Being watched

[As ever, you can read this online on the BBC News website]

The chances are that I’ll be getting a letter from my internet service provider in the next few weeks telling me that they’ve been watching my network activity closely and think I’ve been breaking the law.

Virgin Media, who used to be called ntl before they acquired Virgin Mobile and turned themselves into a ‘four-play’ media company, has announced that it is working with record industry lobby group the British Phonographic Industry to write to customers whose network connection seems to have been used to download unlicensed content.

Like almost every technically-competent internet user of my acquaintance I’ve used BitTorrent to get my hands on a copy of a TV show that I missed, taking advantage of the kindness of strangers who bothered to record and upload the shows for fans because the companies that make and broadcast them choose not to. However I also go out and buy the DVD box sets as soon as I can.

And I don’t feel like a criminal, because I don’t see why downloading a copy of a show that someone else has recorded should be seen as a breach of copyright while recording it myself onto a DVD is not.

According to the BPI’s press release the letters are part of a ‘new education campaign to help Virgin Media’s broadband customers safely download music from the internet and avoid the risk of legal action’.

But from the outside it seems more like a softening up move to get Virgin customers used to the fact that they are being observed by their ISP. And we can confidently predict that they will be quite happy to help the BPI identify individual account holders so that they can be threatened with prosecution over their downloading activities later on.

The move follows a massive campaign by the BPI to persuade UK ISPs to adopt a ‘three strikes and you’re out’ approach to downloaders, where they would have their network connection terminated if they were found to be downloading unlicensed material after two warnings.

This hasn’t happened, not least because the two sides can’t agree who would pay the costs of monitoring or sending letters, or who would be liable for the inevitable lawsuits when innocent users decided that arbitrary disconnection without due process was likely to prove unpopular in the courts.

They should be careful who they sue. Researchers at the University of Washington recently announced that they had managed to fool US film industry body the MPAA into sending formal legal notices to three laser printers, claiming that they had been downloading copies of Iron Man and Indiana Jones.

They had set up their network to fake the relevant internet addresses and the software used by the MPAA was unable to spot this.

Virgin will be on slightly firmer ground because it’s their network, and although some users may claim that they have open wireless networks that could have been used by anyone the buck will stop with the account holder.

There continues to be concerted pressure from established content providers in film, television and music, hoping that aggressive enforcement of copyright law will ensure that their twentieth-century business models survive against the onslaught of the network society.

It’s a doomed enterprise, as the growth of a fast internet coupled with the ability to make perfect copies of digital content means that all of the assumptions that underpin film studios, TV broadcasters and record companies have been stripped away, leaving them flailing around, threatening and suing the people who should be their best customers and hoping to persuade thoughtless politicians to pass new laws to give them special privileges online.

As more licensed download services become available, many offering songs without usage restrictions enforced by digital rights management technologies, the wholesale copying of unlicensed copies becomes a lot less defensible.

But the habits that grew up when the music industry was simply unwilling to accept that downloading was the way forward – and the technologies that support those habits – will be hard to break. Evidence that heavy downloaders are also heavy music purchasers doesn’t seem to have made any difference to the BPI’s approach either, and instead of finding new business models they hold on to the old ways of working.

It gets more complicated because the larger ISPs in the UK, Virgin, Sky and BT, are also content providers with their own interests in shoring up the current copyright regime. Virgin don’t want programmes they have paid to distribute ending up on the internet for people like me to download, but by acting in concert with trade bodies they can pretend that they are just being socially responsible instead of simply serving their own broader interests.

The spaces within which we can live unobserved are constantly diminishing, as both public and private sector agencies link their databases together or co-operate to ensure that nothing we do goes unremarked.

We need a space for experimentation, where we can test the limits of old laws and explore how they might be altered in future, but once ISPs decide that they are no longer neutral carriers of bits and choose to ally themselves with the content industry then we lose another sliver of freedom.

At the moment it’s hard to use BitTorrent anonymously, although since the service itself is entirely legal and legitimate there should be no need to do so. The moves by Virgin and other ISPs will simply spur the development of new ways of sharing files, just as the clampdown on Napster lead directly to the development of the current generation of peer to peer networks.

