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"Piracy" And The 3 Strikes Law – A Few Thoughts From A Working Musician

October 28th, 2009 | 16 Comments | Categories: New Music Strategies · tips for musicians |

Right, so “Lord” Mandelson has announced that the Government is indeed going to go ahead with their unenforceable nonsensical plans to “cripple the internet bandwidth of persistent file sharers“. Here’s a few highlights of the plans:

  • the cut-off is a ‘last resort‘, used if people don’t comply with requests.
  • the cost of monitoring will be “shared between ISPs and content providers” – that means that the labels that are already incapable of making money for the musicians signed to them are now going to fund this Wile E. Coyote-esque plan to catch people sharing files.
  • The ‘trade-off’ is that copyright ‘law’ will be rejigged so that now – WOW – “someone who has bought a CD would be able to copy it to their iPod or share it with family members without acting unlawfully.” (does he not remember listening to tapes made from his mum’s record collection in the car in the 80s??)

So, let’s recap what’s already been said about this –

  • statistics from the BPI and the Govt already suggest that the cost of implementing it are going to be higher than the potential ‘losses’ from people downloading free-stuff-that-the-people-who-administer-the-copyright-say-shouldn’t-be-available-without-paying-for-it.
  • It’s ONLY being supported by the muppets who want the untenable version of the ‘old music industry’ (a statistical blip in the timeline of humanity’s relationship with music that stretches back tens of thousands of years…) to continue in its unsustainable lottery-esque way.
  • EVEN the jewell in the pro-3strikes camp’s crown – support from the FAC – was, as Billy Bragg has said, unrepresentative.

So, what’s new?

Well, how does it work? Let’s have a look at that.

First up, let’s consider what can be measured to determine ‘illegal filesharing’? Well, the ways to identify the file itself would be through metadata – it being labeled as the music track, film, document, home movie, whatever. Or there’s the file size – you know when you put a CD into iTunes and it recognises what it is via the gracenote database, but it doesn’t if you put in a compilation CD of tracks you did yourself? That’s because it’s recognising files-size. or, more specifically for music, track-length as represented by file size. Quite often with CD singles of only 2 or 3 tracks, there’ll be multiple possibilities.

So, if you change the size of a file and mislabel it, it’s identity is completely impossible to determine.

So, your other alternatives for discerning ‘suspicious’ usage are based on tools or volume of traffic – ergo, “if you use Bit Torrent, you’re probably up to no good” (no mention of the myriad possible legal uses that are going to balloon over the next 5 years – let’s not forget that the iPlayer is [EDIT ‘was’ – see comments] P2P!), or “if you are downloading and uploading loads of massive files, you’re probably up to no good”. So when Lily Allen is swapping files with her producer for her next album (assuming she’s not too depressed by all this to bother making music), she’ll be flagged as a potential abuser based on the amount of traffic, and then what? A sampling of your files get diverted for analysis? Yeah, we’re all in favour of that. Mandelson’s Brave New World vision is complete. We’re living in Terry Gilliam’s Brazil. Awesome!

So, let’s have a look at what’s being reported about the problem of file-sharing…

There seem to be a lot of statistics about how many tracks are being downloaded outside of the terms of the current legislative framework, without money changing hands (sorry for the overly-long-winded terminology, but the notion of ‘piracy’ is ludicrous, and even illegality is often tenuous). Those statistics are collected because of the metadata that helps us find the stuff we want to download (that’s an all-inclusive collective ‘we’, not restricted to people I know or even agree with 😉 )

If I knew that 100,000 copies of my album had been downloaded without anyone paying for it, I’d be SO excited – what an incredible potential there is in that! 100 THOUSAND people wanting to listen to me enough to wait for the download, and I didn’t even need to advertise it for that to happen. It didn’t COST ME ANYTHING!! If it’s happening, I want to know about it. I REALLY REALLY don’t want that data disappearing. I need to know it, it’s part of my business strategy to be able to track that stuff. If a legal framework like the one Mandelson suggests is in place, I’ll no longer have that data. I’ll be robbed of the knowledge of who’s sharing my music, so I won’t be able to get the benefit from that.

Why won’t I have that metadata? Because filesharing will just become a different process – text-based private chat rooms will appear, files wanted will be discussed and then shared between individuals. It’s so easy, and it already happens. Some twitter DMs someone else, ‘have you got such and such a film/track/document, I need it for XYZ’ file gets sent via dropbox/IM/email/whatever. That + added encryption or file + metadata alternations = untrackable data. You don’t even need any new ‘IP hiding’ tech to do it. There’s nothing scary about it, it’s just networks of people connected by a shared interest in a particular cultural area swapping things related to it.

And in the meantime, they offer up a collective ‘fuck you’ to the government and the mainstream record labels and film companies, and see beating the draconian measures as a morally-driven act of defiance. And those agents lose the access to the massive potential well of magical goodness that is the data around file-sharing. Lose/Lose.

