Why Digital Britain will not stop online piracy

The case of the single mother - ordered by a Minnesota court to pay $1.92 million to record companies for illegally downloading 24 songs - highlights major problems that the UK government faces about how to deal with online piracy.

This week’s Digital Britain report trumpeted various ways that the government was planning to deal with illegal file-sharing. At the time the report was released, I provided an analysis of the piracy recommendations - a useful read for anyone wanting to get to grips with the proposals.

I’ve had a few days to ponder and peruse it. I’ve spoken to some of the interest groups and people involved with compiling the report. Now I can’t help feeling that the Digital Britain measures will not provide any practical or effective solution to the problem of piracy.

The Minnesota story is a case in point. The aim of Digital Britain is to engender a culture change on how we use the web. For good or bad, there are a lot of people who don’t think twice about using peer-to-peer services such as BitTorrent to download illegally. Yes, there is a hard-core of “serious offenders” who download tons of albums and songs. But the Minnesota woman downloaded 24 songs, each of which will now cost here $80,000.

Is this a fair and proportionate punishment. I, and lot of public, will think not.

If and when “right-holders” i.e. the music and film industry, starts suing Brits en masse - as the Digital Britain proposals will give them licence to do - they will have the public full-square against them.

Stories of little old ladies and 12 year-old kids who are being taken to court by big, bad record companies will come out of the woodwork. Outrage will follow. This is a pretty useless state of affairs if what you are trying to do is engender a culture change.

But the small print is where the real problems lie with Digital Britain.

The report says that the aim of the legislation is to reduce unlawful file-sharing by 70 per cent. That does not mean a reduction of 70 per cent from the total amount of illegal file-sharing that is happening right now.

Here’s what the report said:

As an illustration: if the baseline unlawful peer to peer universe identified by Ofcom was 100, and notifications were sent to 50 per cent of that universe with prosecutions against serial repeat offenders, the benchmark would be met if there was a 35 per cent reduction in unlawful file-sharing.

That is not easy to understand. What it means is that the government will consider it a great success if 70 per cent of the people who were sent a letter asking them to stop downloading, did so.

Here’s the problem. Estimates place the amount of people who engage in illegal file-sharing in hundreds of thousands, if not millions. Record and film companies are going to have to build giant new departments to start tracking our downloading behaviour. How many of millions of people will get a letter? How much will that cost? As one media lawyer told me, Digital Britain was a cause for celebration for media lawyers - not much good for anybody else.

The maths are the problem. Hypothetically, say you managed to send 10 per cent of people a cease-and-desist letter (which seems more realistic than sending 50 per cent a letter – argue with me if you wish). Then 70 per cent stopped illegally downloading. All the government needs is for file-sharing to go down overall by 7 per cent. At that point they will pat themselves on the back and say “job well done”.

But such a small decrease - and I seriously doubt even that will be achieved - will solve nothing. No culture change will be affected. The £180m that file-sharing costed the music industry last year will not be recouped.

The whole system depends on how vigilant the record companies are at tracking people on the web, sending letters and then suing them. But the more they take people to court, the less that the general public will think that it is fair.

Which all leads me to think – if these measures won’t be effective, why bother doing it at all?

The fine print is why the fight over Digital Britain is not over. The “rights-holders” I have spoken to and who lobbied the government over the report have spotted the loophole. Many do not agree that reducing file-sharing by 70 per cent of those people who receive letters, should be the barometer for success. They want to point to an overall reduction by 70 per cent across everyone who file-shares. They’re pushing hard for this change.

Watch out for whether this fine print changes in the legislation when Digital Britain is brought before parliament. This distinction is very, very important.  If the record companies can change the meaning of the 70 per cent threshold, we’re into a whole new ball game.

The Digital Britain recommendations said that if there is not a 70 per cent reduction in illegal file-sharing, only then will Ofcom will use it’s beefed up powers to enforce “technical measures”. These include everything from blocking certain websites to “bandwidth capping”, so reducing the speed that you can download files.

These technical measures are what the record companies really want to use to stop file-sharing. Why? Because it will be effective. It squeezes or switches off the tap that people are using to download illegally. And crucially, a lot of the population won’t know this is happening to them.

Also, the record and film companies really don’t want to sue people. Firstly, they don’t want headlines like the ones coming out of Minnesota. Secondly, it will cost them a hell of a lot of money. Thirdly, it takes up a lot of time. They want the “technical measures” to stop online pirates immediately and cheaply, not haul them in front of a judge.

But the government realise that blocking websites and reducing internet speeds is a dangerous road to go down. If these technical measures are triggered, ministers will immediately be accused of censorship on the web. The proposals also undercuts the ethos of Digital Britain: that everyone should have a right to an internet connection, wherever they are.

I have sympathy with the drafters of Digital Britain. They have been caught between a rock and a hard place. But the 70 per cent threshold is a political fudge that sums up the worst aspects of a report - and a government - that often doesn’t take hard decisions when it needs to.

