Free music download: police and thieves – the police

Robert Peel

Please see the post below for further background.

The Independent adds that SOCA's notice on the closed RnBXclusive.com also stated:

"Soca has the capability to monitor and investigate you and can inform your internet service provider of these infringements. You may be liable for prosecution and the fact that you have received this message does not preclude you from prosecution”.

The message is clear; individuals will be prosecuted even if you happen upon the website by accident. Will you? SOCA obviously see themselves as the guardian of online copyright infringement. Are they?

Although the Digital Economy Act (DEA) 2010 that came into force in June 2010, allows for the criminalisation of individuals who consistently download/share files illegally (paragraph 42), the onus initially falls on ISPs to curb those who regularly fall foul of the Act.

To set this in context, the DEA was rushed through parliament just before the UK national elections in 2010. Critics point to the role of Lord Mandelson in pushing through the DEA without sufficient scrutiny, after the music industry lobbied him; there is evidence that the British Phonographic Industry drafted part of the DEA. Although this part has since been dropped, it reveals the extent to which commercial interests can influence law and order.

One particular bone of contention for ISPs is the aspect of 'technical measures'. ISPs may be called on to restrict access of the internet, or even possibly remove access all together, from those customers who regularly transgress. Ofcom, who oversee the DEA, can take action against ISPs who fail to report these acts. Two of the largest ISPs, BT and TalkTalk, have appealed against the DEA.

A smaller broadband provider, aaisp.net, have provided an analysis of the DEA from their perspective here. They highlight the seemingly incompatible roles that they have to play.

Copyright (c) Liccia

At the same time as trying to grow their business and retain customers, they have to report on these same customers, resulting in a loss of trust and the likely loss of this custom to alternative ISPs. When customers transfer to a new ISPs, the history of the notices levied against the customers disappear, meaning that the copyright holder has to start again with any action. Nobody wins.

In fact, as TalkTalk point out in their Statement of Facts and Grounds, there are any number of ways that individuals can download music freely and, therefore, get round the DEA.

Whilst this document is obviously specific to TalkTalk, and their particular grievances, it highlights a number of concerns with the DEA that other less powerful organisations may not have had the finances to shed light on. For those interested, I would refer you to paragraphs 199-212, and the concerns raised therein.

Given that many features of public life are now dealt with on the internet only, including some government services, the restriction/removal of internet access seems a punitive measure. A denial of the right to participate as a full citizen of the UK is only going to further marginalise and exclude those who have less ability to participate as citizens in the first place.

A report by the London School of Economics and Political Science (LSE) also found that there was an imbalance between copyright enforcement and innovation. The report illustrates how the music industry might help consumers find the products that they are looking for legally, at a reasonable price, and suggest that the music industry acknowledge that file-sharing is not the only reason for the relative decline in CDs, vinyl etc.

Its authors suggest:

“The music industry and artists should innovate and actively reconnect with their sharing fans rather than treat them as criminals...Alternative sources of income generation for artists should be considered instead of actively monitoring the online behaviour of UK citizens.” (Bert Cammaerts) 

“the DEA has given too much consideration to the interests of copyright holders, while ignoring other stakeholders such as users, ISPs, and new players in the creative industry...” (Bingchun Meng)

The clumsy use of SOCA as a Big Brother-type sentinel guarding the copyright 'safe' also demonstrates how far(?) states have moved towards finding ways of policing the internet.

Nationally, the UK still relies heavily on the authoritarian, Peelian force, albeit online, to deter, and warn its public of future, punitive sanctions. However, the internet is global. Any tech-savvy individual could re-route their IP address, or anonymise it, to download free materials, rendering geo-spatial boundaries meaningless, and the forces within them powerless.

Just as the LSE calls for innovation from the music industry to combat the alleged impact of file-sharing, perhaps it is time for the law and order industry to look afresh at regulating cybercrime.