So, Mandelson is a behaving for all the world like a supreme bellend and his “law” is untenable, useless and massively counter-productive, as well as obstructive to the business practices of anyone attempting to embrace the opportunities of 21st century content distribution mechanisms, rather than drag us back to a world CD and DVD hegemony. Anyone got his phone number so I can have a chat?

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16 Comments so far ↓

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  • Carl Morris


    Well said, the plan is so obviously unworkable.

    The benefits to the artist of having recordings copied and shared are huge, but kind of peripheral to this discussion don’t you think?

    If an artist doesn’t want to acknowledge the sharing that goes on, or get excited about it, then it’s their choice.

    Sure, you would be excited about 100,000 downloaded copies but you’re a guy at ease with the way the new environment works!

    I’m not going to suggest an alternative plan for artists who feel they’re being wronged by filesharing.

    Overall I’m all for artistic freedom in this. I think in principle artists should be able to decide the licence for their work, Creative Commons, All Rights Reserved, whatever. It’s worth being serious about the choice you make and to be clear to the outside world.

    Mandelson’s plan seems to ignore that by assuming that ALL filesharing is bad or illegal.

    You seem to be at another extreme where artists should be made to realise the benefits of “21st century content distribution mechanisms”. For some people CD is actually still king. And for other artists it isn’t but they’d rather wallow then embrace the changes. Let them.

    You can talk about the magical goodness till you’re blue in the face. Some artists like you are happily swimming with the tide. And some just aren’t.

    I might have totally misunderstood you though.


  • Martin Austwick

    I had a conversation about ‘piracy’ with someone in which I stated baldly “Proper copy protection/DRM or whatever steps you would need to take to prevent ‘piracy’ would break the internet in some fundamental way (anonymity, freedom of access, etc). Surely all of the other industries which depend on the internet for income will prevent one industry screwing it for everyone else?”. Was I so off-beam?

  • [anonymous commenter, for some reason unwilling to put their name to their own ideas...]

    A few points from someone you know who works in the industry.

    1. iPlayer does not use P2P. Hasn’t done so for about 2 years now. Very unlikely to switch back to classic P2P protocols – they’re not efficient enough.

    2. Detection will *not* be based on metadata alone. Do a little research.

    3. You don’t have access to complete “metadata” at present – but I conceded you may have acccess to some.

    That said, the Geffen/Allen/Mandleson plan is flawed, but not for the reasons you state. Quite simply the tech is not up to the job. The power requirements for a start are huge. Should you talk with Mandleson, you’ll sound like a ranting geeky muso. Try taking a different tack.

  • spl23

    Steve, I agree wholeheartedly with what you say – it is refreshing in the extreme to hear from a musician who “gets it”, and embraces the future rather than clinging on to an outdated past business model.

    One small point – you mention the iPhone App Store as a triumph for DRM. This is only true up to a point – iPhone apps are actually pirated on a fairly massive scale, as once you “jailbreak” an iPhone, it is fairly trivial to install an App Store app purchased by someone else without paying for it. (I speak as an App Store developer, rather than a pirate!)

    That said, what Apple have done is to make that approach far less appealing by the combination of ease of use and low prices for the legitimate path – yes, I could jailbreak my phone, go and find an illegal copy of this app I want, and jump through all the hoops to get it – or I could just pay the three quid on my credit card and have it immediately with no hassle at all. Given the above, I am quite surprised that anyone even bothers with pirated content from App Store, but I think that just proves the point that there are people out there who simply won’t ever pay for software / music / films, and it is pointless trying to make them do so – which is one of the many points that the record companies and their puppet Mandy simply don’t get.

  • Tom Alves

    Besides the insanity of trying to determine what is legal & what isn’t (I download booltlegs from official band sites & upload an awful lot of photographs) there is an even more worrying aspect to this.

    Say your errant son is doing the unlawful & gets caught. He’s using the family computer or at least the family router & account. That account is now blocked meaning no-one in the house may legally use the internet. Basically the innocent will be persecuted for the sins of guilty. Imagine the consequences if students at college use the academic accounts which then get banned or the employee who gets the works account blocked? It’s totally unworkable unless Lord M expects the innocent to accept punishment for the wrongs of others.

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  • steve

    I don’t think you’ve misunderstood me, but I do think my position is slightly more nuanced than that.

    Some artists think it’s all about CDs – great, make CDs, think of clever ways of marketing them and sell them to people who want CDs. Some people still buy classic cars and drive them about 30 miles a year. There’s an industry serving them.

