BPI Effectively Admits That Digital Economy Act Was Useless

from the reading-between-the-lines dept

Every time I come across BPI, the UK's version of the RIAA, I'm amazed at how single-minded its focus seems to be. There's little interest in improving profitability for record labels. There's little interest in creating better music. There's little interest in smart new business models. It's only about "piracy" and how evil it is. What's funny is I saw the BPI's Geoff Taylor on a panel a couple years ago, and he was one of the people who would say two sentences in a row that would contradict each other. It was always something along the lines of: "We should stop 'going to war' with our customers... but first we have to stop piracy!"

This past year was a banner year for BPI. The UK market has bucked the trend in pretty much every other part of the world and has seen recorded music sales growing, while its overall music industry (if you count how much money musicians actually make -- beyond just recorded music sales) has been growing for quite some time. Even with all of that, BPI was able to push through the incredibly draconian Digital Economy Act in the UK via questionable means.

So BPI should be thrilled, right? In the midst of a recession, and a massive decline in recorded music sales everywhere else in the world, it was able to buck that trend even before it got this new law passed.

But no, to BPI, absolutely everything is about "piracy." It's put out a new report whining that "piracy" is still increasing and saying it's all Google's fault. Of course, this isn't a surprise as BPI has been trying to set Google up for a lawsuit.

Of course, by my reading of this new study, BPI is effectively admitting that the Digital Economy Act was useless. The industry was already growing before it, so the main reason behind it was to help slow down the dreaded "piracy." And it failed in doing that. So, shouldn't BPI now support a repeal of the Digital Economy Act?

Filed Under: blame, copyright, downloads, piracy, uk
Companies: bpi, google

Challenging BPI's Claims That IP Addresses Alone Are Accepted By Courts As Proof Of Infringement

from the lies-the-recording-industry-tells dept

BPI, the equivalent of the RIAA in the UK, is apparently insisting that the evidence it uses to accuse file sharers of infringement is "of an extremely high standard." Of course, the "evidence" is an IP address, which anyone with a basic understanding of technology knows is, by itself, not indicative of much. You could combine that with other evidence to have a bit more useful info, but IP addresses are hardly the sort of "extremely high standard" of evidence you would think they are from the BPI's claims. So, the folks at the Open Rights Group are asking BPI to back up their claims that the evidence is of such a high standard and that UK courts have accepted this evidence, asking a simple yes or no question:

Has any UK court ever treated an IP address as being sufficient by itself to identify a defendant as a copyright infringer in a contested copyright infringement claim decided after a trial of an action?

This is because -- in typical recording industry misleading fashion -- BPI uses weasel words in its claims, saying

It is the same quality of evidence that was provided in more than one hundred cases to the High Court in litigation against end users and which was accepted by the court in each case. Most of these cases resulted in settlements, and all of those on which judgment was given found in the BPI's favour

Hmm, citing settlements is useless because a "settlement" is not a ruling on the merits, and therefore does not prove that an IP address is quality evidence. And while judgments are made on the merits, saying that such evidence was used in successful cases is not the same thing as saying an IP address, in and of itself, is sufficient to prove infringement. Apparently, ORG asked BPI to clarify this well over a month ago, and still has not received an answer. Shocking.

Filed Under: evidence, ip addresses, uk
Companies: bpi

IFPI Sends DMCA Notice To Google Demanding It Stop Linking To The Pirate Bay... Entirely

from the here-comes-the-lawsuit dept

We just wrote about a DMCA takedown notice from BPI to Google that appeared to be setting Google up for a future lawsuit, and now it looks like the IFPI, of which BPI is a part, is going even further. TorrentFreak, following up on our post about BPI, noticed an even more direct takedown notice from the IFPI demanding that Google block any link to The Pirate Bay.

In light of the serious violations of copyright facilitated by The Pirate Bay service, and in accordance with Google's policies (see http://www.google.com/dmca.html andhttps://www.google.com/support/websearch/bin/answer.py?answer=58&ctx=sibling) we are asking for your immediate assistance in removing from your index, or otherwise disabling access to via your search engine, URLs linking to the website for The Pirate Bay including but not limited to the URLs specified in the attachment to this notice.

