Ministry of Sound sues Spotify over user-curated playlists

Source: Atatiwa, CC

If you have an interest in the music industry and its business models in the networked era, there's a couple of articles worth reading over at theguardian.com today that concern music streaming service Spotify. Spotify has been on the receiving end of negative criticism in recent months for the amount of money that artists receive from their labels for playback, as well as flak regarding the longterm viability and profitability of music streaming services. Some of the criticism may be fair but there are a few voices who think Spotify might actually be beneficial to the industry. Nevertheless, let's take a look at the Ministry of Sound case.

The first of which is by Stuart Dredge who reports that the some time night club and record label, Ministry of Sound, is seeking damages against Spotify for allowing its users to create their own playlists which ape the ordering of tracks that appear on their releases, and which may also include the name 'Ministry of Sound' in the title. This last point is significant as Spotify users can now search the service for such a term and easily locate these user-compiled playlists. The label's argument appears to be that these playlists are an infringement on their intellectual property.

It's worth noting that Ministry of Sound does not licence its releases to Spotify as the streaming service's business model seeks to remunerate the copyright owners of musical recordings, whereas compilations compiled and curated by Ministry of Sound would not benefit the label in question as many of the featured tracks are owned by other labels (which Ministry of Sound has had to pay a sum in order to licence for their

Ministry of Sound launched proceedings in the UK High Court on Monday, and is seeking an injunction requiring Spotify to remove these playlists and to permanently block other playlists that copy its compilations. The company is also seeking damages and costs.

Chief executive Lohan Presencer claims that his company has been asking Spotify to remove the playlists – some of which include "Ministry of Sound" in their titles – since 2012

So let's be clear here: 

1. Spotify has agreements in place with the relevant owners of tracks that have also been used by the Ministry of Sound in a series of compilation albums. 
2. Ministry of Sound and Spotify have no licensing agreements
3. Users of Spotify have sourced licensed tracks and complied them in playlists using 'Ministry of Sound' as an identifiable search term
4. These user playlists may feature tracks in the same order as the Ministry of Sound releases
5. There's no guarantee that the tracks in these playlists are the exact same tracks (ie same track length, same remix, etc) that feature on the compilations.

The second article worth looking at is a blog post written by Lohan Presencer, written to accompany the announcement to sue Spotify. The article itself is riddled with errors or disingenuous claims:

iTunes is now the largest music retailer in the world with 575 million customers and annual sales of $23bn. It is the main source of income for every record company on earth. Not only that, Apple built its hardware business on an iTunes foundation – iPods, iPads, iPhones. Not a penny of the sales of which were shared with record companies. 

Forgive me for being pedantic here but this claim needs qualifying. Apple did not build its hardware business on an iTunes foundation - at least not exclusively. iTunes did precede the iPod by about 8 months (released in the US in 2001), however in its original inception it was a tool for moving files from one device to another. The iTunes Store was not created for some time after that, coming to the US in April 2003 and to the UK in June 2004. Granted, sales in the iPod began to grow rapidly after 2004 with the 4th generation of devices capable of storing up to 40GB of music - enough to carry most people's music collections. 

It was hardware iteration that was key to the success here. It seems bizarre that Presencer should claim otherwise whilst also going on to note that this hardware success was not shared with record companies. Should Denon or Technics share their hardware revenue with record companies because they facilitate the consumer in being able to play their CDs or vinyls? Similarly, the success of the iPhone and the iPad have very little to do with music and more to do with devices' multiple functionality (internet access, telecoms, applications, photography, etc).

Presencer goes on to critique Spotify for failing to make a profit despite being heralded as the 'ultimate counter attack to piracy'. Perhaps the company can be forgiven for struggling to make a profit 5 years after launch given the costs of launching a new business in 24 countries, with all the various regional licencing and legal costs associated with such a venture. Spotify claims to pay out 70% of all its revenue to rights holders. Given how notoriously difficult it has been for newcomers to enter the hermeneutically sealed world of the music industry, it's no surprise that profitability is an issue. Only time will tell as to whether or not the 24 million active customers can be converted to paying customers.

Presencer then goes on to critique Spotify for its PR strategy:

Spotify is addicted to PR, its oxygen of growth. Favourable comparisons to Apple and positive reports of industry data showing exponential growth of streaming revenue are its lifeline. Yet what the believers fail to tell you is that published streaming figures include advertising revenue from YouTube, the great hidden free music streaming service.

What is the purpose of this comparison to YouTube? Are they also to be criticised for under paying artists for streams? There's very little stopping users of YouTube from creating Ministry of Sound playlists on YouTube and inserting the brand 'Minsitry of Sound' into the title, for example:

Perhaps Presencer is unaware that this can and does already happen? I'm sure he can't be that naive. The difference with the YouTube model here is that many of the songs that appear in these playlists are ripped from radio shows or uploaded via users rather than having been officially licensed (as Spotify does). Is YouTube the enemy of piracy here?

The final point worth examining relates to how much Spotify contributes to the musical economy of the UK:

According to BPI annual figures, UK record company revenues in 2011 were £795m. Total paying UK Spotify customers at that point could be reasonably estimated to be no more than 250,000. At £10 a month that's total net income of £25m. About 55% of this is paid through to record companies, £13.75m - less than 2% of total industry income

Ignoring the envelope math here (is it 55% or 70% paid to labels) and the outdated figures (Spotify had only been in the UK for 2 years at this point so was a niche player), Presencer seems to have an issue with a young company generating 2% of the total UK music industry's revenue! This beggars belief. Would he be happier if this was revenue lost to piracy? Given that attitude and behaviour change tends to develop quite slowly, Spotify and services like it should be held in slightly higher regard for their attempts to provide a better (for the industry if not the artists) alternative to piracy against a background wherein it is very easy to access music without paying for it.

A solution?

Presencer's gripe seems to be more to do with the fact that compilation curators like Ministry of Sound do not benefit from streaming services because they don't fit the business model that seeks to reward the owners of the music. The simple solution is sue and hope for success so that a service like user generated playlists in Spotify has to removed, thus making the product inferior. Or at least, nuke the ability to search for use playlists. If this does happen, then it might damage the usefulness of Spotify and subsequently, its ability to generate revenue for an ailing industry. I hope this doesn't happen as creating and sharing playlists is part of what makes Spotify a service I'm willing to pay for.

A more complex solution would be to ensure that the Ministry of Sound has to be remunerated and they could do this by ensuring that their compilations featuring tracks that they own the rights to thus making it impossible for Spotify playlists to ever be exactly like the official release (not that this is guaranteed anyway - see #5 above). Ministry of Sound used to produce tracks - I know because I bought them in the 1990s when the brand was building on its 'super club' status. It's often said of the tech industry that companies become more conservative as they age, become less willing to take risks and are more likely to sue than to innovate. Companies in this industry need to be agile and innovative if they want to stay ahead. Maybe Ministry of Sound can go back to innovating.

