What should it do and how should it do it?

This blog is focused on the proposal, raised in Lord Carter’s Digital Britan Interim Report (PDF, 1.5MB), that there should be an independent Rights Agency in the UK.  The Intellectual Property Office then solicited replies to a more specific paper, “What Role for a Digital Rights Agency (PDF, 448 kB)“, to which I submitted this response.

Preparing the response – turned me from a sceptic to an enthusiast for the notion, provided that broadband users are strongly represented in its governance.

I will be posting further pieces here, with the hope of stimulating some discussion – and I’ll be joining other related blog postings.

Filed under: Rights Agency

Pirate Bay judge not biased….

So the Pirate Bay four have lost part of their appeal – the part based on the alleged bias of the judge.

Francis Davey blogs here about it. I think he’s probably right. The judge was a copyright judge; he was a member of a copyright lawyers body, a bit like BLACA here in the UK, and the Pirate Bay claimed that this membership made him biased.  He was probably pro-copyright, in that as a copyright expert he probably thinks that copyright is a good thing. It’s part of the law that it’s his job to uphold, so it would be entirely inappropriate for him to be anti-copyright. Would it be wrong for a judge who disagreed with murder to try a murder case?   The case wasn’t about the rights and wrongs of copyright  – which is a political question – but  the legal question as to  whether what they did was a criminal infringement.  But judges do have to be impartial, and be seen to be impartial. Lord Hoffman, in a House of Lords judgement a few years ago, got into a spot of bother for not resiling himself from a human rights case because he was a supporter of Amnesty International. The question though is whether his support for the copyright law also makes him biased in favour of copyright holders; and the Swedish Court of Appeal have decided that it doesn’t.

The Pirate Bay have said that they will appeal to the European Court of Human Rights about this particular judgement.

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The arms race…

There is an arms race between those who are trying to stop filesharing/downloading and the downloaders; and so far, the downloaders are winning.

Much of the political pressure from rightsholders is focused on outlawing the mechanisms used by downloaders. I have heard rightsholder spokespeople claiming that BitTorrent, for example, is used only for file-sharing, denying that it has any legitimate uses. I first used BitTorrent to download big Linux isos, entirely lawfully, at the behest of the distributor, to avoid overloading their servers. Whatever, BitTorrent is now firmly established as the protocol of choice for downloading/filesharing.

The current proposals from Carter suggest that rightsholders will identify the IP addresses of those who are unlawfully sharing content, and get ISPs to notify them. If the unlawful activity doesn’t stop, then the ISPs can – even now – be forced to disclose the contact details associated with that IP address so that the rightsholder can serve legal papers on them. So how, then, do rightsholders find out these IP addresses? It’s actually straightforward: they appoint agents to find them for them. The agents typically browse sites like Mininova and The Pirate Bay and find places where the content is being offered. They will obtain a .torrent file, and join the BitTorrent swarm, from which they can identify the “seed” – the IP address of a swarm member who has the entire file. This is usually the IP address they will target for notification under the current system. They may also target anyone hosting a .torrent file, which – although it doesn’t contain any infringing content, contains enough information to put the copy together. But mostly, they will go for the  torrent “seed”.

Encryption, and virtual private networks like The Pirate Bay’s proposed IPREDator service, don’t actually offer that much protection. The snoops will join the private network like anyone else trying to obtain a downloaded file, and they will get the IP addresss from inside the encrypted network. But anonymising routers do solve the problem for downloaders.

TOR (The Onion Router) is an anonymising router which helps people who need to browse the web anonymously do so. Anonymous browsing is essential for freedom of speech, and TOR is widely used to help people operating under restrictive regimes access the wider world. A user in China can access sites blocked by the Great Firewall using TOR.  But you can also use TOR for BitTorrent, and if  – as a seed – you make a file unlawfully available via TOR – there is no way your IP address will be picked up.  Some anonymous person who also uses TOR will find their IP address will appear to the swarm.

BitBlinder is a combined BitTorrent client/anonymising router. BitBlinder pretty comprehensively defeats the Carter proposals for enforcement; and if people want to continue to share files unlawfully, BitBlinder will be widely used. Oh and it also has a lot of legitimate uses, although it (unlike Tor and BitTorrent itself) it seems to have been designed specifically with copyright infringement in mind. It is quite possible that legal and technical ways will be found to defeat BitBlinder, but it will take time, and by the time that happens, the world will have moved on and there will be other techniques.

