Illegal Downloading: Legislation Is Needed Now

If we had known then what we know now it might have been even more interesting!

One of the highlights of The Music Show at the RDS at the beginning of October was the discussion on illegal file-sharing and what, if anything, the Irish Government might do to address the problem. The Minister for Communications Eamon Ryan was on the podium and – for the first time in his role as Minister – got a taste of what people in the music business, artists among them, really feel about the issue.
The anger in the room at the way in which the Government has been sitting idly by while the potential of artists to make a living is being decimated was palpable. Victor Finn of IMRO clearly set out the position of rights organisations, insisting that the bottom line is that artists have the right to be paid for the use of their creative work on the internet as elsewhere. How can that be managed? He insisted that it isn’t hard, and called on the Minister to introduce legislation to make the ISPs responsible for illegal activities carried out on their networks.
Marc Marot of the management company SEG, who handle the careers of William Orbit, Leftfield, Mica Paris, Billy Ocean, Noisettes and Aswad among many more, told the story of a trance act his company manages who invested £15,000 in recording an album. With a solid fanbase of 14,000 devotees, they anticipated selling close to that quantity. Instead they shifted only 4,000 copies of the record, while 17,000 bit torrent files were monitored going out illegally. In effect, Marot explained, the year the band had spent working on the record was flushed down the toilet, while £150,000 in turnover was lost to them, as a result of illegal file-sharing. It was a hit they couldn’t afford to take...
Sharon Corr made a telling contribution to what was a stirring debate. She explained that she had funded the making of her own new album – which subsequently went Top 40 in the UK. She had paid the studios. She had paid the producer. She had paid the musicians. She had paid the orchestra. And yet, there were people trying to tell her that it was okay for anonymous internet users to upload the fruits of her personal creativity onto some file-sharing site without permission – and for others to download the tracks without paying for them. “Everybody gets paid, except me,” she said. “It is a basic right to be paid for your work but that is being denied to artists.” And she went on to accuse the Government of adopting a laissez faire approach to the issue – of killing the music industry through a policy of downright neglect.
Paul Brady was even more direct, launching a blistering attack on the way in which lip service is paid to the arts by members of the political establishment. “If I hear anyone else in Government saying the arts will get us out of our present difficulties I think I’ll scream,” he said. “You seem to expect us artists to be cultural ambassadors – and to work for nothing.”
In the face of what was a sustained barrage of criticism, Minister Ryan offered a consultative approach, with the aim of negotiating an agreement with the ISPs as to how the problem of illegal file-sharing might be tackled. That wasn’t good enough for most people in the room. John Reid, the CEO of Warner Music Europe weighed in, arguing that the industry doesn’t need a talking shop. It needs action. “Introduce legislation,” Reid told the Minister.
There is no doubt that the debate made an impression. Hot Press has subsequently supplied a recording of the discussion to the Minister’s office. The issue is being looked at more intently than ever before. However, since then, things have moved on. In a landmark ruling last week, in the IRMA v UPC case in the High Court, Justice Peter Charleton decided that the major record companies’ ‘three strikes and you’re out’ solution to illegal downloading is legally unenforceable in Ireland. In making this judgement, he was scathing about those who engage in, and who facilitate, illegal file-sharing.
“A failure to address those problems, by those who can address the abuse, is not excusable,” he said. “It constitutes the abuse of the economic interests of the creative community. This kind of theft is shameful. But the internet allows a dispensation from shame, as internet thieves figure that no one will know what is being done behind the closed doors of internet access. Essentially, that coupled with the failure of internet service providers to act like a responsible cinema or concert venue owner would act, is why the problem is so extreme.”
A dispensation from shame: this was startlingly strong stuff. And he went on: “I am satisfied that the business of the recording companies is being devastated by internet piracy. This not only undermines their business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry. While the evidence focused on the recording industry, the retail sector must also be affected by this wholesale theft. Furthermore, the evidence presented convinces me that a substantial portion of the generation now in their teenage years and twenties are actively dissuaded by illegal alternatives from legitimately purchasing music.”
Think about what you just read. Illegal file sharing ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is a powerful statement. And it is absolutely right. The evidence in support of this view mounts every day. And yet there are still apologists for illegal file-sharing desperately retailing the same patently infantile arguments in favour of internet theft. Why? And how have they got away with such blatantly self-serving propaganda?
For a start, the impression was created that this was about sticking it to the man. Record companies are bad, the argument runs. Who cares if they lose revenue? They’ve been ripping people off for years. And so on. To be perfectly clear about it, I am all for taking record companies on if they are under-paying royalties or otherwise abusing their position. If deals are being done bundling tracks from their catalogue and handing them over to mobile phone operators, I want to know: how are the record companies ensuring that artists are getting their fair share of the money generated? The same question has to be asked of revenues accruing from the likes of Spotify.
But the apologists for illegal file-sharing see it differently. They don’t give a shit about the artists. Taking their own salaries home from whatever cushy numbers they have landed in, they chortle into their lemonades, imagining that they are involved in something revolutionary, when the only revolution is one the effect of which is that artists end up getting little or nothing.
The writing was on the wall when artists started to get smaller advances. It was on the wall when 360º deals started to come into focus (fine for Madonna, but not for a new band starting out). It was on the wall when the royalty cheques started getting smaller. And still, for far too long, artists stayed schtum. A culture of fear had taken hold. They didn’t want to risk being scapegoated. They knew that if they stood up to the bullies they’d be misrepresented as being against their own fans.
The transparently stupid argument was trotted out that, hey, file-sharing was a good thing if artists would only embrace it. If enough people took your music without your permission, well, they’d be more likely to come to your gigs from which you would then make more money. You might even get the money lost back on merch sales.
But of course – even if it worked for touring bands (which it doesn’t) – this argument is lacking in any kind of intellectual rigour. What about artists who either can’t or don’t want to play live? The songwriter Nick Kelly nutshelled it with a simple question: “What about The Blue Nile?” How are they, or bands like them, who are essentially creatures of the studio, supposed to get paid if people arrogate the right to stick their music up free on file-sharing sites? And what about the songwriters whose material is recorded by other artists? They don’t get any of the ticket revenue. Where is the pay-off for them supposed to be?
And besides, if people can pass music around free via the internet, why should radio stations pay for the privilege of playing it? Why can’t we all just walk into HMV and take the CDs from behind the counter?
None of this, incidentally, is an argument against bands or artists – or record companies – giving music away for free if that is what they choose to do. I’ve said it before: free is good as long as it is an informed option freely chosen. We have done it with cover mount CDs – and it has been a very good form of promotion for everyone concerned. Give away an individual track via a website? It might be the best thing you’ll ever do to get the name out there and to win new fans and friends.
But that is entirely different to arguing that it is fine for anyone and everyone to take an artist’s music on a whim, pass it around indiscriminately or make it freely available to all – just because you feel like it. But that is what is happening. And no matter how you attempt to twist it, that is entirely wrong and morally indefensible.
It is elementary philosophy: just because you can do something doesn’t mean you should. But the fact is that the culture of taking people’s music without so much as a by-your-leave is so ingrained now that only legislation will turn the tide. Things may be lost in the transaction, with privacy being a significant issue that has to be considered. But then anyone who thinks that anything that happens over the internet is properly private anyway needs his or her head examined. We live in an electronic world in which everything you do is being recorded.
Legislation is the way forward. Simple as that...