The seldom told tale of software piracy [infographic]

While browsing the web I came across the following infographic put together by Starmedia which tells the a story of software piracy (it's difficult to gauge how accurate the stats are given they are taken from a select number of sources). The historical overview is pretty useful for newcomers (or people born after the late 1980s).

Who'd have thought Windows XP would be more popular to download than Vista or Windows 7? Having said that, it's not as popular as Mac OSX Snow Leopard (no serial code required) or Lion. Photoshop still rules the nest as the most sought-after software (see my earlier caveat) despite being a jewel in the Adobe crown. They themselves refer to the 'Photoshop trademark is [being] one of Adobe's most valuable trademarks'.  Despite rampant piracy (because of?!) its position as the desktop image manipulation software for professionals and aspiring designers is entrenched and must make Adobe a tidy sum.

How much is your silence worth?

Copyright is a funny old thing - it's meant to protect creative works and provide incentive to creativity by virtue of guaranteeing some form of property rights over works so that people will make new and original pieces of music, literature, art, etc. Every now and then the dogged pursuit of those people thought to be exploiting or violating copyright by virtue of taking something that isn't theirs and sharing it without the consent of the rights holder(s) results in some rather bizarre events.

Take for instance the strange case of John Cage's piece of experimental 'music' 4'33" - a 3-movement piece of music composed for any instrument during which the score instructs the musician to not play any music so that the audience can take in the ambient sounds of their environment. More often than not this results in silence, or at the very least, near silence. The track is well-known in the UK and was even the subject of an attempt to thwart the domination of the Christmas No. 1 slot by X-Factor contestants in 2010, catchily entitled Cage Against The Machine (after the success of the Rage Against The Machine campaign the year prior).

No doubt, some people may appreciate the artistic significance of the break in instrumentation (some of Cage's works prior to this piece feature silence prominently) while many will think of this silence as little more than an artistic prank. Nevertheless, the track has been written, recorded and performed by Cage, thus enshrining it's position within the realm of copyright. Strangely, the iTunes single version of the track is 4'39" and features some noise in the first 5 seconds, perhaps to alert purchasers to the fact the silence is 'playing'

So it was with some amusement that I stumbled across this post which points to a copyright infringement claim by Warner Music Group against a YouTube user AdamLore who posted the Cage track to the videosharing site on the 8th of November 2009.  In cases whereby rights holders dispute that users of YouTube are not entitled to share such works they can go through a series of procedures to notify the site that a violation has occurred - this tends to result in the audio being stripped from the video and oftentimes replaced with something different.  This is what happened in the case of the AdamLore video - see below:

This is not the first time that Cage's silence has been the centre of a copyright dispute.  In 2002, the British composer Mike Batt (best known in the UK as the creator of the children's TV series The Wombles) found himself at the centre of a legal dispute over the track "A One Minute Silence" on an album by his band, The Planets. Strangely enough, there was a remarkable similarity between Batt's silence and Cage's silence. This eventually led to an out-of-court settlement in which Batt handed over an undisclosed six-figure settlement to the John Cage Trust, as well as Cage being co-credited as writer of the track. At the time Batt gave a cheque to representatives of Cage's publishers Edition Peters on the steps of the High Court in London, who stated that:

We had been prepared to make our point more strongly on behalf of Mr Cage's estate, because we do feel that the concept of a silent piece -- particularly as it was credited by Mr Batt as being co-written by "Cage" -- is a valuable artistic concept in which there is a copyright ... We are nevertheless very pleased to have reached agreement with Mr Batt over this dispute, and we accept his donation in good spirit.

The point here is that Edition Peters own the publishing rights to Cage's work, not Warner Music Group, so how is it that the latter firm were able to get unofficially posted videos silenced under the guise of copyright violations?  It's not as if the AdamLore video is the only one to be silenced - there are others too (see ServeTheBeaver), suggesting that this instance might be more of a case of people poking fun at overbearing copyright. However, the notion of silence being owned is still an intriguing one.  Is this a case of copyright going too far or does it represent the justifiable rights of a copyright holder protecting their estate?

NB: it's worth reading through a few of the comments on AdamLore's video as they suggest that if someone was to upload a legally purchased version of 4'33" to YouTube the track is not automatically flagged as violating the ToS. I don't intend to do so myself but if you can confirm this I'd be happy to hear from you. AdamLore himself states that the WMG notice is a prank, serving to highlight the rather heavy-handed powers of copyright enforcement

Cory Doctorow: all new media is accused of piracy by the mainstream ... until it becomes mainstream

"Young turn to piracy to watch pay TV for free"?

In a Guardian article which should be filed under stating the bleeding obvious, it suggested that young people are using the internet to access television content ahead of broadcast.  The article went on to talk about the new Sky Atlantic channel which is looking to position itself as the UK version of HBO, as most of the content is pulled from their archives.

None of this is particularly noteworthy in and of itself, other than a rather bemusing claim that was removed stating that a "fresh wave" of piracy would ensure as people would look to get the channels content (most of the material consists of repeats that have no doubt been pirated or streamed already). Another claim about DVD sales being likely to slump seems to mirror an already established trend.

What was worth drawing attention to was the comment by dj1917 which I've reposted below:

People download television from the interweb, you say? With something you call a "stream" or "torrent"? Further research tells me that films, musical recordings and football matches are also freely available! I must say, Good Sirs, that young people today disgust me! As a gentleman on the cusp of my fourth decade, I was not previously aware of this heinous trend in technological thievery only known of by the young, with their funny haircuts and their eye-pods. I must praise you, Mr. Guardian, for bringing it to my attention. In future editions of your fine organ could you take some time to explain, in terms as if to an audience of elderly simpletons, as otherwise I may not understand, who these "Beatles" are, and what's all this I hear about horseless carriages?

That certainly ticked me.

Students quiz me on piracy

I've been asked by a couple of our Magazine Journalism students to help them with a second year module by answering some questions about filesharing. I thought I'd share the questions and my responses to them here as they touch on some of the issues I've been posting on here in recent weeks. There is a little but of cut and paste to be found in one of the answers but mostly, the questions and the answers differ.

Student 1's questions:

I am going with the angle that as much as the government is trying to get rid of file-sharing, it is always going to exist because it is a relatively new technology and is still evolving. The first generation of file-sharers have established the act but now the new generation are expanding it making it close to impossible to eliminate completely.

Do you think that the government were slow to act on file-sharing sites and underestimated how popular they have become?

What do you think to the 'three strikes and you are out' method of coping with individuals? is it all coming too late?

Do you think that the DEMOS report on file-sharing has shown us anything that we didn't already know?
Do you think that file-sharing will continue to exist and what from will it take?

