Illegal music download deal looking increasingly unlikely
Despite hopes being raised at the recent London Calling event where ISPs met representatives from the music industry, the two sides would seem as diametrically opposed as ever on how to deal with unauthorised file sharing, particularly on who should pay to combat the problem.
Although former pop star Feargal Sharkey, now head of the BMR which represents artists, was reported to have reacted positively to the ISPs and record labels at least talking, it seems increasingly likely that, in the absence of a cross industry agreement, the government threat to legislate will become a reality.
The government revealed earlier in the year that the ISPs had a year to make a deal with the recording industry on how illegal file sharing would be dealt with but the latest feedback from those closest to the negotiations would appear to suggest there is still a gulf between what the recording industry is calling for and what the ISPs feel they can provide.
The British Phonographic Institute (BPI), which represents labels, has consistently called on a ‘three strikes and you’re out’ process where infringers would be warned, suspended and then disconnected if they continue to download files.
However, there are major issues with this approach, according to a spokesman from Virgin Media, which has recently started to write ‘educational’ letters to its subscribers that have downloaded songs without permission from BPI staff posing as everyday file sharers on P2P services.
“We’ve been proactive in issuing educational letters to our subscribers, telling them that, according to the BPI, unauthorised file downloads have taken place through their account,” he said.
“The letters are educational, rather than warnings, because we don’t know who is downloading the files without permission; it could be anyone in the household or, with an unprotected wireless, anyone just outside the house. We keep talking to the record labels and point this out and the sticking points are always how do we know who’s making the downloads, who will pay for the process of warning and disconnecting people and who will pay if they then turn round and sue?”
A spokesperson for Tiscali also confirmed that despite stating illegal file sharing is against its terms and conditions and punishable by disconnection, nobody has been cut off for that reason this year so far. The ISP claims to want to work with the BPI but believes the scope of negotiations should be widened.
“We would like to agree a process that is legal, workable, satisfactory and fair to all parties including customers,” the spokesperson confirmed.
“Our discussions with the BPI are ongoing and any agreed process would have to transfer in principles and scale to other industries such as film, games and software also.”
Considering an agreement for music is proving elusive, one can only imagine the extra complication of adding the movie, games and software download industries too.
Talk Talk does not seem to be in a mood for compromise. Charles Dunstone, Chairman at Carphone Warehouse, which owns the ISP, famously referred to the company as a ‘conduit’ which could not control what its users do online and could not imagine any circumstance in which it would cut a subscriber off because of alleged wrong doing by a third party.
A spokesperson for Talk Talk pointed out this is still the company’s position and it had not spoken to the BPI since making the statement two months ago.
Hence it seems increasingly likely that government threats of legislation that will tell ISPs how to deal with illegal file sharers will be announced in this autumn’s Queen’s Speech.
The British Phonographic Institute (BPI) claims action is needed because it estimates that for every legal music download, there are 20 illegal downloads. It further claims legal download services do not prevent illegal file sharing, citing the figure that 150m illegal downloads have been made in the UK alone since iTunes was launched in 2004. It estimates there are 6m active illegal downloaders in the country today.
These large losses the BPI claims are being suffered by the industry have led to rumours that if a compromise on ‘three strikes and you’re out’ cannot be achieved, the two sides may join forces to launch legal P2P download services. This would incentivise the ISPs to protect a revenue stream from which they receive a cut.
However, the BPI’s main argument remains that piracy continues even when legal services are available and so it is hard to see how a deal can be struck without the ISPs shifting stance and accepting the ‘three strikes and you’re out’ policy in return for a cut of legal music sales.
