Digital consumer or criminal?

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You have to live by the law, which means that you can’t download, use or copy music and films without permission, says the record industry. But exactly what is legal depends on who you ask, and whether any of your close friends are computer whizzes.

Henrik V. Ebne Informasjonsrådgiver/journalist, 14.09.2006 15:20

YOU MAY THINK that you are free to make backups of music and films that you have paid hundreds of pounds for. Think again. Maybe you want to copy a film on to your iPod, or use your favourite song as a ring tone on your mobile phone? Naughty! Are you trying to get the film you bought in the US to work on your DVD-player back home? You might be about to become a criminal. But if you instead try to get the DVD-player to accept the DVD, you are suddenly in the clear. And amazingly, the legal position depends on whether you do it yourself or get others to help you, and if so how well you know the people helping you.

We have looked for a simple guide to what is legal and what is illegal, but unfortunately none of the authorities have seen fit to inform people about this topic. The websites of the film and music industries, which are declaring war on piracy, don’t offer much help either.

With the aim of creating a guide for consumers who want to keep on the right side of the law, we teamed up with the Consumer Council of Norway to come up with eight situations that law-abiding consumers might find themselves in. These situations covered several of the ambiguities of the law. We then contacted various experts to ask them what they thought the legal position was in each case. The Consumer Council of Norway believes that all eight situations should be legal. That is not the case. But then again, it is hard to say exactly what is legal: the experts’ answers were in many cases contradictory.

Contradictory answers

The Norwegian Copyright Act determines what we can legally do with music, films, books, pictures and other so-called intellectual property.

Let’s start with the easy bit. It is illegal to download and use music, films, books and pictures from the Internet without the permission of the owners of the material. So, if you use so-called file sharing services such as bearshare.com and thepiratebay.org, which allow you to share music and films free of charge, you are clearly breaking the law. But it is far harder to work out what you are allowed to do with legally purchased music and films. The law is a compromise between business and user rights, with an emphasis on business rights. The person ultimately responsible for this area is the Norwegian Minister of Culture and Church Affairs Trond Giske. We asked him to assess the legality of the eight examples, but unfortunately he was unwilling to give it a go. After a few weeks of reflection, his legal eagles in the Ministry of Culture and Church Affairs came back to us. They had a fairly liberal outlook and largely shared the view of the Consumer Council of Norway. This puts them on a collision course with the police, who were more restrictive in their interpretation of the law. Unsurprisingly, the record industry interpreted the law to mean that almost all of the situations were illegal. It was more surprising that the interpretation of EFN, an organisation that champions people’s rights in the digital society, was closer to that of the record industry than to that of the consumers. It is clearly impossible to know what is legal in the current situation. As a digital consumer you will therefore almost certainly break the law at some point, however law-abiding you normally are. It seems bizarre that the legality of certain actions can depend on whether you are good friends with the people who work at the IT department in your company, but that’s what the law says.

Ambiguous law

Even the police go a long way towards criticising the law.

“The Norwegian Copyright Act leaves a number of areas open to subjective judgements. This means that you risk having to take cases to the Supreme Court of Norway in order to clarify the law,” says Eirik Trønnes Hansen, who works as a police lawyer at the computer crime department of Kripos, the Norwegian National Criminal Investigation Service. The law is so complicated that Kripos’s answer ran to 15 closely written pages, with references to further legal sources. Not the sort of thing that you can expect the general public to read up on before they turn on their PC. Furthermore, even the police are in grave doubt as to what is legal and what is illegal.

Oddly enough, the law is framed in such a way that people who know about computers have more rights than people who aren’t IT buffs. So if you are able to copy and burn DVDs, bypass copy protection and so on yourself, you may be acting legally. If you ask a colleague who is good with computers to do the same things, you may suddenly be breaking the law. This is because the law states that it is illegal to make copies with “outside assistance”. But what does “outside” mean? The following is the Ministry of Culture and Church Affair’s interpretation of whether a colleague is an outsider or not: “The key issue is whether there are personal ties between the colleagues. From NOU 1983:23 p. 28 it follows that there must be other more personal ties between the participants than merely the fact of being colleagues, in order for the private use clause to apply. In Rt. 1991 page 1926, the Supreme Court said that it was hard to draw a clear line, but that it must be possible to make copies for colleagues pursuant to Section 11 (now Section 12), if the colleagues were also personal friends, and possibly in some other circumstances”. In other words, we should stay on friendly terms with the people in the IT department.

The Consumer Council of Norway wants to make it easier to be a law-abiding consumer.

“Consumers should have an invariable right to copy digital content that they have bought. This would allow them to copy content on to different types of equipment, record TV programmes, make backups, share digital cultural content with friends and family, create compilations, use technical aids for the disabled and so on,” says Torgeir Waterhouse, who works as a senior adviser for the Consumer Council of Norway.