My answers:

The government were very slow to react to digital file-sharing, as was the entertainment industry. The reason for this is complex but comes down to their suitability as a regulator of the Internet - a technology which transcends traditional (read: old media) forms of regulation in that traditional territorial rules don't always clearly apply. A file-sharing site may be registered in one country, it's servers hosted in another, it's user's in many different countries - which national legal system should be drawn upon? How does the law react to these international issues? Generally, laws take a long time to be proposed, written and drafted into being. Given those logistics it's no surprise that the responses were slow.

The 'three strikes' policy as it stands is poorly thought out and is wholly inadequate as a method for combating file-sharing. There are a number of reasons for this - too many to go into here, I suspect. However, I shall try and outline the key points.

Firstly, the methodology for identifying suspected copyright infringers is far from an exact science - a 2008 report from the University of Washington Computer Science and Engineering department revealed how a networked printer managed to be implicated in DMCA takedown request. It was highly unlikely that the printer was downloading copyright content! This hasn't stopped over zealous legal firms like Davenport & Lyons from issuing false claims against innocent parties with insufficient evidence, such as Mr and Mrs Murdoch (aged 66 and 54) who were accused of downloading the Atari game Race07.

Secondly, the law fails to take into account the role of the exact infringer - many people may share an Internet connection, especially if they live in large family or student household. An infringement may take place on the network but it is very difficult to prove who was responsible for the act without a thorough investigation - something the 'three strikes' policy refuses to do. The accusation would then fall at the feet of the bill payer who may not have done anything wrong, but will potentially be labelled a criminal.

Thirdly, an unsecured wireless network may be used to share bandwidth meaning that anyone in a certain radius can access the Internet with that connection. There are different legal implications regarding this behaviour, but ignoring those for now, the bill payer will be held responsible in this instance despite having not committed a crime. There are many reasons why a network may be unsecured, from a lack of technological knowledge through to a purposeful attempt to share bandwidth - the proposed 'threes strikes' ruling would treat both as the same when they are clearly not.

Add to these factors the increasing dependence on the Internet for public services and its future use as a medical tool (video streaming a doctor!), then disconnection seems wholly disproportionate and at odds with a recent All Party Communications Group report (.pdf) regarding the promotion of eGovernment.

If a crime is committed it should be dealt with in the courts, not by the content industries who employ dubious methodology to make their accusations.

As for the DEMOS report, I'm not quite sure what you mean about the 'what we didn't already know' bit. If you are referring to the claim that file-sharers typically spend more money on music than those that don't admit to file-sharing then the report does echo the sentiments that have been expressed quite vocally on many public and private file-sharing sites and services. However, what the report does do is it points to an empirical basis for measuring attitudes towards file-sharing. I think a Norwegian paper from earlier in the year did much the same thing

One of the key ways in which file-sharing is monitored is by tracking the IP addresses of people involved in torrent swarms. This how the basic tracker service works in torrent technology. However, technologies like DHT, PEX and Magnet Links completely do away with the need for file sharers to be identified in this manner. Add to that, people can use encrypted VPN (Virtual Private Networks) or services like TOR to hide their identity online and continue their file-sharing activities. WASTE networks will also play a part. If the deep-packet-inspection (DPI) techniques some ISPs are using continue to improve so they can examine traffic on their networks then I wouldn't be surprised to see the exchange of large but portable hard drives in school yards and parking lots in much the same way cassette tapes were traded in the 1980s.

Student 2's questions

1) What was your reaction the news that file sharers also buy the most music legitimately?

2) Why do you think people choose to download illegally?

3) How much of a negative effect, if any, do you think it has on artists and labels?

4) What are your thoughts on the digital economy bill and the proposed move to ban users who download illegally from the internet?

5) Do you think, in practice, it is possible to completely quash illegal downloading?

6) What could record labels do to encourage music fans to buy legally before looking elsewhere?

7) What are your views on artists joining the file sharing debate, for example Lilly Allen and her recent (bizarre) comments which you twittered the link to?

My responses:

1) I wasn't at all surprised by the findings. The claim that file-sharers typically spend more money on music than those that don't admit to file-sharing in the DEMOS report does echo the sentiments that have been expressed quite vocally on many public and private file-sharing sites and services. However, what the report does do is it point to an empirical basis for measuring attitudes towards file-sharing. I think a Norwegian paper from earlier in the year did much the same thing

2) The reasons for piracy are nebulous and far ranging. I can give you at least 10 reasons off the top of my head without even going down the 'free music' route:

1.File-sharers resent years of overpriced products (expensive CDs & ‘filler’ tracks)
2.Pre-release exclusivity
3.Discover new music/ lost classics without financial risk
4.Community spirit (private sites, social networks, blogs)
5.Very easy to do and low risk!
6.Reaction against mainstream mass-produced pap/pop
7.Fan ownership of musical products & free will vs. industry attempts to control content
8.DRM encourages passivity and limits future development/creativity
9.The sound quality of legitimate digital music is insufficient for many audiophiles
10.Music consumption has changed (gigs, merchandise, Guitar Hero, etc)

Have you seen this study (.pdf) by some behavioural economists who experimented with price differences to see how people reacted? They offered a group of subjects a choice between two chocolates, Hershey's Kisses for one cent and Lindt truffles for 15c. Three quarters of the subjects chose the truffles. When they did it again after reducing the cost of each chocolate by 1 cent (now free & 14c), they found the obvious - that the order of preference was revered with more people choosing the free offer. Now despite the price difference being the same (14c) the consequences of shifting to 'free' was dramatic - it produces a completely different consumer dynamic.

3) It's difficult to quantify a 'negative effect' in this case as there are way too many variables to consider. If music fans stop paying for music then there is an obvious problem, but there is little conclusive evidence to suggest this is the case - in fact, a recent report (.pdf) by the Performing Right Society concluded that UK music economy is getting bigger, not smaller. The figures bandied around pointing to how widespread file-sharing is are also subject to exaggeration. The point I'm trying to make is that nobody really knows how harmful filesharing is, if it is at all, but it is PRESUMED to be in a common sense manner taken as fact. Very problematic. The real problem, as I see it, comes through the typical royalty rates given to artists by labels - as seen in the Gowers report from 2006 (p51). This was typically about 9% for CD sales and is about 8% for digital downloads. Labels and retailers (& even credit card companies!) make more more than the creators. Even though there is no shop space or physical packaging to pay for, the artists are worse off due to the licensing of digital content.

4) My thoughts on the Digital Economy bill are on my blog (mentioned above: pirate finder general post). I think that the bill is an attempt to force unworkable laws into being that will end up doing more harm than good. Copyright needs reforming, but not in the ways proposed by Lord Mandelson.