Yup. They are directly asking for a blanket ban, which clearly goes way beyond what the DMCA was intended for or allows. But, of course, the real goal here is to set up Google for a lawsuit, which IFPI makes clear later in its letter:

Our use of a notice in this form, as required by Google, is meant to facilitate Google's removal of search results linking directly to infringing web pages and we neither admit nor accept that Google is a 'service provider' for the purposes of the DMCA or that it is necessary to serve, or that Google is entitled to be served, a notice in compliance with the DMCA. IFPI itself and on behalf of the IFPI Represented Companies expressly reserves all rights in this regard.

Nice trick here, right? So even if the courts decide (say as in the Viacom case) that Google needs to have direct knowledge of what's infringing, the IFPI wants to reserve the ability to claim in court that Google isn't even a service provider and doesn't fall under the DMCA's safe harbors. Of course, Google has dozens of judicial decisions on its side, but why should that stop the IFPI.

Then there's my favorite line of all:

Please note that we do not admit that we or the IFPI Represented Companies are responsible for detecting infringing material and notifying you of it.

Yup. The IFPI is blatantly coming out and saying that it doesn't believe it needs to figure out what's infringing and what's not -- that's what Google has to do. Of course, there is nothing in the actual law or in the case law that supports this position. It just looks like the IFPI is taking a flier and seeing if it can drastically overreach on the DMCA and get Google to stop linking to the entire Pirate Bay (something that Facebook has already done), and if Google (hopefully) refuses, then it seems likely to file a lawsuit.

Filed Under: copyright, dmca, linking
Companies: bpi, google, ifpi, the pirate bay

Is BPI Trying To Setup Google For Copyright Infringement Lawsuit?

from the here-comes-the-battle dept

Someone who prefers to remain anonymous sent over the Chilling Effects archive of BPI's recent DMCA takedown notice to Google. BPI (in case you didn't know) is the UK's version of the RIAA, and works closely with PPL, the group whose leader recently said there's no such thing as promotional use. BPI was also the driving force behind the recent Digital Economy Act that brought three strikes legislation to the UK, despite public outcry against it. Of course, lots of labels file DMCA notices all the time, and Google has noted in the past that it will take down links to infringing content when notified. While I still don't see how Google can or would be liable, seeing as it is merely accurately describing what its crawlers find and is not hosting the material in question, merely linking to it, Google still seems to go above and beyond what the law allows.

However, there were some interesting tidbits in this particular takedown notice that suggest that this is a setup for a larger plan by BPI -- a plan it may regret. First, it seems a bit odd that BPI has randomly selected 30 or so songs to take down, from a wide variety of songs that it technically represents. Second, beyond just giving Google the details of the files and links to the files, it also lists out the "infringing webpage(s)" as:

http://hotfile.com/
http://usershare.net/
http://2shared.com/
http://4shared.com/
http://mediafire.com/
http://megaupload.com/
http://sendspace.com/
http://teradepot.com/
http://zippyshare.com/

To expedite DMCA claims, Google specifically requests sufficient information "to permit Google to notify the owner/administrator of the allegedly infringing webpage or other content (email address is preferred)." But BPI does not do that. It only lists out the above webpages.

My guess is that this is trying to set up Google, so that Google is officially "on notice" that these nine sites host infringing content, and while Google will almost certainly take down the links to the specific files listed, it's quite likely that similar files will quickly be found elsewhere on those sites -- and BPI may then try to claim that Google should automatically know how to block those other files. Part of the DMCA safe harbors is that you need to remove content if you have "specific knowledge" of the content. This is at the center of the Google-Viacom lawsuit. Google claims it needs to know the specific files that are infringing, while Viacom claims that once Google knows that "content x on YouTube" is infringing, it should be required to find and block all such content x's, even if Viacom has not informed Google where they are.

While the final decision in that case is still a ways off, for now, it looks like BPI is setting itself up to sue Google for lots of money as well, if Viacom gets away with its argument. And, you can bet that others will be lining up to do so as well. If anything, this suggests the massive legal problem that will result if Viacom wins its lawsuits. Suddenly, lots of content holders will be looking to "cash in" by suing YouTube for not tracking down each and every last version of any particular content.