Arms races happen when there’s a cold war. People of my generation grew up under the threat of imminent nuclear annihilation as the USA and the USSR engaged in a nuclear arms race. That race ground to a halt, thankfully, when the cold war ended – but there’s another couple of nasty nuclear arms races going on between Israel and Iran and between Pakistan and India. The arms race between downloaders and rightsholders is also driven by a cold war. There’s no love lost between the two sides. In fact, the music industry stopped trusting its customers years ago. The only way to end this particular arms race is to rebuild trust between the two sides, and that’s what I see as being the key job for the Digital Rights Agency.

Filed under: Rights Agency

Final DBR published

Carter’s final report has today been published here.

On that which concerns us, the establishment of a Rights Agency, it simply says:

“We hope that an industry body (the ‘rights agency’ envisaged in the interim report or ‘rights authority’ as some now term it) will come into being to draft these codes for Ofcom to approve and we would encourage all rightsholders and ISPs to play a role in this.”

So, nothing stronger. The Government will not be stumping up the seed money to get something like this off the ground; it will be for the industry to get its act together. This is something I find rather unlikely, given the failure of the ISPs and rightsholders to get their act together thus far.

Fundamentally, though, it is time for ISPs to get their act together. If there is no consensus code of practice, Ofcom will impose one. The ball is clearly in ISPs court, and it is in their interests to push this further and faster than rightsholders; because if ISPs drive the Rights Agency, it will be able to deliver  an agenda and a code of practice that far more closely matches their customers’ interests.

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Grandstanding and New Business Models

The interview on Radio Four  this morning between the Secretary-General of the ISPA and the head of an independent production house – in anticipation of today’s publication -  demonstrates to me exactly why the DRA is needed. Both started off making some good points and then veered off into emotional grand-standing.

The ISPs make the point that since everyone wants to get their music by downloading, it is up to the music majors to enable it with appropriate business models; the producers claim that by profitably acceding to burgeoning bandwidth demand, the ISPs are making money from their content.  But it’s not clear to me that unlawful downloads are anywhere near  the whole story as far as bandwidth demand is concerned (the BBC iPlayer is at least as important).

But despite these positions, I am convinced that there is a deal to be done. That Universal and Virgin have done a deal shows that there are ways through this mess – even if I do not think that that particular deal is a very good one for anybody.

Filed under: Rights Agency

Carter Tomorrow

Lord Carter’s final report comes out tomorrow, and we await with interest to see what it brings.

Meanwhile, today Virgin Media and Universal finally got round to sorting out their differences and have launched an all-you-can eat deal. Well, I  understand that it was Universal’s objections that scuppered the original Virgin deal (with Playlouder MSP). To some extent, the Virgin/Universal deal may have pre-empted Carter, because it binds Virgin to the graduated response / three strikes procedure, it was probably intended to announce today in order to head off the establishment of the Rights Agency, or some other surprise that they may have got wind of in Carter tomorrow.  We shall see.

In any case, the Virgin Media/Universal deal won’t suit everyone. Indeed, I don’t think there can be a one-size-fits-all solution.

More interesting, in my view, was this report a week ago by Charles Arthur in the Guardian. It points the finger at games as  being the cause of the crisis in the music industry. It’s an excellent piece of journalism; in fact it’s an excellent piece of research, worthy of publication in an academic journal. Data, however, don’t always tell the whole story. I think that the changes technology is bringing to our listening habits are so profound that it is inevitable that what and how we spend our money will change. One factor is the attention we give music. Music’s ubiquity (via the little white earbuds) means that it becomes a permanent background, not meriting much concentration. Since it merits so little attention, it attracts much less money, whereas games demand total concentration.

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Hadopi Unconstitutional

The French supreme court has found its version of the Rights Agency – which, you will recall, is much more judicial than either the version proposed by Carter or the completely different Rights Agency I am proposing – to violate basic rights guaranteed in the French Bill of Rights. The law has been thrown out.

The decision highlights a problem of the so-called “three-strikes”, or “graduated response” approach to unlawful downloading. Justice on the cheap is seldom just, and full-fat legal proceedings are seldom justified for cases of the magnitude involved.

Given the numbers of people who now download, and who believe that they either have the right to do so, or ought to have the right to do so, enforcement is always going to be difficult. Policing always requires the consent of the majority of those policed; but we are very far from that position now.  Before we can police downloading, broadband users must consent to that policing, and broadly accept the rules that are being policed.  That’s what we need a Rights Agency for: finding the consent first.

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Strategic Advisory Board and Bogus Arithmetic

As part of the run up to the publication of the final Digital Britain Report, the Governmnent’s Strategic Advisory Board for Intellectual Property (SABIP) has published a report claiming, probably correctly, that up to seven million people in the UK have downloaded infringing content, and that this is at a cost of up to ten billion pounds to the UK economy. It’s this latter calculation which uses bogus arithmetic, because of the implicit assumption that if they had not downloaded a free, infringing copy, they would have gone out and bought a full-price copy.

