I mentioned on Facebook that I had watched a segment on BBC Click about BitTorrents the other day. The segment was focussed on BitTorrent downloads and about how some BitTorrent site operators are working on legitimizing their services. While there is no doubt that there is a considerable amount of piracy being conducted using BitTorrent sites, the segment got me thinking again about the availability of music online, particularly here in South Africa. I emphasise South Africa because some of the more privileged and more developed markets have the benefit of Apple's iTunes Store and some even have access to Amazon's music download store too.

Here in South Africa there are very few satisfactory options available. Perhaps the best of the bunch is the Nokia Music Store which gives Windows users access to a fairly wide range of music available for download. The music sold on the Nokia Music Store is restricted by digital rights management software which limits the platforms that can be used to access it and the flexibility users have with that music. Otherwise it is probably the best option for South Africans looking for both popular and more obscure music.

There are other options that are accessible to South Africans both in South Africa and internationally and their versatility and accessible ranges vary. One source of music (and other media, for that matter) which is probably as diverse as any online music store is the peer to peer network of BitTorrent users who share their media which they may have ripped from their CD and DVD collections of which they may have obtained from other users and re-share. This content is frequently infringing on someone's intellectual property rights (usually copyright) and is illegal. Using BitTorrent tracker websites like the now infamous The Pirate Bay anyone using a freely available BitTorrent client can download a range of content including these illicit copies of music, movies and TV series that someone, somewhere has made a digital copy of and "seeded" onto the network. Popular content can spread virally.

This understandably has content owners deeply concerned. This network isn't dependent on central hubs as sources of this illegal content. While there are Bittorrent trackers which are instrumental in directing users to where all the content is, the content itself is on the users' computers and servers and is shared between them. It is a fairly robust system which rewards popular content choices with fast download speeds and a number of sources of varying quality and reliability.

Content owners' concerns include the potential loss of revenue from what would otherwise be legitimate sales from authorised retail outlets; loss of income for content creators who rely on royalties for their livelihood and the simple fact of content piracy and flagrant disregard of music licensing restrictions. The arguments against BitTorrent are not always persuasive but there is some merit to many of them. One of the challenges facing the music industry (as well as other content-based industries) is that their customers are increasingly resisting traditional sales channels and are looking for more convenient alternatives, regardless of the legalities. I believe that the majority of these people seeking alternatives are not seeking to avoid paying for content they consume (although there are clearly many people who have no compunction pirating content and not paying) but they simply lack the options that give them the flexibility and convenience they desire.

This, to me at least, is indicative of an industry that is slow to change and address its customers' needs. BitTorrent Inc (the company set up to oversee the BitTorrent technology - if I understand it correctly) has been working with content owners to deliver their content using BitTorrent legitimately. The idea is to harness BitTorrent's strengths to open up powerful new distribution channels for content owners and, at the same time, give users more flexible access to quality content. This seems to be a growing trend but we still don't see broader BitTorrent adoption by to wider content owner ecosystem. BitTorrent Inc has demonstrated a capability to adapt this technology for a commercial use and yet we are still faced with restrictions like DRM, regional licences and content simply not being made available.

Just like the data routes around obstructions and breakdowns in the Internet itself, users will find a way around the restrictions and hurdles content owners put up. One of the ways they circumvent these limitations is by using BitTorrent to freely download the content they would otherwise be prepared to pay for, were they given the opportunity to do so using a framework that better suited their needs. Another way users get around these limitations is creating illegal iTunes Store accounts and disguising their locations to access content restricted to specific regions.

Rather than seeing this as a terrifying and growing piracy trend, content owners should take their cue from these trends and adapt their business models to take advantage of these technologies. There is an opportunity here to reach out to substantial numbers of potential customers who are yearning for a legitimate and convenient option. Until then efforts to stop this sort of illegal file sharing will yield very limited results and possibly alienate even more users. In the end the industry will suffer. It is a numbers game at this point.

I heard a report from an Internet Service Provider ("ISP") that the Recording Industry of South Africa ("RISA") has adopted a tactic that smacks of its reviled cousin in the United States, the RIAA. RISA has hand delivered notices styled as take down notices in terms of the Electronic Communications and Transactions Act demanding that ISPs block access to a website in Russia which is presumably suspected of being involved in music piracy.

I have received a copy of one of these take down notices. I have redacted the ISPs details in case RISA would be inclined to take a special interest in them. I have been given permission to publish this notice by the ISP concerned, though. Essentially RISA is accusing the ISPs of committing copyright infringement or causing their subscribers to access infringing material.