    The right to hang on to a market that your customers don’t want isn’t enshrined anywhere. I still make CDs for people who want them, not cos I think they are fundamental to my rights or purpose as an artist. I make my music listenable-to for free to anyone who wants to listen because I’m a musician who likes having an audience, and people clearly aren’t going to buy things that haven’t been validated somewhere – one model for validation is advertising/TV/radio play/expensive stuff. The other is listening for yourself/discussing it with your peers/talking to the artist/free stuff.

    The right to do the former is still there – you just have to understand the rights of the latter. We need a space where ‘value’ in an age of content ubiquity is discussed intelligently, without getting caught up in nonsensical morals about the ‘right’ to sell CDs or the ‘right’ to free stuff. Neither mean anything.

    The sensible conversation is the middle ground – how does free-to-produce-and-distribute content change the game for an industry that was built on the model of a poker game – the occasional big win mitigated against the serial losses of the long tail, but left bands not with nothing, but less than nothing – debt. If bands were just coming out empty handed, it’d be OK, but they weren’t they were coming out of it with debt, disillusionment and a disaffection from their own creative origins, driven by the need to meet unrealistic expectations put on them by an industry that thrived on not paying royalties to artists that hadn’t recouped.

    #Balls to that :)

  • steve

    Well, there are a lot of other industries that are DRM’d up to the hilt and their users are largely OK with it – the games industry is DRM-ridden (try putting that PS3 game in an Xbox, or copying it for a friend… pretty tough).

    Same with mobile – the App stope on the iPhone is DRM’s great triumph – not only can you not share the apps around, you can’t even put apps on the phone unless they’re downloaded from the store!

    The problem is that everything points to distribution being tiered – the top level really expensive stuff is physical, beautiful, tactile, whatever – whether that’s really well packaged CDs with booklets and artwork and furry things, or some kind of super-high-res video that requires a special player. Platform specific games are in that space at the moment… But that market always drives the next level down – quality stuff developed to be cross platform.

    Then there’s the level where the quality stuff is licensed to sell something else – ad-supported, commercially backed, branded stuff. This is the point at which the argument about what’s ‘free’ and what isn’t gets really murky. If I get an album free with a newspaper, but my friend misses the deal, where’s the moral sense in them not copying it from me because they happened to not buy a paper they don’t even read on that particular day?

    Then, at the broadest level you’ve got ‘not for profit’ music – collaborative, folk, amateur, spare time, generously gifted art.

    There’s no metric of quality separating those levels. There’s lushly packaged unlistenable shit and there’s legally-free-to-download awesome music.

    Quality and gratitude are the most powerful market forces. Gimme something I love and I’ll pay what I need to to get it.

    This evening I stumbled across this – – have a listen to his version of ‘I Can’t Make You Love Me’ – I heard it, teared up, and then set about finding the best quality version of the album I could to download online (there are 24bit/96k files there, but I’m not sure my ipod could handle them) – I ended up at Amazon, and paid £7 for the album, not 20 mins after finding out that it existed. More than that, I tweeted about it, so up to 3000 people now know that I love it, and have a link to click on and listen if they care to…

    Why? Because it’s awesome. Never forget the power of awesome :)

  • Mikael Suomela

    I bought a 24bit/96Khz tune from the new Rob Ickes album based on your recommendation. For me this chain worked: first you said something, then I got to listen to the samples and then I bought the premium stuff (I’m a bit of a hifi buff). Ickes haz wikkid skillz, as you would say.

    So yes, reputation and free works to some extent.

    I do hope that this Mandelson model does not become EU-wide, though I can see how it will. A lot of my peers here in Finland are asking “where’s me moni” -type of questions. The odd thing is that many of those musicians have not put a large body of their own work to be pirated anyhow, so they are more concerned about “opportunity” losses than anything else. They might not be ready to imagine the long road it seems to be to get to have a firm human-to-human network of fans.

    This fan thing is different in most genres. I’m a great fan of Wayne Krantz and would buy his stuff, for many reasons. The big names (in the Finnish music scene) I’ve played don’t have that sort of following, they are stars with no compositions of their own – and they use other peoples tunes for their records. And their listeners are fickle, they are not fans of the body of work of an musician but more the casual listener-type. For my songwriting peers here this means that they want their cash now, because if a star doesn’t boom she’ll bust… So they want copyright to be strictly enforced and firmly in place, nevermind that many have been really been cheated by record companies. But still the money from radio play and tv is important, for some. Most, like me, get only little (yes I get some every year) – I haven’t managed to write a hit :)

    I don’t have a recollection of ordinary people ever buying shitloads of records without massive prior listening. Broadcast radio was and still is the discovery mechanism here – and radio was free for the end consumer all along.

    As you can see, I’m more inclined to follow this free thing. Sowing your seeds to the wind, so to speak. The “compensation of musicians” discussion that’s always been ongoing will continue in perpetuity. I remember not a few years ago when these peers of mine were all talking how record companies were shitting them left and right…

  • Martin Austwick

    Steve, I don’t think I really understood the thrust of your argument (my fault, not yours) – it seemed to be that DRM isn’t inherently evil if it’s done the right way?

