Three Strikes Against Illegal Downloading

Music piracy, in its digital form, has endured now for almost a decade. The Recording Industry Association of America has compared it to shoplifting. “The impact on those who create music and bring it to fans”, it says, “[is] devastating, [and] for every artist you can name at the top of the Billboard music charts, there is a long line of songwriters, sound engineers, and label employees who help create those hits. All of them feel the pain of music theft.” (1)

Yet it is possible that anti-piracy efforts are finally paying off. On October 22nd, 2009 France adopted strong anti-piracy legislation, meant to deny Web access to chronic file sharers for up to a year. That very same day, a continent away, the Chairman and CEO of the Motion Pictures Association of America, Dan Glickman, remarked that “[the] decision is an enormous victory for creators everywhere, and our hope is that ISPs will fully honor their promise to cooperate… [We hope] that the French government will take the necessary measures to allocate resources and handle the enormous task ahead.” (2)
Indeed, the new anti-piracy efforts in France don’t come easy. New agencies will need to be created in order to send termination notices to the infringers. But a judge has to review each case first, a condition of the new law. When the Court finally provides notice, though, providers will cut off Internet service to the offending party.
Such efforts in France appear to have also revived anti-piracy considerations in Britain. The “Three Strikes and You’re Out” law spurned UK music industry lobbyists and politicians to seek a comparable framework against illegal file sharing. In quick succession, six of the Britain’s biggest net providers, i.e., BT, Virgin, Orange, Tiscali, BSkyB and Carphone Warehouse, agreed on a joint plan with the music industry to tackle piracy online. UK internet users would be monitored by their ISP’s for illegal downloads, such that those caught would first get a warning e-mail, then a suspension of service if the infringement continued, and finally, if there were a third strike, their contract would be terminated. Lord Peter Mandelson, Britain’s Business Secretary, explained the rationale of the measure as follows: “What we will be putting before parliament is a proportionate measure that will give people ample awareness (of their wrongdoing) and an opportunity to stop breaking the rules. It will be clear to them that they have been detected, that they are breaking the law and risk prosecution… [We] will go further and make technical measures available, including suspension of accounts. In this case, there will be a proper route of appeal. But it must become clear that the days of consequence-free, widespread online infringement are over.” (3)
Today, Government and Industry are working in closer cooperation in Britain and in France. The Memorandum of Understanding signed by the six ISPs in Britain, for instance, was drawn up the UK’s Department for Business, Enterprise & Regulatory Reform (BERR). The trade association of the British recorded music industry, the BPI, of course, could hardly be more pleased. Its Chief Executive, Geoff Taylor, may have well put these very words in Lord Mandelson’s mouth: “The focus is on people sharing files illegally; there is not an acceptable level of file-sharing. Musicians need to be paid like everyone else…File-sharing is not anonymous, it is not secret, it is against the law.”

The music industry’s cry for help is finally being heard in high places. In fact, if dissent exists, it probably lies among the smaller ISPs, both in Britain and in France, who may be more sensitive to customer withdrawals. There is also the fact that the policy is far from being welcomed by Internet users. For instance, a BBC News website user from Hampshire, asked: “Why should I yet again pay for, say, the Beatles’ White Album at full whack? I already bought it on LP, eight-track, cassette, and CD!”

Others have pointed out too that file sharers are buyers that “try before they buy”. Though it is hard to believe that this is the overriding motivation for illegal downloading (it certainly is not the motivation of uploaders), there is a gram of truth in the assertion. According to an Edri-gram article, a study published on November 2nd, 2009 by the London-based think-tank Demos, those who illegally download music from the Internet are also those who spend the most money on legitimate media; the survey also reveals that six out of ten file sharers would be encouraged to stop illegal downloading if they had the option of new and cheaper music services.(4)

Partly because of this, Jim Killock, Executive Director of the Open Rights Group, has expressed his disappointment related to his government’s actions. “Mandelson”, he says, “seems determined to push forward with his plans for ‘three strikes’ – threatening to punish people extremely harshly, threatening their education, businesses and livelihoods for a relatively minor financial misdemeanor”. Apparently, even the counter-intelligence service MI5 believes that the proposed legislation may have an unintended consequence; instead of protecting artists and discouraging illegal downloading, MI5 thinks it may encourage “an encrypted dark net that would affect the artists negatively”.(5)
All of this highlights the difficulty of taking on digital piracy. But there seems to be more consensus now between the industry and the private sector on how to tackle it, and this is what makes this juncture different. America, however, has not seemed to move as forcefully against song piracy as Europe—at least in regard to the active involvement of ISPs.

In the meantime, piracy is affecting the livelihood of hundreds of hard-working musicians, artists, publishers, producers, and promoters all over the world. The crime is perceived as small, users are too atomized, and the tracking of ISPs has to be validated politically and in the Courts. If it is to stop, music piracy has to become much more inconvenient for the user—and that is where the three-strikes-laws come in. It is a last resort, and right now probably the only way to really stop users from illegally downloading music.

By Silvina Moreno

(1) http://www.riaa.com/faq.php
(2) http://news.cnet.com/8301-31001_3-10381365-261.html
(3) http://www.edri.org/edrigram/number7.21/three-strikes-uk
(4) http://www.edri.org/edrigram/number7.21/three-strikes-uk
(5)http://www.edri.org/edrigram/number7.21/three-strikes-uk

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