That is currently not the case, and the business community is resisting any change.

Locked and fleeced

The industry complains about people making pirate copies, but it has to be said that they haven't made life easy for those of us who want to stay on the right side of the law. Both music CDs and songs downloaded from the Internet include a number of copy protection features that often cause problems when you want to enjoy your music. If, on the other hand, you download your music illegally, you won’t face any of those problems. If you buy some songs from iTunes, for example, the music only works on Apple's MP3-players. This is like only being able to fill petrol at an Esso station if you drive a car manufactured by a partner of Esso. We would never accept that. But as the Internet is a new marketplace, we do accept it. The Consumer Council of Norway, which is campaigning to make the law relating to digital products more user-friendly, believes that this has to come to an end. Current legislation is designed for the sale of physical goods. If you buy a film on DVD, and it doesn’t work, you can complain and get a replacement. If you buy the same film as a downloadable data file, in other words an intangible product, everything immediately becomes much more difficult, both in terms of complaining and above in terms of what you can legally do with the product. Perhaps you would like to burn the film on to a DVD, and take it with you to watch with friends, or maybe you want to transfer it digitally by e-mail or file sharing. If so, you are in the grey area of the law, even though all you want to do is to relax in front of a film with your friends.

The law may also mean that you have to buy your music again if you change MP3-player, which the Consumer Council of Norway considers unreasonable. If you transfer a DVD that you have bought to your iPod, so that you can watch it while you’re on a flight, you may be breaking the law. That may also be the case if instead of buying new music you change its format, for example by converting music that only plays on Apple MP3-players into a format that can be played on other makes of MP3-player. Probably illegal, according to Kripos, but strangely enough possibly legal, according to the record industry.

So we risk being fleeced if we adhere to the law – in so far as we can work out what the law means, that is.

It is untenable that consumers have to understand highly complicated laws in order to carry out simple actions with goods that they have bought and paid for.

Future crimes

Safeguarding the music that you have paid a small fortune for, can easily turn you from a consumer into a criminal. Whilst old gramophone records can still be played after spending decades in your cellar, CDs last a much shorter time. Your PC is bound to crash after a few years. If you have saved your downloaded music collection on your hard drive you’ll be in trouble when that happens. It is therefore essential to make backups if you want to keep enjoying your legally purchased goods in the long term. This is obviously also true of films, whether they have been downloaded or bought on DVD. But navigating your way through this legal minefield requires great care. You didn’t imagine that you could make backups just like that?

Not unexpectedly the industry believes that it is illegal to upload a backup of your music on to a data warehousing service on the Internet. Kripos on the other hand believes that it is ok, provided that you do not share the files with others, and that copying is legal, as long as this does not involve interfering with copy protection features. Bypassing these features may also be legal if they are not what the law calls “effective”.

CDs with copy protection that can be bypassed by holding down the shift key while you turn on the CD-player, or by colouring the edge of the CD with a black felt tip pen, are not considered effective, and it is therefore legal to back them up. Using software to evade the copy protection is probably illegal, although a couple of the experts thought that the copy protection could hardly be considered effective if absolutely anyone could access a programme to switch it off.

Here too the Consumer Council of Norway believes that we should be entitled to use legally purchased goods in a straightforward manner.

“Consumers should be entitled to use technological devices to bypass technical barriers that do not respect their reasonable enjoyment of the product,” says Waterhouse.

And whilst the industry expects consumers to respect the law and to fork out hundreds of pounds to stay on the right side of it, they aren’t that fussy about doing this themselves.

Unreasonable and illegal

The record and film industries are struggling to distinguish between consumers and criminals. They don't give anyone the benefit of the doubt, and instead treat everyone like potential criminals. For this reason they install various copy protection features on their goods, which often render the products useless. These features may also be defects according to the Norwegian Sale of Goods Act believes the Consumer Council of Norway.

“If a CD cannot be played on your Hi-Fi it constitutes a material defect, and the consumer is then entitled to cancel the purchase,” says Waterhouse.

In addition to the various copy protection features, modern customers who buy things on the Internet have to accept agreements that are so unreasonable that the Consumer Ombudsman believes that they are illegal. On top of all of this, the industry is trying to scare us by threatening to sue a large number of their best customers for breach of the Copyright Act. Although the industry managed to convince the politicians to adopt changes to the Copyright Act that weakened consumers’ rights after the court case against DVD Jon, the paradox is that law-abiding customers are suffering, whilst people who download the same music free of charge from illegal file sharing services avoid these problems. In the long run, changing the law to allow customers to use legally purchased films and music for normal purposes, would benefit consumers, the authorities and the entertainment industry.