UK file-sharers to be “cut-off” — Justification
This is the thorniest and ultimately most unpleasant of all of the aspects of the Department for Business, Innovation and Skills’ plans to impose sanctions upon illicit peer-to-peer file-sharers.
While plenty of ordinary people are likely to be caused great inconvenience by the planned sanctions if they come to pass, the wider ramifications are not insignificant.
The argument put to the Government is that piracy is costing vast sums of money, and so must be stopped. This is a simple enough argument, and one which—to its credit—makes sense. There’s a divide between “there’s a problem to which we would like a solution” and “here is a change in the law to provide a solution”. This divide centres around the justification for actually changing the law: is the problem as great as it is stated; are there wider issues surrounding changing the law in this are; is it something which can be better dealt with privately, without an additional legal framework; and so on?
In this case, the arguments—that is, the justification for the proposals being put forth—fall at the first hurdle.
The bullet-point summary of the facts (all of which are fairly trivial to independently verify, should you wish to):
- Nobody actually knows how much illicit file-sharing goes on
- The “7 million people” who apparently illegally download content, a figure used by the media industries to estimate resulting losses, has been thoroughly debunked and is almost completely a work of fiction.
- Nobody knows how much money is lost by rights-holders as a result of illicit file-sharing
- Nobody knows how much money is made by rights-holders as a result of illicit file-sharing
- Independent studies have consistently found that those who admit to illicit file-sharing spend more on legally-purchased content than those who don’t
- Setting aside the moral imperatives, illicit file-sharing simply cannot itself cost rights-holders money: this only occurs where people download infringing content in preference to buying it
- Anecdotal evidence suggests that plenty of people do, indeed, download content for free via BitTorrent and other sources that they would otherwise buy
- Anecdotal evidence also suggests that plenty of people also download content which they either then effectively throw away (i.e., they sample it), or go on to purchase it
- A certain proportion of illicit file-sharing is made up of people downloading content that they have free and easy access to anyway (i.e., TV programmes broadcast free-to-air in their country), and also content which they have no way of getting legitimate access to.
So, what does this tell us?
In essence, it tells us that we (and by “we” I mean pretty much everybody involved in the file-sharing sanctions discussions, including the public, the Government and rights-holders) know pretty much nothing useful about the impact—positive or negative—upon rights-holders. Not even a little bit.
Is this sufficient justification to propose changes in the law? Lord Mandelson believes it is. The only conclusion that I can draw is that he’s been misled. As much as many dislike him, I can’t bring myself to the belief that he would—in full and frank knowledge of the above—still put the proposals on the table that he has. It’s not a matter of opinions and debate, it’s a matter of facts—or rather, lack thereof.
And, as much as many like to talk about “morals”—and this shouldn’t be seen as a prima facie justification for illicit file-sharing—there are at least two sides to this particular story. There are plenty of scenarios where people engage in illicit file-sharing where there simply is no harm caused to the rights-holder. Similarly, there are plenty where harm is caused to the rights-holder.
Several (unsurprisingly fairly widely-reported) studies have suggested that many people who engage in illicit file-sharing spend more on legal content than those who don’t. While there’s a contingent who will illicitly download content which is available to purchase (that is, freeloaders), there’s another contingent who are downloading because it’s more convenient than the alternatives.
As shown at the MGEITF this year, one of the most-downloaded TV programmes is Top Gear: downloads spike immediately after it airs on a Sunday, and gradually tails off towards the following Saturday. The analysis shows two things: some are downloading it because it’s just not available in their country (which means it’s a lost revenue stream), and some are downloading it because it is available in their country and they missed it. To many, BitTorrent is considered to be a superior alternative to the BBC’s iPlayer (especially by those who don’t want to watch the programmes on their computer, or have computers which Flash and Adobe AIR perform badly on). It’s difficult to demonstrate that harm that the BBC actually suffers here: unless you’re one of the households being monitored for ratings (in which case, you probably wouldn’t do it), downloading Top Gear from BitTorrent is—from the BBC’s perspective—no different from using a Freeview PVR.
The point here is not that “illegal downloading is often harmless” (although it can be), but that the facts available show a range of different behaviours, of which only a subset cause demonstrable harm—that is, the kind which would warrant even considering a change in the law. I do, quite seriously, sympathise with anybody who loses out on income because of copyright infringement, I find it impossible to support the idea that suffering loss is enough to justify abandoning our normal legal processes, especially given all of the other problems these proposals suffer from.
To summarise all of the posts I’ve made on this topic:
- Introduction: The proposals violate the stated aims of Digital Britain (both the report, and the Prime Minister’s “vision”)
- Sanctions: any sanctions will, in a significant proportion of potential cases, adversely affect others beyond an individual illicitly sharing content.
- Detection: Detection is, to put it mildly, a minefield. Even when you do detect somebody file-sharing, there are no guarantees that the information you have is in any way accurate.
- Proof: Given the problems with detection, it follows that establishing proof of guilt will be difficult. Is an unprecedented sidestepping of our legal system really a suitable way to deal with this?
- Justification: It’s not unreasonable nor an understatement to say that changes in the law simply cannot be justified on the strength of the facts as they exist.
One quote I’d like to include, which demonstrates quite clearly that Lord Mandelson is certainly aware of the wider issues here, is again taken from his piece in The Times:
Ultimately the answer to combating digital piracy lies in the hands of those who own content and those who control access to the internet. Rights holders already have to take risks, and will have to take more — for example, by developing new online services such as Spotify that make much more of their back catalogue available in a way and at a price that makes sense to today’s consumers. The age of flogging a CD in HMV for £20 is well and truly over. Ask me what I think will finish off piracy as a real threat to our creators and creative businesses and the answer is obvious — it is the market.
Provide customers with a good quality, cheap, safe and efficient experience, and they will ditch illegal downloading. If the threat of temporary account suspension and its implementation in a small number of cases helps to build a market to make this happen, then I believe it is worth our serious consideration.
(My emphasis).
I should contend that Spotify wasn’t developed by the rights-holders, and they consented because they desperately need a new business model and have thus far struggled to think of one. Makes you wonder would have happened if the RIAA had bought Napster all those years ago instead of suing it. I’m also not convinced that the “threat of temporary account susension” will help to make anything happen except demonise the industry and consumers, but hopefully we won’t have to find out.
Still, he’s otherwise pretty much hit the nail on the head. I hope, for the sake of the content industries, that experimentation with new models isn’t limited to music.
