I’ve written before about how the three strikes law that is in force in France, and is being contemplated in other countries, is fundamentally wrong.

Take a look at this short video interview from author Cory Doctorow that puts it in perspective.

Mike Masnick of Techdirt has published a post that is a chapter he wrote for a book being presented at a conference for the International Association of Entertainment Lawyers (IAEL).

Its worth a read, not only for Mike’s thoughts on new ways for the music industry to make money, but also to consider how that business model might work for other industries. 

Here are some snippets to get a flavour:

It’s no secret that there’s a lot of concern these days about what the music industry will look like going forward — especially from those who work on the label side of the business and have been around for a bit. A variety of things have caused rapid change in the market. Competition from other forms of entertainment, such as the internet, movies and video games, have put more pressure on the industry, as consumers have been presented with significantly more options for their entertainment attention and dollars. And, of course, there’s the ever-present specter of unauthorized file sharing — or, as the industry prefers to call it (accurately or not), “piracy.”

…

However, there is another solution: stop worrying and learn to embrace the business models that are already helping musicians make plenty of money and use file sharing to their advantage, even in the absence of licensing or copyright enforcement.

In simplest terms, the model can be defined as:

Connect with Fans (CwF) + Reason to Buy (RtB) = The Business Model

Sound simple? It is, if you understand the basics — and it can be incredibly lucrative. The problem, of course, is that very few seem to fully understand how this model works. However, let’s go through some examples.

…

This is a business model that’s working now and it will work better and better in the future as more people understand the mechanisms and improve on them. Worrying about new copyright laws or new licensing schemes or new DRM or new lawsuits or new ways to shut down file sharing is counterproductive, unnecessary and dangerous. Focusing on what’s working and encouraging more of that is the way to go. It’s a model that works for musicians, works for enablers and works for fans. It is the future and we should be thrilled with what it’s producing.

For the London Free Press – November 23. 2009

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INFRINGEMENT: It addresses concerns of creators and publishers of movies and music

The “three-strikes law” is a controversial proposal to address download infringement concerns of creators and publishers of movies and music.

The concept is that if someone alleges an Internet user is downloading copyrighted material, they can advise their Internet Service Provider (ISP). The ISP then tells the customer to cease this illegal activity. If this happens three times, the ISP must turn off the customer’s Internet access.

France recently approved such a plan, but not without a struggle. An initial version was ruled unconstitutional by the French courts. An amended version was approved this fall which calls on a judge, not a government actor, to sign off on account suspensions.

France is now viewed by supporters as a pioneer against piracy, leading the way by implementing this legislation.

The same proposal in Britain met with public backlash. Public consensus is these measures are too drastic and draconian. The measures will generate a bureaucratic nightmare while having little impact on the overall prevalence of file-sharing.

Other critics argue the increasing prominence of the Internet in everyday life makes suspending that privilege a limit on individual freedom of expression.

Even holders of copyrighted material are split on the subject. Artists, such as the music group Radiohead, argue that any effort to criminalize file-sharing is in vain. They believe artists would be better to embrace the potential of file sharing to share their work with a larger audience. This will allow them the opportunity to generate revenues through concerts and merchandising, and even the sale of their music.

Other artists are of an opposite view, believing that file-sharing restricts the ability of young artists to make a living, lessening the likelihood of success for emerging artists.

The three-strikes law is misguided, even if you believe such activity should be controlled.

Whether someone has violated copyright is often not a black-or-white issue. Copyright law is complex, and knowing in any given instance whether an infringement happened isn’t easy.

To implement these policies on a mass basis, in a similar manner to handing out parking tickets, ignores this complexity. And the penalty is more than paying a few dollars in parking fines.

The proposal is also open to abuse as sanctions imposed at the request of an alleged victim can be taken advantage of.

There are numerous examples of questionable takedown notices under the existing U.S. DMCA rules. In fact, the Electronic Frontier Foundation has created a Takedown Hall of Shame, which lists “bogus copyright and trademark complaints” which “have threatened all kinds of creative expression on the Internet.”

This points up another problem with the concept: violations need only be alleged, not proven. An individual may be accused and given a strike by their ISP with no proof of misconduct. Guilty till proven innocent is not something we should condone.

The issue of digital piracy will continue to be a contentious topic. The three strikes proposal is not a palatable solution.

Michael Geist and Boing Boing both point to a Norwegian study that shows that people who tend to download more music also tend to buy more.  They point out that this is consistent with a previous Canadian study.

