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 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

51 thoughts on “Filesharing: Why the government should proceed with caution and what you can do to influence the debate.”

  1. Dear Tom – that’s a really helpful lead and a very sensible suggestion for course of action. I’m also much encouraged, given your recent experience as a Minister, that you feel it worthwhile to respond in this way on these issues (as opposed eg to saying dont bother – nobody listens). So, that’s #2 on your list done. I’ve already done #3. Now it’s #1 by 15 Sept!

  2. I rarely find myself in a position of reading an politicians blog, without feeling it is yet more spin and obfuscation.

    This is one of those rare moments. A good handle on the subject and aiming at the right issues.

    The recording industry has always courted protectionism and has for too long had blind Government support.

    Distribution of media has changed fundamentally over the recent years and the record companies have failed to keep up, prefering to use Legislation against an unstoppable tide. Thousands of musicians world wide want to embrace these emerging channels, creating their own distribution and profit models.

    Across wide parts of the South American continent such a distribution model works to satisfy artists and audience alike.

    It is time the recording companies woke up to the internet and worked with it and not against it.

    Great post

  3. Thanks for for this thoughtful blog post – it’s good to know at least some members of the ruling party are considering the implications of this issue.

    While I haven’t read the consultation document in detail, on a brief read it struck me that neither the recommendations nor the consultation seemed to say anything about appeal.

    As has already happened, rights holders will occasionally mistakenly identify non-infringers as infringing. ISPs will have to record how many times each customer has been notified of infringement, and since these records are expected to be used in court against alleged infringers. ISPs should therefore also have an openly documented appeals process by which a notification can be challenged and, if the appeal is successful, removed permanently from their records.

    IANAL, but I suspect the Data Protection Act would have some relevance here: consumers have a right to know what information their ISPs hold about them, and to ensure that information is accurate.

    It would also be useful to have clear guidance on whether ISPs may share their infringement records. I can imagine a situation where sharing a single file could lead to someone becoming an “unwanted customer” to whom no ISP would provide access, to avoid the administrative hassle implied by the black mark on their record.

    This is particularly important in light of the “balance of probabilities” standard of evidence that the government considers acceptable grounds to require an ISP to send a notification.

  4. We already have a problem with policing on copyright effectively outsourced to the Hollywood-run Federation Against Copyright Theft (FACT). It effectively runs prosecutions and raids by Trading Standards and Police authorities.

    A serious issue with this is data privacy, another is the potential for large companies to crush competitors – a example of which would be their crushing of the, legal, TV Links website.


  5. Tom: I think the issue of how available, or not, legal versions of material are is very important, and there’s some growing evidence that making legal versions available easily and at reasonable cost greatly reduces illegal activity.

    I recently blogged – – about the Tour de France. I don’t know if the footage I ended up watching on YouTube was legit or not, but if not – that was because I wasn’t given an alternative.

    Some firms have managed to beat illegal filesharers at their own game – by providing good quality stuff, that’s either free (but leads to other sales) or sufficiently cheap and convenient that it outweighs the attraction of free but illegal downloading. Why haven’t more firms done this? What’s holding them back?

    I don’t know, but I think you’re right to say those are the sorts of questions to ask.

  6. As an employee of a pretty substantial wholesale ISP I know the industry is not really prepared to be forced to effectively ‘cut off’ customers because they are accused of copyright infringement.

    The current methods for tracking file-sharing are cumbersome at the very least – companies operating on behalf of the entertainment industry offer very little evidence to backup their claim of copyright infringement, usually just a tracked IP address.

    That IP Address that with 10 minutes on google and a bit of know-how can easy be spoofed.

    My employers current method of dealing with accused illegal file sharing claims is as follows;

    1. Notification of claimed copyright infringement received.
    2. After checks are made we inform the reseller or the end user via email. Make clear file sharing of copyrighted material is illegal, offer them advice if it a family member etc.
    3. If subsequent claims are received we repeat step 2.
    4. If a third claim is received, customer has account temporarily blocked (so they have to call us). We ask for assurance that this activity will stop, warn them they could face legal action from the Industry, again offer them advice on legal methods.
    5. Remove the block. Have a nice day.

    If we are made to send more threatening/official letters to customers I’m sure this is achievable, but requiring us to cut a customer off permanently thus cutting our revenue stream? No way. If the ISP industry is forced to do this, prices will rise to meet the extra cost and lost revenue.

    We’re the carrier, nothing more. If someone sends a stolen DVD through the post, do we expect Royal Mail to take action?

  7. Martyn –

    Thanks for the incredibly insightful explanation. I’d not considered the Royal Mail analogy but now you’ve raised it, I hope you don’t mind it being creatively re-used. 😉

    Mark – It’s really hard for some of these big institutions to change their ways but they’re just going to have to. As Malcolm Coles points out, if you make the right offer, people are prepared to pay for content:

  8. martyn! You got in there first with my favourite analogy for the filesharing/ISP debate…. although mine was a little different:

    “What next, are BT going to ban me from calling my drug dealer??”

