Kate Bulkley, Media Analyst.

Fair Play or foul?

By Kate Bulkley

The Guardian

Monday August 26, 2002

Four ISPs are being sued by US record labels for hosting a pirate music site. So how much responsibility do they have for the traffic they carry, asks Kate Bulkley

Ardent swappers of music on the internet may have been surprised when Listen4ever.com, the China-based music file-sharing service, disappeared suddenly last week. What they may not know is how this happened and what it may mean for the future of trading music tracks online for free.

It's a tale worth telling because the demise of Listen4ever.com comes as a result of a Napster-style lawsuit filed by some of the music industry's biggest labels, including BMG, Sony, Warner and Virgin. But unlike the suit filed in 2000 against California-based Napster, this latest lawsuit was not against copyright-violating Listen4ever.com, but against four of the biggest US internet traffic carriers. The suit demanded that Sprint, Cable & Wireless USA, Worldcom's UUnet and ATT Broadband block any internet traffic to and from Listen4ever.com, which would effectively put it out of business in its target market, the US.

The choice of defendants marked an interesting departure for the record labels and their association, the Recording Industry Association of America (RIAA). The labels filed the lawsuit on August 16 in New York after RIAA had tried and failed several times to persuade Listen4ever.com to stop offering copyrighted music from artists such as Coldplay, Christina Aguilera and Bruce Springsteen for nothing.

The copyright violations of Listen4ever.com were very Napster-like, although the number of users was still relatively small - an estimated 387,000 in July this year compared to 2.8bn songs shared on Napster in February 2001 - but usage was growing fast, with a 71% increase on the previous month, according to research company Comscore Media Metrix.

Like Napster, Listen4ever.com put its music files on a central server and allowed visitors to download what they liked without paying. But unlike Napster, which is now owned by German record giant BMG and is offering legal music online for a fee, Listen4 ever.com's owners have so far proved impossible to locate. No one knows for sure why the site shut down last week because no one knows who to ask. According to the 100-page lawsuit filed by the record companies, Listen4ever.com is registered to an individual in Tianjin, China, but the site's contact address is an anonymous Yahoo! email account. A phone number called by various news organisations in the US was endlessly engaged last week.

By suing the internet carriers, the labels and RIAA were clearly going after companies with a name, address and working phone number. They knew, too, that although the arm of the US legal system is long, China would be a tough place to do battle. For whatever reason, the suit has achieved RIAA's desired out come: the shutdown of a site pirating music. But a bigger question has been raised about the extent of ISPs' responsibility for traffic on their networks and how much monitoring they should be required to do to protect copyright owners.

In the US, RIAA and the labels have the legal right to ask ISPs to block traffic to offending internet sites under the 1998 Digital Millennium Copyright Act (DMCA), which foresaw that Napster-like sites could move their servers offshore to delay and avoid the enforcement of US copyright laws. The Listen4ever.com suit is the first time this clause in the controversial DMCA has been invoked. The controversy covers a difficult legal area. Whereas ISPs such as AOL are "anti-piracy" and require members to sign terms of service agreements that include abiding by copyright laws, ISPs also have a duty to protect the privacy of their users.

It's a question that was put to the legal test this week when RIAA filed a suit seeking to force New York- based telecommunications firm Verizon, which is part-owned by Vodafone, to disclose the identity of one of its customers, who RIAA claims is pirating music files. So far Verizon has refused to comply, citing the privacy rights of its subscribers.

Here in Britain, the goings on in the US over the past week have been watched with great interest and some trepidation. The lawsuit against the four American ISPs was a source of concern for ISPs in the UK and the British Phonographic Industry (BPI), the trade body for British music labels.

"It's a difficult situation because the record companies are being attacked," says Peter Crowley, strategy and marketing director at Freeserve. "But from our point of view [the RIAA] is going about it in the wrong way. The European Union is looking at copyright abuse on networks. But the technology is not there to find out what sites and individuals are doing. Even if you sniff out file-sharing software, it could be a legal use. So we can't make judgments on what people might be doing."

Despite the fact that the UK record market saw second quarter sales tumble 15%, the BPI is "not contemplating any litigation against ISPs in the UK," says the group's director of anti-piracy David Martin. In fact, the BPI recently hosted a cocktail party get-together for British labels and ISPs. "We think it's more useful to establish a rapport than it is to raise the big stick and go into litigation," says Martin.

Certainly preventing copyright violations online is not getting any easier. Listen4ever.com and the original Napster were relatively easy to police because songs were stored on central computer servers - close down the site and the service dies. But a new generation of music-swapping services are proving harder to shut down. Grokster and Gnutella, for example, allow users to share music tracks stored on their home computers. These so-called peer-to-peer (P2P) services are attracting 3.5m downloads a week and the scale of piracy is sure to become bigger than that which occurred with Napster.

So apart from going after individual violators - which is a bit like trying to find a needle in a haystack and runs up against privacy laws - the only way to fight this kind of piracy, say many in the industry, is to offer users a good paid alternative. So far, efforts by the big labels to launch online music distribution services have been agonisingly slow. Pressplay, backed by Sony and Universal, launched earlier this year and only in the US; while MusicNet, backed by Warner, BMG and EMI, still isn't up and running.

In the UK, Freeserve launched its 4.99-a-month Music Club service six weeks ago, but admits that so far only two of the Big Five labels - BMG and Warner Music - have agreed to provide it with "quality catalogue". "We want to do the right thing to promote legal music," says Freeserve's Crowley. "We should be working with the majors, not against each other; and to do that we need access to more catalogue to make this work. It's that simple."

The big question is: will paid-for services ever be as simple or as compelling as trading pirated music online for free?

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