09 December 2004 Richard Chirgwin

Court Awash With Almost-News

The Kazaa case in Sydney at the moment (had I a couple of weeks free and paid for, I would have loved to be in the courtroom!) has been full of ‘events’, which is great to feed the copy-mills, but in lots of ways there’s been surprisingly little ‘news’.

In the main, the cut and thrust of argument and counter-argument has centred around the issues which have surrounded Kazaa ever since it hit the streets: what is the purpose of this software? Does it have a ‘legitimate and non-infringing’ role, apart from sharing music? Could Sharman Networks do anything to prevent copyright theft? Does Sharman Networks have a greater responsibility than, say, the maker of CD-burning software? And so on.

Oh, there have been one or two surprises – but mostly those have been around the issue of the role, worth, and impartiality of expert witnesses.

Six? Seven? Days into the trial, and all we’ve managed is a lot of argument about the nature of the software, the technical capabilities of the company, what theoretical capabilities exist to ‘filter or not’, whether or not a Kazaa server exists, ever existed, or is possible, and whether an expert witness switched sides.

Stirring stuff, but mostly it’s a reiteration of a debate that has gone on for years.

At the moment, the music industry is feeling pretty cocky. Except for the moment when former dotcom executive Tom Mizzone told the court, to Justice Murray Wilcox’s surprise, that he could spy on Kazaa users, or maybe not, things seem to have gone the industry’s way.

I’d probably bet that on questions of technology, Sharman’s legal goose is cooked.

But, in spite of a pay-to-play expert witness spending lots of expensive expert witness billable hours talking about the economics of Kazaa (and how it was going to kill the music industry), there is going to be a fly in the ointment when the industry tries to prove real, rather than theoretical, damage.

It’s all very well for someone to show charts explaining the impact of free file sharing on the sale of music. But what about the historical impact of Kazaa on sales?

Music sales in 1993 were roughly $460 million, and now they’re nearly $600 million (at wholesale).

Sales dipped after peaks in 1992, 1996, and 2001; and have recovered to a higher level after every dip (except for the current one, for which figures aren’t complete).

Local acts are booming.

The category which shows the most catastrophic sales collapse is DVD singles. It’s a delicious statistic: some idiot made a couple of thousand DVD singles, they flopped, and were returned to the stores – generating negative sales. Oh, and because the ARIA people aren’t overly mathematical, they don’t realise that going from positive to negative isn’t particularly valid as a percentage.

You’d have a real job of it to defend the proposition that “DVD singles don’t sell because of Kazaa”.

Looking chronologically, it’s clear that any impact Kazaa had was more-than-compensated for the emergence of new acts.

If there is a 2004 slump (as I said, it’s too early to tell), it coincides not with the emergence of Kazaa, but with the take-off of iTunes.

Is Aria aware of the weakness of putting forth a “cause and effect” relationship between sales and downloads?

I can’t say. However, having looked regularly at its statistics over the last couple of years, I can say this: Aria has redesigned its site, and has drastically reduced the amount of historical data it offers to the public at large. The only stuff that’s easy to find is the current statistical link; you can no longer access (for example) three-year-old Aria statistics.

After all, if the public were given information, we might form our own conclusions.

And nobody wants public opinion to compete with pay-to-play expert opinion, do they?

While we’re on the topic of informed opinion: music industry data is available and is made public. Anybody at all can read the data for themselves; so why would somebody be so bone-idle as to merely say that “IFPI says sales have collapsed”? Global sales aren’t relevant to the Kazaa case, because this is alleging copyright infringement in Australia; the global number is meaningless given the huge ups-and-downs between different countries; and most of the catastrophe is in America.

You’re only that lazy if you’re Reuters…