A Canoe tech article says that the owner of the isohunt search engine for bitorrent files has asked the BC Supreme court to rule on whether it violates the copyright Act.

Seems that the Canadian Recording Industry Association has demanded that he take down the links – so rather than waiting for them to take action, he went direct to the courts to ask the question.

In essence, the issue is whether this site is no different than any search engine like Google, with no responsibility over what users search for and do with it when they find what they want – or does it somehow cross a line that makes it liable for any illegal or unauthorized copying that those that use it do.

This could prove to be interesting, and could have broader copyright implications affecting things beyond bittorrent search engines.  This is the type of case than can lead to unintended consequences, so one hopes that the court will take a considered look at the issues in general and the broader consequences of a ruling.

For the London Free Press – Nov 3, 2008

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The Electronic Frontier Foundation (EFF) recently marked the five-year anniversary of the Recording Industry of America’s (RIAA) mass litigation campaign to curtail music piracy on the Internet by releasing a comprehensive review.

The EFF report (available at eff.org) concluded that the campaign was harmful to music fans and artists alike, but has done little to slow unauthorized file-sharing.

The report notes growing skepticism by academics, watchdog groups and most importantly by the courts about the RIAA’s investigation and strong arm enforcement tactics. The RIAA has sued or threatened to sue almost 30,000 people for file sharing.

The RIAA’s “making available” theory has been rejected by many courts, which denounces the notion that merely having a music file in a “shared” folder on a computer, which may never get copied, constitutes copyright infringement. The EFF’s report suggests the policing campaign has simply taught people to choose to share files in ways that are harder to monitor — such as burning and exchanging CDs and MP3s among friends.

Peer-to-peer (P2P) file sharing is more popular than ever, comprising 45 per cent of Internet traffic and has become a fact of Internet life as P2P popularity has continued to grow yearly.

The main critique of the policing campaign has been that it arbitrarily punishes tens of thousands of people for what tens of millions are doing and barely puts any money in the pockets of artists.

American music fans who have been sued for sharing songs on P2P file sharing networks include children, grandparents, unemployed single mothers and college professors. These individuals are the best customers the music industry has.

New lawsuits are filed monthly and are supplemented by a flood of “pre-litigation” settlement letters designed to extract settlements without the need to enter the courtroom. The RIAA has done away with the court system by threatening individuals with expensive litigation and unfavourable outcomes that leaves a lay person with no alternative but to settle for amounts ranging from $3,000 to $11,000.

An example cited by the RFF of where the disproportionate amount of punishment has had devastating consequences include a single mother who thought she was legally downloading 24 songs with her daughter who was sued for $500,000 and settled for $4,000.

Another example is a student who attempted to negotiate a settlement with the RIAA and explained that she was already in debt to cover her tuition and could not pay any amounts. In response the RIAA representative suggested she drop out of school in order to pay the settlement.

It has become evident that suing music fans is no solution to the P2P problem. The RIAA frequently justifies the lawsuit campaign as the most effective way to get music fans to understand that downloading is illegal and can have serious consequences. The policing campaign has failed however to curtail P2P downloading and has not persuaded music fans that sharing is equivalent to shoplifting.

It is evident that people are going to share music using whatever software they like on whatever computer platform they prefer, regardless of the RIAA’s efforts.

That’s the title of an article in this month’s Wired magazine. Its an article that those interested in the copyright debate should take a look at.

The article basically makes the argument that the music industry blew it by trying to stop file sharing and implementing DRM – and that the video industry should learn from that.

About the music industry it states: Today, their industry in shambles, music execs are trying to turn back the clock, remove DRM, and finally give us what we should have had in 1999

Other comments: The lessons from the music fiasco are clear: Trying to limit the inherent advantages of digital files is a losing strategy. The way to stop piracy is to make everything available — easily, legally, and at a fair price.

Entertainment executives tend to find what they expect to find. If they fear theft, they’ll see piracy; if they’re looking for opportunity, they’ll discover ways to profit. The music labels ignored the opportunity for so long that it has all but evaporated. The television and film industries still have a shot, but they need to move fast.

So it leads me to a question. Is the proposal to add a fee to everyone’s internet access to allow downloading not mired in the same old thinking?

Read the Wired article

For the London Free Press – March 3, 2008

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File-sharing programs are being installed on personal computers both in the home and at the office.

A recent incident in Newfoundland involving the file-sharing program Limewire on a government consultant’s computer shows how this type of software can lead to security and privacy breaches.