Comments

[Bill]

The cultural economy of the UK is doing fantastically well and the internet is providing new and exciting ways of distributing and creating artistic works.

Unfortunately the Government is in the pockets of a few lobbyists from the old economy. They cannot accept that the days of selling bits of plastic and card for an inflated price are gone forever.

There are new business models and revenue streams avaialble to the record industry but whilst they insist on trying to stick their finger in the dyke they won't take advantage.

[Elliot Comber]

Actually, technical measures wont be effective at all, if you try and slow speeds/ports for bittorrent usage say, peers can just encrypt their traffic, that problem solved. If you try and shutdown one website that people access, you can simply goto one of millions of other torrent sites.

This is just bittorrent, how is ofcom going to stop peers from using IRC, or usenet, or warez websites?

And what about peers who simply just activate a VPN which would cloak any traffice through any P2P service?

Then there's the news that a bittorrent client plug in is due any week to anonymize bittorrent traffice more efficiently than just using the encrypted option in all bittorrent clients downloadable today?

This digital Britain report would have been fantastic about 4 years ago. but as usual the internet, and softwear engineers are 2 if not 3 steps ahead of the curve. what I don't understand is the overinflated value of the record and movie industry. where do they get off lobbying government to cut off peoples access when through their own naivety spent the last 10 years dithering about 'legal' download sites. in 2002 i remember one music executive saying that an itunes based model wouldn't work. these guys are so in the past.

[Dave]

How the hell can we have a debate over how to reduce 'crime' carried out by a majority of the population without having a debate over whether we want to do anything about it? Just bizarre. Vote Pirate Party at the next election.

'Intellectual property is copyright theft', as Proudhon said whilst firing up his mp3 player.

[Mike Berry]

Agree 100% with Bill. Britain doesn't do primary or (much) secondary industry these days. There can be no place in Digital Britain for Analogue Luddites. The old order is finished. Talented, creative people are actively embracing the new media and new business models; any other view is just retrogressive and will only hold back the New British Economy which is going to need all the help it can get over the coming years to pull out of this recession and the consequent debt.

[Hopman]

When lobbyists claim that p2p is undermining the creative production of new media.. its bollocks. Most of the copyright material available for download is pure crap, that nobody should pay to view. That sort of stuff SHOULD NOT BE MADE! The good stuff, with good script, acting, production standards etc etc.. we still happily go to the cinema for.. so we can enjoy the big screen experience. The critics are unreliable in their assessments of films so its entirely reasonable for people to watch for free and then go visit the cinema/DVD store later if they really enjoyed the experience. If Hollywood stopped releasing shite movies we'd go to the cinema to see all the releases!

[Paul]

Surely, trying to thwart demand for illegally downloaded music/films etc is impossible. The supply is where the tap needs to be turned down. The record industry must know which file sharing websites host P2P accessible copyrighted material for free download. It is quite easy for ISP's to block websites - this is what the legislation needs to enforce, just reduce the access and supply.

[Thalia]

Most of us in the creative industries get ripped off all the time, largely by middlemen and production companies but also by other artists. As we can't afford lawyers nobody cares. All we can do is come up with something newer and better for next time so we stay slightly ahead.

The people who are making the noise here aren't the artists, it's the middlemen and producers who rip off the artists.

[Dragon]

I won't download legally, because 79P+ per track is too high a price to pay when the quality often leaves a lot to be desired.I used to file share. If I liked a track, I went out and bought the CD. My grandson called it "TryB4UBuy". I no longer buy CDs as I don't have the time to waste going to HMV to listen to an album. Bus out 9.15 am, bus back 12.10PM. Half the day wasted. The music firms are cutting off their noses to spite their faces. I bought 3 Enya albums after file sharing. I wouldn't have known how good they were otherwise. Music channels on the radio are pretty dire unless you actually like the inane drivel of the DJs and I rarely hear anything I would want to listen to once, let alone buy the album. Why can I listen to music on the radio free of any charge, but not by file sharing?

[Alex Kerr]

Not only is stopping file sharing literally technically impossible, but so is changing people's attitudes to it - because, simply, file sharing is the CORRECT way forward, and the right future. The thing that WILL be changed, eventually, is the media industry's and government's attitudes to it.

As the public clearly recognise, file sharing is a wonderful technology. Business models have to adapt to ensure content creators get rewarded directly or indirectly from the media that is shared. If big media companies are made extinct in the process, then so be it, that is progress.

[Andy]

p2p is on the downward curve now, all the cool guys are just using Spotify. Itunes and Amazon will release similar services and hopefully be able to stream it over 3g to my iPhone. TV is already streamed, we just have to wait for the movie guys to catch up.

I have never understood the fight against piracy, its all been mainly fear based. In the end it looks like simplicity is exploiting human lazy nature.

[Al]

"The £180m that file-sharing costed the music industry last year will not be recouped" - Thats unrealistically assuming all the pirates would have brought the stuff in the 1st place.