Music Industry back in court

A bit over a year ago I wrote about the Charleton ruling in the Music Industry vs UPC case. In that, the judge said he'd like to allow the Music Industry run roughshod over our civil rights but that there just wasn't legislation to allow it. Ok I'm paraphrasing a bit, but basically that's what he said. So it is with some interest that I notice the merry-go-round is starting up again.

This time the industry is taking the state to court over the fact that the relevant statutory instrument hasn't been enacted yet to make three-strikes legal. This SI has been promised for this month so it does make you wonder what has brought on this fit of pique. Is it sabre-rattling to ensure that the SI is issued quickly or do they have a genuine case of lost revenue caused by the absence of the SI?

Of course this court case and the SI will yet again fail to take account of the fact that any technical method used to root out fileshares will be quickly worked around. Despite the huge investment in things like the Chinese and Iranian firewalls they are unable to successfully block access to the internet. I doubt EMI and their friends will make any similar investment and it would seem to be unfair to put the burden of cost on ISPs like UPC.

EMI's other great claim is that their profits halved in 2011 and blamed it mainly on piracy. How ludicrous is that? Don't they realize that there is a recession going on and that demand in the domestic economy has tanked by up to 30%. Recorded music is a luxury compared to essentials such as food, heating and clothing and so will obviously be further up the list for chopping in households. Personally I have gone from being a 100 CD/year person to purchasing about 20 in 2011 and I don't think I'm alone in this reduction.

I'll be keeping an eye on the case and the SI over the next few weeks.

Copyright Review Committee

The Department of Jobs, Enterprise and Innovation has launched a review of the copyright laws. An expert committee, chaired by my good friend Eoin O'Dell has been established to examine some of the issues. A public meeting was held last week which I attended. At the meeting attendees were asked to make written submissions to the committee before the deadline of 14th July. Below is the text of my submission.

(I wonder if I am in some way breaking copyright by reproducing it here. Probably not but one can never be too sure!)

Introduction

This submission is written by a lay person with no great legal knowledge and no commercial stake in the copyright industry. As such this is more of a brain dump than a well-crafted position paper. Therefore, it may be entirely outside of the scope of the terms of reference of this review or the issues may be covered by other reviews or by existing legislation. Apologies to the committee if this is the case.

A note on the Scope of the Review

I note that the Terms of Reference that have been given to the Committee are somewhat narrow in that you should investigate the balance between protecting creativity and enabling innovation. It is a shame that at no point in the Terms of Reference does the Minister mention the common good as a force that needs consideration in this equation. Both creativity and innovation have become, by and large, the preserve of corporate entities rather than individuals. A review of legislation by the government of the people that focuses substantially on corporate interests rather than how the legislation can be improved for all of society is to be regretted.

Rationale for Copyright

The basis of copyright is a noble one – creative people should have their work protected so they can exploit it as they see fit and that a legal framework exists through which to seek redress if their work is unfairly used. This provides obvious benefits to the creator. Society’s benefit comes at the end of the restricted period when the work enters the public domain and all are able to use the work.

Unfortunately, due to the strong lobbying efforts of the copyright industry, often quite separate from the creative individuals, the balance between creator and society has now tilted massively against the public good. How a creator can expect to be able to exploit a work 69 years after their death is beyond me. I would suggest that this period of time be substantially reduced, preferably to a fixed period, perhaps matching that of patents.

Protectionism versus Innovation

I attended the public meeting of the Committee on 4th July in TCD and was somewhat shocked by the protectionist positions being taken up by many contributors from the audience. Legislation should not be used to protect an established industry from innovation. Canal owners and operators attempted to put huge restrictions on the use of rail in the early 19th Century much to the detriment of the public good. Similarly, the committee must not allow the vested interests of the copyright industry to stifle innovation just for their benefit. Time and technology move on and the copyright industry must adapt or die. They must not be allowed hide behind legal protections that are either outdated or ill-suited to the modern world.