Virgin has just given its thousands of users an incentive to explore these new tools in order to confuse their peeping tom administrators. After all, we pay them to move my bits around, not to go running to the record company if they suspect us of downloading unlicensed music.

Bill’s Links

Press Release:
BPI
Laser Printers guilty of infringement:
BoingBoing’s take:

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23 Responses to Being watched

  1. Flotsam says:

    I wonder how many customer defections it will take before certain ISPs realise that it’s the customers, not the music biz, that actually pays them.

  2. NickJ says:

    I consider myself fairly savvy (and yes, I have in my possession digital content for which I have not paid), but I could not tell you exactly what constitutes copyright infringement.

    I recently downloaded Coldplay’s free track and then sent it to a friend, as, although she had the link, it didn’t work for her. Although I didn’t pay close attention to the terms & conditions (undoubtedly available somewhere) on the band’s site, I have probably infringed copyright.

    Do I infringe copyright if I burn my CDs to my PC? If I burn a CD more than once? If I share those files on my home network for family members?

    Of course, ISPs will crack down on heavy users, and if the BPI copies RIAA tactics in the US, they may choose soft targets, e.g. teenagers, to scare off others in the same demographic.

    But many more are guilty of file-sharing and illegal downloading and if my ISP ever comes knocking, I shall have to ask them to take into account several instances of home-taping from the 1980s…a phenomenon which, at its height, helped to kill off the recording industry. 😉

  3. Trevor Tremaine says:

    I just read this at the BBC website, but I had to track you down to say thank you! You are speaking for a new world.

  4. Pedro Doria says:

    Ha! Those types with no easy contact info on their blogs… =)

    Here are mine… and thanks for the beer!

  5. Adam S says:

    Hi Bill, I just read the response from BPI chief executive Geoff Taylor on BBC. I was wondering how would you respond back to him. He says “Mr Thompson’s digital utopianism clings to an implausible and dated belief that the internet will be an endless free lunch”
    I disagree with him entirely, but still would like to know what your opinion is. All the music I download is from free internet radio shows. Does he feel this is violating copyright?

  6. Dominic says:

    Well Bill, I am technically very savvy (I’m a Software Architect, working on web 2.0 stuff, java, ajax, etc). I’ve never used bit torrent for obtaining any content, whether it’s legal or not. Why? because it has a reputation for being used for exactly the kind of behaviour you seem to be condoning – i.e. getting stuff that you haven’t paid for. I don’t trust stuff on bit torrent to be legal, anymore than I would trust some bloke selling knock-off stuff down the market. So, I for one don’t buy your argument that because most people do it, it must be alright. It’s not. It’s plain wrong to take stuff that you haven’t paid for. As for content that is ostensibly free (e.g. TV programmes taped of the telly), I think if you dig a little deeper you will find that technically it’s not actually legal to record and keep tv programmes – it’s only tolerated because whilst people are not sharing them it is not a threat to the broadcasters revenues. But of course, people like you are abusing this privilege so it’s not surprising that measures are being taken.
    Also your point about people with open-wireless networks is wrong too – if you are a Virgin Media customer (and most other ISPs too) you are not allowed by the terms of your contract to let other people use your connection.
    Thanks for your BBC column, I’m a regular reader and enjoy it very much.

  7. Chani says:

    Psh, the BPI guy is spouting nonsense. Good job on your own article – I agree wholeheartedly.

  8. Gavin Steele says:

    Hi Bill, I was just wondering if you might be able to tell me… What is the difference between a book and an album?

    If I can buy a book, the author gets a share, and the publisher and the store.

    I read that book, recommend it to a friend OR just give it to them. In some places I am being encouraged to leave my book so a stranger might find it and read it. At all of these stages the author only gets a share from the initial sale.

    Why is the book industry not kicking up a fuss about book sharing?

