You make some good points (as ever) Mike, but you’ve also opened yourself to criticism in the way you describe ISP’s as ‘players’ in the music industry in the same breath as Apple.
That gives ammunition to chaps like the manager of U2 who have argued that some sort of tax needs to be levied on ISP’s due to the cash they make from selling bandwidth that gets used for illegal filesharing.
Can ISP’s be ‘dumb pipes’ and ‘industry players’ at the same time?
The thing that makes me fall slightly in favour of a Google Tax right now is the tax-dodging tricks Google (and other major tech companies) use to avoid paying corporation tax in many EU countries; they just transfer all their ad revenue to Ireland and pay the much lower rates there.
So France has a corporate tax rate of 33.3%, and Ireland is 12.5%, so Google is saving quite a bit of money. Contrast that against the fact that Google is having a heavy impact on national ad markets, and you have to wonder if there's anything wrong with France wanting 1-2% back.
The Beeb's coverage isn't much better. The events are shown live as Mike demands, but Vancover is eight hours behind London so that means it airs in the middle of the night! The highlights are shown mid-afternoon, so anyone who works a 9-to-5 can only watch it in primetime if they set the DVR.
I consider the complaint valid, however. Major football results in the UK have always traditionally been shown with a spoiler warning for those who plan to watch the match at a more convenient time. Is this really any different?
The point should be not just that people are able to watch stuff live if they want to, but at a time convenient to themselves without the result getting spoiled by over-eager news editors.
Keeping details of results off the front pages of websites doesn't seem like a concession to NBC's business model, rather its a way of keeping more sports fans happy. Conscientious news sites should be doing this already.
'If the entertainment industry does decide to sue, you're basically facing a huge, costly and painful legal battle, no matter how strong your case is.'
I don't know very much about the legal system, but now a few cases have been decided won't these work as precedent for future cases?
It should in future require either a higher standard of proof to bring a prosecution, or risk the charge being thrown out. Legal Aid is more readily availiable in the UK then the US, so fighting the case shouldn't be too expensive.
Also I think both cases have been prosecuted as criminal cases rather then civil cases due to the 'defrauding' charge. That limits the degree to which the entertainment industry can throw lots of money against the defendant.
"A parent is liable for a child's negligent acts if the parent knows or has reason to know that it is necessary to control the child and the parent fails to take reasonable actions to do so. This legal theory is known as negligent supervision. Liability for negligent supervision is not limited to parents. Grandparents, guardians, and others with CUSTODY and control of a child may also be liable under these circumstances. There is usually no dollar limit on this type of liability. An umbrella or homeowner's insurance policy may offer the adult some protection in a lawsuit."
'Does the blame get transferred to the person who should have been watching them at the time it happened?'
Absolutely.
If kids are found to be torrenting stuff (illegally) over the school network, then the school or the person responsible for them can get into big trouble.
I'm getting a bit confused why so many people are trying to to pick holes in this; isn't it obvious?
Does common sense get thrown out the window on this blog every time someone brings up filesharing?
'If you watch kids all the time they have to use the computer, you don't have time for any parenting.'
Isn't keeping an eye on your children 'parenting'?
This argument is full of double-standards.
When the media blames violent games for kids hurting each other, we point out that parents should control what games their kids are playing, and not ignore age restrictions.
When Government threatens legislation or net filtering to protect kids from porn and other nasty stuff they might stumble on because the parents don't understand it we say no, the parent should not be ignorant and take time to learn the technology and what their kids are doing.
Now its a Court and Filesharing, and suddenly the situation is completely reversed? The parent should bare no responsibility for what their kid is doing on the net?
I agree with the general principal that we shouldn't prosecute the owners of net connections for the actions of other people using it, but that doesn't mean parental responsibility goes away too.
Just to clarify a few points; the driving force behind this seems to come from EU regulations (which the UK Government is obliged to implement) which remove the exempt status places like charity shops used to enjoy.
The reason this is in the news is actually because the PPL have started a consultation with charity shops to work out a compromise fee (£100pa is currently on the table, the standard fee much higher). Why the PPL doesn't simply extend the exempt status to charities in their own way I have no idea.
