The Westminster debate was anything but dull. "These guys really hate each other," concluded one observer. The individuals probably don't – but their respective businesses certainly do. Hackers and security experts can find a modicum of mutual respect through shared enthusiasm for technology; but the gloves come off when the music and P2P representatives enter the ring.
Andrew Yeates of the British Phonographic Industry (BPI) has to date demonstrated a measured and pragmatic approach to this problem for his industry, in contrast to the belligerence exhibited by the RIAA, most viciously in the rhetoric of Hilary Rosen, its former president.
Almost a year ago, when the RIAA was just beginning to change the targets of its lawsuits from companies like Grokster and Kazaa to individuals, I interviewed Yeates for OUT-LAW Magazine. At that time he said the BPI was not ready to sue individuals. Yeates said he wanted certain tests satisfied before considering any such action.
Yeates wanted to see improvements in the authorised download services. He acknowledged that consumers could not be expected to use them if the usability was poor and the pricing unreasonable. That is more than the RIAA has ever conceded. His next demand was to get the laws clarified: he wanted the Copyright Directive implemented in the UK before considering any action. And his third criterion was to educate the British public: to send the message that sharing copyrighted music is unlawful.
This week, Yeates again referred to these tests. But with more pay-per-track services now in the UK, with the Copyright Directive now implemented and in force in the UK, I again put the question to Yeates: is the BPI planning to sue individuals?
His answer was that the BPI does consider it reasonable to sue individuals but he implied that there were no plans for immediate action. He made a point of proportionality – that any action taken would need to be proportional to the infringement and that any damages in such action would reflect this. Unlike the US and its controversial DMCA, the legislation used against file-sharers, the damages that the BPI could expect in this country are not fixed in legislation and would likely be more modest than the RIAA could win in US courts.
He said he fails to understand the public hostility towards the music industry for trying to protect its copyrights, referring to the often-cited case of the RIAA's legal threats against a 12-year-old girl. "Nobody would question a shopkeeper catching a 12-year-old shoplifter and reporting him to the police," he observed.
However, Yeates also spoke of being an 11-year-old boy who made crude tape recordings of Top of the Pops with a microphone held to his television. He also seemed to distinguish his own situation from the digital copying that exists today, where the copy is as good as the original. But in doing so, he puts his finger on the flaw in his shopkeeper analogy: shopkeepers have always chased 12-year-old shoplifters. The music industry only began doing the same when copying technology evolved to a point it disliked.
Do not be misled by the Copyright Directive's involvement: it has little effect on P2P because while a copy of Top of the Pops can today be recorded lawfully under a narrow time-shifting exception for broadcasts in UK law (introduced in a 1988 Act), recording your own CD or vinyl album to a cassette, e.g. for playing in your car, has always been an infringement, albeit a minor one. We do not have the "fair use" exception that the US and much of Continental Europe has. But any action against an individual making a single copy for personal use hopefully would not meet Yeates' test of proportionality.
"No wonder your industry's in a state," observed his American opponent later in the debate. "I saw your Top of the Pops the other night. It was terrible!" Enter Wayne Rosso, a P2P journeyman who ran Grokster, a piece of software that competes with Kazaa but operates on the same network (so a search on either service will produce the same results).
Rosso is the man who last year famously offered to pay "out of my own pocket" the $2,000 settlement demanded by the RIAA from that 12-year-old New Yorker.
Rosso's argument began:
"The music industry has been actively selling a big lie. That lie begins with the assertion that the peer-to-peer is a rogue industry. Well rogue industries don't form trade associations in Washington DC. Rogue industries don't create self-imposed codes of conduct. Rogue industries don't testify before Congress. Rogue industries don't work with the FBI and other law enforcement agencies to track down and prosecute paedophiles.
"We're not a rogue industry. Any suggestion to the contrary is a direct result of the cynical and egregious propaganda that the RIAA disseminates on a daily basis."
Rosso continued:
"The music industry is convinced that P2P technology is incompatible with what they do. [...] If the music industry had become early adopters and users of this technology, they wouldn't be having anywhere near the problems that they are experiencing today. There's just no doubt about that. But, instead, they want to blame file-sharing for all their problems when, in any fair and reasoned analysis, it only represents at worst a very small portion of these problems."
Rosso is still close to Grokster, but he is now CEO of Madrid-based Optisoft which develops new ventures Blubster, Piolet and MP2P Technology. He described the new P2P network that his company is building. It will use encryption and multiple sources to give file-sharers anonymity. A search request will be answered by several computers that host the desired file. However, the download will come not from one of them but from several, being pieced together again by the requesting computer.
Some might consider such use of technology to be evidence of a rogue industry. But Rosso's take on it is that he has been driven to doing this by an unreasonable music industry that will not listen to reason, that will not even negotiate. What else is there to do, he would argue, but fight it?
As anyone would expect, neither side agrees on the level of damage caused by P2P to the music industry's profits. Both agree that it has caused some harm. Yeates also made clear that P2P is not the only problem his industry faces.
So the BPI said it believes in asserting its rights against individuals. It has said that before. Rosso accused the music industry of being run by "idiots." The P2P community has said that before, too. So did anything valuable come out of this Forum? I think that it did.
Rosso said he does believe that content providers should get paid. He said that DRM, or Digital Rights Management, could help the industry to introduce protected content to P2P networks. The files would be exchanged for free; but these are not standard MP3 files. Instead they could be programs that play a music track a certain number of times or for a certain period, then trigger a payment mechanism that takes the user to a checkout, where some form of payment is required to keep the track. The advantage to the music fan, however, is that he gets easy access to music and can try before he buys, every time.
I've never heard a P2P company advocate this before, yet Alan Morris, also present, agreed with him. Morris is Executive Vice President of Sharman Networks, the owner of Grokster's main rival, Kazaa.
I put the question to Andrew Yeates: does he see effective DRM as a way in which the music industry and P2P networks can co-exist? "I see it as a possibility," he concluded.
There was little elaboration on this point. It was a small point in a debate on a very contentious topic, and responsible use of effective DRM is not a silver bullet: DRM is arguably not yet effective; some uses of it by rights holders are irresponsible; any such system will face the same payment and licensing issues that hamper the authorised internet music services; and however effective DRM may become, analogue ripping of music will continue if P2P users are willing to listen to their music without digital quality.
There is little doubt that that P2P has affected CD sales and that the RIAA has given P2P a bad name. But P2P is a powerful technology with a lot to offer beyond unauthorised copies of music. And it won't go away – it would be naïve to think that the underlying technology can be stopped, or that developers like Wayne Rosso's Optisoft won't find new ways of protecting the users of these networks.
Even if both sides will only consider DRM as a possible solution, isn't that some sort of progress?
The BPI has the legal grounds to sue individuals. But when so many millions of individuals are now infringing copyright laws, you have to wonder whether the approach of our legal regime is the correct approach. Meantime, it can only be hoped that, if the BPI does take action against individuals, any such action is "proportionate," as Andrew Yeates described.
I have more confidence in Andrew Yeates and the BPI than I have in the RIAA. I only hope it is not too late for the industry to find something positive in P2P.
By Struan Robertson, Editor. These are the personal views of the author and do not necessarily represent the views of Masons.