I hope to receive a copy of one of these notices shortly but hHaving spoken to one ISP and to the Internet Service Providers' Association ("ISPA"), it seems that RISA has either received bad advice from its lawyers or is just taking a chance and filing these take down notices with this demand. The notice appears to be in terms of chapter 11 of the Act which basically provides as follows:

The idea behind this chapter is to provide ISPs with protection from liability if there is activity across their networks that infringes a 3rd party's rights. The classic case is where an ISP hosts a website with pirated content and it gives the 3rd party an easy way to have that infringing content removed at no or little risk to the ISP. What RISA is doing appears to be an abuse of that mechanism and a play on ISPs' fear of being sued because their customers may be accessing sites that facilitate piracy. I understand that ISPA has been in contact with its members and regards these notices as both ill-advised and, at the same time, invalid take down notices in terms of this chapter of the Act. ISPs should get in touch with ISPA if they have any queries but the consensus seems to be that there is no need for ISPs to comply with this demand.

It is a pity that RISA is adopting the RIAA's intimidatory tactics here in South Africa rather than working more constructively with local ISPs to address music piracy. All RISA is doing is alienating the very organisations it must rely on for any broad-based attack on music piracy in South Africa.

There are a couple ways for South Africans to access restricted and localised iTunes Stores in the United States and elsewhere but these methods are not necessarily lawful. The appeal is that these more established stores contain music, TV episodes and movies whereas the South African iTunes Store pretty much just contains applications for the iPhone and iPod Touch. Unfortunately accessing the US iTunes Store, for example, from South Africa is a violation of the iTunes terms of service and may well also constitute copyright infringement because you are accessing content that is not licensed for distribution through the iTunes Store in South Africa. The iTunes terms of sale begin with the following admonition:

U.S. SALES ONLY

Purchases or rentals (as applicable) from the iTunes Store are available to you only in the United States and are not available in any other location. You agree not to use or attempt to use the iTunes Store from outside of the available territory. Apple may use technologies to verify such compliance.

Users also agree that:

CONTENT USAGE RULES

Your use of any Products purchased or rented (as applicable) from the iTunes Store is conditioned upon your prior acceptance of the Terms of Service, including, without limitation, the Usage Rules set forth therein.

By violating these terms of sale users risk having their accounts terminated and, as a result, they could lose the ability to play back content they have bought from the iTunes Store. On the other hand, if users have purchased music free of digital rights management software (typically from the iTunes Plus collection which is set to expand to encompass all iTunes music in the next few months), they may retain the ability to play this music back as before. The Termination clause in the terms of service makes the consequences of not complying with the terms of sale and terms of service quite clear:

15. Termination.

a. Termination by Apple. If you fail, or Apple suspects that you have failed, to comply with any of the provisions of this Agreement, including but not limited to failure to make payment of fees due, failure to provide Apple with a valid credit card or with accurate and complete Registration Data, failure to safeguard your Account information, violation of the Usage Rules or any license to the software, or infringement or other violation of third parties' rights, Apple, at its sole discretion, without notice to you may: (i) terminate this Agreement and/or your Account, and you will remain liable for all amounts due under your Account up to and including the date of termination; and/or (ii) terminate the license to the software; and/or (iii) preclude access to the Service (or any part thereof).

b. Termination of the Service. Apple reserves the right to modify, suspend, or discontinue the Service (or any part or content thereof) at any time with or without notice to you, and Apple will not be liable to you or to any third party should it exercise such rights.

The reason why such purchases are illegal (or at least contrary to the iTunes terms of sale and their terms of service) is that content "purchased" from the iTunes Store is "provided to you by way of a license only". There is a common misconception that when you buy a CD, DVD or, in this case, digital music, you become the owner of that item. In fact, what you are buying is a license to consume that media in a particular way. Digital rights management software (or "DRM") adds a layer of complexity to the content license and usually prevents the consumption of that content using certain devices. A good example of DRM in action is how you can't play non-iTunes Plus purchases from the iTunes Store in a version of iTunes registered using someone else's iTunes account.

Part of that licensing regime likely includes limitations as to where iTunes music may or may not be sold and those limitations are probably dictated by the music industry. In fact it is probable that all the limitations on the sale and consumption of the content are dictated by the music industry. The bottom line, though, is that buying music from an iTunes Store like the US iTunes Store from here in South Africa is certainly a violation of iTunes' terms of service and terms of sale and because it likely constitutes a copyright violation, it is also illegal.

In this third and final part of the three part series I expand on the introduction to Creative Commons licenses in the second part and present you with a few examples of where Creative Commons licenses have been used in successful commercial endeavours and why you may want to consider using these licenses in your business.