    My point was, the digital genie is out of the bottle – mp3s (or wavs, or your preferred poison) are inherently copiable, and now the fundamental medium of non-physical recorded music reproduction. If you can’t limit the medium to prevent reproduction (how do you send copies of iPhone apps to your friends? How do you copy a PS3 game? I’m sure it’s possible but copying an mp3 is a lot easier), then you inevitably have to punish reproduction. In doing so, you tie up *so* many resources in monitoring and break *so* many freedoms.

    I think the anonymous poster has totally missed the point – the tech argument is totally separate. He presumably would have argued against the Manhattan Project on the basis that “It’ll never work”.

  • steve

    1. OK, iPlayer *did* use P2P – what was the point? Ah yes, that there are manifold legal possible uses for P2P. Here’s another – Trent Reznor seeding his own music there at resolutions too high for the bandwidth on his own site/server to support. Point still stands.

    2. Not *just* metadata, but the point is, it will lead to the obfuscation of metadata by people who don’t want to be easily detected. Ergo, useful metadata currently there will no longer be there. Whatever other methods they use don’t change this. The main point is that at the moment that data is useful, valuable, and a bit of creative thinking can work wonders in relation to it (not least of all indie artists panicking about file sharing discovering that no-one is swapping their files – something that will happen rather a lot…)

    3. Who said anything about complete metadata? useful metadata is there. I use it to find out whose been listening to my music. Every article you read about the music industry and the horrible situation its in sites data about the numbers of albums/singles/whatever relating to particular bands that are being download – those stats rely on that data.

    You don’t have to concede anything – if you have info/research/links to make the discussion more complete, that help us all to know more about this, please post them – but please do so with some kind of identifier. Conversations work much better with context.

    Should I talk to Mandelson, I’ll sound like someone who thinks his plans won’t work. Along with millions upon millions of other people. You seem to have assumed a level of totality in my reasons for this being a bad idea that isn’t there. There are myriad other reasons, that other people will no doubt take to Mandy who know more about them than I. I’m not here to face the nonsense of his plans alone.

  • steve

    thanks very much for your comment – I think the point with Apple’s DRM success is not that you *can’t* copy the software, it’s that people don’t. Also, but making the DRM’d legit platform attractive to developers, they’ve dissuaded most devs from writing apps outside of that process – From what I gather, the percentage of jailbroken iPhones is pretty small…

    So it’s not a triumph of technology over desire, but it is a triumph of environment over the need to ‘break the system’ that often drives the ‘everything has to be free’ crowd. The DRM on an iPhone only really becomes apparent if you’re writing an app and are waiting to have it ‘approved’, or want an app that doesn’t exist and can’t find someone to write it for you… It’s most apparent, I guess, in the limited way that the web-browser incorporates flash/java, because obviously, as soon as people can write java apps for the iPhone that run in the browser, the app store becomes only one of two ways of getting apps on there without jailbreaking your phone…

    But thanks so much for bringing up the point about pricing models – the app store is a massive triumph of market-driven pricing, it seems – so many great apps are only 99p because the people selling them think they’ll sell more that way, and 1,000,000 x 99p is much more than 2,000 x £15… All really good food for thought, thanks.

  • steve

    I was responding to your assertion that DRM will break the internet, by suggesting that there are industries in which DRM is currently ‘workable’ – there are work-arounds for all of the kinds of DRM – playstation etc. games are copyable/crackable, but the manufacturers haven’t had to face up to that becoming ‘the norm’ in the way that musicians have.

    A massive part of the benefit for music here is that it’s as much an encounter with a personality as it is an ‘experience good’ – computer games don’t often give you much concrete insight into the mind of the developer. The level of self-expression in game design is pretty abstract, and certainly not linked to the output in the way that the experience of seeing someone perform music, or being moved by the lyrics of a songwriter is…

    So in music, DRM has proved, thus far, to be a total FAIL. It hasn’t worked, and is at least partly responsible for the adversarial relationship that we currently have between listeners and labels.

    But I guess I just thought it was important to address the practicality of how this stuff plays out – DRM ‘can’ work if within that DRM frame-work there’s enough headroom that people who want stuff in a usable way can get it, and if buying is easier than copying.

    I would, however, suggest that torrenting music is an inherently more ethically defendable practice that buying illegally manufactured CDs/DVDs/Games from some dodgy geezer in a market. There you’re just feeding cash into a different corrupt industry. I don’t see many counterfeit goods salesmen displaying their fairtrade badge…

    ..which would be an interesting angle to take on this – the idea of a fairtrade network of musicians… needs thought and fleshing out.. maybe I’ll start a thread about it over at for discussion :)