This extra information came from a BBC Radio 4 interview which Americans (such as mike) are unable to access.
"Funny, 'cause that particular code is part of the Kryptos sculpture, which has yet to be broken even by the world's top cryptographers, using the the most powerful computers. If the NSA can't tell you what it means, how can some court legally require you to do so?"
Hardly much of a 'gotcha' argument, is it? You can explain exactly where it came from and why you can't decode it, along with externally verified sources. That's nothing like refusing to cooperate.
"That's fine. In America, I'm under no obligation to help the police build a case against me. It's actually a fundamental right. So they can presume all they want."
And in Nigeria the police would probably just beat you with sticks, but that's hardly relevant is it? Try to keep your argument within the bounds of the relevant legal framework.
"No, assuming the police had a warrant, you'd just be pushed aside while they searched anyway. It's unlikely you'd be charged with anything. If anything the charge would be obstruction. And if the police didn't have a warrant, then you're perfectly within your rights to refuse access."
Again, your using the wrong legal framework. Contempt of Court is issued for attempting to refuse a search warrant, regardless of if they enter the property or not. Refusing a search without a warrant is irrelevant because it would be breaking-and-entering on their part.
"Can they force you to tell them what it means under threat of imprisonment?
What if you can't?"
They can ask you to tell them what it means under threat of 'contempt of court', not imprisonment. If you can neither explain what it says, what it is or how it got there, then it is perfectly reasonable for them to presume you are being uncooperative.
On the wider issue, I'd dispute Mikes (unfortunately unsupported) assertion that: 'The argument there is that the encryption key is a form of "speech." This is quite a reasonable ruling'.
How do encryption keys bare any resemblance to 'speech'? Just because something is stored digitally rather then physically does not fundamentally alter its nature, or the laws involved. Trying to argue a key only exists in the mind of its creator sounds a lot like trying to argue falling tree's only make noise when there is someone to hear them.
If I refuse access to my home (say for example because I had plans for explosive devices hidden there), I'd get contempt of court. But if I refused access to my computer files via encryption (because I had digital plans of explosive devices), that's okay because I have 'the right not to incriminate myself'?
How is that anything but a double-standard? If anything I'd say the American ruling was overly libertarian.
(And speaking of American double-standards, perhaps a few of your yank readers should consider Patriot Act's, posthumously-legalised warrantless wiretapping and random laptop border searches before they start slagging off the UK.)
Whoa, lets all take a step back here. I don't always agree with your positions Mike, but I've always had a lot of respect for how calmly and rationally you've argued it. I've never seen you call people names before.
Pandora's position is they want a level playing field, which is not an unreasonable position for any business to take. You might not agree with their acceptance of the rates imposed upon them, but they clearly feel this is the only option left to them.
As for the argument over artist compensation for FM radio play, as I understand your position it is that radio play is promotional, and historically this has always been compensation enough.
But what I don't see why you are trying to make an historical argument in today's climate; so much is changing it hardly seems relevant. It made sense when so much of the industries revenue came from selling units; anything which encouraged unit sales was complimentary. These days album sales are not what they were, and radio is shrinking in importance as a promotional platform next to new technologies.
If a big chunk of artist income in the future is going to come from licensing content to businesses to leverage for profit to the public, it makes sense to bring FM Radio into line.
There is a good reason publishers are so nervous about investing in original titles; it is very difficult to turn a profit on them. The gaming landscape is littered with the corpses of brilliant and original titles like Phyconaughts, which while critically acclaimed never made any money.
You see, the problem really isn't with the suits, annoying as they may be. Its that the vast majority of gamers are hype-monkeys, flocking to the latest Halo game like...flying hype-monkeys, but rarely spending a penny on anything that can't be easily classified for their ADD-addled minds.
So the artistic developers tend to release indie titles, like World of Goo. But making the transition from indie-devs to development studio is no easy thing, despite how successful your indie games are (see Introversion).
But gaming has its rockstars already, people like Gabe Newell and Eskil Steenberg. They might not look quite so good on TV, but they have a lot of influence in their own way.