  9. Gavin Steele says:

    I just wanted to add…

    In the past some smaller music stores would buy back and sell used CD’s, how much of that money was passed on to the artist? None!

    cheers

  10. Gavin Steele says:

    And for those of you out there who are happy with the ISP’s… you need to read up on the future developments they have in mind… Imagine an internet that had to be subscibed to like SKY TV! where you pay for a package of 200 Sites, the bluechip sites and then pay more for the ones on the fringes…

    http://www.youtube.com/watch?v=A2XPiqhN_Ns

  11. Dave says:

    I agree that the music industry as a whole are largely the architects of their own problems due to their greed, high prices and the stubborn and restrictive way they have behaved when it comes to digital media. Unfortunately this is not really the issue, here. The problem which is actually being addressed is breach of copyright – or, to put it another way, theft.

    If I were to go through the archives and find all of Bill Thompson’s published work over the past twenty years. And then if I were to create a website, or some other means of distributing the work, where everyone could download it, free of charge and with nothing being paid to the author for the use of his work, would Mr Thompson have anything to say about it?

    I suspect he would.

  12. Steven says:

    Hello Bill, I have been a fan of your BBC Column for some time now. I have read your column about virgin media and the BPI’s reply. I found the BPI’s reply to be very interesting in what it left out, replying to only what it wants to and missing out some very important points, also, in some parts amounting to a personal attack than a counter argument. Very typical of the music industry as a whole. There are many research papers that state that file-sharing is very good for the music industry and that file-sharers buy more music than those that do not share (I can post links if you wish) while the “Independant Research” the BPI and other music industry bodies rely upon are commissioned by themselves and are unpartial to say the least. The BPI said that the music companies are radically re-inventing their business models in response to changes in how music fans want to access music online, if they had did this in the beginning there would not be 6.5 million downloaders in the UK. Fans of music want their music to be DRM-free as well as full quality, not outrageously priced 128kb mp3’s, they want the music to play in any portable music player they own and to be able to burn what they download to CD, to play in the car or any CD player they own. Some music fans want better then 16bit CD quailty, I wonder if they will ever figure out this market exists. I also want to talk about the robust techniques the BPI uses to collect information, are these open to scrutiny by professionals and academics? I would very much doubt it, I also doubt that the legal profession is qualified to confirm these techniques robust. One of the firms in Europe which supply IP address information to “rights holders”, Logistep, has been heavily criticised and in Germany, has been found unconstitutional. The less said about media defender the better.
    I fully agree with you Bill that the media companies owning ISPs is bad for consumers, which is why my ISP is just an ISP. Keep up the good work.

  13. NickJ says:

    @Dominic – You’re right about ISPs and wireless network-sharing: there are ISPs working with communities such as Fon (e.g. BT) to allow access to users’ wi-fi access points, but there need to be more.

    Personally, I think they need to loosen up in that respect.

    But, in fact, my current provider’s T&Cs do not make explicit reference to sharing a network – they say I cannot re-sell the service, but that’s not a problem, as I allow free access! 😉

  14. PaulD says:

    @Dominic – whilst I tend to agree with your point about there being an element of illegality with most or all bittorrent files, I think that your views on ‘ostensibly free’ media are worrying.

    If any data/information/whatever is transmitted FREE through radio waves/internet pipes/my letter box – then the supplier can no longer have the same expectations of ownership. Whilst even I wouldn’t deny broadcasters their copyright – once a TV episode (for example) has been broadcast publically for free, how is passing this to others who have not seen it a crime? I’ll gladly say that the selling of such material, or music and film piracy (where no public freedom is ever granted) is illegal – but not the redistribution of already freely distributed media. This reinforces a really troubling trend of large companies thinking they can force through legislation that is in their and not the publics interests, and that is a slippery slope.

    @Bill – keep up the great work and great articles.

    P

  15. NickJ says:

    The BPI may be spouting rubbish, but they are a force to be reckoned with: they don’t engage with end-users (sometimes I don’t even think they engage with their artists, but that’s another story!) and they hold sway with the Government and ISPs – and it’s a similar picture in countries such as USA & Canada, where entertainment industry bodies are powerful lobbyists.

    But for an insight into the desperation of the music industry (in particular), the fallacy of some of their arguments and tactics to which they will stoop, may I suggest this article as a starting point?