5) I'm not convinced it will be entirely possible to quash illegal file-sharing. Technology has a knack of offering new possibilities at a rate far faster than the legal system can adapt. One of the key ways in which file-sharing is currently monitored is by tracking the IP addresses of people involved in torrent swarms. This how the basic tracker service works in torrent technology. However, technologies like DHT, PEX and Magnet Links completely do away with the need for file sharers to be identified in this manner. Add to that, people can use encrypted VPN (Virtual Private Networks) or services like TOR to hide their identity online and continue their file-sharing activities. WASTE networks will also play a part. If the deep-packet-inspection (DPI) techniques some ISPs are using continue to improve so they can examine traffic on their networks then I wouldn't be surprised to see the exchange of large but portable hard drives exchanged in the school yards in much the same way cassette tapes were traded in the 1980s. Even if a new method for blocking content is developed I suspect hardcore copyright infringers will find a way to continue their activities - they may just be physically scaled down somewhat.

6) I'm not really sure what record labels can do about this. Usually they fund lobbyists groups like UK Music or the BPI to do this in the form of educational campaigns about the problems of piracy (ie hurting artists). There have been a few innovations in recent years that are often heralded as an alternative to piracy (eg Last.FM, Spotify, We7, iTunes, RouteNote, etc) but as for whether or not they actually help support artists is another argument entirely given the royalty deals mentioned earlier. There have been some stories that suggest Spotify pays artists slightly more than nothing for streams, but only just! One of the problems with setting up new services like Spotify is that these small companies have to negotiate with the record labels to be able to carry their copyrighted content. If one of the major labels refuses or demands a royalty rate higher than Spotify can afford to recoup then the service will be incomplete or it may struggle to scale up and find a sufficient user base to make it a viable alternative. Record labels could help foster innovation and their long term survival by relaxing their restrictive licences.

7) I'm all for artists joining the debate about filesharing. It's possible to find many artists who refuse to condemn the practise as they see it as a potential business opportunity. I'm thinking of Matt Mason on 'The Pirate's Dilemma' and Chris Anderson's 'freemium' argument here where free content (downloaded music) can serve to act as a marketing tool around which other services/goods can be sold (gig tickets, merchandise, naming rights deals, etc). Lily Allen, I think, has a tendency to engage in public arguments without always fully understanding the range of positions available. She has done so in the past when talking about being middle class, she did it again with the piracy debate and her most recent outburst: "If someone comes up with a burnt copy of my CD and offers it to you for £4, I haven't a problem with that as long as the person buying it places some kind do of value on my music". The woman is a walking contradiction.

Pirate Finder General

Yesterday it emerged via Cory Doctorow's boing boing blog that the UK government is planning to introduce some radical changes to the Digital Economy bill that will seek to combat copyright infringement in a most aggressive manner. One of the consequences of these changes is a serious threat to democracy in that the Secretary of State (currently Lord Mandelson) will have the power to make "secondary legislation" (legislation that is passed without debate) to amend the provisions of Copyright, Designs and Patents Act (1988).

Effectively, this would give an unelected official the power to do anything without Parliamentary oversight or debate, provided it was done in the name of protecting copyright - something which benefits big business in cases where only around 2% of copyrighted products are worth supporting in law (98% of copyrighted material is no longer supported by the market but is still covered by the blanket law). This is clearly a case of industry being more important the people. Doctorow attribute the following reasons for his new proposal:

1. The Secretary of State would get the power to create new remedies for online infringements (for example, he could create jail terms for file-sharing, or create a "three-strikes" plan that costs entire families their internet access if any member stands accused of infringement)

2. The Secretary of State would get the power to create procedures to "confer rights" for the purposes of protecting rightsholders from online infringement (for example, record labels and movie studios can be given investigative and enforcement powers that allow them to compel ISPs, libraries, companies and schools to turn over personal information about Internet users, and to order those companies to disconnect users, remove websites, block URLs, etc)

3. The Secretary of State would get the power to "impose such duties, powers or functions on any person as may be specified in connection with facilitating online infringement" (for example, ISPs could be forced to spy on their users, or to have copyright lawyers examine every piece of user-generated content before it goes live; also, copyright "militias" can be formed with the power to police copyright on the web)

What does this mean for you?

There are far ranging implications at stake in the changes being proposed here. Imagine the implications for uploading a recording of, say, a birthday party featuring background music to YouTube... That music would be subject to copyright law making the uploader a copyright infringer and a potential victim of this new bill - liable for any breaches made. Place this scenario in the context of point 2) and you can imagine being the target of record company surveillance watching your every move, even going as far to restrict your access to specific content. At what point did the British public decide to let the entertainment industry police its behaviour as if it was a state authority?

Get involved

Naturally, organisations like the Open Rights Group are campaigning against such changes and encouraging members of the public to phone their MPs with their concerns. I urge you to do the same as time is very short. You can email your MP here but due to the time limits a phone call is more likely to be effective.

Further reading:

Charles Arthur, Guardian, 20/11/09 'Treasury secretary defends government's online piracy plans'
Charles Arthur, Guardian, 20/11/09, 'Why are cyberlockers suddenly such a problem, Lord Mandelson?'
Dept for Culture, Media & Sport, 2009, Digital Britain report

Copyright/wrong 2

It's been interesting to watch the media fallout and the Internet spillover following the recent Pirate Bay trial. I recently signed up the Open Rights Group's listserve and have been watching my email inbox fill up with lots of informative titbits which seem related to my earlier post on the way in which copyright law is inappropriately proposed.

The major story that has had the blogosphere and twitterverse talking today seems to be about the supposed bias of the Pirate Bay judge, Tomas Norström. Torrentfreak has suggested that there are a number of links between the 'guilty' verdict and the affiliation of Norström with a number of pro-copyright groups. This has raised a few eyebrows and rumours of demands for a retrial.

In other news, there were numerous reports pointing to a Nordic study which suggests that pirates are about 10 times more likely to purchase copyright material than non-pirates. The study looked at over 1900 people over the age of 15 and found that those who use music download services were more likely to buy music than those that didn't. This comes on the back of an earlier Canadian study from 2006 which suggested that P2P users buy more music than is typically conceded.

Author, activist and co-editor of Boing Boing, Cory Doctorow, has recently posted an article on the nefarious activities of the pro-copyright groups over at Interent Evolution which is well worth a read. In it he discusses the public and private meetings which go on between pro-copyright lobbyists (IFPI, RIAA, etc) at the United Nations level, in relation to the Anti-Counterfeiting Trade Agreement (ACTA) and the World Intellectual Property Organization (WIPO).

For those of you wondering as to the outcome of my letter to the MEPs regarding copyright-term extension act, I have received an acknowledgement from one of them. More on that story as it breaks.

EDIT - it seems that the proposed copyright term extension has been passed and now moves forward to the Council of Ministers. The full details can be found over at the ORG site.

