26 January 2009

What Mr. Lammy *Still* Does Not Get

Surpising - but good - news if true:

Internet service providers will not be forced to disconnect users who repeatedly flout the law by illegally sharing music and video files, The Times has learnt.

Andy Burnham, the Culture Secretary, said last year that the Government had “serious legislative intent” to compel internet companies to cut off customers who ignore warnings not to pirate material.

However, in an interview with The Times, David Lammy, the Intellectual Property Minister, said that the Government had ruled out legislating to force ISPs to disconnect such users.

The reasoning is notable:

Speaking ahead of the publication of a report on the future of Britain's digital industries, Mr Lammy said that there were very complex legal issues wrapped up in enforced disconnection. He added: “I'm not sure it's actually going to be possible.”

Spot on. I hope this also means that the UK will be voting against any attempts to bring this in at a European level.

Given this understanding, I was disappointed with the following from Mr Lammy:

Mr Lammy, who has begun a big consultation entitled Developing a Copyright Agenda for the 21st Century, said that there was a big difference between organised counterfeiting gangs and “younger people not quite buying into the system”. He said: “We can't have a system where we're talking about arresting teenagers in their bedrooms. People can rent a room in an hotel and leave with a bar of soap - there's a big difference between leaving with a bar of soap and leaving with the television.”

I quite agree about the difference (and support legal action against criminal counterfeiting gangs), but it's got nothing to do with bars of soap. This metaphor perpetuates the erroneous idea that infringing on copyright is simply stealing - albeit stealing bars of soap. It is not only legally totally different, it is conceptually totally different in the case of digital files, as in the present situation.

If I steal a bar of soap from a hotel (heaven forfend), the hotel no longer has the soap; it incurs a real loss from something being taken away. If I make a digital copy of a file, nobody loses that file; nothing has been "taken".

The correct - and important - question is whether the copyright holder loses at at any point. That comes down to the simple arithmetic of whether people making unauthorised copies of music increase or decrease the number of copies that are later sold.

The evidence seems to be the former - the idea being that unauthorised copies function as marketing for the "real" thing. This means that the music industry should actually encourage such copies, since ultimately they will reap the benefits - just as the Monty Python crew have done:

when Monty Python launched their channel in November, not only did their YouTube videos shoot to the top of the most viewed lists, but their DVDs also quickly climbed to No. 2 on Amazon's Movies & TV bestsellers list, with increased sales of 23,000 per cent.

As has been said before, the greatest loss to artists comes not from unauthorised copying, but from not reaching as much of your potential audience as possible, as easily as possible.

It's great to see Mr Lammy taking a reasonable line here, but it would be even better if he understood the profound difference between analogue and digital, and between rivalrous and non-rivalrous goods, that lies at the heart of this whole discussion.

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