Digital Copyright And The Consumer Revolution
Hands off my iPod
Format: Hardback 368 pages
Date of publish: 01/07/2007
Publisher: Edward Elgar Publishing Ltd
ISBN: 9781845429485
£79.95
$145.00

This book brings a global perspective to the parochial copyright debate. Dr Rimmer at the Australian National University College of Law, writes a readable account of the growing consumer revolution against digital copyright law setting out many of the historic arguments which would appear to have been forgotten by the UK IP Bar. Expanding copyright protection driven by political fixes within the EU and US are contrasted with Canada whose parliament threw out similar measures. "Mash-ups" created by digital sampling and mixing of existing works have had to deal with the chilling effect of music industry lawyers trying to strangle this creative industry at birth. The implications of the Pirate Bay case are fully aired - now even more relevant in the light of the Pirate Party in Sweden getting a seat in the European Parliament.

In eight tightly written chapters packed with footnotes and weblinks the author goes through the war that has raged for two decades between the copyright owner, the "rentier" and the ordinary consumer. After a clear scene-setting introduction the first chapter deals with the conflict between copyright term and the public domain - and the inability of the judiciary to ensure that copyright law does impinge upon freedom of expression. In a plethora of examples and cases, the author providers the reader with a whole range of materials which can be used to make the case for restricting the copyright term and granting compulsory licences for copyright works. What should be striking for any reader is the fact that highly restrictive legislation was passed with minimal debate owing to heavy lobbying by copyright owners. The politicians largely ignored the voices of copyright users who protested against such changes.

Chapter two deals with the "time-shifting" and "space-shifting" the ability of technology to enable a copyright user to make a copy of a work he has licensed so that he can watch or listen to it at a different time to when it was broadcast ("time-shifting") or watch or listen to it on a different device ("space-shifting"). The key case in this area was Sony v Universal - the Sony Betamax case where the US Supreme Court ruled that when consumers made their own personal copies of copyrighted television programmes for single-use "time-shifting" purposes they were making fair use of the copyright work. Over the years the scope of this case has been narrowed and in this chapter the author shows how risky it has been to try and run the fair use defence in the United States. - MP3.com were closed down with massive settlement costs of £3.4 Million when it tried to establish a service which would enable subscribers to store, customize and listen to the sound recordings contained on their CDs from any place where they had an internet connection. Subsequently even the lawyers advising MP3.com were sued for fraud, breach of fiduciary duty and malpractice. How the ground has shifted over the years is well explored ending with a reference to the UK Gowers Report on Intellectual Property.

Chapter Three looks at the Napster saga and the on-going battle with peer-to-peer networks. Chapter Four tells the story of The Grey Album and the difficulty of dealing with digital sampling and mash-ups within a restrictive interpretation of fair use. It is an ongoing saga which is also fully explored in Professor Larry Lessig's works. Chapter five looks into some of the technological protection measures which copyright owners have deployed to prevent unauthorized copying - and their impact upon the market. These measures do not work in the manner intended and give rise to a potential criminal liability of the copyright owners under the various anti- hacking statutes (such as the UK Computer Misuse Act). Dr Rimmer shows how the various music publishers have escaped prosecution only by the skin of their teeth and how the public relations battle was lost to copyright holders. Chapter six outlines how the copyright owners have sought to move against intermediaries in their attempts to stop unauthorized infringements - and how the take-down notices have been misused by companies such as Diebold who have used alleged copyright infringement claims as a means of preventing the discussion of detailed flaws in the security of its electronic voting machines.

Possibly the most interesting chapter in a very interesting book is Chapter Seven, on Google. For once the copyright owners are faced with a well financed, thoughtful, public spirited commercial organization who is not afraid to take on the copyright "rentiers" The chapter outlines the arguments, for both sides, that were likely to be deployed in the litigation between Google and organizations such as The Authors Guild and the Association of American Publishers in litigation. The case was never litigated since Google settled the cases by means of a negotiated settlement in 2009.  But the issues remain unresolved, together with new ones arising from the power of Google. The negotiated settlement of the class action suit brought against Google by copyright holders creates an effective cartel via the birth of the Books Rights Registry, which will collectively represent authors and publishers in the administration of US online rights. Consumers gain access to a vast canon of work. Copyright holders, automatically covered, although they can opt out, get fresh revenues. But the Books Rights Registry is going to be hard for anyone else to rival - a Yahoo, Microsoft or similar. Any rival would either have to surmount the same legal barriers which Google, though negotiation, has achieved by means either of extensive litigation or would have to negotiate with the Books Rights Registry where it would encounter Google's most-favoured provider status. It would be very hard for any rival to negotiate terms which were different to those enjoyed by Google. So a cartel has been created by the failure of the parties to litigate for a free market solution.

Chapter Eight looks at Remix Culture, a topic which is well covered by Professor Larry Lessig in his books and videos. Here Dr Rimmer points to the Creative Commons being an alternative to the polar extremes of the proprietary culture of the copyright industries and the 'free for all' of peer-to-peer networks. The chapter is a good starting point for anyone wanting to research this new area of activity.

The book concludes with a Consumer's Manifesto, the declaration of innovation independence. In this chapter the author pulls together the conclusions reached in previous chapters and argues in favour of a consumer revolution against digital copyright.

The one major criticism I have of this book is that it is not available as an e-book. If ever there was a work which deserved to be make available in this format this is it. The footnotes and hotlinks are best suited to a digital media where they can be instantly followed up.

I would love to see the author have the courage of his convictions, set out in his Consumer's Manifesto, and turn the book into a Wiki - so that others could add to and amend its content. In such a format it could develop to form the core of a global resource on how the creative industries could fight back against ever increasing attacks on consumer freedom by copyright "rentiers".