Much smoke to BPI's fileshare suits, but where's the fire?

Slurry with infringe on top

If the music industry only goes for the big sharers, then it really can't hope to do much more than damp it down, and the more it does it, the more obvious it will become that modest levels of sharing are, apparently, safe. Which means that if they don't do something broader, it's even arguable that they'll be making most people more confident that they're safe from lawsuits. This presents a nasty choice to the BPI - widen the actions, or view the current campaign as a limited, short-term measure and think of something more sustainable.

We think they'll go for option two there, but it's their decision and we'll leave them to it, noting as we move on that they still haven't nailed down "making available".

Or "unauthorised distribution of music over the internet" which they tell us "is against the law". In this case authorisation is relevant, but what constitutes "distribution"? Traditional distribution tends to involve some measure of involvement in transportation, putting things in vans and taking them round to customers, that sort of thing. Putting files in a shared directory might be counted as distribution (and "making available" is potentially broader), but you can envisage scenarios where stuff could be in a shared directory without it being rational to call it distribution.

Say you've got the family music collection in digital form, and you share it round the house and the garden via a wireless network. And yes, you may have seen a known RIAA-friendly company recommending something along these lines just a couple of days ago. So are you "making available" if the neighbours can share too because you've no barriers to entry? Or if your router is shouting out the default name for a well-known manufacturer's routers, and it's still set to the default password? Or if you're a klutz and have put all your music in the Windows shared music directory, and somehow managed to share it with the world?

We queried the BPI about this, giving similar examples, a couple of times, but the best we got was: "We think it's pretty clear that in UK law uploading or 'making available' our members' works that are protected by copyright without permission is illegal; we don't think there's much more to say on that issue."

So, we had asked them to provide some information on how they propose to define terms such as "making available" and "uploading", they (after some prompting) responded by telling us that it's pretty clear they're illegal. Shall we take that as a refusal to comment?

Events in the US in the past few weeks suggest that this is not simply an esoteric UK issue. The 'Induce Act' didn't make it this time, and nor did the Piracy Education Act. But as noted here, the latter would among other things have established "offering for distribution" and "making available" as violations, regardless of whether there was any distribution or copying (Public Knowledge's resource on the Piracy Education Act can be found here).

You could read this as meaning that in the US, the music industry has been trying and, so far, failing (they'll be back, and the DoJ recently came out in support of both Acts) to make an offence of something that the industry in the UK is claiming is clearly an offence already. But as the RIAA suits are also intended to hit people who are likely to fold, they're really in a similar position, although the RIAA is rather further down the road in industrialising the process (762 in the latest batch). And in the case of the BPI, should a suit actually make it to court then it's likely the BPI will want to set a precedent in defining what "making available" actually means over here.

Note that the BPI could argue that under UK law you're not supposed to be copying CDs anyway, so your whole digital music collection is illegal (and therefore the making available bit doesn't matter), but as that would criminalise the whole future of digital music, including the DRM-friendly one, it's probably not a good idea.

There are already a couple of cases in the US where the subjects of the suit seem inclined to fight rather than opt for the nominal fine and public confession, and the more suits there are, the more likely it'll be that the music industry hits such cases. This won't necessarily be entirely an accident - if there isn't a honeypot out there waiting to ambush the RIAA with a battery of lawyers already, there will be. So you can see how having 'passive distribution' outlawed before this happens would be pretty helpful.

But if we return to the shared files examples we considered earlier, we can see it isn't totally helpful without very severe (even weird) restrictions having to come along with it. OK, you're sharing music on your home network. Maybe there are instances where you want remote access to it now, and if not there certainly will be in the future. Listen to it at work? Give access to your kid at college? Listen to it on you mobile phone? France Telecom and Nokia recently announced they were working on a 'your stuff from home, anywhere' initiative, and developments of this sort are clearly going to come.

So we can envisage a future where more all less all of everybody's stuff is available more or less everywhere. We expect most Register readers will have good reasons of their own to place terms and conditions on access to their stuff, but that they'd be unlikely to agree that the Ts & Cs ought to be compulsory. If they're not compulsory, however, how can the music industry differentiate between actual 'passive distribution' (person giving general access to 20 gigs of MP3s with the intent of having it copied) and blooper/honeypot distribution (person, accidentally or deliberately, giving access to 20 gigs of MP3s with the intent of listening to them at the office, or ambushing the RIAA with a counterbust)?

The preferred Microsoft solution of policing rights in detail, file by file, location by location, device by device, clearly provides some kind of way out here, but is absolutely dependent on near universal adoption, and although Microsoft is trying very hard (Hey, the site's up again!), persuading the public that this is in their interest is not going to be easy.

Back to the Big Sticks then? We can try summing up the music industry's immediate problem as that it needs to bust the wrong (from a legal point of view) people. You might say it's like a company suing the record store because somebody shoplifted a record, or maybe like suing the householder when a burglar makes off with their DVD collection. These aren't completely ideal analogies because with digital music you don't lose anything when it gets stolen, but they point in the right direction. It's clearly not feasible to sue the shoplifters, so they sue the people who're inciting the shoplifters instead.

But defining what constitutes incitement is already not as easy as might superficially appear, and it'll get harder as the years go by. As we keep arguing, the music industry is trying to sustain an unsustainable model, and the only thing it can do in the long run is give in and embrace a new one. ®

Related links

BPI announces actions
BPI piracy backgrounder
BPI notes on EU Copyright directive (note 'Making Available' section
The fipr on EU copyright law implementation MP3 music service draws industry fire
9 out of 10 cats prefer CDs to downloads
Music biz should shift to flat-fee, P2P model - industry exec

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