Hopefully, the courts recognize (similar to what was recently found in the Perfect 10/Rapidshare case) that when a site gives clear tools to let you remove specific infringing content, making a general claim does not fly.

Along those lines, however, it is worth noting that Google recently dropped a lawsuit against record label, Blues Destiny, in which it sought a declaratory judgment that just linking to content is not infringing. Google withdrew after Blues Destiny promised it wasn't going to sue Google for infringement, but it might have been better to get that legal precedent in place.

Either way, sooner or later, it looks like we're going to get another legal showdown over whether or not it's legal for Google to just link to infringing material. When that case goes forward, it could be a defining moment in whether or not search engines, themselves, are actually legal. If BPI does sue -- and loses -- it could also open up some legal room for content specific search engines that aren't deemed infringing as well.

Filed Under: copyright, dmca, takedown
Companies: bpi, google

Music Industry Execs Debate Brokep From The Pirate Bay

from the and-who-wins? dept

Over in the UK, on Thursday evening, there was a music industry panel discussion that involved a massive number of panelists (ten -- which seems a bit too many) covering a wide variety of viewpoints from the music industry. Mostly they came from the traditional parts of the music industry, but the interesting participant was Peter Sunde Kolmisoppi, aka brokep, from The Pirate Bay (and now Flattr), taking part in the discussion with a group of folks who regularly call him all sorts of unfriendly things. Stuart Dredge, over at Music Ally, ran a nice live blog of the conversation, which mostly went down about as you would expect. Dredge noted that it was mostly an "industry" audience, and he worried that "there’s a bit of a kick-the-Pirate-Bay mood bubbling" in the audience.

Thankfully, it doesn't look like things got that far. Mostly it was the typical back and forth. Industry folks whining that they can't compete with The Pirate Bay... even as they were talking about the variety of ways they were competing with The Pirate Bay. Basically, what becomes clear is they would prefer competition that they control, rather than competition that consumers drive. Tragically, innovation doesn't work that way.

Peter made the point that a lot of people were confusing the music industry with the recording industry, and mocked them a bit for not actually talking about culture or music:

"Most of the things we're talking about today are about the record industry, not about the music industry. Everyone is talking about percentages... nobody is talking about music. It sounds like most people here could be selling diapers instead!"

While technically true, the discussion was about the business of music, so I think it's fair to be discussing some numbers and the business angle. But there is a larger point to be made here. With studies showing that more music is being created, the complaints about the "death" of the industry are clearly misplaced. The real complaints from the industry types are that they aren't able to make money off of it any more -- but that doesn't mean the music industry is in trouble at all. Instead, it's thriving. In fact, Peter also made that point:

It's not a right for the record industry to make a profit.... Technology has come that has made most of the record industry less valuable. We need to just move on, it's sort of an evolution... It might not be good for people working in the record industry, but the music industry is better than ever."

The industry folks on the panel still seem to be living in a state of denial at times, talking about how they should milk the 40 and 50 year olds who are still buying CDs, rather than really understanding the changing marketplace. My favorite laughable quote came from Guy Moot, of EMI Publishing, who said:

"The joy of ownership is a very different thing from the joy of a digital download or stream..."

Sure, it is, but the record labels have worked very, very, very hard to make it clear to people that they don't get to "own" anything. How many times have been told "you just get a license." If we really got to own stuff, there wouldn't be so many complaints.

There were so many people taking part, it's difficult to cover them all. Will Page (whose interview we recently posted) made some good points, and Jeremy Silver, from the Featured Artist Coalition (who's also a very interesting guy to chat with about these issues) comes off as being quite sensible in saying that file sharing of unauthorized works is here and not going away -- and the industry should take some of the blame for sitting on the CD cash cow and never innovating. Rather than complaining about it, it's time to look forward.

On that note, it seemed like the most reasonable speaker may have been David Stopps, who spoke from the perspective of an artist's manager. He noted that the it's absolutely possible to "compete with free," talked up the importance of touring to make money and using the music to boost those revenues and also played down the "demise" of the record labels, by noting that "they still have the back catalogue" to milk for a long time and that their job has become a lot easier thanks to technology:

He says A&R is becoming easier for labels, because sites like Hype Machine and We Are Hunted are where A&R guys are looking to see "who's listening to what music". It's less about "taking a punt" than in the old days. "Artists are building up fanbases themselves… and that can be monitored."

