Filesharing: Why the government should proceed with caution and what you can do to influence the debate.

UPDATE: Richard has set up a wiki for people who are considering responding to the proposals raised in this post.

In 1906, composer John Phillip Sousa testified before the US Congress that the technological advance of his day would not only “ruin the artistic development of music” but also cause the vocal chord “to be eliminated by a process of evolution”. His fear? That families would shun the singing of songs from sheet music in favour of listening to music on player pianos – the direct antecedents of the record player. It’s interesting to speculate what the creative industries would look like had legislators listened then. I suspect that the CEOs of the world’s four major record labels would agree that it’s a good thing they didn’t.

Nowadays, there’s nothing strange in businesses coming to the Government to ask for help in seeing them through economic difficulty. At times like these, it falls on legislators to take proposals for intervention on their merits. But there’s one type of industry that has been established in the lobby chamber since long before the credit crunch: publishers and distributors of information goods, and in particular, the recorded music industry. Challenged by the revolutionary distribution mechanism that is the internet, big publishers with their expensive marketing and PR operations and big physical distribution networks, are seeing their power and profits diminish. Faced with the choice of accepting this and innovating, or attempting, King Canute-style, to stay the tide of change, they’re choosing the latter option, and looking to Parliament for help with some legislative sand bags.

Their desires are close to getting realised. In response to music industry demands to fast track the legal process that sees copyright infringers brought to justice, the Department for Business has entered a final stage of consultation, and proposals to force internet service providers to act against individual citizens alleged (by rightsholders) to be illicitly swapping copyrighted material over the internet are set to appear before legislators in the next Parliamentary session. The number of citizens such measures would affect is significant, both in terms of the number of people apparently engaged in illicit filesharing (estimated at 6 million) and the much larger number of people who might share a home internet connection with these copyright infringers, and have their perfectly legal – and often economically productive and socially beneficial – online activities disrupted as a result of enforced ISP sanctions. But it remains unclear whether re-establishing the market power of the old analogue distribution industries is the best thing policy-makers can do to support the thousands of artists, writers and film makers who want to make a living from their craft in the digital age.

Many artists feel that publishers have stymied legal alternatives that may reward reward them. Only this month, Morrisey took the unusual step of urging his fans not to buy a boxed set of re-released songs because EMI were not paying him royalties. Music legend Billy Bragg formed the Featured Artists Coalition to campaign for a greater control of content and royalties for artists and musicians. Billy recently said “[The] record industry in Britain is still going down the road of criminalising our audience for downloading illegal MP3s. If we follow the music industry down that road, we will be doing nothing more than being part of a protectionist effort. It’s like trying to put toothpaste back in the tube.”

A clever government would pay attention to the significant political difficulties these legislative proposals may yet face. Since 2007, France has been trying to enact similar laws, against the twin tides of constitutional and swelling popular resistance. Meanwhile, the combination of new internet snooping laws and a high profile court case against torrent-swapping site the Pirate Bay moved the Swedish electorate to send a member of the controversial Pirate Party to Brussels in the European elections in June. Across Europe and the world, ordinary people are beginning to realise their stake in the copyright settlement, and to demand that legislators act beyond the interests of the incumbent analogue publishing behemoths that tread the lobbies of Parliament, to secure the future of digital cultural production in a much broader, long-term context.

All this should give legislators pause. Back when I was in the Cabinet Office, I spent 18 months immersed in conversation with the UK’s digital pioneers. I’m convinced that our economic future is dependent on developing a set of economic and regulatory arrangements (which includes copyright, the legislative mechanism at the heart of the filesharing debate) to hothouse our digital natives – the under-30s for whom the internet is not a new technology. Current legislative proposals appear to me to do nothing for this set of people. Not only do the sanctions ultimately risk criminalising a large proportion of UK citizens, they also attach an unbearable regulatory burden on an emerging technology that has the power to transform society, with no guarantees at the end that our artists and our culture will get any richer

So what can Government do? A much more fruitful path – economically, politically and socially – would be to ask why current economic and regulatory conditions are not bringing about enough legal alternatives to draw UK consumers away from illicit p2p. Working on the fairly safe assumptions that (a) people like downloading music from the internet, and (b) most people, given a choice, would prefer not to break the law, we should aim to map a way forward for businesses old and new to take advantage of the digital market in a way that allows them sufficient profits to invest in the creative talent of the future.

Internet consumers face a turbulent time. In the news market, Rupert Murdoch this week claimed that he could make a pay model work for online news but that “We’ll be asserting our copyright at every point.” I wish him well, yet there is a grim reality for his industry. No matter how good the news content, it has no value if it can’t be found by search engines. Hide your content away from hypertext links and Google and your beautifully crafted prose might as well be written in invisible ink.

It is clear that the big corporations are gearing up for an online struggle. Enforcement is central to their strategy. Expect to see hordes of bedsit bloggers and home alone music fans in the courts for copyright misdemeanours over the next few years.

Just as the newspaper industry looks set to embark on a collective global impersonation of Ned Ludd, there is an irony that forward thinking players in the music market might be finding some solutions. We’re at a stage where attempts to bring all-you-can-eat digital services to music fans might just be about to pay off. Civil servants might better serve the nation if they were to establish what conditions drive these Internet success stories.

Why was it Apple, a technology company that first capitalised on online music sales with iTunes? What finally persuaded major record labels to allow for digital distribution of their products without cumbersome digital rights management restrictions? What drives the business models of innovative music streaming services like Last.fm and Spotify, and how can they direct eventual profits into investing in new talent? What were the barriers that meant Virgin Media was unable to bring its promised “legal p2p” product to market at the beginning of this year?

Instead of consulting on the best way to criminalise 6 million UK citizens, wouldn’t it be better if civil servants in the Department for Business spent its time asking these questions? Then we might have more chance of coming up with interventions that will nurture21st century creative talent in the UK, and not just restore 20th century incumbents to their position of power.

What you can do to make sure that future filesharing legislation doesn’t go pear shaped:

1. Make your views known to the Department of Business Innovation and Skills. The consultation on legislation to address illicit P2P filesharing ends on 15th September. I haven’t drafted a response yet but I will before the deadline.
2. Share your ideas and views in the comments section of this blog. I will make sure your views are brought to the attention of relevant ministers, as I did with the “cinema style ratings for the Internet” issue.
3. Sign up to the mailing list for the Open Rights Group. You don’t have to agree with everything they stand for to stay in touch with the one group that aims to represent the interests of ‘Net users to government and political parties.

Added Content:

John Philip Sousa, Stars and Stripes Forever:

[Stars and Stripes Forever][John Philip Sousa]

I think Sousa would have been relieved and proud. It might not be to your taste but technology allows the culture of Braggism to spawn:

[I don't want to change the word][I'm not looking for a New England]

[I'm just looking for][another girl]

[I can't survive on what you send][every time you need a friend]

See also:
Larry Lessig on Laws that choke creativity.
Yochai Benkler: Open source economics
Matthew Rimmer (book): Digital Copyright and the Consumer Revolution: Hands Off My IPod
Robert Darnton: Google and the future of books

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