One high, one low note for downloaders

Becky Hogge
13 February 2007

At the beginning of last week, one man surely had the admiration of bloggers across the globe. All Steve Jobs, head of Apple Computer Inc, had to do was post some "Thoughts on Music" on the "Hot News" section of Apple's website on 6 February and he had the attention of the world's media. By the next day, news outlets from Toronto to Taipei were repeating the story that iTunes - Apple's online music store - wanted out of the digital rights management (DRM) charade. The online store would drop the copy-protection measures "in a heartbeat", if only the music industry giants would still let iTunes carry their products.

And so the frantic press-releasing began. The Recording Industry Association of America called Jobs's bluff, asking him to instead licence Apple's proprietary DRM solution - FairPlay - to competitor download shops run by Sony and Microsoft. This, the association asserted, would prevent consumers from being locked into Apple products once they'd downloaded music from iTunes. Then, at the end of the week, EMI, one of the world's "big four" music labels, revealed it was already in talks with Jobs's competitors over releasing its music for download in the non-restricted MP3 format more commonly traded on peer-to-peer file-sharing systems. The revelation bore out insider suspicions that the major players in the music industry were hoping to distance themselves from the dread DRM this year.

DRM has proved unpopular with consumers, and is increasingly being blamed for the slow take-up of legitimate download stores. Expectations carried over from the analogue world, combined with poor labelling at point of sale, meant many non-tech-literate consumers got burnt by unexpected limitations on what they were allowed to do with the music they'd purchased online. The geek community - which might have been expected to be the early adopters of legitimate digital downloads - realised that the incomplete cryptographic logic behind DRM punished the honest and did nothing to stop those dishonest enough to crack the DRM code again and again. Geeks kept their money in their wallets. The assumption behind DRM was that inside every music fan lay a criminal intent on bringing the music industry to its knees. The effects of this attitude were wholly predictable.

Formerly openDemocracy's technology editor, Becky Hogge is executive director of the Open Rights Group. Her writing on music, technology and intellectual property law has been published in several British and international publications, including the UK Guardian, Index on Censorship and Dazed and Confused. She blogs here.

Read Becky's "Virtual Reality" column on openDemocracy here.

But as this new, positive chapter in the industry's troubled relationship with digital unfolds, the spotlight has turned away from something far more momentous - and far more damaging. At the end of February, the legal affairs committee of the European Parliament will gather to vote on amendments to the European Union's second directive on copyright law, commonly known as IPRED2. Would that those bloggers committed to exposing the machinations of Brussels got even a 5% share of the attention paid to the Apple CEO, we might be able to start believing claims that citizen journalism presents a challenge to the media status quo.

The Foundation for a Free Information Infrastructure, those tireless campaigners responsible for pushing software patents off the European agenda in 2005, dub IPRED2 - the second Intellectual Property Enforcement Directive - "the prosecution paradise directive". The directive's main effect is to transform intellectual property infringement from a civil to a criminal offence in European law. And where the World Trade Organisation's TRIPS agreement on intellectual property (IP) already gives the state powers of prosecution in traditional piracy scenarios, the wording of IPRED2 means that many more suspected IP infringements might also be tried in a criminal, rather than civil, setting.

As the proposed amendments to the directive stand, infringements which come under the auspices of the bill are defined as "infringements on a commercial scale", which are further defined as "any infringement of an intellectual property right committed to obtain direct or indirect economic or commercial advantage". Campaigners are concerned that this could include a number of situations not previously covered by Trips - formally, the Agreement on Trade-Related Aspects of Intellectual Property Rights - adding an unacceptable level of disproportionality to the legislation.

In the public interest

Peer-to-peer file-sharing is one such situation. It could conceivably be argued that those using p2p networks to download music, television and video content are saving money, thus obtaining indirect economic gain. If such an argument were successful, many millions of people would be criminalised across Europe. (An estimated 35 million Europeans downloaded music from filesharing websites in 2004.)

One could argue that, because the music industry is making moves to stop treating its customers like criminals by lifting the punishing restrictions of DRM, it is only right that those who still choose to break the law should be penalised all the more. But this argument misses several points. For a start, EMI is just one player in the industry and the details of its plans to lift DRM have yet to be fully revealed. Further, EMI is not compelled by the full force of criminal law to offer its products in accessible formats; it is merely doing so in response to other market factors.

In fact, the manoeuvres of last week demonstrate exactly why criminalising IP infringement with the kind of broad strokes represented by IPRED2 is such a bad idea. Business models that capture the audience of millions of filesharers, generating revenues with which to reward artists, are still emerging. By criminalising the actions of millions of music consumers, the EU will be doing innovators in the industry a major disservice.

Copyright is essentially a balance between interests - the interests of creators in getting remunerated for their work and the interests of society in spreading knowledge and information as widely as possible. It should not follow that as it becomes easier in theory for information to be distributed, it should become harder in (legal) practice. But this is exactly what is happening. The debate surrounding filesharing has served to skew the function of copyright in our society, in large part thanks to the powerful interests of the major record (and, increasingly, film) companies, which lobby for stronger and stronger protection with no thought as to how this might tip the balance of copyright away from the public interest.

What is at stake with IPRED2 is not just how affluent westerners consume the latest hits. The criminalisation of IP infringement could also harm professional investigative journalists, who need to infringe the copyright of corporations and even governments from time to time to get vital information into the public domain. It could harm artists, who distort and refashion recognisable sounds and imagery from our daily lives to challenge our assumptions about the world around us.

In theory, intellectual property law should exempt such practices from the accusation of infringement. In practice, thanks to the complexity of the law and prohibitive legal costs, it does not. Last year, Andrew Gowers's review of intellectual property in the United Kingdom was clear that, as it stands, copyright law was neither fit for purpose nor worthy of the respect of the average citizen. Until that situation changes, writing it into criminal law will only serve to further damage the trust between citizen and state.

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