Music industry try to revive the Digital Economy Act

According to the Drum, music industry group the BPI will sit down with him at a breakfast meeting on 12 September. 

Simultaneously, Internet Service Providers (ISPs) are being asked by the BPI to implement ‘voluntary’ letter writing schemes, including databases of alleged downloaders, at the behest of rights holder groups.

Such schemes will have the same problems they did some years ago when ISPs rejected the idea. The principle of harvesting data without consent is extremely hard to accept. Back in 2010, the European Data Protection Supervisor Peter Hustinx made it clear that he does not think it is reasonable or proportionate as an approach within EU law.

ISPs should be very cautious about being made to adopt a law enforcement and content curation roles: they risk their position as neutral providers of a network.

As ISPs take on increasing duties over what content flows over their network, then it becomes possible to argue that they should be liable for that content, in specific circumstances, for instance, if they had failed to meet certain policing duties. This is the approach that we were left with in ACTA; private policing in return for a “safe harbour” or limitation on liability.

There is also the question of cost. The BPI could today implement a letter writing scheme, by requesting customer details through the courts, and then asking them to prevent further downloading or risk court action. The costs would have to be met by the BPI in full of course, and that presumably is why the BPI is not keen to use this route. Yet no doubt their claims of economic damage will be very large. If the costs of infringement are really so high, why isn’t the BPI able to make a positive economic judgement to pay for letter writing themselves?

Online music revenues are increasing. Companies are learning to adapt to file sharing, by making their films and TV shows available online quickly, when viewers want to watch them. Despite the rhetoric employed by the BPI and others during the DEA debates, it was not necessary to provide warnings and threats of legal action in order to entice people to use Spotify, iPlayer or Netflix. Rather, the content and the services had to be compelling, and then, unsurprisingly, people started to use them, and to pay, directly or indirectly.

The real lesson of the DEA is that it was not justified. Punitive measures in relation to copyright enforcement will always seem over the top, and smack of failing to appreciate how their businesses need to work for customers to provide great user experiences.

Why are the BPI going after heavy-handed enforcement measures? Why do they still insist they need them? It is beginning to feel like the BPI are simply having to justify their existence, and think this is a way of doing it.