What, with all the shameless self-promotion that has been going on here in the Top Bit of late, there's not been much ranting has there? Well, lets get all polemic again shall we, and what better topic to polemicise about than the old 'should the ISPs do more to combat illegal file sharing' debate? It's back in the news today because the boss of Carphone Warehouse, who own the Talk Talk internet service provider, has hit out at demands from the record companies that the net providers take a more proactive role in policing illegal file sharing. The BPI want the ISPs to send out warnings to and ultimately cut off net users who persistently access or share unlicensed music. But Mr Talk Talk doesn't think that's his job, and reckons the record labels are just trying to pass the buck for failing to adapt to the digital age.
So, ladies and gentlemen, who's right? Well, I have to say, that while we at CMU have been more critical than most over the years of the way the record industry has adapted to the brave new digital world, and in particular to the ways they have approached the problem of online file sharing via peer-to-peer networks (which consisted, in the main, of excessive litigation and flawed, expensive and unpopular digital rights management technology), I'm finding myself becoming an ever more vocal supporter of the record companies in this part of the P2P debate. It's scary I know - perhaps I'm getting old.
But the point is this. We've never questioned a record company's right to enforce its copyrights. For all their incompetencies, occasional dubious behaviour and arguable over charging, the labels should be able to earn money from their content. It remains a fact that good music costs money, and that a lot of that money has to be spent before the music generates any revenue, which means that someone needs to take the risk and invest the cash at the outset. The record company model, in principle, is a good one - labels invest in new music, securing their investments on future copyright-based revenue. Therefore it stands to reason that said companies are going to want to enforce their copyrights whenever they can, and if society wants commercially driven cultural innovation, then it has to award and respect some rights over creative works and provide the tools to let the owners of those works to enforce them.
The proviso on that, however, is that any copyright owner has to accept that it will never be able to enforce all its copyrights all the time. The fact is it is incredibly easy for individuals to infringe copyrights, often on a daily basis, often without actually realising that they are - and no content owner is ever going to be able to stop every infringement. As a copyright owner, a record label has to decide which of the rights it is given by the copyright laws are worth enforcing, and what techniques are appropriate to do so, generally based on practical and commercial considerations. Prioritising the suing of emerging P2P networks, with the aim of suing them out of business, rather than investing in consumer-friendly alternative and legit digital services was not a commercially sound decision. Pursuing thousands of lawsuits against individual file-sharers, like the Recording Industry Association Of America has done, is neither practical nor commercially sound. And nor is the strategy of hindering legit download stores by insisting on the use of clumsy DRM technology based on the misguided principle that it will stop tracks from appearing in P2P networks.
But what about asking internet service providers to send out letters to customers who are suspected of illegally file sharing, with the threat of suspending or ending their net access if they continue to infringe? Actually, I'm more positively inclined to this proposal than most that have gone before, especially as we are now at a stage (or soon will be) where those who file-share could, if they wanted to, access pretty much all music in user-friendly DRM-free formats from legit digital operations. The labels identify individuals who are illegally sharing music via their IP address, then the ISP sends the bill payer for that IP address a letter. No clunky technology. No expensive and unpopular litigation.
Of course, it's not a perfect solution. Although it is relatively easy to monitor P2P file sharing (in most of the lawsuits based on such monitoring the defendants have quickly settled, surely demonstrating that the labels had correctly identified a file sharer), those who do so on behalf of the labels will occasionally make mistakes, and the ISPs won't want to be suspending those falsely accused of infringement. And, of course, the serial file sharers are cleverer than the agencies working for the labels - those who really want to access illegal content will find ways of doing so that are not being monitored by the labels. And, of course, there is a strong argument that the labels have generally exaggerated the real impact of P2P file sharing on declining record sales, and should just accept the changing nature of music spending and adjust the revenue streams on which they secure their initial investments (as most labels are, in deed, slowly starting to do).
But the ISPs' reasons for objecting to taking on this new copyright-protecting role aren't really based on these facts, rather they say it's simply not their job to help combat copyright infringement, that privacy laws prevent them from helping the labels, and, in Mr Talk Talk's case, that it is the net firms role to "protect the rights of our users to use the internet as they choose". But I'm not sure I buy any of that. By keeping all contact with file sharers between ISP and customer, said customer's privacy is surely being protected. And, according to copyright laws, Talk Talk's customers don't have 'a right' to choose to use the internet to infringe copyright, so there's no right to protect. Moreover, if you are made aware that someone is breaking the law, and you are uniquely positioned to encourage that person not to, and to ultimately stop them from doing so, shouldn't you do it?
The ISPs are presumably really concerned [a] about the cost of taking on any role in enforcing copyrights (ie administration and lost business costs), especially given the ever tightening profit margins these companies operate on given the recent price war in the broadband market, and [b] about the precedent of accepting any responsibility or, worse still, legal liability for the actions of their customers on the net. (It's worth noting that in the statements issued by the BPI this week, it has been clarified that the record labels only see the ISPs doing the 'warning letter bit' - original reports suggested the ISPs would have to do the monitoring bit too, the really costly bit, but the labels trade body is clear the labels will take on that task).
But surely in the same way the record companies have to accept they can only protect their copyrights to a point, and that they have to adapt their business models accordingly (which they now are, albeit fives years too late), the internet service providers have to accept that if they are building a business around providing access to compelling content, they are going to have to do a little to help the owners of that content to protect their investments, otherwise there won't be any decent content to access.
So, to conclude, we all know the major record labels screwed up big time in adapting to the digital age, and many of us suspect that some senior label types are still making bad or short-termist decisions in the digital domain. But if you want good music, you've got to recognise copyright and a label's right to enforce it to a point. And when practical systems can be found to do the enforcing, I think they should be used - albeit in a sensible way, and without the misconception doing so will be some kind of panacea for the wider problem. And finally, those who resist supporting such systems shouldn't be able to automatically portray themselves as the defenders of the common man.
And here ends today's sermon. Wow, I just looked back at it, that's quite a long rant. See what happens when you don't polemicise for a few weeks? I apologise.