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2009-09-10 - 14:22:00 - by AlisonW - Topic: Personal: In the news | Law | Movies |

It seems that every day there are new comments about the issues involved in people downloading content over the internet, be it music, films, television, books, or images. 'Copyright' is the argument against it, alongside the suggestion that by downloading something for 'free' there is a direct, attributable, and identifiable loss of income to the producer or owner of that content.

The Guardian has written about the Illegal filesharing crackdown launched by UK government whilst the BBC tells us that musicians' pressure group FAC – Featured Artists Coalition – along with other industry bodies say they "vehemently oppose" plans to punish downloaders. Various organisations, such as the Open Rights Group are running petitions on the subject of the proposed "three strikes" disconnection, planned by Lord Mandelson.

So let's look at the issues here.

With a first-run film the argument against downloading (aka 'file sharing') is that the producer, distributor, cinema, and everyone else involved in the making of the movie, lose out directly by the loss of income from the sale of seats. I'd agree, mostly. The downloading of a first-run film which is currently on release is a clear loss and wrong. When the film concerned is years after its tour of movie theatres though then whether someone would pay to locate and purchase a DVD (which might not even still be available) is not always going to be a loss to the production. The costs would almost certainly have been covered and the profit made when it was on release.

Music, again, has a logical difference between new output – available in your local record store with ease – and old, out-of-production LPs which wouldn't be available in any other way. Many rights holders of music do not even make it available after only a few years have passed since the original release, and many older-but-still-in-copyright performances would be completely unavailable without people sharing what they have already purchased.

And there is also the 'format' question. I started buying music on big circular slices of squashed vinyl and shellac. Yes, I can still play them on my record player, but each time I do they degrade in quality. Some I have purchased the CD of the same performance, but I've also recorded some of them to computer in order to create a WAV or MP3 version which is both easier to listen to and won't degrade further. This is, in reality, no different to my copying an LP to cassette so that I could listen to it in my car, as I now do with MP3-formatted CDs.

So if I make my own 'digital copy' or I download one of music I already own there is no difference; no loss to the creator-distributor. There are no circumstances in which I would be buying a further copy and they aren't losing out as they've already received payment from me for that item (sometimes twice!)

And then there is television.

When I was at Capital Radio in 1999-2000 it was pointed out to me that – along with independent television broadcasters – the station didn't sell what it produced. Radio programmes, just like Pop Idol, I'm a celebrity, Despatches and Big Brother on ITV, aren't actually sold to the public at any point. The gaps between and within the programmes are sold to advertisers, but not the actual programmes themselves (as a primary income stream, anyway).

I don't download music or films (other than from paid-for sites like Amazon and HMV) but I see TV as different. When it is broadcast free-to-air then there is no fee payable to watch it so, I would argue, there should be no prohibition against downloading it - much as once upon the past we would 'tape' a programme to watch again later, or even to lend to a friend. The producers' costs have already been covered by the initial broadcasts, so there is no direct loss of income. Indeed, if you were to argue that it may detract from eventual DVD sales I note that many people (including myself) will then buy those once they become available so they can have a higher-quality experience. (Points to 26 retail-purchased box sets on her DVD shelf of 'television' programmes)

Before the internet it didn't matter that each country saw the same series on a different schedule, sometimes years after it was originally broadcast in its 'home' country. Now, though, we have friends around the globe and keep in touch with them in near to 'real time' online or by telephone. These conversations mean that we now easily get 'spoilered' for the storylines of the shows we follow but haven't reached our own country yet. The only option, therefore, is to download. Indeed, some series are considered 'unsuitable' for some countries and may never reach us on broadcast (terrestrial or satellite/cable) television or DVD.

When I was Treasurer for the British Softball Federation, Warner Brothers invited a few of us on the BSF and BBF to see a private viewing of Cobb, starring Tommy Lee Jones as Ty Cobb, to ask us whether we thought it would be worth them releasing it theatrically in the UK. We said it was, and they did. This doesn't seem to happen though with television programmmes and so some wonderful content never gets beyond its country of production. I understand that the BBC programme 'Top Gear' has a fanatical following by downloaders in the USA.

So turning to the proposed 'three strikes' rule – also named for baseball, as it happens. It has been reported that if someone is alleged to have illegally downloaded or shared copyrighted material and has been warned about it three times then their internet connection should be cut off. Without, it seems, any opportunity for the person concerned to make representations of any sort.

But an 'allegation' is not a 'truth'. Without any evidence being properly examined in a court of law then convicting and punishing someone on the grounds of hearsay would be incompatible with a society based on the rule of law.
And the 'evidence' would be very difficult to obtain. ISPs have said that the technical means to check every connection on the internet just isn't available. File sharing protocols – such as BitTorrent – are legally and frequently used by Open Source developers and companies to circulate and deliver new builds and by independent music and film producers to circulate content under development. They also underpin the broadcaster's own delivery services such as the BBC's iPlayer and Channel Four's 4OD. One can also legally watch some television online by purchasing a subscription, such as I do for 's baseball service. Internet traffic is just a stream of ones and zeroes; it doesn't inherently have meaning as a film, an email, or a web site, legal or illegal.

Then there is the issue of terminating a broadband connection. How many people share it? Is the person who pays for it the one who allegedly did something wrong? Should the sins of the son or daughter be visited upon the parents or siblings? And if the 'illegal download' is made by someone in a school or business? Do they get get off under this proposal where someone at home wouldn't?

File sharing, of itself, is completely legal in the UK and many other jurisdictions. If material is not otherwise available, despite it being in copyright, should the Government be making it a criminal law matter instead of a civil law question?

'Piracy' is something clearly criminal that involves the direct and unauthorised removal of a tangible item – often on the high seas off of West Africa or in the China sea – but the use by individuals of downloading or sharing something isn't the same. It is, instead, primarily a civil matter between a content rights holder and an individual who may be alleged to own a copy without paying the proper cost of that copy, even though they may not actually have the option of purchasing a legal copy anyway!

Cutting a whole family off from the internet is not a way to solve that. It is time to rethink the whole proposal.

I've since recalled that I did download a poor copy of Serenity. A few days after I'd paid full price to see it in a cinema and the afternoon after I'd pre-ordered the DVD online. When the DVD arrived the download was deleted.

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