Format Shifting and Time Shifting

When I purchase a CD in a bricks and mortar store I am unclear as to what it is that I am actually purchasing. Obviously I don’t own the music – the band (or record label more likely) still own that. So I must in some sense be licensing the music. But to the normal punter the terms of this license are unclear. Is this license transferable? Is it perpetual? Is it revocable? Any update to the copyright provisions should allow me, the end user of media that I have licensed, to use that media as I see fit for my own personal use. This should include format shifting – the converting from CD to MP3/OGG or other format for use on computers and media players such as iPods.

Provision should also be made for the practice of time shifting, the art of home taping of broadcast material that has been ongoing since the widespread adoption of VHS in the 80s. In fact, most modern digital TV services (Sky, NTL) provide this service already either through hard-disk recoding of the programme as it is broadcast or “on demand” services. Again, I the end user, should not be committing an offence by using these systems, or by transferring a recording to another device such as my laptop for viewing at a different time and/or location.

Filtering the Internet

Me and the Internet go way back. When I came to TCD as an undergraduate in 1994 one of the first things we Maths students had to do was sign up for a computer account that gave you an email address and access to the web and newsgroups. At the time the web was only just starting to flourish and you could easily keep up with every new Irish website. Compare that to now where the IEDR (the people who manage .ie addresses) registered over 10,000 new Irish domains in the first quarter of 2011. The web was also a fairly tame place at the time due to bandwidth constraints, the entire TCD internet connection was a 64Kbps line, so filesharing and movie downloads were not even on the agenda.

Over the last 8 years or so, Ireland has moved from a mainly dial-up environment to a broadband one where most consumer products have at least 3Mbps download speed. In recent times we have seen the music industry attempt to impose filtering, QoSing and disconnection as alternative solutions to the copyright infringement issue. I have posted last October on the result of the UPC case where the Judge said that if there were legislation in place he would have no problem in enforcing a three-strikes policy.

So it is with some interest I noticed last week that an advocate from the EU court of justice said that blanket blocking of websites would be a breach of the charter of fundamental rights. Just as well we signed up to that in Lisbon then! While the statement isn't a final judgment on the case between the Belgian entertainment industry and an ISP, it does carry substantial weight as it shows the line of appeals that could be successfully followed if the case goes against Scarlet (the ISP).

As I have said (more than once) in this blog, I am not a legal expert, but I am fairly well versed in the technical issues surrounding internet access. The biggest problem with any solution imposed by a court on an ISP is that within hours, a workaround will have been found by those that are serious about circumventing the block, leaving those that are casual users caught in the crossfire. Beyond the technical though, it is vital that the presumption of innocence is maintained at all times. If an organisation believes I am infringing their rights, then there is a perfectly good legal system in place for them to use to pursue me for damages. It should not be the role of any other entity to act as judge of my actions.

UPC versus the Music Industry

While I'm no legal eagle, I have dipped in and out of Justice Charleton's ruling in the UPC vs the music industry case. A lot of it went way over my head in terms of references to specific laws, EU directives and the like. However, from reading his description of various technical matters about which I know a fair bit, I think a lot of those went way over the Judge's head.

The story of Willie Kavangh and his visit to that "well-known site for facilitating music piracy called ‘The Pirate Bay’" is quite funny. He recalled looking for the Dark Knight. I wonder if he tried looking for any Linux ISOs or other legitimate material on the site? While TPB isn't necessarily always in the right, they provide a valuable service in hosting stable, reliable trackers for any material. The Aslan story, which has already been shown to be rubbish, is treated like gospel. In all honesty, does Christy Dignam really think that 28,000 people want to steal his badly written tunes?