'Again, the VAST majority of the comments that were on her site were incredibly well thought out and reasonable. Not the sort that you mention at all. Yes, there were a couple of idiots, but they were definitely in the minority. I don't believe for a second that it was that sort of thing that made her shut down the blog.'
Can't say I read many of them Mike, but everything I saw was abusive or contained rudeness of some degree.
But then is anything Ms Allen wrote that surprising? We've seen it all before, in some form.
What is more notable is the wider support she received in her position from other young artists, so many in such a short space of time. 'Making it' as a young act has always been hard, yet it seems that piracy has become a scapegoat for everyone's problems. Didn't make the cut? It wasn't because no one liked you, it was because they all pirated your stuff. It softens the blow to the ego.
I've done a little work with developing artists and know some of the frustrations they labour under on a day-to-day basis. It isn't surprising that some see piracy as the feather that's breaking the camels back. But piracy is but one problem the industry faces in the digital world, and shouldn't be considered the root of all evil.
The other trend seems to be the blame they all place on ISP's. While that seems deserved to a degree, they seem to be labouring under the misconception that internet providers are making huge revenues that can be shared with artists. That simply isn't true. The ISP market is as competitive as any other, and prices would have to go up wholesale to start paying off artists.
Aren't ISP's 'dumb pipes'?
You make some good points (as ever) Mike, but you’ve also opened yourself to criticism in the way you describe ISP’s as ‘players’ in the music industry in the same breath as Apple.
That gives ammunition to chaps like the manager of U2 who have argued that some sort of tax needs to be levied on ISP’s due to the cash they make from selling bandwidth that gets used for illegal filesharing.
Can ISP’s be ‘dumb pipes’ and ‘industry players’ at the same time?
The moral argument and Google Tax
The thing that makes me fall slightly in favour of a Google Tax right now is the tax-dodging tricks Google (and other major tech companies) use to avoid paying corporation tax in many EU countries; they just transfer all their ad revenue to Ireland and pay the much lower rates there.
So France has a corporate tax rate of 33.3%, and Ireland is 12.5%, so Google is saving quite a bit of money. Contrast that against the fact that Google is having a heavy impact on national ad markets, and you have to wonder if there's anything wrong with France wanting 1-2% back.
The BBC's coverage
The Beeb's coverage isn't much better. The events are shown live as Mike demands, but Vancover is eight hours behind London so that means it airs in the middle of the night! The highlights are shown mid-afternoon, so anyone who works a 9-to-5 can only watch it in primetime if they set the DVR.
I consider the complaint valid, however. Major football results in the UK have always traditionally been shown with a spoiler warning for those who plan to watch the match at a more convenient time. Is this really any different?
The point should be not just that people are able to watch stuff live if they want to, but at a time convenient to themselves without the result getting spoiled by over-eager news editors.
Keeping details of results off the front pages of websites doesn't seem like a concession to NBC's business model, rather its a way of keeping more sports fans happy. Conscientious news sites should be doing this already.
Precedent
'If the entertainment industry does decide to sue, you're basically facing a huge, costly and painful legal battle, no matter how strong your case is.'
I don't know very much about the legal system, but now a few cases have been decided won't these work as precedent for future cases?
It should in future require either a higher standard of proof to bring a prosecution, or risk the charge being thrown out. Legal Aid is more readily availiable in the UK then the US, so fighting the case shouldn't be too expensive.
Also I think both cases have been prosecuted as criminal cases rather then civil cases due to the 'defrauding' charge. That limits the degree to which the entertainment industry can throw lots of money against the defendant.
American Parent Liability Child's Act
For all those "Well I don't know about Germany, but in America..." people; yeah, the US has these laws too.
Go read this and educate yourself, before your kid starts torrenting stuff. :P
http://www.enotes.com/everyday-law-encyclopedia/parent-liability-child-s-act
Pay particular attention to this bit:
"A parent is liable for a child's negligent acts if the parent knows or has reason to know that it is necessary to control the child and the parent fails to take reasonable actions to do so. This legal theory is known as negligent supervision. Liability for negligent supervision is not limited to parents. Grandparents, guardians, and others with CUSTODY and control of a child may also be liable under these circumstances. There is usually no dollar limit on this type of liability. An umbrella or homeowner's insurance policy may offer the adult some protection in a lawsuit."
