Thinking about downloads

A few weeks ago, Peter Mandelson announced his intention to push forward on stringent measures to deal with “illegal” filesharing and downloading. The measures went much further than what had been envisaged in the Digital Britain report, with responsibility for the decisions and implementation passing from Ofcom to Mandelson.

[Disclosure: I work for BT; we operate an ISP; our position on this subject has been made clear by CEO Ian Livingston here and by other senior executives here. As clearly stated in the disclaimer at the top of this blog, these are my personal views and not necessarily those of my employer.]

It now appears that “internet suspension of illegal downloaders could become law”. Before that happens, I thought it would be worth while to share some of my thoughts about this.

1. Neither filesharing nor downloading is illegal per se.

The word “illegal” regularly precedes the word “download”, to such an extent that people are used to seeing the two words together; as a result there is a risk that people perceive all downloads to be illegal. George Lakoff pointed out something very similar when analysing Katrina, showing how “citizens” became “refugees”. Earlier, there were attempts to equate “Muslims” with “terrorists”. It is important that we frame this debate correctly.

Let me put this in context. Have you ever bought a CD and transferred tracks from that CD to anything else: your iTunes software, an iPod, a smart phone, an MP3 player, even another CD? If you live in the UK, then you have broken the law. What you have done is “illegal”.

So it’s important to bear in mind that not everyone who downloads something is doing something “illegal”, there are legal downloads as well. And sometimes something appears illegal because the law is out of date, even though in practice it is not illegal.

2. Downloaders do pay for their downloads.

Last year’s best-selling MP3 album on Amazon was Nine Inch NailsGhosts I-IV. Not particularly remarkable, until you realise that the same album was available for free download as well.

Radiohead proved something similar with In Rainbows. Just because people download music, don’t assume that they’re trying to rip artists off. Most downloaders support their artists.

3. Downloading is good business for the music industry.

It’s not just the Amazon MP3 album chart that shows what’s happening. Digital music album sales are growing 32% year on year, while CD album sales are down 14.5%, when you compare 2008 with 2007.

If you have the time, go visit the Internet Archive. Take a look at what the Grateful Dead have been doing there. 3093 audience recordings available for free download. 3823 stream-only recordings available as well. Free. You see, the Grateful Dead have figured out what’s abundant and what’s scarce in their business. Digital things are abundant. Physical things are scarce. So I can record their concerts, trade the “bootlegs”, download away to my heart’s content. But they get my money for the concerts and the merchandise. As well as the CDs and DVDs that are “official”. [I now have 54 Jerry Garcia ties!].

Music is about performance, not just studio. We’ve been in a time warp where people have forgotten that and gotten hung up about other ways of making money. Like getting suckers like me to pay repeatedly for the same content across different formats. The new generations aren’t into buying physical copies, other than collectible vinyl.

4. Claims about illegal downloads can be misleading.

Yesterday, Lady Gaga was announced as the Queen of Downloads. What intrigued me was the others on the Top 10 list. Kings of Leon. La Roux. Leona Lewis. Alexandra Burke. Snow Patrol. Nickelback. Not the kind of stuff I listen to. The kind of stuff my youngest child listens to.

What struck me was this: young people seem to do the downloading, old people seem to do the anti-download complaining. I’ve seen claims that in the UK alone, £1.2bn is lost to illegal downloads. And I think there’s a fallacy there. It’s a bit like Rolex claiming lost revenues because people are buying rip-off Rolexes for $25. Does Rolex really think that someone who pays $25 for a “Rolex” is actually a potential customer for a $25,000 watch? I saw similar claims made for software purchases in India. So let’s put this in context. Does anyone really think that someone, anyone, downloads Cliff Richard illegally? Puh-leese.

5. There are many potential flaws in the suggested way forward.

What Mandelson seems to be asking for may be technically infeasible, to the extent that, as John Perry Barlow put it, the internet tends to route around obstacles. Howard Rheingold also makes the point that customers tend to get what they want; this is a customer-driven proposition. The Pew Internet and American Life Project published a fascinating report recently, headlined The State of Music Online: Ten Years After Napster. It’s well worth a read. One of the points made there is that customers now expect five kinds of freedoms:

  • Cost (zero or approaching zero)
  • Portability (to any device)
  • Mobility (wireless access to music)
  • Choice (access to any song ever recorded)
  • Remixability (ability to remix and mash up the music)

We can prevent some of these freedoms with artificial scarcities, like putting region coding on DVDs. But the market works around such things, every artificial scarcity is met with an equal and opposite artificial abundance. And there are more of “them”.

Even if a piecemeal technical solution were to be implemented, the likelihood is that it will be exorbitant in cost. There is also the consideration that the solutions put forward may breach basic human rights. When we look at what’s happened in France, Australia, New Zealand, there is definite evidence that any such move would be grossly unpopular. On top of all this, even the RIAA appears to have concluded that prosecuting the downloader is not worth while, and that DRM has had its day.

Technically complex, unlikely to succeed. Expensive. Potentially illegal. Unpopular. The list grows and grows. And of course there is the matter of asking ISPs to criminalise their customers in order to protect third-party rights, why would any ISP want to do that?

6. Do we really want to alienate a whole generation? Are there good reasons to?

The point is actually something else. It’s about culture. It’s about the way the millenials think and act. They have rediscovered something we’ve gone and forgotten, the sheer pleasure of getting under the hood of things. Making things. Making new things out of old things. Changing things.

This process of make, remake, change is part of the way they express themselves. Part of the way they think. Part of the way they create. Part of the way they protest.

