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Media guardian publishes another clueless shill piece...what did you expect?

No hiding place for pirates

This is an article about file sharing, not piracy. Piracy is the selling of other peoples IP without their consent. Filesharing is completely different; no theft takes place when people share digital files.

The British music industry is to clamp down on illegal file swappers. Andrew Hobson looks at the legal routes that could be pursued

They are not "swapping" they are sharing. The current services do not use ratios to determine how much you can transfer; you do not have to upload a certain quantity before you can download. Sharing means freely and unconditionally exchanging copies of files. That is what is happening.

Monday October 11, 2004

I dont like Mondays.

The Guardian

Sometimes, I dont like The Guardian. Especially when they are the Guardians of the status quo, big business, buggy whip salesmen and thier ignorant shills.

Last week the UK's music industry finally announced the end of their phoney war and opened up a second front in the battle against piracy.

Which "phoney war" was that? Hmmm the shorthand for "phoney war" could be "Phwar". But I digress. This second front, is actually completely absurd, as absurd as all the other times the music industry tried to stop new technology from taking its proper, undiluted place in our lives. Like the musicians union trying to ban drum machines or the famous anti VHS statements of the past. You know the sound. If these fools think that filesharing is piracy, they are strongly deluded. Filesharing is not piracy, it is the new radio. A distributed, dynamic radio, which drives sales of CDs and anything else related to music. They should stop, think, or, hire a computer literate consultant to do the thinking for them if they cannot muster the two braincells they have to communicate to each other.

The BPI, the UK's music industry trade body, has the option of launching civil or criminal claims against the pirates.

The only option the UK music industry has is death if if does not embrace filesharing.

However, the criminal route is fraught with risks. The burden of proof needed in the criminal courts is so high that it will always make this an uncertain option. A criminal case against file swapping would also bring the BPI into relatively new and uncharted areas of the law. The likelihood is that the case would need to reach the House of Lords before it could be put to bed.

Someone will argue, sucessfully, that making a digital copy of something is not theft. Theft takes place where property is removed, denying the use of that property to its owner. This does not happen with digital files. The music companies still own the copyright and publishing of the works that are shared. They can deny commercial use of any of these works. They loose nothing when a file is shared; in fact they gain something. When people use their bandwidth to share files, they are providing a service to the record companies. They are spreading awareness of the groups and songs belonging to the record companies, endorsing these artists by the very act of listing them as "good enough to be in my collection". This is a sort of grass roots PR that you cannot buy, and cannot engineer. It is more potent than being played on the radio, stronger than any full page advert in a Sunday newspaper.

Instead the BPI has taken the much more pragmatic approach of launching 28 civil lawsuits against uploaders, those individuals that make their music collections available to other individuals - the dealers rather than the junkies.

This is a particularly repugnant turn of phrase, comparing filesharing to drug dealing. Filesharing is an excressence of the most fundamental and human qualities of man; the urge to share with your neighbor. Humans (those of us who ARE human) have an innate desire to spread good will, tell stories and help their fellow man. Filesharing fulfils this drive in the human who is a music fan. File sharers are better described as boyscouts helping old ladies across the street; they go out of their way to help other people, at their own expense and trouble. Equating filesharers to drug dealers is a shabby, vulgar and absurd use of language, and no one is going to buy into it. "Just say no" to filesharing? "I can quit anytime...it just a bit of filesharing". These idiotic establishment calls for people to stop doing what they want fell on deaf ears when they were about drugs, now, swapping drugs for filesharing, does anyone on this planet think that a single person is going to pay attention to this sort of garbage?

For the uploaders, the fact that they will be faced by civil rather than criminal action should not cause them to rejoice. UK law is very clear-cut on the theft of intellectual property.

This I find most amusing; filesharing individuals can be fined astronomical sums when they are not making any money at all, BUT if a huge international company releases an infringing CD, they face no penalty at all. This is a fact. When a record company releases the work of an artist, if the artists work has infringed the copyright of a third party, only the artist is liable, meaning that the company gets away with selling infringing works scott free. Strangely, this means that the infringed party is subject to the terms of the contract between the artist and his companyh, even if the infringed party never signed the contract!

Whether you are file swapping for fun or for commercial gain, if you are depriving the composers of the fruits of their labour and record companies of their income you can be pursued for very substantial damages.

No one is in filesharing for commercial gain. If they are, they are not filesharers, but pirates, because they are making money out of someone elses works. Filesharers do not "deprive composer of the fruits of their labours". This is a lie. Nothing is lost when a digital copy of a file is made. Fileshareing does the complete opposite of what this "article" claims; it helps composers make money from their works.

The levels of damages would be established by looking at the number of songs that the uploader had enabled to be copied rather than the amount of money that they have made from that copying. Each copy made would entitle the composer and the performer to their royalties, so the BPI does not have to prove that when a file has been downloaded it has resulted in a lost sale.

Which is completely absurd. They can go to court, claiming that a theft has taken place, but they do not have to prove it! They should have to prove that they lost a sale because of a file being shared, and they should have to prove it for that particular instance.

The damages that the BPI could demand are scary - one user of one illegal uploader can fit 5,000 songs, roughly 400 albums, on to just one IPod. If you are an uploader who is proud of the popularity of the service you provide to the internet community, you may face a truly life-changing bill. BPI has said that the damages that it will pursue will be decided by how quickly the cases settle. Cases are likely to settle for a fraction of the total theoretical damages bill.

