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.