Just for fun, why don't you pay a visit to www.thepirategoogle.com to look for music, film and other files. The site isn't affiliated with Google but it has been mocked up to save you the hassle of using Google to find torrent. Remember, part of the The Pirate Bay defence was that they were a search engine like Google, pointing to links for related material. Google can be used for much the same so ... when are media industries going after the biggest fish?

Copyright/wrong

The Open Rights Group (ORG) alerted me to the news that recent intensive lobbying pressure has resulted in the hastily arranged tabling of the copyright extension proposal, which seems likely to go ahead next Thursday. I have posted on this issue elsewhere on this blog but I believe the video below explains the problems of the proposed changes better than I could do the issue justice:

Becky Hogge: Speech at Sound Copyright conference in the EU Parliament 27.01.09 from Open Rights Group on Vimeo.

The proposed extension seems better suited to supporting corporate cartels than protecting artists. It also acts as a blanket cover preventing material no longer profitable from entering the public domain, from which other creative works can be derived. The industry is looking to score another result fresh on the back of the Pirate Bay verdict, but this represents a very different issues with wide-ranging consequences for the public domain and the future of digital creativity.

The basis of reanimating this extension is highly dubious. ORG are advocating that concerned citizens should act now to reject the proposed act. Visit the Sound Copyright site to find out what you can do to fight the industry lobbyists. Write to your MEP now - this page will give you some useful advice on how to lobby your MEP with a briefing pack full of relevant info. It is easy to do - people in the UK can use the WriteToThem service to get involved. It finds the name of you MEP for you and even gives you a page to contact them from.

This is what I wrote in my letter to the MEPs in question:

Dear Fiona Hall, Stephen Hughes and Martin Callanan,

The European Commission has recently proposed to extend the term of copyright in sound recordings in a move "aimed at performers". I believe this does not address the problem it claims to, while imposing serious costs on consumers, follow-on innovators and re-users of information. I also believe it endangers the basis of public respect and acceptance of intellectual property. There has been a constant cycle of copyright extension terms in recent decades, all of which protects businesses at the expense of creative re-use of material which should have entered the public domain long ago.

If Europe wishes to keep its ability to innovate, it must not lock in the current industry structure at a moment of great technological change, it must not inhibit digital creators and archives in the exploration of music - music which has been paid for once already, during the existing term. There must be a public domain from which innovation can be propagated. Excessive copyright restrictions benefit a minority of key industry players and harm the majority of the public by denying the public access to material no longer commercially viable.

If copyright law, cynically, departs from its purpose, piracy becomes an easy and attractive option.

I urge the European Parliament, and the governments of member states of the European Union, to consider carefully the independent evidence on copyright term extension, and reject the Directive in its proposed form.

Yours sincerely,

Robert Jewitt

Feel free to repurpose/remix the content in any way you see fit. A wholesale cut/paste job will be rejected by the WriteToThem site though. Get behind the academics who have already pointed out the problems with this bill.

Your voice counts.

Watch how Stanford professor Lawrence Lessig shows the impact that inappropriate laws can have on creativity below:

File-sharers fight back?

The MAC281 Cyberculture lecture this week dealt mainly with the responses file-sharers have given in relation to years of music industry rhetoric which has sought to label them as criminals. I've included a link to the slides I used in the session below (best viewed in full screen due to small text on screen grabs):

Mac281 The Suits Vs The Scene 2008 9

View more presentations from Rob Jewitt. (tags: mac281 piracy)

One of the issues that tends to get brought up time and again by filesharers is the issue of copyright infringement in a digital age. In the book Wikinomics: How Mass Collaboration Changes Everything the authors, Don Tapscott and Anthony D. Williams identify a demographic born between 1977 and 1996 as the first to 'grow up in a digital age ... bathed in bits' (2008: 47), which they refer to as the Net Generation or N-Geners. They claim that this generation is distinct from previous ones due to the myriad ways in which they not only consume media, but scrutinise it, and re-purpose it.

Tapscott and Williams go on to suggest that these N-Genres are not passive consumers but rather, are driven by a desire 'for choice, convenience, customization and control by designing, producing and distributing products themselves' (ibid: 52). They go on to highlight the creation of Napster in June 1999 by the then-student Shawn Fanning as an example whereby a young man with an idea was able to create a piece of software to share audio files amongst friends, which then went on to pose a serious threat to the established distribution model for the music industry.

A similar example can be found in the guise of Jesse Jordan who was a freshman at Rensselaer Polytechnic Institute, New York, during 2002. Jordan developed an internal network search engine which enabled anyone on the institutes network to search the public folders hosted on the network, which just so happened to include music files. When the RIAA caught on to this side-effect of the network search tool, they branded Jesse a pirate and demanded he pay them $150,000 per infringement - a total of $15,000,000 (see Lawrence Lessig, 2004 for more details) - money he clearly didn't have.

With some guesses putting the amount of web traffic now taken up by file-sharing as high as 50%, it would seem like these N-Geners are bringing about a philosophical rethink with regards to how we make sense of copyright and intellectual property in a digital age:

The ability to remix media, hack products, or otherwise tamper with consumer culture is their birthright, and they won't let outmoded intellectual property laws stand in their way (Tapscott & Williams, 2008: 52)

The emergence of Web 2.0 platforms and user generated content has further entrenched this type of activity. In a more recent book Lessig (2006: 196) recounts the example of digital creativity in the guide of Anime Music Videos (AMVs) whereby young people spend hours re-editing anime cartoons to perfectly match a piece of music before posting their creations to the Web. One company in particular, Wind-Up Records, didn't see this as an example of creativity but rather, as an example of copyright violation and ordered a take-down. Instead of seizing this as an opportunity to connect with fans or engage with customers they assumed a fairly traditional position.

It is this atypical type of industry reaction which irks the N-Geners and actually stands in the way of creativity and innovation, and helps contribute to a sense of 'net banditry' (Rojeck, 2005) amongst file-sharers. Less than a decade ago the mainstream music industry was dominated by a handful of global players - EMI, SONY/BMG, Universal, Time Warner - who had an established business model which had served them well for many years. Key to this was a firm grip on distribution outlets for their products. Music had to be written, recorded, produced, marketed and physically transported around the world - an expensive business. The creation of services like Napster and zero-cost search tools played a part in transforming that traditional relationship. The advent of digital audio compression techniques (e.g. MP3) also played a substantial part in that process. We shouldn't forget that these developments helped bring about an attitudinal shift.

To paraphrase the recent Creative Freedom Foundation campaign, the distinction between using and copying artefacts in a digital age has become blurred. The movement towards digitisation, rapid search and zero-cost distribution has enabled a remix or 'mash-up' culture that enables people to be creative in new and exciting ways. We need a legal system which reflects that. We need a copyright system which is fit for a digital age We need a legal system that reflects the behaviour of a multitude of people who breach current intellectual property laws on a daily basis.