  9. Tom it is so encouraging to hear a sensible view on this subject by an MP however you are unfortunately in a very small minority.

    I would be interested to hear your views on the private companies masquerading as “copyright police” in the UK such as Federation Against Copyright Theft Limited (FACT). This company, owned by US film companies, is staffed by former police and trading standards officers who then conduct RIPA operations on UK citizens, have unlimited access to UK state databases and pass the information they gather back to their US owners outside of UK data protection jurisdiction.

    Recently this company has started funding police investigations from start to finish, retaining UK citizens property and using private prosecutions, funded by the UK taxpayer at a cost of millions a year, to force new UK businesses that rival their own US owners companies out of business. It is quite simply scandalous.

    A full explanation of FACT can be found here:

    Would love to hear what you think about this.

    Keep up the good work.


  10. Excellent and insightful post.

    It’s also worth bearing in mind that a lot of the numbers that are banded about regarding how much money is “lost” as a result of piracy are imaginary – you don’t know how much people would have bought if they couldn’t get it free.

    There are also significant issues where legal online sales appear unrecorded by the music industry, making legal music sales figures look worse than they really are. Increasingly, musicians are talking to their audiences directly or via tiny indie labels that are solely internet based. This does not contribute to Big Four sales and the Big Four aren’t counting said sales, so they think it’s pirates – yet in reality it’s quite legal.

    Criminalising a significant percentage of the online population – when they might not even be doing anything wrong – is absurd and counterproductive. There is plenty of research that suggests that there is no direct correlation between filesharing and an apparent reduction in sales (file sharing has risen when sales have fallen and vice versa).

    The music industry, like its predecessors, shouldn’t be saying “how can we stop people doing this?”: it should be asking “How can we make money out of this?”.

    It may be that we are seeing the forest fire that wipes out the four big trees in the forest so that a thousand shoots can bloom in the sunlight, and that we are seeing the end of the big record companies. That’s life. Things change. There are new ways of doing business: the industry needs to discover and develop them!

    It’s already happening: look at composers like Jonathan Coulton ( or labels like Magnatune ( Not to mention iTunes, Spotify and the rest. There are already solutions and developing them is where the future of the industry lies.

    Making your customer base the enemy is not a recommended business model.

  11. I intend to write in more depth about this in the very near future, but the crux of it is the DVDs in the post argument. Beyond that, though, I have to wonder: what basis, beyond guesswork and (clearly biased) estimations of losses are motivating legislative changes?

    We know file-sharing goes on, the actual harm caused by it is one great big unknown. Does it cause industry losses? Yes, almost certainly. Does it benefit the industry? Again, yes, almost certainly. Do the losses outweigh the benefits? Of that, we have absolutely no idea.

    From a legislative perspective, the effects of doing this are pretty far-reaching and run counter to some considerable amount of precedent. Enacting it on what amounts to a whim, therefore, is foolhardy at best.

  12. ‘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.’

    Three points.

    1) – asserting your copyright doesn’t mean blocking indexing or all links, and it’s scaremongering to suggest so.

    2) – how do you *know* that content is valueless – not just less valuable, but value*less* if people can’t stumble upon it from a Google search? You think subscribers to the WSJ wouldn’t be able to bookmark?

    3) – Government looking at barriers to innovation is fine. But your dismissal of this (still unclear at the moment) attempt to make content pay in a different way from free-plus-advertising sounds more like you think government should pick one business model and make sure it works, and that’s much more dangerous to innovation than any copyright law, outmoded or no.

  13. At Last!
    An insightful and objective look at the World Wide Web and Copyright from a politician.
    Although I live in Finland as an expat Brit I follow closely what’s going on in the UK. It’s good to see at least one inhabitant of Parliament living in the 21st century.

    By the way I blogged today about the plight of the press who seem also to be on the road to ruin.

  14. Thank you for this. Would that we had the clout of a David Geffen. Now to write to my MP, Andrew Smith.

    Not only was this a useful post, the comments are helpful, too.

  15. Pingback: Updates « take21
  16. The government’s job should be to maximise the net welfare. In this instance, that is most easily achieved by substantially reducing copyright terms (to something in the region of 14 years) and then enforcing copyright more efficiently. But the producer groups are sexy and rich: how can mere voters compete?

    My prediction for the impending Digitaless Britain? A new Common Artistic Policy (CAP) where we pay record companies to do nothing productive, just as we pay farmers to do nothing productive now. Tragic, but there you go.

  17. Has the government considered that the extremely high youth unemployment rate, and low salaries for young workers might be why piracy is highest in this age group.

    Rich people buy music because they can afford it. Its the unemployed and poor that pirate and when you can see a live gig of an exciting new band for the price of a CD, the CD is obviously over-priced.