While many Creative Commons licensed works are free to use and share, this is not necessarily the rule. Works can be licensed under a Creative Commons license and still be sold for profit. It really comes down to the appropriate choice of the license given what you want to achieve. As a content creator you can license your work under a non-commercial license and have a separate license to govern commercial exploitation of your work (in fact, a new protocol called CC+ enables commercial providers to use a non-commercial Creative Commons license, for example, and provide an easy guide to people who wish to make commercial use of the works under a separate license. There are sound reasons for licensing content under Creative Commons in the commercial world.

Magazine publishers may want to license their magazines under a non-commercial license to enable their readers to make copies of interesting articles and pass around to colleagues and friends without having to field and grant permission to each reader. Instead the magazine will contain details of the license and provided the readers don't distribute the articles outside the scope of the license they need never approach the publishers who, in turn, have more time to focus on the business of magazine publishing.

When it comes to creating a greater awareness of your content consider the impact of a group of fans passing around a couple songs recorded by a new band's music to their friends to copy and pass along for personal use as a promotional tool for an upcoming concert or album release. Here is another possibility: imagine being able to buy a CD and being able to legally rip the CD to your computer to play on your iPod? A Creative Commons license enables that and legalises a common practice that, at the moment, is an act of copyright infringement despite fans willingness to buy the CD and not a pirated version online.

(Photo credit: Creating Ghosts I-IV by Rob Sheridan and Tamar Levine published under a Creative Commons Attribution Non-Commercial ShareAlike 2.0 license)

The alternative rock band, Nine Inch Nails, is a pioneer in this space. They release their music online under a non-commercial Creative Commons license and provide varying pricing strategies depending on the album release and the album options. Fans can, for example, download high quality songs for free online or they can buy the same high quality songs from the band's website. The band has also made its music available for free download on BitTorrent and other peer sharing networks. You would be forgiven for thinking that no fan would pay for the music she could simply download for free but this has proven not to be the case where it counts. In fact, this has proved to be a very lucrative model for the band because its fans are determined to support the band by buying the albums even as the band makes albums available for free download online. Nine Inch Nails recently released four instrumental albums called Ghosts I to IV. The band gave fans five options on their website: nine free downloads; $5 for all the albums in high quality audio files; $10 for a two CD set and the downloads; a $75 deluxe edition including the two CDs, a DVD, a Blu-Ray disc and the downloads as well as 2 500 limited edition sets costing $300 each. The $300 sets sold out in a matter of days earning the band $750 000 from that edition alone. What was even more interesting is that the band didn't do this through a record label, it produced and published its music itself.

Nine Inch Nails released its next album, The Slip, under a Creative Commons Attribution Non-commercial ShareAlike license. This album was made available as a free and complete download in addition to a paid physical version of the album.

Locally media companies have been using Creative Commons licenses for somewhat more humble projects which are perhaps more meaningful because they are becoming part of our daily lives in a fairly subtle way. When BMW launched its 1-series promotion a little while ago, it built Creative Commons licenses into the rules governing a video competition where fans created their own videos about the 1-series. Rather than adopting the usual approach of forcing fans to hand over their rights to their videos to BMW, BMW instead licensed the videos from the fans using a Creative Commons license.

FNB recently launched its Shine2010 website and is licensing much of its content to visitors to the site using a Creative Commons license in an effort to encourage people to share the content in their social networks and help build a greater awareness of the content on the website. (Disclosure: we were briefed to develop a legal framework for the Shine2010 website and recommended use of a Creative Commons based license framework)

JoziKids, a wonderful child focussed website, uses Creative Commons licenses to license content created by its advertisers who create listings on the website rather than trying to take ownership of the content in order to provide the listings to visitors to the site. In this way Merle Dietrich strikes a balance between being able to publish rich listings on the site and not interfere unduly in the advertiser's ability to exploit their content commercially outside the website. (Disclosure: we were similarly briefed on this website and recommended use of a Creative Commons based license framework)

Despite its reputation as the hippie-freebie alternative to restrictive copyright, Creative Commons licenses have a role to play in the commercial world where the ability to apply a license to content virtually on the fly and without the costs usually associated with customised licenses is a valuable one. The one caveat in all this is that Creative Commons licenses are not the answer to all your licensing challenges. While they are well thought out legal constructs, there are circumstances which require a custom drafted license prepared by your lawyer of choice to cater for specific needs. That being said it is certainly worth your while to consider using a Creative Commons license to license your content. These licenses better achieve the objective of stimulating creativity, innovation and content sharing while at the same time protecting creators' rights and business models.