Technology, Media and Telecommunications
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13 December 2013
There will be a lot of hormonally challenged youths this week facing the daunting prospect of actually having to leave their bedrooms if they want to get the latest Limp Bizkit album. Last week the Ninth Circuit Court of Appeals in the US upheld parts of an injunction against Napster, an online company that enables free music downloads, signalling an end to Napster and a new dawn in copyright law.
The effect the internet has on copyright law is unparalleled and Napster is the best example of this. It has raised the hackles of some fairly powerful people - lawyers, music industry executives and, er, Iron Maiden, a popular heavy metal combo. And with good reason. By downloading albums using Napster, no royalties are paid and piracy is committed. The case was originally brought in December 1999 and, with the latest judgment, Napster's future is looking decidedly shaky.
But an end to online piracy? You'll be lucky. Piracy has been around for ever and nothing has yet stopped it. While Napster's future may be threatened, there will be hundreds of replicates ready to take its place.
Copyright law itself is always linked to the times in which it is enforced. Remember the illicit thrill of taping the Top 40 every Sunday? Or the concerns that video recorders would damage trade in films taped off TV? But video has not killed the film industry and the singles chart is still with us.
The Napster judgment is not going to have any long-lasting effect on copyright law. What's more, trying to keep up with every new judgment on the relationship between the internet and copyright would be futile tail-chasing. What would be a more constructive use of people's time - and lawyers' fees - would be ways of getting round the copyright threats altogether.
Taylor Joynson Garrett (TJG) client Torando has the right idea. It hooked up with EMI at the end of last year to provide commercial music downloads via retail websites. Instead of trying to nail down a will-o'-the-wisp, this is a company finding a way round the whole debacle. It was a nice meaty deal for TJG too - it was a newish client for the firm and the deal was run out of both the corporate and intellectual property departments.
There is of course mileage in representing pirates. A client permanently in hot water is every lawyer's dream - just watch those billable hours go up, and up, and up. Bird & Bird, for example, was particularly pleased with itself when it won a competitive tender last October to become one of the primary external legal advisers to MP3.
But there is one overriding argument to the Napster debate. Music - and the way we buy it - could well be changing for good. Sales of CDs have actually being going up over the past few months, despite the anti-capitalist evil of Napster. Look at it this way - you might tape a film but if you really want it, and more to the point like it, you will buy it. Plus these days you do not just buy a CD or video. You buy the doll, the live experience, the T-shirt, the book - the list is endless.
Even more telling is the music industry's response. While Iron Maiden may feel that their considerable millions should not be dented by fans that do not want to pay £15.99 for an album, there are many artistes who are pro-Napster and have been actively encouraging it.
In one sense, the Napster case has similarities to the Demon case last year. Here an internet service provider (ISP) was found guilty of libel despite a lack of clarity about what, in the eyes of the law, an ISP actually was. Subsequently, no changes where made to the law, which seems incapable of keeping up with the fast pace of the internet and the legal challenges it keeps throwing up.
There are no hard and fast rules about the internet. The logical action would be to get out of the fray altogether. The wise lawyer is going to sit down with clients and find new ways to get around the problem rather than endlessly chasing a tail that will never be caught.