    Also the copyright terms are now stupidly long. 14 years with an option to renew to a maximum of 28 years was a pretty reasonable term, I think 14 years should have been the maximum.

    Its now unlikly any work will enter the public domain in your lifetime. This was not the intent of the original legislation. The problem is the law has swung too far in the favour of the rights holders.

    Also within the next 20 or so years it is likely we will have developed the technology to interface with the brain to the extent we can access memories. We can retain a copy of a song we hear in our brains, in many respects our brains are little different from computers in that that they are great at copying, storing and sharing information.

    We are taught from a young age that sharing is a good thing. The system of taxation is based on enforced sharing of wealth. Yet when it comes to music or films, its suddenly bad to share, this moral duplicity means its hard to destroy the moral arguement that sharing information is good. We don’t want a selfish society, we WANT one that shares and tries to help each other out.

    I can sing a (copywritten) song i hear on the radio to a group of friends already. This would be breaking the law as it stands at this moment. Why is this illegal?

  18. Without having all that much interest in this:

    I suspect that isps can be made out to be accomplices of the guilty if they do not co-operate in the cases of large scale offenders?

    I also wonder whether giving copies old tracks which are out of copyright – there is good music still being sold from just after WW2 to my certain knowledge – will be made illegal?

    I know how much my son and his friends pay to record and mix their music in the hope of greater recognition. This is not all about big capitalist exploiters of talent.

  19. Also spare a thought for legit users of P2P who most likely at some point will get caught up in the tripwire ineptly set by Geffen and friends.

    Yes there are many legit uses for P2P, to name but a few, the distribution of Open Source software (such at the Linux operating systems, FreeBSD and their brethren). The distribution of music which has licenses which allow and encourage FREE distribution (GPL and Creative Commons). The distribution of other creative works licensed under similar terms (including video, audio recordings (samples) and the written word).

    Artists are looking to FREE distribution methods to achieve exposure of all or part of their work. From here they can then build their popularity and look to alternative ways to create revenue through such things as licenses for commercial use (eg. music for TV ads), or simply solidify a fan base and guarantee valuable bums on seats.

  20. Hi Tom,
    it’s a pity that you censor any argument you don’t agree with including my above post, explaining how your views , hurt the economy encourage theft and ensure artist don’t get paid.
    Ironic for someone trying get the “Pirate” vote.
    Still I suppose you learnt truth distortion from your stalinist leader Gordon.

  21. Meant to write re music from just after WW1, not WW2.

    Many of those artists are more than 50 years dead, sadly.

    Vaughn De Leath (September 26, 1894 – May 28, 1943) a great example.

  22. Hi Tom,

    I am currently drafting a response to the consultation which will hopefully be complete at some point this weekend.

    I come at this from the community support site (which I have entered as my website). If you view the press link on the site you’ll find a summary of extremely concerning action being taken by a law firm which far exceeds the proposals made by Peter Mandelson.

    Many (hundreds of) people have been wrongly accused of filesharing in the past two years, have received 3 or 4 letters each. No progress has been made with recourse through the SRA, and so far no-one has had a contested case tried in court.

    I’d be keen to hear your opinion on this action, especially as Peter Mandelson’s proposal, and the Digital Britain report at least encourage prior warning, and details of network security before sending out letters of claim.

    If you would like more detail please read the site, and feel free to email me.

    Kind Regards

  23. Dear Tom Watson:

    I think we should talk. In 2008 the ISOC-ECC.ORG presented detailed comments on the FR 3 strikes law.

    Please send me coordinates,

    CW: +32 479 396 365

    (Chair ISOC-ECC, Member Coop party, friend of Barry Sheerman etc. etc. – this is NOT a trivail approach.)

  24. One of the things you may find of interest is that ISPs in the US may be about to cave in to the music industry’s demands. Of course, they have their own agenda for doing so. Check out the story on The Music Void –

  25. I don’t know if this will actually help your argument or not but to be completely frank with you as a downloader, if the content is good I buy I have no qualms in that and I do think that this is the attitude of the vast majority of p2p, I do and will continue support good content, if its dross its their lose.

  26. The major flaw in the governments and record companies argument (and also that of any content providers) is that they assume that every illegal download amounts to a lost sale. This is simply not the case. I have not watched broadcast TV for years and am now totally used to the convenience of watching what I want when I want. I watch a number of TV shows which whilst they may be showing on TV are often not on iPlayer or similar and are not available on DVD. The current argument goes that If I could not download these illegally I would have to buy them. Well I would not, I would just start watching broadcast Tv again for free.

    The same goes for music, if I could not download I would just listen to the radio alot more (and record the chart show) like I did when I was a kid. I would not buy more music if I could not download.

    I think that even if these plans do succeed in stamping out downloading (which they wont) the industry is in for a massive shock- they will not suddenly be selling everything that is currently being downloaded. In fact if my experience is anything like typical, they will sell less because people like me will not find new things they fall in love with (and buy) because they will not be able to afford to branch out and experiment.

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