He also brings up the band Metric as an example of a band that has "gone all the way" without a record deal, noting that they turned down a variety of major label deals with massive advances to "do it on their own" and that it's working:

"They're doing a fantastic job, they use Topspin to sell their music, and that seems to be very successful for them. We're gonna see more of that..."

Along those lines, he also notes that The Pirate Bay can be a really great way for people to discover new music, and monetize them elsewhere, pointing to Imogen Heap, who discovered tons of people in Indonesia downloading her music in an unauthorized manner... but when she went there, she was able to sell out a 4,500 seat arena, making "a lot of money."

Finally, he also knocks BPI and others in the industry for still thinking that DRM is a reasonable solution -- pointing out that it's totally anti-consumer:

"The problem is, nobody really asked the consumer," he says, about attempts to put DRM on CDs. "They absolutely hated it. You put the CD into the computer and it wouldn't play... In the future, we've got to bring the consumers into the business model. In fact, they already are part of the business model."

Geoff Taylor, the head of BPI (basically the UK's RIAA) comes off as about what you'd expect. He trashes The Pirate Bay repeatedly, claims that it's "destroying national cultures" (with no proof, of course) and says that there needs to be "disincentives" to dealing with unauthorized file sharing.

It's the same story as usual: they're so focused on negative incentives for people doing stuff they don't like, they never seem to care about creating positive incentives for those they should be targeting. That's BPI's problem. Not The Pirate Bay.

Anyway... given the participants, it was about what you would expect, and didn't seem to get quite as nasty as some feared before the event. I doubt anyone's mind was changed about anything, but it still sounded like a pretty good discussion.

Filed Under: brokep, david stopps, debate, geoff taylor, guy moot, jeremy silver, music industry, peter sunde, uk, will page
Companies: bpi, emi, the pirate bay

BPI Says That UK Spies Are Against Digital Economy Bill

from the strange-bedfellows dept

The debate over the Digital Economy Bill in the UK (the attempt to ratchet up copyright law to repay favors to an entertainment industry that is slow to adapt) has taken an odd twist. Cory Doctorow over at Boing Boing has the details of a leaked memo from the BPI (pdf) to a bunch of recording industry execs and lobbyists, that details the state of the bill and the ongoing strategy for getting it approved. There are a few items worth noting:

1. The BPI seems to think that the UK intelligence community is now the biggest threat to stopping the bill. Seriously. Apparently, UK spies are afraid that passing this bill will drive a very large number of people to switch to using encrypted internet tools, making it that much more difficult to spy on them. This may be an accurate concern, but it's surprising to hear that the intelligence community is now considered the biggest hurdle to getting the bill passed. Apparently, the BPI is fairly unconcerned with consumer rights groups. The BPI seems so paranoid about the intelligence community, that it actually suggests in the memo that the British spying agency MI5 may have paid for a recent survey released by the ISP Talk Talk, saying that 71% of those 18-34 years old would continue to file share, using "undetectable means."
   
   The memo also mocks the fact that this particular bill now has the Open Rights Group on the same side of an issue as MI5 -- when the two are normally somewhat diametrically opposed.
   
   
2. While the BPI sounds fairly confident that the bill will get through, it recognizes that it could get stalled if enough Members of Parliament start asking questions about the speed with which the bill is being pushed through:

   As for the House of Commons -- which will be sent the Bill next week -- there is a strange sense of detachment. MPs with whom we spoke back in Autum are already resigned to the fact that they will have minimum input into the provisions from this point on, given the lack of time for detailed scrutiny. One leading backbencher has told us that there is "little point in meeting, since the Bill will be determined at wash-up". That said, John Whittingdale -- an inveterate "timing sceptic" (i.e. he's for the Bill but doesn't think it will get through in time) has said this week that he still thinks it could be lost if enough MPs protest at not having the opportunity to scrutinise it. Whilst true in constitutional theory terms, the hard politics of the situation makes it seem unlikely. And inveterate opponents like Derek Wyatt and Tom Watson continue to blog and tweet with critical comments, but there is not the sense of a groundswell of massive opposition to the Bill.