Re: Re: Parental Responsibility
'Does the blame get transferred to the person who should have been watching them at the time it happened?'
Absolutely.
If kids are found to be torrenting stuff (illegally) over the school network, then the school or the person responsible for them can get into big trouble.
I'm getting a bit confused why so many people are trying to to pick holes in this; isn't it obvious?
Does common sense get thrown out the window on this blog every time someone brings up filesharing?
Re: Re: Re: Re: Parental Responsibility
If the parent is found to have failed in their duty of care then yeah, it makes perfect sense.
Parents have a responsibility to raise their kids within the law, not drop them on society to sort out.
Re: Re: Parental Responsibility
'If you watch kids all the time they have to use the computer, you don't have time for any parenting.'
Isn't keeping an eye on your children 'parenting'?
This argument is full of double-standards.
When the media blames violent games for kids hurting each other, we point out that parents should control what games their kids are playing, and not ignore age restrictions.
When Government threatens legislation or net filtering to protect kids from porn and other nasty stuff they might stumble on because the parents don't understand it we say no, the parent should not be ignorant and take time to learn the technology and what their kids are doing.
Now its a Court and Filesharing, and suddenly the situation is completely reversed? The parent should bare no responsibility for what their kid is doing on the net?
I agree with the general principal that we shouldn't prosecute the owners of net connections for the actions of other people using it, but that doesn't mean parental responsibility goes away too.
Re: Re: Parental Responsibility
If they are a minor, yeah, you can be prosecute and the kid sent to juvenile detention.
Parental Responsibility
Mikes logic is a bit tortured on this one.
It's not a case of 'who owns the connection', but that parents are held accountable for the actions of children in their care.
"Well I told him not too" wouldn't be considered much of a defence for more serious crimes, would it?
And people say hereditary peers are worthless....
Clarification
Thanks for posting this Mike.
Just to clarify a few points; the driving force behind this seems to come from EU regulations (which the UK Government is obliged to implement) which remove the exempt status places like charity shops used to enjoy.
The reason this is in the news is actually because the PPL have started a consultation with charity shops to work out a compromise fee (£100pa is currently on the table, the standard fee much higher). Why the PPL doesn't simply extend the exempt status to charities in their own way I have no idea.
This extra information came from a BBC Radio 4 interview which Americans (such as mike) are unable to access.
Re: Re: Re: Re: What the big deal
"Funny, 'cause that particular code is part of the Kryptos sculpture, which has yet to be broken even by the world's top cryptographers, using the the most powerful computers. If the NSA can't tell you what it means, how can some court legally require you to do so?"
Hardly much of a 'gotcha' argument, is it? You can explain exactly where it came from and why you can't decode it, along with externally verified sources. That's nothing like refusing to cooperate.
"That's fine. In America, I'm under no obligation to help the police build a case against me. It's actually a fundamental right. So they can presume all they want."
And in Nigeria the police would probably just beat you with sticks, but that's hardly relevant is it? Try to keep your argument within the bounds of the relevant legal framework.
"No, assuming the police had a warrant, you'd just be pushed aside while they searched anyway. It's unlikely you'd be charged with anything. If anything the charge would be obstruction. And if the police didn't have a warrant, then you're perfectly within your rights to refuse access."
Again, your using the wrong legal framework. Contempt of Court is issued for attempting to refuse a search warrant, regardless of if they enter the property or not. Refusing a search without a warrant is irrelevant because it would be breaking-and-entering on their part.
Re: Re: What the big deal
"Can they force you to tell them what it means under threat of imprisonment?
What if you can't?"
They can ask you to tell them what it means under threat of 'contempt of court', not imprisonment. If you can neither explain what it says, what it is or how it got there, then it is perfectly reasonable for them to presume you are being uncooperative.
On the wider issue, I'd dispute Mikes (unfortunately unsupported) assertion that: 'The argument there is that the encryption key is a form of "speech." This is quite a reasonable ruling'.
