One Strike and They Miss the Point

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Understandably, there has been plenty of sound and fury since the unveiling of the “Government-brokered deal on P2P“ that aims to “tackle” illegal file-sharing. On the one hand, it's significant – and regrettable – that the six ISPs have been forced to come to a special arrangement with a particular industry, giving it preferential treatment above all others, in the absence of any logic why that is necessary. It's also deeply worrying that the music industries get to decide who is guilty, without judicial oversight or the possibility of appeal, and the ISPs are obliged to act on their say-so.

On the other hand, the agreed measures – sending out “hundreds of thousands of informative letters” is pretty toothless, and thankfully the disproportionate “three strikes and you're out” approach seems to have been ditched for the moment (although it will doubtless raise its ugly head again if the French follow through with the idea, as they have mooted.)

But beyond either of these, the fundamental point is that the agreement is bound to fail because it focusses on the wrong thing. This is clear from the headline of the BPI press release: “Government-brokered deal on P2P represents significant step forward in tackling illegal filesharing,” which conflates two quite distinct issues.

The agreement is purely about P2P, since this is the only area that ISPs can address. But P2P is simply a technology. The real problem for the content industries is not some cold, abstract technology, but a warm, human virtue: the urge to share. Making it harder to do that over the Internet will not stop it: it will simply shift to a different medium – one that is not susceptible to monitoring.

Now that the capacity of low-cost USB drives is climbing into the double-digit Gbyte range, I predict we will see an upsurge in sales of such devices. When people meet – well, when young people meet – it will become the socially-accepted thing to swap music files from your USB – a kind of 21st century potlatch. Indeed, in some respects this will be much better than using P2P, where there is always the risk that you will download defective or infected files from complete strangers. Swapping files personally reinforces the social aspect that is missing from today's P2P activities.

This condemns the UK government's “secret target” of reducing “illegal filesharing” by 80% over the next three years to certain failure – even if, by some miracle, illegal P2P filesharing dropped by this amount. USBs, DVDs and Bluetooth will take up the slack. And no wonder: if the number of people sharing files “illegally” is indeed around the generally-accepted 6 million mark in the UK alone, we are talking about a law that is so widely flouted as to be unenforceable for all practical purposes.

Which brings us to the second thing that is wrong about the current agreement: that it fails to recognise the changed technical, social and legal landscape. Today, for better or worse, it is socially acceptable to swap music files, whether or not that represents an infringement of copyright. The content industries have fought against this unsuccessfully for over a decade now; they can – and probably will – call for ever more Draconian approaches to turn back time, but they will fail, simply because too many people have been sharing files for too long. The question then becomes what needs to be done to ensure a healthy music and film industry in that context?

In fact, the answer is "nothing": there is already abundant research that shows people who swap files actually buy more music than those who don't. It's not hard to see why: the more music you listen to, the more likely you are to find stuff you really, really want to own. In other words, swapping music actually solves the biggest problem for musicians: getting heard and appreciated by the public. Music companies should be embracing filesharing – including P2P filesharing – since it actually saves them spending huge amounts on marketing.

The refusal of the music industry to countenance such an approach is ironic given the statement at the conclusion of the recent press release: “the music business is constantly innovating to offer new, safe and legal ways to enjoy music online, and to create a future for digital music where creativity and copyright are respected.” This is just not true. It is precisely because the music business refused – and still refuses – to sell consumers what they want in the form they want that the latter turned to other sources, and the filesharing culture was created in the first place.

It is still not possible to buy from “official” outlets every song in their current catalogues, to say nothing of older material. Let the music industries give people what they want, at a fair price, and they will find that they can make extremely healthy profits. After all, digital content costs practically nothing to deliver; with marketing largely taken care of by filesharing, that leaves production as the main expense – well-known to be a fraction of the overall costs imposed by the current inefficient system.

Shifting to a business model that works *with* filesharing, rather than *against* it, actually allows the industry to become more efficient, and better able to thrive in the 21st century. If the UK government has the best interests of ithe creative industries at heart, it should be moving in precisely the opposite direction to this ill-conceived and doomed "deal".