   In other words: if you live in the UK, now is the time to start speaking up and contacting your elected officials, as well as letting others know that a bill to greatly take away your rights is about to be pushed through the House of Commons, unless you speak up now.
   
   
3. Finally, among the "upcoming" activities, the memo mentions that on Wednesday the 18th, there will be a release of a report from TERA on "The importance of saving jobs in the EU's Creative Industries." We see these types of reports all the time, and they're usually poorly thought out and poorly argued, assuming, incorrectly, that a loss of jobs in one part of an industry might not be made up elsewhere, and rarely (if ever) paying attention to the fact that artificially propping up one part of the industry has massive negative consequences for other areas in the economy. So let's see what this report says. But assuming you start seeing press reports about this later this week, make sure to read through them with a critical eye.

Filed Under: bpi, copyright, digital economy bill, encryption, intelligence, mi5, security
Companies: bpi, mi5, open rights group

Record Labels Put Out Misleading Study Trying To Get ISPs To Setup Broken Music Streaming Services

from the neutrality? dept

The record labels have been trying out all sorts of schemes for a while now to try to get ISPs over to its side in propping up their old business models, and the latest is pretty laughable. BPI at the behest of Universal Music, commissioned a study which suggests that ISPs can make a lot of money by offering music services to their users. No doubt. But that leaves out some rather pertinent details. For example: many ISPs have very much wanted to offer such music services, but have been blocked by the likes of (uh oh...) Universal Music and BPI. Funny how that works.

The problem, of course, is that the ISPs want to offer music services that people would actually use, and the record labels want to handicap the services to the point at which they're completely lame. So there's a bit of a stalemate there.

But the bigger issue is (reading between the lines here) what the record labels are really saying to ISPs here is: break net neutrality. That's because they're not talking about just any music service. After all, there are lots of music services out there that people can sign up for no matter who their ISP is. But what the labels seems to be suggesting here is that ISPs specify one special music service that locks in customers. That's why the report highlights that a music service can "reduce churn." Of course, the only way it does that is if it's locked to that single ISP -- and if your music is limited to you only as long as you're with that ISP. In other words: locking it down so that it's lame.

As if to make the point even stronger, though, BPI blatantly tells ISPs to break neutrality:

"It's increasingly clear that it isn't smart to be a 'dumb pipe'. This report shows that the revenue potential of digital music services alone makes sound economic sense for ISPs," said BPI Chief Executive, Geoff Taylor.

Being a "dumb pipe" of course is a well-known code-word in the internet world for a neutral network. So, really what the labels seem to be suggesting here is that ISPs break network neutrality for the purpose of serving up a preferred music service that locks you into that ISP. Apparently, no one who put together the study contemplated the fact that this might piss people off and make them look for ISPs that don't lock them in. Thankfully, it appears that some ISPs aren't biting:

"TalkTalk thanks the BPI for its strategic business advice. Though some may question the value of such insight from an industry which has failed to acknowledge the impact of new technology on its own business models and is pressing the Government to criminalise its biggest customers," a spokesperson told TorrentFreak.

Exactly. If the record labels were really serious about helping ISPs offer up music services, they wouldn't be blocking them at every turn. This report is a typical red herring.

Filed Under: isps, labels, lockdown, music, streaming
Companies: bpi, universal music

Will The Recording Industry Pay For ISP Monitoring In The UK?

from the come-on,-pay-up dept

Recently, as the BPI was arguing yet again that ISPs were exaggerating how much it would cost to implement a three strikes type regime in the UK (which would be required under Peter Mandelson's Digital Economy Bill, aka DEB), we wondered if BPI would be willing to foot the bill, since it's so sure that it'll be cheap. After all, since the whole law is designed to prop up BPI's own business model, it seems to only make sense that BPI should be the one paying for it, right?

Turns out that we're not the only ones to think so. In a recent post about the DEB, Jeremy Silver (who I had the pleasure of meeting at Midem) points out that BPI is in the troubling position of trying not to make it sound so cheap that it's expected to pick up the bill, while still arguing that it's not so burdensome for ISPs to pick up the bill. But, various proposals actually are suggesting that BPI should pay the cost:

The Digital Economy Bill that is wending its glacial way through the UK parliament has produced an interesting row between the BPI (representing the interests of the major record labels) and the ISPs, telco's and mobile network operators. They are arguing over who should pay how much to fund remedial measures to clamp down on illegal file-sharing. The BPI is in a tough place since the cheaper they argue the cost will be, the more the ISPs respond by saying "well then you can pay for it." Minister Stephen Timms recently suggested the split should be 75/25 (with the BPI paying the greater amount).