  16. MarkW says:

    The BPI response to this article is full of the same self-deluding nonsense they’ve been pushing for years, albeit spun in a more modern way, and the patronising abuse does not qualify as making a case.

    Until the music industry stops trying to micro-manage how we personally use the music we’ve paid for, and ends the widespread perception of “rip-off”, people will find ways to circumvent restriction. They’d be better off putting their money into developing genuine and compelling talent than making lawyers rich and flogging the same tired “formula” acts.

    Between Phorm and the BPI, virgin are getting into bed with the wrong people, and I’ve no doubt their customers will eventually let them know in no uncertain terms by leaving.

  17. Anthony says:

    Who else thinks Dominic is a BPI troll,

    seriously though… that stitch up job of a news article is outrageous, the bbc should really stand up for its employees and principles on these matters, however as some one who knows only too much about the unique way the bbc is funded, i’m not too surprised they chickened out

  18. Steve says:

    I think the freetards who gather here need to come up with some real proposals for music licensing that allow us more freedom to share music, but which still pay the creators. Is that so hard?

    Apparently it was much too hard for Mr Thompson, who copied out the usual talking points from Boing Boing or the EFF and the other ant-copyright lobbyists, as he has done for years.

    @Mark
    “The BPI response to this article is full of the same self-deluding nonsense they’ve been pushing for years, albeit spun in a more modern way”

    No, it was a refreshing change for the BPI. Maybe something important is going on as the music business faces up to reality at last?

    Mr Thompson and the Merry Old Freetards are really starting to look like dinosaurs.

  19. NickJ says:

    @Steve – By definition, I must be a ‘Freetard’, but to anyone who has paid full price for everything they ever purchased, owned or partook in, ensuring the creator was fully compensated, I doff my cap.
    And you debase your argument by resorting to such name-calling…but hey, it’s an easy trap to fall into and who am I to judge?

    However, I don’t disagree with you. There must be very few people who would not be happier to see more of the money go to artists, instead of lining big corporations’ pockets.

    And there are plenty of artists who are using innovative ways to distribute their music – free downloads, give-aways, ‘pay-what-you-like’ models, streaming, content subsidised by advertising, etc.

    A lot of these models are risks, not guaranteed to make a return and as such, they don’t always pay off, but then that’s always been the case in the music industry, when a fickle audience can turn against an artist and they are dropped like that. It’s still as much about building an identity and a following.

    But some of these newer models often cut out the middlemen and to me, that’s really the crux of the matter; whose interests are the BPI really serving, the artists’ or the labels’?

    The digital age has empowered musicians (and writers and artists) and has brought them closer to the end-user than ever before.
    Home studios, the internet and technology to publish, broadcast and release material directly to an audience pretty much in real-time if they choose. No wonder record labels and publishers feel they are losing out.

    And yes, people share music, but that was the case before the Internet came into existence. Have you never lent someone a CD or a record? I hope you ensured they never copied it when you got it back.

    There are as many new models as there arguments by the BPI why the old business models should hold true. But the labels want to make big bucks NOW and are dragging archaic business models with them from another era (dinosaurs, eh? Cor!).

    They never wanted to explore new ways of engaging with the end-users, but end-users were years ahead of them and have forced them to look at how music is distributed and how people listen to it. But still, they want to lock users in, limit their options and their rights over music they have purchased, as if this will somehow make them more money – I can no longer play some MP3s I purchased thanks to some download services…and that plain sucks. If anything, it will turn people away and on to means of circumvention.

    Oh, and if you have any ideas of your own, please feel free to share them.

  20. NickJ says:

    I have been reading the full statement on the BPI site:

    [Bill Thompson’s]…misleading analogies between illegal filesharing and taping programmes off the TV he shows that even “experts” get it wrong sometimes.

    This is specious – either that content is subject to copyright or it isn’t. To make out that music is somehow different is plain wrong. How is it different? Only in that Geoff Taylor doesn’t represent the TV or film industry.

    More than six and a half million people in the UK illegally access and distribute music, and it is plain wrong to say that this is good for music.