How do encryption keys bare any resemblance to 'speech'? Just because something is stored digitally rather then physically does not fundamentally alter its nature, or the laws involved. Trying to argue a key only exists in the mind of its creator sounds a lot like trying to argue falling tree's only make noise when there is someone to hear them.
If I refuse access to my home (say for example because I had plans for explosive devices hidden there), I'd get contempt of court. But if I refused access to my computer files via encryption (because I had digital plans of explosive devices), that's okay because I have 'the right not to incriminate myself'?
How is that anything but a double-standard? If anything I'd say the American ruling was overly libertarian.
(And speaking of American double-standards, perhaps a few of your yank readers should consider Patriot Act's, posthumously-legalised warrantless wiretapping and random laptop border searches before they start slagging off the UK.)
There's an election coming up soon...
...an election no one expects the current Government to win, regardless of what they do.
Now would be the time to make unpopular decisions.
Re: Re: I see. You are a fool.
Whoa, lets all take a step back here. I don't always agree with your positions Mike, but I've always had a lot of respect for how calmly and rationally you've argued it. I've never seen you call people names before.
Pandora's position is they want a level playing field, which is not an unreasonable position for any business to take. You might not agree with their acceptance of the rates imposed upon them, but they clearly feel this is the only option left to them.
As for the argument over artist compensation for FM radio play, as I understand your position it is that radio play is promotional, and historically this has always been compensation enough.
But what I don't see why you are trying to make an historical argument in today's climate; so much is changing it hardly seems relevant. It made sense when so much of the industries revenue came from selling units; anything which encouraged unit sales was complimentary. These days album sales are not what they were, and radio is shrinking in importance as a promotional platform next to new technologies.
If a big chunk of artist income in the future is going to come from licensing content to businesses to leverage for profit to the public, it makes sense to bring FM Radio into line.
Re: well....
Laptops too make great umbrellas, until they get too wet to prove useful. :P
Hey, it worked in the Shawshank Redemption...
Is risk aversion a bad thing?
There is a good reason publishers are so nervous about investing in original titles; it is very difficult to turn a profit on them. The gaming landscape is littered with the corpses of brilliant and original titles like Phyconaughts, which while critically acclaimed never made any money.
You see, the problem really isn't with the suits, annoying as they may be. Its that the vast majority of gamers are hype-monkeys, flocking to the latest Halo game like...flying hype-monkeys, but rarely spending a penny on anything that can't be easily classified for their ADD-addled minds.
So the artistic developers tend to release indie titles, like World of Goo. But making the transition from indie-devs to development studio is no easy thing, despite how successful your indie games are (see Introversion).
But gaming has its rockstars already, people like Gabe Newell and Eskil Steenberg. They might not look quite so good on TV, but they have a lot of influence in their own way.
Re: Re:
'Again, the VAST majority of the comments that were on her site were incredibly well thought out and reasonable. Not the sort that you mention at all. Yes, there were a couple of idiots, but they were definitely in the minority. I don't believe for a second that it was that sort of thing that made her shut down the blog.'
Can't say I read many of them Mike, but everything I saw was abusive or contained rudeness of some degree.
But then is anything Ms Allen wrote that surprising? We've seen it all before, in some form.
What is more notable is the wider support she received in her position from other young artists, so many in such a short space of time. 'Making it' as a young act has always been hard, yet it seems that piracy has become a scapegoat for everyone's problems. Didn't make the cut? It wasn't because no one liked you, it was because they all pirated your stuff. It softens the blow to the ego.
I've done a little work with developing artists and know some of the frustrations they labour under on a day-to-day basis. It isn't surprising that some see piracy as the feather that's breaking the camels back. But piracy is but one problem the industry faces in the digital world, and shouldn't be considered the root of all evil.
The other trend seems to be the blame they all place on ISP's. While that seems deserved to a degree, they seem to be labouring under the misconception that internet providers are making huge revenues that can be shared with artists. That simply isn't true. The ISP market is as competitive as any other, and prices would have to go up wholesale to start paying off artists.