Marcel Duchamp remixed the Mona Lisa. Ogden Nash remixed Joyce Kilmer’s Trees. Lampoon and Satire are culturally significant as well, no less creative than other forms of expression. If you haven’t done so already, go read Cory Doctorow’s Makers and Larry Lessig’s Remix. They will help you understand more of what is happening.

There have always been generation gaps. There have always been pushbacks against every new reproduction technology: the book, the printing press, the copier, the tape recorder, the CD. And now the internet, the world’s biggest copy machine.

Whatever you may have been told, the internet was not actually created to become a new distribution mechanism for failing entertainment industries. There is considerable pressure on the industry to change, to innovate. New business models are emerging, based on patronage, on subscription, on advertisements.

We have to allow the innovation to continue. Today, even the worst enemies of downloaders would accept that somewhere between 13% and 16% of all downloads are legal and paid for, whatever those terms now mean. There are 6 billion people out there, all getting connected to the commons that is the internet. The industry should learn from Grateful Dead and Prince and Nine Inch Nails, focus on growing the size of the pie to make sure that 13-16% represents a very big number. Because that is possible, even likely.

There are other considerations. Andrew Savikas, writing in O’Reilly TOC, puts forward an interesting argument for Content as a Service. Companies like LendAround are beginning to pick up new trends, trends that are moving away from an ownership culture to a sharing culture. Gift-based cultures and economies have been around for some time now. Millenia.

Most people are law-abiding. Most people want to make sure that artists are rewarded. Sometimes laws are out of date and need changing. Sometimes business models are out of date and need changing.

In the internet we have something precious and valuable. In the millenial generation we have something precious and valuable. It is time to keep our heads and do the right thing, foster innovation, encourage cultural expression and adaptation. And avoid seeking to alienate an entire generation…. in order to try and implement a failed proposition.

23 thoughts on “Thinking about downloads”

  1. JP,
    Your comments are insightful. Ineed, the distinction between the young who do the downloading and the old generation who fight the phenomenon is probably the key to solving this whole mess — just wait a few years and it’ll sort itself out.
    You start your post implying that the words “illegal downloads” are almost synomymous, you end up constantly referring simply to “downloaders” – both legal and illegal, which seems to create a confusion when you get your point across. Indeed, others have also stressed the distinction between “illegal” and “unauthorised” or “unlicensed”. If downloading isn’t specifically illegal, as you point out, then we should make a point to refer separately to legal and illegal downloads.

  2. ‘It is time to keep our heads and do the right thing, foster innovation, encourage cultural expression and adaptation. And avoid seeking to alienate an entire generation…. in order to try and implement a failed proposition.’
    That says it all. Let us hope ‘somebody’ listens to these wise words.

  3. JP,

    This is an area I’ve spent a lot of time ruminating about recently, and I think the problems, solutions and business models might turn out to be very different for different media (e.g. music vs. video). I had a go at getting my own thoughts down on why consumers are frustrated with the clumsy attempts by established media companies to control internet distribution at, and then had a stab at a proposed solution at

    There is clearly a lot broken about existing IP law, its enforcement and the business models that rely on it. This all seems to be combining into what I’ve heard labelled as ‘the greatest present threat to free speech and democracy’, and it’s interesting to note the rise of various ‘Pirate’ parties in reaction to this (though the label might prove a foolish choice in the long run as it uses the language of the existing interests – the rise of modern day piracy on the high seas is an entirely different problem – though from a pastafarian point of view at least something is being done about global warming)

  4. Remember the music industry spent the 70’s telling us that “Home Taping is Killing Music”, but look, 30+ years later somehow they are still here! As you say, not everyone is in the market for a Rolex, and some non-buyers can never be turned into buyers. Statistically, the industry always wins out, though: the 70% of non-pirates create and awful lot of wealth. The Internet has brought a cheap way to market (and deliver) material to a huge worldwide audience, so the accessible market for artists is bigger than it ever has been.

  5. Very well put indeed.

    But i just had a look at a well know Swedish website and there are several active seeders for Cliff Richards.

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  7. I remember when music magazines would publish a pie chart showing where the money went from the sale of a vinyl LP. The artist and record company got only a small part; most was swallowed up by distribution and retail. Downloading and filesharing have bypassed distribution and retail, so most of the economic effects are legitimate dis-intermediation.

    Companies need to update their business models, but somebody needs to tell Lord Mandelson that moral panics are strangling creativity and destroying our global competitiveness – see William Patry’s book

    I’d like to see a metadata standard that allows Rights Discovery: who owns this music that I like, and how can I pay them for it? It should be as easy as finding Artist and Title. That wouldn’t eliminate free-riding, but it would replace Cease-and-Desist letters, and open a huge space for people to develop creative solutions for distributing music and collecting payments.

  8. Very interesting article. It’s something that concerns me as a would-be author, particularly as I do not have a back catalogue to fall back on if all of my efforts are downloaded outside of any framework that I sign up to i.e. ‘illegally’. The solution, unfortunately is a combination of big stick, re-education of the current generation into accepting that they are going to have to pay for something, and the re-education of the older generation that the business models are going to have to change, because otherwise you’ll be left behind and probably won’t get paid for your efforts.
    It’s a pity that we have to do this, but if we don’t our exceptional creative energies may not survive, as the artists and writers and singers and lyricists will decide that it’s not worth creating something, only for a teenager with a PC to rip it off because they have always had it that way.

  9. Very interesting thoughts. I really do think the focus of music production and distribution is greatly changing. When you consider the recency of recorded music, it is less difficult to fall into the “It Has Always Been This Way” trap. As Dylan said, the times they are a-changing.

    I wrote about this topic some time ago ( and still consider it to be very interesting. I greatly enjoyed reading your thoughts.

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