Four months ago lots of people were getting worked up about the possibility that the UK Government might somehow enforce a "three strikes and you're out" policy for Internet filesharers. I was asked to write an opinion piece about it myself, but more about that in a bit. At that time, the BPI — the organisation that represents major record labels in the UK — was quoted as favouring a "we do the policing, you send the letters" deal with ISPs, and as saying "we've been asking ISPs for more than 18 months to introduce a system to warn their customers (twice) before pulling the plug on them. But we haven't had much success and our faith in negotiations is running thin."
Four months on, and it's interesting to see how a BPI deal with the Virgin Media ISP is being reported. The deal is for an "education campaign" that will see users who share files illegally receive, not a warning or a disconnection notice, but "practical advice on how to prevent internet account misuse, links to legitimate sites and the potential dangers… of viruses and spyware." This last quote is from Music Week coverage [subscription required], which hails it as "a giant leap forward in [the BPI's] efforts to stop illegal file-sharing on the internet by signing a landmark deal" (my emphasis). I don't know about you, but after all that sabre-rattling, sending out letters politely informing criminals (in heavy quote marks) that there are alternatives to crime seems like quite a comedown.
Clearly the game isn't over yet, and — to mix my metaphors — one creates hostages to fortune by projecting that the winner of a battle will be the winner of the war. But that's perhaps my main point, because there is a lot of pressure both in mainstream media and in blogs to get worked up into a lather and over-react to minor or short-term skirmishes. I wrote about this under the title of slow blogging on my DJ Alchemi blog recently. As with the Radiohead hoo-ha that I referenced there, I suspect that the whole three-strikes ruckus will, with hindsight, seem like a minor skirmish in the broader sweep of events. (The fuss was whipped up over the implication that the Government, not just the BPI, was in favour of regulating for three-strikes — but firm evidence of this support didn't exist then, and hasn't appeared since.)
With that preface, here is what I wrote on 12 February, trying to anticipate the different ways the scenario might play out, and to analyse the deeper trends that this skirmish brought to the surface. It was commissioned by the Daily Telegraph though they didn't run it in the end.
"Something must be done" about illegal downloading of music and movies via the Internet. Actually many things should be done. We need a sophisticated mix of carrot and stick to tackle the full range of downloading behaviours, which extend from the 'innocent' modern-day digital equivalents of lending an album to a friend through to attempts to undermine copyright on a grand scale. However, the proposal rumoured to be included in the Government's Creative Industries Green Paper may be just one big, crude stick that could undermine other fledgling measures to create a media distribution economy fit for the 21st century.
The proposal is that Internet Service Providers (ISPs) should be obliged to monitor their customers for downloading 'offences'. They should warn them at first, but ultimately ban repeat offenders on a "three strikes and you're out" basis. This would require a register of offenders, presumably on a national basis, shared among ISPs to prevent them merely signing up to another provider's service.
The internet is fast becoming a fundamental utility in many people's lives, one they depend on perhaps more than landline telephony. So the threat to withdraw this utility completely from some individuals is a draconian one. What effect would it have on online behaviour?
The first thing to recognise is that not all internet users are the same. A significant number are still taking their first steps online: listening to music or watching video on their computers is an infrequent activity. These are the people who will be most frightened about unwittingly committing an offence. If the legal market for downloads is to continue growing then it needs to win over this constituency. But what will they make of sites like the free, advertising-supported music download service, We7.com? If it's free, can it be legal? In this case, yes, so perhaps legal download sites would have to create some certification scheme, with all the attendant costs, to guarantee "no offences if you use this site".
Even within the alleged six million people in the UK who download illegally there is a broad spectrum. At one end are many casual and low-volume downloaders. Their downloading fills out the margins of their listening or watching, perhaps to supplement other forms of discovery — like checking out whether a new band heard once on the radio is worth exploring further — or sharing their own discoveries with friends. They too will become much more wary of activities that could count as offences. To be safe, the activity may shift to sharing, over 'bluetooth' connections between mobile phones, burning of CDs and DVDs at home and other, non-internet means.
At the other end of the spectrum are the hardcore poachers who see downloading as part-campaign, part-sport. These technically sophisticated enthusiasts enjoy finding innovative ways of bypassing new challenges. So they will render the offences impossible to detect using so-called 'darknet' connections over the internet, and will then make these more accessible and user-friendly to less-sophisticated users.
Innovation is not, and should not be, the sole preserver of the hackers. But legitimate new business models often run on the same technological infrastructure used for illegal downloading. The legal and fully-licensed service offered by Playlouder MSP, which acts as both ISP and platform for unlimited music file-sharing, is a case in point. Will this source of extra licensing revenue to the music industry — one which aims to "monetise the anarchy" of downloading — be strangled at birth, or does the government seriously believe that technology will be able to distinguish reliably between legal and illegal uses of the same technology?
The only times I have used BitTorrent file-sharing software (known to be very popular for illegal downloading) have been to get music from the DGM independent record label. DGM actively encourages its customers to use BitTorrent because the way it shares the distribution load cuts their costs for internet bandwidth and servers. As it is, the label barely breaks even on its minority-interest releases. If government regulation were to add to the costs of companies like DGM by making their customers worry that using BitTorrent could be an offence, then that won't help either small business or the diversity of our culture.
The fact is that many things are already being done to make illegal downloading more unattractive, more legal (in the sense that it generates payments for rights owners), and to make licensed alternatives more attractive. Perhaps the innovation is slower and bumpier than some would wish, leading to frustration with the conflicting interests, including ISPs, who have to play a part in new solutions. National tracking of online offences is not likely to be either a practical or a desirable solution for anyone. But perhaps a rumoured government threat to mandate it will help focus minds on the many better alternatives.
[Postscript, 16 June 2008: Copies of the BPI and Virgin Media anti-piracy letters are now available via the Music Ally blog.