Chances are that most of those downloaders would have just gone without.

And the chances are that if you talk, off the record, to most of the people who are claiming these huge figures for losses, they’ll admit that the figures are bogus. They don’t honestly expect their bottom lines to show that sort of dramatic improvement as soon as the government whips out its magic wand and stops all the download naughtiness.

These figures are for propaganda purposes. They are about lobbying the government, and in particular about lobbying Lord Carter and David Lammy to deliver the goods next month.

SABIP’s paper is a literature review, not original research, and the data it presents is meta-analysis – and none the worse for it. I haven’t yet been able to see the whole paper, and I’m currently just relying on the BBC reports, but this sort of bogus arithmetic always bedevils debate  about unlawful downloading.  I don’t doubt that downloading is damaging  the established music industry, but it is far from the only challenge it faces, and using bogus arithmetic demeans its case.  This is why we need a Digital Rights Agency, as a consensus body which can cut through the crap and find a way to make the Internet work for musicians and for music-lovers.

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More French Ways

Neelie Kroes, the EU competition commissioner, aka Steely Neelie, has announced that the French collecting society  SACEM and EMI will together offer pan-european licensing for online music.

This is the result of the European Commission’s pressure on collecting societies to offer pan-European licences competitively. At first sight, it should seem like good news, but there are lots of potential problems.

National collecting societies, like SACEM in France, GEMA in Germany and PRS-for-music in the UK have operated nationally-based licensing schemes since the turn of the last century, and have a complex arrangement of reciprocal agreements so that licensees can enjoy a multinational repertoire. The problem is that this divides the single market, contrary to Article 85 of the Treaty of Rome.  That the collecting societies have been able to get away with it for so long is due to the fact that it works well, and the Commission has historically allowed them a derogation. However, it stops working with online content.

Collecting societies are natural monopolies, which is why they are regulated in each Member State – in the UK, by the Copyright Tribunal.  Competition at EU level between national collecting societies is going to be difficult to work, unless licensing models allow individual rightsholders to determine their minimum terms. However, collective licensing naturally averages things out. The administrative efficiency of collective licensing will be lost if different prices, say, apply to each tune streamed or downloaded under the collective licence. Most collective licences use entirely different metrics (such as prospective audience size, for performing rights licences), which can’t easily be mapped to tune-specific fees.  So you remove rightsholders’ right to set fees, but give national collecting societies the right to compete with each other for pan-European business. The result will be a race to the bottom on fees, unless – again – the societies together agree to a minimum, or fixed-fee: and run straight into Steely Neelie.

Filed under: Rights Agency

The French Way

At the second attempt, the Sarkozy government has got its “three strikes” law through the Assemblee Nationale; it must now pass the Senat, but is expected to do so.

The law is called in France the “loi Hadopi”. Often, French laws are called after their proponents; there is, for example, a law which my French friends call the Allgood Law: proposed by the veteran French politician Jacques Toubon, it outlaws the use of English where there is perfectly good French word. But there is no Monsieur or Madame Hadopi: the law is so called after the authority it creates, the Haute Autorite pour la Diffusion d’Oeuvres et la Protection des droits sur Internet, or HADOPI.

HADOPI is a statutory authority, and has the power to force ISPs to disclose information about suspected infringers, and to impose on those who continue after due warning to infringe a reduced speed broadband connection.

Many people, particularly rightsholders, conceive of the Rights Agency as being something very like the French HADOPI; but I do not, and nor I think does Carter.  For a start, Carter proposes that the DRA should be an independent, industry-funded body, rather than a formal, state authority. My vision of the DRA is of a body which is concerned far more with consensus-building than with policing and enforcement; a body in which broadband users’ have a stake and which represents their interests at least as strongly as those of rightsholders and ISPs.

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No plan for three strikes

David Lammy has confirmed that the Government will not be legislating for “three strikes”. “Three Strikes” is the shorthand for the proposition that broadband users should be disconnected from the Internet after the third time they have been found to be unlawfully downloading protected material. Rightsholder organisations have been pushing for this; and the French Government is very close to enacting a similar law. The decision not to legislate for  three strikes actually makes the case for a DRA even more pressing.

Three strikes or not, there is a need for proportionate sanctions to use against those who choose to break the rules of whatever business model works. Litigation through the courts or the Copyright Tribunal  is disproportionately costly for both those whose rights have been infringed and the infringers; and doing nothing just makes breaking the rules more attractive.

The most effective business models will be structured so that compliance is more attractive than non-compliance, and the enforcement/sanctions regime will thus be needed much less frequently; but all business models need rules of some sort or another, and rules need sanctions.

Filed under: Rights Agency