A difference between American and European copyright law threatens to carve out a free-swapping zone for popular decades-old music, hampering record companies' antipiracy efforts online.
European and Canadian copyright protections for sound recordings last just 50 years, compared with 95 years in the United States. As reported earlier in The New York Times, that means that a boomlet in sales of bootlegs of 1950s artists, ranging from Miles Davis to Elvis Presley, is becoming perfectly legal.
And it also means new headaches for record companies trying to shut down file-swapping services. As those popular older songs fall into the public domain overseas, people there are free to offer them on services such as Kazaa or Gnutella. Although it's still illegal to download the songs from the United States, it's much harder for copyright holders to find people who are downloading, as opposed to uploading, specific files online.
"There are some implications for enforcement, creating an additional wrinkle," said Neil Turkewitz, the Recording Industry Association of America's (RIAA) executive vice president for international affairs. "But it doesn't affect the legality of a U.S. user accessing a foreign hard drive and downloading a file."
The expiration of copyrights overseas is just one piece of an antipiracy puzzle growing increasingly complex as the use of modern computer technology and high-speed networks increases around the world. Record labels and movie studios have fought periodic battles to shut down foreign Web sites that offer copyrighted material and to sue file-swapping companies such as Kazaa's Sharman Networks that are based overseas.
Although most of those efforts have been successful, they have had little effect on the actual quantity of content changing hands over the Internet. Kazaa, for example, remains one of the most popular software programs used anywhere in the world.
According to Nielsen/NetRatings figures, 6.4 million people in Europe visited Kazaa's Web site in October, a figure that gives an idea of the number of Europeans using the software. The company does not track actual use of individual software applications overseas.
Record industry officials say they haven't seen a big surge in Web or file-swapping offerings of material that has fallen out of copyright. Most of the European bootleg producers are profit-driven companies with just as much incentive to keep their wares offline as an ordinary record company, Turkewitz noted.
The demographics of file-swappers may also play a role in the slow migration to the Net of content that has recently entered the public domain. Kazaa users tend to be younger than the average population, which may limit their interest in classic jazz and rock 'n' roll tracks compared with modern recordings.
But the industry is on the watch for people creating archives of material that is in the public domain in one country but still illegal to trade freely in the United States. If a Web-based service comes online, it might be possible to block access to the site from the United States by going through ISPs, Turkewitz said.
The RIAA already has attempted to do this once before, asking U.S. backbone network providers to block access to a China-based site offering MP3 downloads. The issue quickly went to court, but the site disappeared before a judge could rule on the legality of the request.
It would be more difficult to block access to people offering songs via peer-to-peer services, however.
That's part of the reason the RIAA, along with other copyright holders, is pressing policy-makers in Europe and elsewhere to bring their copyright laws in line with those of the United States, Turkewitz said.
So far those efforts have met with little success. The most recent Europe-wide copyright rules, which have yet to be adopted by several countries, maintain the 50-year limit. However, copyright holders remain hopeful that individual countries will address the expiration dates as they periodically re-examine digital copyright issues.