We don't need what the New Zealand authorities have been proposing recently whereby ISPs will be forced to take down internet connections and websites of anyone accused (nb: not actually convicted) of copyright infringement. Section 92A assumed that people would be guilty upon accusation irrespective of the circumstances. There are all sorts of problems with this law which TorrentFreak cover here. A small reprieve came today when John Key announced that the implementation would be delayed until March 27th.

This might be a temporary reprieve however and more pressure needs to be applied, especially when the lobbying power of the world's copyright holders are in play. They are rich, powerful and organised. What happens in New Zealand could easily happen elsewhere if pressure is not applied. The Irish music industry (as represented by IRMA) has already succeeded in getting one of the biggest Irish ISPs to block access to file-sharing sites and it won't be long before others are forced to follow - this is despite the fact that sites like The Pirate Bay have not been deemed illegal in Ireland. An organisation with deep pockets has pressured an ISP into censoring the Internet on behalf of a commercially driven entity.

What does this tell us about censorship and network neutrality? It tells us we should be worried about the future of digital content.

So what is going on with the UK music business?

Yesterday I did my annual lecture for the MAC281 Cyberculture module in which I outline the problems facing the music industry, drawing particular attention to the rhetoric from those groups which seek to advance a very specific version of events vis-à-vis the impact of the Internet. Lecture slides are embedded below (some formatting issues are apparent but you'll get the picture):

Mac281 Producers, Profit, Pirates & Peers Sem2 2008 9

View more presentations from Rob Jewitt. (tags: mac281 music)

In particular we looked at some of the rhetoric and roles played by the following organisations:

• RIAA
• IFPI
• BPI
• UK Music
• FACT
• ARIA
  

It's well worth paying a visit to these sites as they give you a good indication as to the lobbying power of the music industry. All of these groups represent the music industry in its various guises and they are all intent on using the rhetoric of supporting artists through combating file-sharing.

I was looking through a few BPI press releases this past week as I attempted to update some of the facts and figures regarding the sales of music in the UK context and I was a little confused by the data I found, which seemed to suggest that the UK album market is fairly buoyant with a relatively steady set of sales figures over the last decade. Had I cared to listen to the rhetoric of the anti-filesharing lobby without being too critical I'd have thought this data was surely inaccurate given the frequency with which messages abound - equating piracy with poor sales and less future investment. I'm not trying to suggest piracy doesn't impact on sales, but I am a little sceptical about the amount of leverage the music industry seems to have in promoting a somewhat misleading account of the impacts of file-sharing.

After all, there are a number of events occurring currently that seem to suggest that these lobbying groups are gaining momentum in their ability to get national and supranational governments on side. In New Zealand there are a number of groups contesting the introduction into law of Section 92 of the Copyright Amendment Act, which has been nicknamed the 'Guilt Upon Association' law.

When this is introduced in 10 days it will enable the termination of internet connections and website access without sufficient evidence of wrong doing, without a fair trial, and without punishment for any false accusations of copyright infringement. The consequences of such a thing are monumental, especially when one study has already pointed to some of the flaws in evidence gathering.

Meanwhile, the Legal Affairs Committee in the European Parliament has given its approval to extend the copyright term for music recordings from 50 years to 95 years despite substantial opposition. Torrentfreak have been following this one. The ruling was meant to protect the rights of sessions musicians who get a rather short deal out of existing copyright arrangements, although they still have to prove they are entitled to any money to a collection society acting on their behalf. Not many people live beyond 95 years of age and seldom are born composing music. These extensions have a history of benefiting the rights holders over anybody else. The Open Rights Group are carrying an attack on the 'fairy tale' of the term extension.

Becky Hogge: Speech at Sound Copyright conference in the EU Parliament 27.01.09 from Open Rights Group on Vimeo.

The video above seems to have been ignored by the Legal Affairs Committee who have given the big 4 (Sony BMG, Warners, Universal, EMI) yet more power and control over copyright. The myth of the poor musician was a successful smokescreen yet again...

In Sweden, The Pirate Bay founders are being taken to court by media firms including Warner Bros and Sony on charges of copyright theft. Various industry representatives from the games, music and movie sectors are seeking approximately €10.5 million in damages and losses due to the sites hosting of files which point users to others with copyright material. The trial started yesterday, and already 50% of the charges have been dropped due to insufficient evidence.

It seems like these are turbulent times in the worlds of filesharing and intellectual copyright. I wonder whether or not these ventures are worth the money spent on them? More investment in new and exciting music services like Spotify might point to a better future. It's good to see the big 4 are actually supporting this venture as it rolls out across Europe. The basic service is free to UK users now.

Virgin says "no" to disconnection

This story is taken from TorrentFreak who are reporting that there is very little chance that they will follow through with the threats to disconnect their customers suspected by the BPI of participating in illegal filesharing. The original source of the admission appears over on the BBC Newsbeat site who claim there is "absolutely no possibility" that Virgin Media will take legal action against their customers.

This comes on the back of stinging criticism against the ISP who have issued 800 letters to customers over the last month warning them not to use "unauthorised peer-to-peer networks" like BitTorrent or Limewire to swap copyright protected files. The BBC have footage of a customer, Will McGree of Cardiff, who has been issued with one of these letters but denies its accuracy (a point I mentioned here yesterday). It seems difficult to reconcile both positions when Virgin Media are clearly bowing to pressure from the BPI, despite a lack of sufficient evidence.

Virgin have claimed they will not hand details of their customers details over to the BPI but it remains to be seen if they can be trusted to keep their word on this matter, especially since their associated business include music interests. Combine this with the fact that many ISPs (Virgin included) have been overselling their subscription capacities (and maximum download speeds) and are desperate to curb excessive bandwidth users and the picture looks less clear.

Disputing claims as to who downloaded what and when will soon become harder to contest if new Deep Packet Inspection (DPI) become the norm in places other than just Sweden. Until recently, the processing power required to inspect data packets has made this prohibitive, especially if they were encrypted (torrent files), as it required computers with massive computational power. Again, TorrentFreak carry the story:

"The other, arguably more sinister usage of DPI, is the growing interest by advertising companies to use deep packet inspection to observe what Internet users are doing. Watching your browsing activity, you can gain all kinds of insights into the user behind the keyboard. Similar to spyware, but on your line not your system, it’s not a good thing, and impossible to remove. Worse, it may be able to tell who is behind the keyboard at the time, by identifying trends in connection behavior."

Irrespective of filesharers, this kind of privacy invasion should have us all worried, especially if it is prone to abuse. It seems like hiding traffic in SSH VPN tunnels is now no longer a feasible alternative. Even our YouTube activity is under threat. The EFF have more info about the move which gives Viacom a lot of data to play around with. If ever the digital rights of the planet were under threat then it's now.