Limewire is but one example of file-sharing, or peer-to-peer (P2P) software that makes it easy to find and download things stored on other people’s computers. Most people think of the software just in the context of music or video, but they can be used to transfer any kind of file.

P2P software can be used for downloading copyrighted materials that one perhaps should not. But it also can be used to download material that the owner or creator is legitimately offering to share.

Many forget, however, that P2P software usually is configured to allow others to upload files from their own computer. Since that includes any type of file, it includes things such as spreadsheets containing personal finances, Microsoft Word documents containing personal information — and in the Newfoundland case, a database containing names, addresses, dates of birth and medical and work histories of dozens of people.

Discussions about file-sharing software usually focus on the downloading side, and the debate over the legalities of downloading music, video and software. Uploading issues are often overlooked.

The upside of these programs is that they allow computer users to share files with ease and without cost. The downside is that they often allow other computer users to access information on your personal computer with the same ease that you download new files.

This creates a significant security risk, but the answer is not necessarily to un-install any file-sharing programs you currently use.

One of the greatest risks for individuals using file-sharing programs is that their personal information could be accessed by potential identity thieves. Few people would like to have the contents of their hard drives available to the world to see.

The consequences for businesses could be wider ranging.

In the Newfoundland incident, the personal information of more than 150 people was exposed when an outside consultant installed Limewire on his computer. The information remained accessible for three weeks before a security company brought it to the Government’s attention.

For individuals, the answer is to make sure that file-uploading parameters in your P2P software are set so only specified file folders can be used to upload files from. Those file folders should contain only material that you would like to share with others.

Businesses should make its employees and consultants aware of the issue, especially where they may use home computers to work on company business occasionally. P2P software should not be installed on business computers unless it’s necessary, and upload folders should be controlled.

For the London Free Press – February 18, 2008

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A company called QTrax recently announced it had arrangements with major labels to allow free music downloading.

The labels would make their money from ad revenue — ads the user must watch while the music downloads. The privacy catch is the label’s share of revenue is calculated at least in part by how many times the song is listened to — which means each users’ computer will send that information back to QTrax.

This privacy issue got lost in the controversy over what labels QTrax had actually signed. It seems the deals had not actually been finalized with some labels.

On the surface this may seem like an ideal solution to the perceived problem of peer-to-peer downloading. It provides a revenue source to the music industry and gives downloaders a way to support artists without directly paying for the music.

This business model requires the use of a form of Digital Rights Management to track the number of times the songs are played on each users’ system, and to report that back. If that reporting is done transparently with the knowledge of the users, and in a way that does not report back any personal information, it would not pose a privacy issue.

The federal Privacy Commissioner has stated technologies that automatically collect personal information without a person’s knowledge or consent violate the fair information principles of privacy legislation. That this invasion occurs while people are in their homes with a high expectation of privacy makes the violation all the more significant.

It is difficult to say how invasive the DRM technology used by QTrax will be in terms of privacy. On the QTrax website they promise no adware and no spyware. They make reference to collection of information but don’t provide details on what will be collected. They have not yet provided information on any privacy policy.

One certainly wouldn’t expect that by simply playing a CD on their computer they would be installing software that could monitor their computer, but this is exactly what happened with some Sony music CDs in 2005. Since then, many are wary of what kind of software is being installed whenever they acquire music.

DRM can also be used to limit how we use the material we acquire — such as to specific devices, or specific numbers of copies.

Before we acquire music — or any digital entertainment products — we should check to see what the vendor has to say about any limitations on its use, whether it contains software we might not expect, and details of information collected along the way. From a vendor standpoint, it is important to be transparent about those issues.

There has been a huge controversy over the last day or so regarding the QTrax announcement that it has deals with major labels to allow free music downloads. The catch was that those deals areapparently not in place yet. There is also (in my mind at least) a looming privacy issue.

In return for the free downloads the user must watch advertising while it downloads. The labels are to get a share of the advertising revenue.

The privacy issue is that the revenue is apparently calculated on actual use, ie how often the songs are listened to, in addition to how often they are downloaded. That means there is a DRM mechanism that reports back how often you listened.

The Qtrax web site says there is no spyware, but I couldn’t find any details about the reporting issue, nor a privacy policy. Lets hope it does not report back any personal info, and that they explain how it works so consumers can make an educated decision about using the service.

Read a Times Online article

Read a GigaOM post