WIRED: Music industry’s plan ignores the general direction of all digital technology

THREE STRIKES is a policy, agreed to by Eircom as part of a settlement with the major music labels, that will lead to the ISP cutting off their own users from the internet if they are accused three times of copyright infringement.

The Irish telco is the first in Europe to agree to the recording industry’s demand for this extreme measure.

Hear that enormous smacking sound? That noise is 100,000 Irish geeks slapping their heads in frustration at another music industry own goal.

Just when the record labels looked like they were coming to their collective senses: dropping crippling digital rights management (DRM) from its downloads, supporting innovative digital distribution companies like Spotify, and abandoning its policy of suing music lovers who file-share, they go and make a deal like this.

Let’s not discuss the consumer risk of being thrown off the internet at the slightest evidence from a third party.

Eircom and the labels assure us that the standard is just as high as a court would demand – which surely means, as author Cory Doctorow notes, that if these music companies are so sure of their evidence, they would agree to be thrown off the internet after their third mistaken accusation?

And let’s not bother with those obvious dire headlines for Eircom and the labels, neither of whom are currently famous for great customer relations, when their detection system misfires.

What I, like so many other users of technology, would like to know is this: how exactly does the music industry think these strikes will save them?

I know the theory: that by raising the stakes on those the labels pursue, and streamlining the process of punishing infringement so that it no longer involves a tiresome visit to the court for the rightsholders, online copying will somehow diminish by an appreciable amount; enough to save their profits and keep the current system in place.

This is the “speedbump” theory of intellectual property enforcement: millions of casually infringing file-sharers will cease their behaviour as soon as the risk becomes too high, and finding free music online becomes too cumbersome.

It’s sounded convincing before – it’s the same argument that led music companies to embrace DRM, which was supposed to stop the casual copying of music from CDs and legitimate online stores like iTunes. In the end, DRM did no such thing. Infringers who wanted to make many copies found other easier routes to obtain their music.

Meanwhile, legitimate consumers grew frustrated and angry at the patronising and restrictive limitations of their purchased digital music.

Indeed, they frequently turned to unauthorised copies of music because they were easier and more flexible to use than the commercially available versions.

Will a speedbump work for three strikes? In attempting to punish unauthorised copying, the music industry is not just fighting the habit of music sharing, it’s fighting the general direction of all digital technology.

Copying data is easier and faster with every generation of computers and storage. Already the net is too slow for many music sharers.

Instead of downloading individual tracks, these file-sharers simply pool terabytes of music data offline on handheld, high-capacity drives that cost less than €50. They don’t even touch the internet.

Should we police these drives, or impose some tariff on them? We could, and I’m sure the music industry will make exactly that argument in a year or so.

But do we really want to embed systems to analyse and monitor our hard drives, controlled by a third party? If the idea of a record executive being able to cast someone into net exile and add their name to a blacklist seems extreme, what would a system to police all our offline files be called?

Perhaps we can give up such offline file-sharing as beyond anyone’s control, just as the music industry has effectively abandoned any attempt to limit people burning mix CDs of their favourite music (a practice that they still estimate costs them billions a year in “lost revenue”).

Let’s stick with net-mediated infringement, then. Sadly, with five minutes’ effort, any techy worth his or her salt can devise a system for consistently evading the detection of these ISP-led three strike systems.

Off the top of my head: music fans could upload their collections to a third party hosting site, and then publicise the link.

The music industry has the power to shut down that host, but won’t have the easy record of who downloads the files that current peer-to-peer systems provide them with.

Two: file-sharers could take advantage of the revolution in social networking sites to share only with friends, and friends of friends. That might sound like a limiting speedbump to some – until you see the millions anyone can reach via Facebook or a similar site.

There are surely many others, and we’ll quickly see which systems work, if only because Eircom and anyone else who follows this approach will quickly promote those that are the most invisible from detection.

But it won’t be driving file-sharing underground, because while the technology will became more evasive, the interfaces will remain just the same for the average user.

And the music industry will have placed its hopes in yet another doomed, customer-unfriendly venture into vigilante net policing.