    He acknowledges that music companies are adapting to the way people listen to music, but this still doesn’t address how people share music. People have always shared music – and ‘oh my!’ they’ll not always have paid for the product or the use of that product – and the supporting technology has always been there.

    But it hasn’t, despite what I wrote in a previous comment, killed off the music industry and it’s in good shape. The choice is huge, live acts are thriving, festivals are in abundance and there are so many new ways to experience music these days. (DAB, Internet Radio & Last.fm have revived my personal interest).

    The record companies themselves have adjusted to these times of transition, and the BPI is fighting to promote and protect the value of copyright, to allow their new models space to breathe.

    Restricting people’s use of music they have legitimately paid for, just because the technology now exists, is plain wrong. In some cases, this ‘fight’ appears contrary to consumer rights.

    A recent case in the US highlights the extent to which the music industry is prepared to go, to extend the terms of copyright. In this case, Universal claimed that they were the rightful owner of promotional CDs, being the ‘creator’. And yet, it was OK for a Beatles promo record to be sold at auction by Sotheby’s in the early 1990s (I suspect, because that helps generate interest in the artist and is ultimately good for sales). Needless to say, this was thrown out by the judge.

    We believe that ISPs, far from being a simple pipe, can become significant distributors of digital media, and share in the tremendous value that would be unleashed if more music were accessed legally online.

    As a previous poster commented, steer clear of those content providers who are also service (or hardware) providers. It’s a conflict of interests and not good for consumer choice – ‘lock-ins’ and restricted content or access provided at ‘Sky’-high prices. Tremendous value, my ar*e.

    We collect and pass on to the ISP publically available information about their customers’ illegal filesharing.

    What information is ‘publically’ (sic) available? Please clarify, Mr Taylor.

  21. NickJ says:

    Oh, and there is still a question mark over how ISPs distinguish illegal downloads from legally downloaded content (Linux distros, WoW downloads, BBC iPlayer downloads, etc.) over P2P networks or whether they bother.

  22. Jonathan says:

    I don’t think you and the BPI are talking about the same thing. You mentioned downloading TV programmes; they are referring to music. I doubt you’ll receive the letter, as they’ll be targeting music (and possibly Hollywood films) downloads. But I hope you’ll let us know if you do!

    Taylor gets it wrong right from the start, when he says there’s no analogy with taping programmes off the TV. That’s just as “illegal” in the eyes of the law, and indeed the industry attempted to get video recorders banned in the 70s or 80s. They failed in this respect, and hopefully they’ll fail again.

    How patronising he is: “Bill may not know there are already hundreds of licensed online and mobile services”. More like, “Bill knows there are hundreds of services selling rip-off tracks crippled with DRM”. Then he says, “Independent research has shown time after time that people who download illegally generally spend less on music than people that don’t…” I don’t doubt that, but it doesn’t prove at all that they would have bought the music if they hadn’t downloaded it. I bet in most cases they wouldn’t have. And the few cases where the industry has lost a sale are probably balanced by the cases where someone likes the music they’ve downloaded, and goes on to purchase more by the same artist. Of course, they might not buy it via a record company, which is why the industry doesn’t like it. The trouble with “legal” download services is that they are refined and sanitised, promoting tracks the industry wants to get to no. 1. It just isn’t the same as sharing other people’s music.

    Anyway, thanks Bill for your article, and for contributing a different viewpoint on BBC News. I’m rather tired of their bias – or at least the way they repeat the industry spin, such as saying people have been “fined” for downloading music. The BPI is a trade association of private companies. It can invoice or sue people, but it can’t issue fines. And downloading unlicensed music is not a crime unless it’s on a commercial scale. It’s no different from taping a programme off the TV, in fact.

  23. Scuzzmonkey says:

    I can’t believe it took me this long to actually get around to reading these two articles, but the way I see it.

    The Music Industry – world wide – as well as the Film Industry made the biggest profits ever, in real terms, last year, increasing on what was made the year before that, which was the old record holder, and this year is predicted to be even higher.

    Downloading is negatively effecting sales of music/films/tv?

    BS.

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