetize p2p music sharing, are separate questions from whether or not file sharing is currently an infringing activity.

I have a hard time understanding those who want to take things too far onto the other extreme from the recording industry.

The industry wants to shut down all p2p activity (authorized or not, given it is the authorized and non-infringing p2p that threatens their business model the most), while other commentators want to legalize all p2p activity (authorized or not, eradicating any exclusive rights from the copyright holder).

I believe both these extremes to be wrong, even if I believe that legalizing unauthorized sharing is less harmful to the legitimate interests of the full spectrum of musicians.


Russell McOrmond, the editor of Digital Copyright Canada, is an independent author (software and non-software) who uses modern business models and licensing (Free/Libre and Open Source Software, Creative Commons).


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Other MP3 stories:
Mother sues RIAA under RICO Act
The Net is the Independent Artist's Radio


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