BT joins Virgin Media in music sharing clampdown

It seems like the stakes have been raised in the cat and mouse game that is the music industry versus the pirates (aka the customers). BT have announced that they are about to go down a similar route to Virgin Media and start to issue warning letters to web users suspected of downloading music files without the permission of the copyright holder.

In the interests of full disclosure, much of this post is comprised of material from 2 articles over at The Register which you can find here and here

An article over at The Register suggests there is an increasing consensus forming between ISPs and the music industry. Geoff Taylor, chief of UK record industry trade body the BPI claims,

"Everyone agrees on where we need to be, and we are working closely with our colleagues across the music community, the more progressive ISPs, and government to get us there."

So how is this processes panning out? In brief, an agent working on behalf of the BPI will search file-sharing networks for files labelled as music and harvest the ISP address of the computer hosting it. They will then time and date stamp the file and contact the ISP responsible for hosting the customer. The ISP will then issue a warning letter or two (one from the BPI and one from the ISP) warning the customer about the illicit nature of the behaviour. One of the letters may hint at a possible disconnection. It would seem that the ISP odes not relay customer details back to the BPI (for now).

TorrentFreak have a host of articles describing the rather dubious nature of the accusatory methodology employed to 'prove' that file-sharing activity is what it seems to be, with some IP addresses that were supposedly participating in piracy were actually attributed to network printers. Hardly fool-proof evidence.

The threat of disconnection is the preferred deterrent of record industry in its battle against the filesharing of music. It has pressed hard for "three strikes" process, and has the support of the UK government, who do not want to interfere directly, to come to a voluntary agreement with ISPs that satisfies both sides. There are similar plans afoot in other European countries (eg France, Netherlands, etc) to implement a "three-strikes" approach despite the MEP Guy Bono report on the Cultural Industries condemning this approach.

In order to make this activity attractive to ISPs, the BPI have been proposing that the music industry comes up with more innovative ways to make money from the sector, by offering better services, which may benefit the ISPs via increasing customer retention. The decision to threaten customers with disconnection seems counter to that ethos but there may be some new ventures ahead.

A recent press release from the BPI suggests that new business models are proving successful:

"record company revenues outside direct sales of music increased by 13.8% to £121.6 million in 2007, from £106.9m in 2006. These additional revenues now account for 11.4% of record companies’ domestic income."

Retail sales are the traditional avenue for income generation but this is clearly changing. Digital sales and licensing are helping the industry, but newer services are also proving attractive. These include generating income from:

• Synchronisation licence income - associated use of music in games, adverts and films
• Broadcast and Public Performance Licensing (PPL) - getting income from venues which play music publicly
  
• Multiple-rights deals ("360 degree deals") - deals which generate income from merchandising, touring, image rights, sponsorship and digital products like wallpapers for mobile phones

Such practises are believed to have resulted in a 16.2% increase in revenue generation in 2007. These service may soon be complemented by legal file-sharing services in the near future, once complications have been ironed out. It would seem these services could be very different to the types of subscription services ran by Napster in which artists would awarded on the basis of popularity. Music sales have long since been on the decline whilst the popularity of music has remained (see the slide courtesy of The Register).

When the industry introduced the CD format it allowed for the renegotiating of royalties, but with the death of the CD in the face of unlicensed filesharing, the industry is having to look to alternate methods of revenue generation, which may lie in the restructuring of licence deals in as similar vein to the model employed by Last.FM. However, the decision by Warner Bros to pull their content from the service in a dispute over royalties may highlight just how far this matter has yet to go before being resolved.

UK file-sharers beware?

It has been quite some time since the demise of the BitTorrent music tracker, OiNK, following the joint bust by Cleveland police and the combined industry bodies, the IFPI and the BPI back in 2007. At that point, only the site owner, Alan Ellis, was arrested but things have changed. There have been 6 further arrests in the last week.

Three of the arrests were made on Friday 23rd May and three more on Wednesday 28th May. The arrested individuals are five men aged between 19 and 33, and a 28-year-old woman.

As usual, TorrentFreak was first with the news:

Suspects were taken to their local police station for questioning and required to provide DNA samples and fingerprints. According to our sources, they were arrested on suspicion of “Conspiracy to Defraud the Music Industry” although this hasn’t yet been confirmed by the police.

Initial reports were viewed with skepticism by many torrent site users. SOme even went so far as to doubt the credibility of early reports. Knifeboy over at Waffles.fm said:

I'll need a more trustworthy newssource before I could even comment on this (2008-05-30 18:55:58 BST)

However, it didn't take too long for the reality of the events to take hold. The Register maanged to get the following statement from the BPI:

The BPI and IFPI worked with the police in order to close down the OiNK tracker site last October. The illegal online distribution of music, particularly pre-release, is hugely damaging, and as OiNK was the biggest source for pre-releases at the time we moved to shut it down. We provided the information to assist this investigation, but this is now a police matter and we are unable to comment further at this stage.

It is presumed that the police have been wanting the former users to provide them with the account passwords so that details can be matched up with the ISP/IP details. Section 49 of the Regulation of Investigatory Powers Act can be used by police to force suspects to disclose encryption keys and passwords. Failure to comply with with a section 49 order carries a prison sentence of up to five years. One wonders how long the excuse of password fatigue will last?

In the US last year, single mother Jammie Thomas became the first individual to be successfully prosecuted by the RIAA for copyright infringement. She was ordered to pay $222,000 (£113,085) in damages after being found guilty of illegal file-sharing. The fine amounted to $9,250 (£4,711) for each of the 24 tracks she was prosecuted over.

However, the recent UK arrests are the first time British police have taken direct action against individual users of a file-sharing site (source).

The forums of popular private torrent tracking communities have been buzzing with rumours as to who can next expect a call from the police. Some have gone so far as to claim that this is evidence that the police have very little evidence to go on. It must be noted that what follows is based on little more than web-gossip and second guessing of the police's motivations.

One theory which seems popular suggests think the only reason people are being arrested now is because Allan Ellis' court date is July 1st (after being extended twice) and the authorities, knowing they don't have anything more than perhaps civil charges to bring against him, are trying to intimidate other users of the site into giving them additional info. It has been claimed that the police are asking the recently arrested former users for their passwords and whether they personally knew Ellis.

Filmaddict08 (2008-06-02 02:41:26 GMT) over on Goem has identified a problem for the authorities:

The problem, as far as I see it: if Ellis' trial doesn't go well for the authorities and record companies in Britain, and heavy charges are dropped, they're going to start going after more users. They won't admit defeat and will want to take this as far as possible. Right now it's just in the UK but if the trial doesn't work out the way they want it to - and it probably won't - they may very well hand over all their info to America, i.e. the RIAA.

