Monday, April 06, 2009

BERR consultation responses - “02”

In reference to BERR response “p2p – 02 – FOI.PDF”

First of all, the identity of this person is redacted, albeit pointlessly. The author is Bennett Lincoff, which is easily to determine from the first page alone (of the 14 submitted). I wish I knew why the BERR took the strange step of not only removing the person's identity, but also of redacting some of the supporting links in the footnotes, perhaps because the URL is for Bennett's site, When you also take into account the professional experience he has, it's unusual they bothered to remove his name at all – 15 seconds of searching at most is all it would take anyone to do this.

Mr Lincoff does has some things to say that might surprise people who just look at his professional past. Page 3 exemplifies this. “It seems that whatever the final particulars, the enhanced enforcement regime contemplated by BERR will likely rely on highly intrusive means and *draconian punishments that are disproportionate to the seriousness of the actions* they are intended to deter. Because of this, *it represents a policy initiative of dubious merit*. In any event, as discussed below, *unauthorized P2P file-sharing is not even the primary cause* of the music industry's decade-long decline” (emphasis mine) and indeed the first 5½ pages are a discussion of why the music industry's situation is what it is. While none of the points are new to those who have followed this subject for years, it's nice to have someone that worked in the music industry, in a policy position, say these things out loud.

The main gist of the response thereafter is an interesting idea, that of the 'digital transmission license', one which collectively and jointly replaces the analogue-era collection of rights – broadcast rights, reproduction rights, performance rights etc. – and their resulting royalties. Instead the one license covers all, and is jointly owned by the songwriter, artist, producer and publisher. The right may be granted by any party, they just have to account for the royalties to the other partners.

However, where Mr Lincoff has mainly done well in accepting the technological realities of peer-to-peer sharing, one area he apparently doesn't understand is decentralized systems. “On the other hand, distributors of file-sharing software for decentralized networks who with to secure licenses for their services could do so if they configured future releases of their software to exercise certain key measures of control over the file- and streaming-sharing that the software enabled.” The Problem here is that such a decentralized network, for example Bittorrent, is an open specification. Anyone can write a client, which will work with others, and the basis of the protocol is uploading as you're downloading. Any client with such measures would quickly be ignored, and older clients, or new clients without such restrictions, would be used instead. It's not that far fetched, as a number believe recent versions of the utorrent client monitor actions, and refuse to use a version later than 1.6.1. Despite being factually untrue (and I have checked), it has still persisted for more than 2 years.

Overall, it's a good idea, if somewhat impractical. If it were implemented, then it may also make things easier and cheaper for both consumers, and artists, although at the expense of the labels, who would lose out on the 'double-dipping' of licenses they currently employ. It is, however, hard to argue with his final conclusion. “I suggest, however, that BERR refrain from making matters worse by requiring ISPs to act as enforcers on behalf of copyright holders.

Consultation analysis overview

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