Honestly, I fail to see why BPI shouldn't have to pay 100% of the cost (or, perhaps in conjunction with other copyright industry organizations) if such a plan goes through.

Silver recognizes the bigger issue of course, which is that almost no one actually thinks that a three strikes plan "will make a blind bit of difference," and that this whole game is really about rights holders "wasting their money by trying to control file-sharing." On that we agree. However, I have to disagree with his suggestion that the answer is a collective licensing regime, because I think that introduces way too many questions where it's not needed. A collective licensing scheme puts yet another bureaucracy in the middle, just for the music industry (well, not for long, because then suddenly everyone else wants one too: the movie industry, the software industry, the video game industry, the newspaper industry, etc. -- and why should it stop there, new industries will jump on board too: don't we need a collective license for people who view blogs too?). As it stands, I just think that we're finally seeing free market business models that are working, and it's way too early to jump in and distort the market with a collective licensing scheme.

Filed Under: collective licensing, cost, isps, record labels, three strikes, uk, who pays
Companies: bpi

Even The Recording Industry Is Criticizing ACS:Law/DigiProtect Pre-Settlement Letter Program

from the hammer-coming-down dept

With more and more attention being paid to the efforts by firms like ACS:Law and DigiProtect to profit from blasting out hundreds of thousands of letters demanding payment to avoid file sharing lawsuits (which almost never seem to actually get filed), it seems that the companies involved in such things may finally be facing some pretty serious criticism that could force them to curb the practice. First up, politicians. A few different UK officials are coming out loudly against ACS:Law, with some even suggesting that the firm's efforts are like a "scam" or "legal blackmail."

Meanwhile perhaps the most surprising of all is that BPI, the UK's version of the RIAA has also come out against the practice, saying that they don't feel it is appropriate. Perhaps it's not a huge surprise -- given that the clients of ACS:Law/DigiProtect have tended to be video game and porn producers rather than the recording industry. However, when even the recording industry finds your actions against file sharing too draconian, it suggests you've really stepped over the line. At some point, you get the feeling that ACS:Law is going to get slapped down legally.

Filed Under: extortion, pre-settlement
Companies: acs:law, bpi, digiprotect

BPI Insists UK ISPs Overstating The Cost Of Three Strikes; So Will BPI Pay The Difference If Wrong?

from the come-out,-pony-up dept

The UK's version of the RIAA, BPI, has been a very, very strong supporter of Peter Mandelson's Digital Economy Bill -- a position that has even some of its members resigning in disgust. In the past, BPI has also implied that ISPs already have some sort of legal obligation to stop file sharing and that they rely on unauthorized file sharing to fund their own business model. As the battle over the bill heated up, many ISPs pointed out that the cost of implementing the bill's requirements would be quite high. On top of that, the UK government did its own study and found that the costs were even higher than the ISPs estimated and the cost of implementing the bill would outstrip even the most ridiculous of BPI's estimates of "losses" from file sharing.

Of course, BPI can't accept those numbers, so its commissioned its own study which (of course!) claims that the cost to ISPs would be tiny. Hell, they'd barely be noticeable at all.

Well, if BPI is so sure of this, how about it steps up and puts some money behind that claim. I would imagine that ISPs would feel a bit more comfortable about supporting the Digital Economy Bill if BPI promised to pay any of the fees above and beyond what its own estimates are for implementing the plan. According to BPI's analysis, it would cost ISPs all of £13.85 million ($22.5 million) in the first year, £9 million ($14.6 million) in the second year and just £3.45 million ($5.6 million) in the last year. Hell, if it's such a small cost, how about BPI pays for the whole thing. Only fair, right? After all, the whole purpose behind the plan is to prop up BPI members' business models because they'd rather not adapt. Seems only right that they should pay for it.

Filed Under: costs, digital economy bill, isps, three strikes, uk
Companies: bpi