[LINK] Click at your own risk

[Adam Todd]

Personally I think the Music Industry has lost the plot.  They want us to 
buy music, but they don't want us to listen to it when and where we 
want.  We might as well go back to Transistor Radios!



Click at your own risk
August 3, 2004

Out of tune ... Apple's ads, show you how to copy music - with the 
disclaimer "Don't steal music."

Apple's iPod digital music player may be the hottest electronic toy in the 
world, but it has almost no legal use in Australia, writes Julian Lee.

The next time The Clash's I Fought the Law is blaring away on your Apple 
iPod music player, savour the irony that not only are you likely to be an 
outlaw - you are getting away with it with the help of one of the world's 
biggest brands.

You are not alone. There are 100,000 of you across the country and the 
police aren't coming after you. Yet.

Apple's iPod is the Sony Walkman of the new century. In the 1980s, Sony's 
cassette player revolutionised music by making it portable. Today Apple and 
others have eliminated the tape and have taken the Walkman digital. An iPod 
owner can copy hundreds - even thousands - of songs from CDs onto a box the 
size of a cigarette packet.

More than 100,000 Australians listen to music on such digital music 
players. Retailers cannot stock them fast enough. There is just one problem.

Most people know it is illegal to download songs from the internet without 
paying. But far fewer people know it is illegal to copy music from a CD you 
have legally bought.

Anyone who has copied songs from a CD onto an iPod or computer hard drive 
has fallen foul of Australian copyright laws, which critics argue are 
failing to keep pace with technological change. Copying music for personal 
use is generally OK in the US and Europe. But not in Australia.

"It's unlikely that the Australian Federal Police would investigate 
individuals for offences such as illegally copying a CD," a police 
spokeswoman said. "However all cases referred to the AFP are categorised 
and investigated as necessary."

Unlike its rivals, Apple does not allow legitimate music websites such as 
Telstra and Ninemsn to sell digital songs for the iPod. Because Apple does 
not allow Australian customers to buy songs from its US iTunes website - 
and there is no local site - there is not much you can do legally with an 
Apple iPod in Australia.

"You could possibly use it to listen to music that you've recorded yourself 
or even to a recording made by your friend's band," says a copyright 
expert, Kim Weatherall, of Melbourne University's law school. "But that's 
about it."

Despite the law, a recent Apple magazine advertisement (pictured) 
demonstrates how to copy songs from a CD onto a computer - and then from 
the computer onto an iPod. At the bottom of the ad, in small print, is the 
plea: "Don't steal music."

Brett Oaten, a solicitor who represents popular Australian artists such as 
Powderfinger and Delta Goodrem, says: "Until we get the iTunes site in 
Australia there are not many ways to use the iPod legitimately here. You 
have to have an American credit card to gain access to the American site."

Apple refuses to say when, or if, it plans to launch iTunes here. However 
Charles Caldas, who heads Australia's biggest independent record company, 
Shock, says Apple "is talking to record companies about licensing songs 
here in Australia so we can assume they will launch here". Until then - 
like most record label bosses - Caldas is against changing the law.

Defying convention is what we have come to expect of Apple. Australian 
managers declined to answer questions for this article.

Apple is the company that came back from the brink in the mid-1990s with 
the iMac - a computer produced in lollipop colours such as grape and 
apricot that became a fashion accessory alongside the lava lamp and the divan.

Globally Apple is now selling more iPods than computers - 860,000 in the 
June quarter. Apple's latest "iPod mini" - also available in five colours - 
last month sold out its first Australian shipment in days. Although Apple 
did not invent the technology, rivals - including Sony - are scurrying to 
catch up.
Australians bought 78,401 digital music players (all brands) in the 11 
months to June, according to retail consultancy GfK Marketing. Apple is the 
No. 1 seller, although its local sales figures are unknown.

The Herald spoke to a number of iPod users, who said they routinely broke 
the law either by copying songs from CDs or by downloading music from 
illegal websites. All requested anonymity, such was their reluctance to be 
identified as law-breakers.

Sue, a designer for a Sydney website design outfit, has no qualms about 
copying CDs onto her iPod. "Why shouldn't I be able to copy a CD that I 
paid $30 for? I should be able to use it in any way can."

David, a Sydney psychologist, doesn't want "a load of stolen music sitting 
on my hard drive".

In an effort to do the right thing, he has a friend in New York buy tracks 
from the US Apple iTunes site and email them to Australia. But the legal 
situation frustrates him. "Just because the music industry can't keep up 
with changes in technology, why should I not be able to listen to music in 
whatever format I choose?"

The music industry is split on the issue.

Songwriters and publishers want to change the law and pay for the copies 
through levies on digital music players and blank CDs. The record labels - 
which own the recordings - want the law to stay.

The situation is "mad", says Phil Tripp, a music publicist who is lobbying 
Canberra on behalf of the Australasian Performing Right Association (APRA, 
which represents songwriters and publishers). "So you bought a CD and you 
think you own the song. Wrong! You own the bit of plastic and that's it."
APRA says Canada - which allows copying - raised $30 million last year from 
a levy on blank CDs, DVDs and music players.

"There isn't an artist out there who doesn't want to see their work 
distributed in the widest possible way - provided they are paid for it by 
consumers, the website operators and the record companies," says Oaten.
That view is not shared by the record companies - represented by the 
Australian Record Industry Association.

APRA's levy proposal was "flawed, cumbersome and a very unsatisfactory 
solution which, in all likelihood, could exacerbate the very problem that 
it is seeking to address", ARIA said.

The last time the idea of a levy was introduced in Australia was 10 years 
ago and it was strangled at birth by the courts as unconstitutional. 
Instead, the record companies have developed technology to lock or 
"encrypt" CDs, preventing them from being copied onto digital music 
players. They have begun selling some music online, but they are struggling 
to compete with the many illegal websites where fans swap songs without charge.

The Federal Government stands on the sidelines, waiting for the music 
industry to adopt a common stance. The office of the Attorney-General, 
Philip Ruddock, says it is "looking at the issue".

The situation is complicated by the proposed free trade agreement with the 
US. As part of an agreement, Australia is to adopt tougher US-inspired laws 
aimed at preventing people from breaking encrypted CDs or DVDs, an activity 
that is not yet illegal in Australia. By 2006 anyone caught selling an 
encryption-breaking chip or a computer program or anyone found to have used 
such a devices to gain "access" - not just copy - material will face jail.
"If anything, digital copyright laws are going to become a lot tougher in 
this country," says Weatherall.

Even if iTunes were to launch here there is a view that it won't be the 
saviour from online piracy that the industry had hoped, despite the fact 
that it will offer for sale 800,000 tracks - more than twice as many as 
Australia's biggest online music seller.

Worldwide, iTunes has sold 100 million songs since its launch 14 months 
ago, compared to an estimated 2.2 billion illegal downloads in that period. 
Little wonder the industry isn't holding out much hope.

"Sales of [legal] downloads are negligible," says Oaten. "The number of 
downloads at the moment is modest," admits Brett Cottle, chief executive of 
APRA. Neither Telstra nor Ninemsn will reveal up-to-date sales figures.

"I suspect that even if people knew they were breaking the law then they 
probably wouldn't change their behaviour - and I don't know whether iTunes 
is going to change that," says Cottle.