Whether or not this is true, what is evident is that the paranoia switch has been flicked to "on" mode for a lot of torrent sites and their users as a result of these arrests. This raises the question as to whether or not closed, private torrent communities are actually any safer for users than the open public trackers of sites like Mininova or The Pirate Bay. Are users safer hiding away from huge public scrutiny or are they safer being a a tiny fish in a massive ocean?

One of the dangers of private trackers is that the RIAA/MPAA/IFPI/BPI (delete were appropriate) are regularly attempting to infiltrate the user bases of these communities so as to gather evidence and monitor traffic and releases. Staff are employed whose day job consists of doing exactly what pirates are doing - downloading files. The catch is they are collecting evidence. A reason to be paranoid?

BitTorrent + books = new distribution model?

Not really a new post, but more of an update. TorrentFreak are carrying a story on how authors are increasingly turning to the BitTorrent distribution platform as a way of generating interest which may equate to sales. There's a nice little mention of the difference between the book publishing industry's business model post web-piracy boom in comparison to the music industry's response which is relevant to my MAC281 students doing the first essay on piracy.


I found it a little funny (and not at all ironic) to see Matt Mason's book, The Pirate's Dilemma, appear over on Mininova the day after I ordered a copy of the paperback from Amazon UK (released on May 1st, or May Day, the day often used by protest movements following its association with International Workers' Day and pagan celebrations). Be warned: using the torrent to access copyright material may not be legal in your country.

I'll grab the torrent as well I think. It's the reverse of the new mantra where torrents are meant to stimulate hard copy purchases - I've bought the book and now I'm going to download the torrent. By the way, you can read Chapter 1 of Mason's book legitimately over on his site. If you like what you read, it's always worth a purchase especially at about £8/$16.

NB: MAC281 students attempting the aforementioned question may want to check out this article by Mason too. It deals with the crisis in the entertainment industry post-piracy. It's also where Mason suggests his book may appear as a torrent a full 3 months before it actually happened.

Where next for the music industry?

It's been an interesting week on the web for those interested in the ongoing debate regarding the future of the music (and the movie) industry.

Today TorrentFreak posted an interesting account of how the MPAA are being challenged by IKT Norway, the body acting on behalf of the Norwegian ISPs (which I talked about here). TorrentFreak have also announced that Demonoid, one of the biggest semi-public torrent trackers, may return under new management. It seems you cannot stop the hydra (not to be confused with Project Hydra although both are related to file-sharing). Demonoid was a huge sore on the behinds of the major labels due to the large amount of content it pointed to - having it back will only upset them further. Once you cut one of the heads off the file sharing beasts, such as OiNK, others are quick to take its place.
Image courtesy of Canapial.

Earlier in the week Katie Allen, media business correspondent for The Guardian, reported that home copying of music was burnt into the psyche of teenage consumers. This is very bad news for the music industry. Offline home copying occurs as often as 5 times per month amongst two thirds of 18-24 year olds. The anti-piracy attention recently has been on what illegal activity occurs online at the expense of offline copying:

"Overall, 95% of the 1,158 people surveyed had engaged in some form of copying, including taking the music contents of a friend's hard drive - 58% - and the more old-fashioned method of recording from the radio."

It shouldn't be too much of a surprise given that CDs shift without any DRM protection, not that this type of protection works in the favour of the industry.

Meanwhile, European politicians have narrowly ruled against the call to disconnect persistent file-sharers from the web claiming that such a move conflicted with "civil liberties and human rights". It would seem that web offers users more than just the opportunity to breach copyright, it gives people greater access to information and services which serve democratic aims.

Cory Doctorow has an interesting take on the ways in which ISPs are attempting to snuff out all BitTorrent traffic, even if that means disrupting legitimate traffic.

It seems Last.FM are very happy with their recent decision to change the way in which they operate, judging by Jemima Kiss' article. The decision to offer listen-on-demand services has been linked with the recent upsurge in sales - an increase in sales via Amazon of 119%.

And finally, Billy Bragg is interviewed over at The Register today lamenting how artists are losing control over their creative output. He doesn't like the idea that Web 2.0 tech heads are getting rich whereas artists are suffering for the want of promoting their material online at little or no cost to the consumer. Matt Mason gives a good account of the problems and issues Bragg is struggling with here

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The BBC vs ISPs

It looks like the current bête noir of the web, at least in the UK, is not the pirates but the BBC. Charles Arthur over at The Guardian is running a piece on the extra traffic that the BBC's iPlayer is generating.

Recently, we have had rumour and denial regarding Virgin Media's decision to implement the three-strikes-and-your-out policy on customers using peer-to-peer software on their networks. Earlier this week, Charles Dunstone, head of the Carphone Warehouse and Talk Talk openly rejected demands from the British Phonographic Industry (BPI) that the ISP should police it's networks on their behalf. It seems that the ISPs have bigger concerns than a minority of users sharing music and film -

Now, it might seem strange to hear that the BBC has a two part iPlayer: one which streams data much like the kind of streams we see on video sites like YouTube; the other which works like the current BitTorrent protocol via the BBC iPlayer Download Manager - data from files is distributed across users computers and shared in a decentralized way, thus making distribution more even and efficient. The video quality of the second option is far superior than the first option.

One can guess that the streaming bug is a no-brainer for web users accustomed to clicking the play button and expecting their good quality BBC footage streamed on demand. The peer-to-peer option is a little more complicated (but the BBC have done a good job of making it fairly simple). Indeed, a BBC press release from January points out that users stream video at a ratio of 8-1 over the more efficient peer-to-peer route.

YouTube itself is already testing higher quality streamed video as reported by Lifehacker. This looks set to add further misery upon the already strained ISPs as the data load increases.

But let's get back to the iPlayer traffic. Arthur is reporting that all the extra streaming people are doing is adding to the costs of ISPs who tend to pay BT per gigabyte of data used due to the relaince on the latter's IPStream technology. The cost of streaming has almost trebled for some ISPs in the first month alone. These IPStream pipes ted to come in at 155-megabits. Arthur estimates that this means when 300 people are streaming BBC content at 500 kilobits per second, the pipe is choked.

ISPs have suggested the BBC contributes to the situation, perhaps by installing hardware within the UK Broadband network (The Telegraph leaked this last year, dubbed Project Cheetah), although the BBC's head of future media and technology, Ashley Highfield, used a BBC blog to claim that ISPs need to get their house in order and actually deliver on what they advertises to customers. Unlimited broadband should mean just that.

The BBC may be setting itself up for a fall if it is not careful. With the future of television looking increasingly to the internet they do not want to upset those companies best placed to provide the content - it's not as if the BBC own the pipes that connect the houses of the UK. Yet.

ISPs may want to exert some pressure back on the BBC and close down the iPlayer streaming service if it costs them too much. After all, it is carried on port 1935 and we have seen ports blocked before. China does it very well. It would not be too surprising if the BBC was forced to curtail the streaming service in favour of the peer-to-peer model...

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