Articles:
Online Piracy

Every writer, singer or actor depends for his livelihood on the legal and moral protection of his work from theft, or what these days we call piracy. For that reason, we should all writers feel instinctive sympathy towards a new law proposed by the French government that seeks to punish illegal file-sharing of music, video and any other intellectual property over the internet. Unexpectedly, the law was defeated in France´s National Assembly on April 9^th. But it will surely be resubmitted. There are two more difficult questions: can it really work? And is it compatible with the freedom that we also cherish?

            Let´s start with the second of those questions. The law, known in French as “Creation et Internet” raises serious concerns about civil liberties and privacy. It would permit entertainment firms to monitor people´s file downloads, with the co-operation of internet service providers. If the monitors find a pattern of illegal downloading by someone, they are to notify a new agency dedicated to overseeing copyright protection. That agency will then deliver a series of warnings to the person doing the downloading. If three illegal downloads are made during a year, following two warnings, the person´s internet service provider will be required to disconnect that person´s internet service.

            Such monitoring of internet downloads by private firms is just as worrying as would be the legalisation of the monitoring of telephone calls by private firms. Perhaps by tracking our internet activity or our telephone calls those firms would find some crime and even eliminate it. But what else might they find? It is easy to imagine that this power could be abused, as every Italian aware of the recent phone-tapping scandal involving Telecom Italia will know. Strict laws would have to be established to prevent information about all our online activities being used for commercial or other purposes without our knowledge. But would those laws be enforceable? There is good reason to doubt it.

            In practice, would the French law work as a way to defeat piracy? That is largely a technical question, but my instinct is that it would not work for long. The main characteristic of the internet is that it allows and encourages innovation. Most likely, ordinary individuals who just enjoy borrowing some music or video from their friends would not work hard to evade these new controls. But lots of geeks would dedicate many hours of work to inventing software to make such evasion possible, and would then give away their software free of charge.

            Let us imagine, though, that a way could be found to prevent this law from reducing our personal freedoms, and that the new system actually succeeded in punishing and deterring illegal downloading of files. I am still not sure that this would be a full solution for the entertainment industry. The reason is that online piracy is a more subtle problem than simple theft. As many musicians already know, piracy can provide some benefits: the costless distribution and hence marketing of their music allows them to reach millions of potential fans that they could never reach before. Those new fans are a great asset, as long as some of them can be converted into paying customers.

            Recording companies and bands themselves have already begun to use free downloads and a tolerant approach to illegal file-sharing as a marketing tool. They then have to dream up incentives for these people to buy instead of steal. So far, this has consisted chiefly of offering their music in smaller, cheaper units that was possible in the old days of CDs, and of offering something extra that cannot be stolen. These strategies, of trying to adapt to piracy rather than outlawing it, have only been partially successful, and have worked best for performers who are already popular. Yet the implication for efforts such as the proposed French law is bad: piracy does not unite the entertainment industry against crime, but rather it divides it between those able or willing to adapt and exploit piracy and those who are not. That division is likely always to favour the pirates.