The round the clock nature of the internet obviously hasn't hit the Justice Charelton's radar either when he states "another careful international survey indicated that between 49% and 83% of all internet traffic, with a night time peak of 95%, is accounted for by peer-to-peer communications." Pity that legal judgement don't have references like academic papers require so we could see exactly who carried out this "careful" study and on behalf of what vested interest. Of course the experts from DtecNet could never be considered vested interests since they have absolutely no relationship to RIAA and IFPI. However it is worth remembering that these would be the same experts who tried to confuse a court in Australia on the use of bit-torrent by targeting a single ISP, the one they happened to be in court against.

At least in point 30 of the judgement, the court did recognize the legitimacy of P2P as a means of content distribution. It also noted in point 32 that any attempt to impose a technological block on P2P will be pointless as users and developers will quickly find workarounds. However, by point 134 this point has been forgotten where a 20 minute delay in coming up with a work around was considered worthwhile. I don't get the Aran Islands analogy, but if he thinks having to phone the operator for find torrents is going to slow people down, when the operator is Google, then he may just have missed the point.

This judgment is the right decision for all the wrong reasons. We should have strong protection of network operators against the actions of purchasers of their service. If I buy a knife in Arnotts and then proceed to stab someone with it, does Alan Dukes (now kind of running Arnotts) get a 20 year jail term? We also need due process and the presumption of innocence. For one corporate entity to be judge, jury and executioner is not acceptable. If EMI or whoever suspect me of filesharing, then go to court, get a warrant and then talk to my solicitor. To be able to disconnect me from the internet on their say alone is not acceptable.

The biggest fear is that on the back of this judgement, emergency legislation will be pushed through the Dáil to close the loophole. Perhaps the easiest solution is for EMI to set themselves up as a religion and then declare P2P to be abhorent in the eyes of their god. Dermot Ahern could then sleep easy knowing that he doesn't need to come up with yet more bad legislation.

Legal and illegal highs

Over the last few weeks the issue of "Head Shops" has come into the public discourse. Led on by the rabble-rouser extraordinaire Joe Duffy, the hoi-poloi are up in arms about shops selling substances to the young people that they shouldn't really be consuming. The mob is so inflamed (sorry, couldn't resist) by the issue that two of the shops in Dublin have gone up in smoke. Of course this media frenzy doesn't really address this problems in this country of substance addiction and abuse.

Starting with the obvious, substances such as heroin, cocaine and crystal meth are highly addictive and highly damaging and possession is rightly a criminal offence. Criminal gangs in this country bankroll their activities through trade of class A narcotics and the international production network keeps tens of thousands of the worlds poorest in Colombia, Afghanistan and others in effective slavery. I can't really think of any valid argument that could be made to legalize their use as the downsides of increased usage would vastly outweigh any proposed benefits in regulation and taxation.

The problems occur with the more "social" drugs such as marijuana and mushrooms. All sorts of studies have been produced indicating these drugs are either harmless, are just as damaging as crack and all points in between. But the reality is that these products are being consumed and labeling thousands of teens and twenty-somethings as criminals isn't really helping anyone. The argument of gateway drugs leading to hardcore use doesn't strike me as much as the fact that as long as these drugs are illegal, you are introducing young people to a criminal element that they would be best avoiding.

The legal highs, or maybe better called non-illegal highs, from head shops are a small step in the right direction away from criminality. The big problem is that the substances are relatively untested and although a lot are clearly marked not for human consumption, everyone knows that humans are the target market. Moving to a model of controlled but legal access to recreational drugs seems to me to be the most sensible way forward. We remove a large segment of the market from criminal hands and can then regulate to ensure safe products and raise duty and tax on them.

To leave things as they are is disgraceful. We allow people to consume infinite amounts of alcohol and consider it our national pride and joy. Across the country thousands of people are unable to get though the day without a few Anadin Extra or nod off at night without sleeping tablets and yet a few puffs of a joint and you can face fines or even a stretch in Mountjoy. The drugs policy in this country needs a review and not a review carried out by the people who phone in to radio talk shows.