This only proves how absurd the rules are. Once again, one of these companies can SELL millions of infringing works, and pay nothing. We need to remember this as these arguments are trotted out again and again by the music business propaganda machine.

On a side note, there was a circus that recently trundled out the old age pensioner Pete Waterman, a die hard buggy whip wielding computer illiterate ranting about how "you have to buy music". Believe me, you are going to have to do better than that...much better than that, if you want to have even the slightest chance of not looking completely absurd as you loose this argument. And as for Feargal Sharkey....but you know what Im going to say!

In the US each illegal download of a copyrighted song carries a maximum penalty of $150,000, but public relations concerns mean that cases have been settled for tiny percentages of the maximum.

Its about time the UK stopped following the USA dont you think?

The BPI has also said that at as well as seeking damages they will issue injunctions through the civil court that will forbid the downloaders from infringing copyrights again. Typically such injunctions cover the work of one artist, but in the case of music pirates, for such injunctions to be effective they will have to be drawn very widely. There is no point in restricting somebody from infringing the copyright of Britney Spears and the Pixies as that would leave the pirates free to rip off any other band's music the next week. Instead the injunction will have to take the form of a copyright Anti-Social Behaviour Order.

Now you are dreaming.

If the uploader infringes the injunction, proceedings could be started for contempt of court. If found in contempt, the uploader will have to pick up the tab for court and legal costs. For the simplest of cases this will be £10,000 to £20,000. It's not unknown for the courts to sentence those found guilty of contempt to seven days in jail to give the offender a bit of time to dwell on things.

Gaol for sharing files. And you think that this will endear people to record companies? Totally and utterly insane...but you will all pay the price for this flagrant anti-human behaviour. You will all be consigned to the dustbin of history.

Before the BPI can roll its legal guns out into action they need to cross one obstacle. That's identifying who they want to attack. At the moment the BPI is likely to know little more about the identity of their quarry than the handful of anonymous sounding IP addresses.

Filesharing networks will shortly dissapear from the IP address radar. Even if this does not happen, you will never stop filesharing. Ever. Stop. Listen. THINK.

What the BPI will need to do next is make an application to the courts to force the Internet Service Providers to disclose the names and addresses behind the IP addresses. Normally, it is "Norwich Pharmical orders" which are used to force the disclosure of information from those who have been innocently involved in copyright infringements. The orders are named after the pharmaceutical company that successfully won disclosure of information from Customs & Excise who had seized a shipment of pirated drugs.

There you go again with the misuse of "Pirated"! Digital copying is not theft. Where there is no theft, there is no piracy, and thus, the Norwichj Pharmical orders example cannot be applied. In a fair court that is.

The ISPs could choose to challenge these orders on the grounds that their involvement began and ended with the relay of transient data packets and that they had no involvement, unwitting or otherwise, in the actual copyright infringements.

And what if the ISP is in another jurisdiciion, and the filesharer who is based in the uk was using a proxy to share her collection? You would not even know where to look!

If the BPI find this route blocked they are sure to find another path.

You hope.

What little hope that downloaders have of avoiding ruinous damages is dependent on the BPI's fear of bad publicity. But the BPI is saying that who it decides to pursue will not be determined by "political correctness".

We will see. The backlash will be very large I imagine.

The US music industry was willing to take a case against a 12-year-old girl and despite adverse publicity still forced her mother to pay $2,000. In the UK 12 is also seen as the age at which minors are culpable for their actions. Another reason why we can still feel a little bit uneasy about our children's enthusiastic embrace of technology?

???!!! Children, in their unspoiled purity innately understand fileshareing, being more in touch with the clean essence of the human spirit. That the inhumane and unjust record industry should attack a child in this way is illustrative of that industrys true nature, and its a real pity that the Guardian has bought hook line and sinker the line of that same, shameful industry.

Its hardly surprising however. This newspaper is trying to sell its issues online in the form of a dissected replica of the paper edition, showing their profound non understanding of the why and what of the web. Their "unlimited" (actually severely crippled) edition is another example of endemic misunderstanding, inertia and fear of the internet and all things digital.

My advice to the uploaders? Time to pack it in. You have done your job and forced the music industry to sell in the format in which millions want to use, not the format the music industry wanted to peddle.

This man is clearly unaware of what is really going on; the music industry is doing the exact opposite of what he says in these lines; they are actually selling the complete opposite of what people want. People want to share their music. Apple, SONY and M$ are all trying to sell formats that attempt (poorly) to prevent this. They are selling formats that take away the rights of the user. They are absolutely not reacting to the market; they are doing what The Guardian is trying to do with its digital edition; force an old format and business model into a new environment that fundamentally destroys it. The "job of the Uploaders" never was to send a signal to anyone; it was and is merely to share music, and fulfil their desires as human beings. The music industry has not responeded correctly, this is clear, and there are no two ways about this. The lawsuits that are being planned and the computer illiterate geriatric talking heads that they roll out and will roll out to defend these indefensible actions will demonstrate this further.

The next test for the music industry is whether the claimed "lost" sales are related to the format or the content.

We already know the answer to this. Filesharing has a zero or positive effect on sales. Academic studies have proved this conclusively. Either the author knows this and has not said it so as not to destroy his argument, or he does not know this, and should not be writing this piece because he is not fully informed.

Andrew Hobson is head of IP at commercial law firm Reynolds Porter Chamberlain.

yesssssss!

http://media.guardian.co.uk/mediaguardian/story/0,7558,1324132,00.html

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