Saturday, April 25, 2009

IFPI lawyer waves to us from the other side of the looking-glass

With The Pirate Bay still happily buzzing away on the internet, the prospect of more cash-burning appeals processes to grind through, and even the chance that the judge who heard the case might turn out to have been so far from disinterested as to spark a retrial, you'd have thought that even the IFPI would be admitting all they've really done in Sweden is raise awareness of the word "Pyrrhic".

But no: Jo Oliver, general counsel to the IFPI, it's all looking great now. And, yes, that's Jo Oliver - it's not John Oliver taking the piss:

Billboard: You obviously won the argument inside the courtroom, but in light of the pro-Pirate Bay protests in Sweden, do you feel you won it outside as well?

Jo Oliver: The individuals behind the Pirate Bay have certainly been able to paint themselves as Internet freedom fighters, and they have some public sympathy with a certain portion of, in particular, the Swedish population. But we certainly think that, throughout this trial, there has been less and less sympathy for that position because it's become clear that these guys were deliberately engaged in this operation. It wasn't something they were doing for fun on the side in their bedrooms. It was a commercial enterprise. They intended to facilitate copyright infringement, they intended to make money from it, and they did.

So, even while acknowledging that the sledgehammer-judgement generated public sympathy, Oliver seems to think that somehow they achieved the opposite.

Billboard asks what will happen next:
Oliver: It will have a huge impact, particularly against BitTorrent sites and services. In cases like Grokster in the U.S., U.S. law doesn't apply everywhere, but that was a hugely influential decision (by the United States Supreme Court in 2005, which led to Grokster's closing of its site), and peer-to-peer services don't operate in the same way anymore because of that decision. I think the same will apply to BitTorrent services following the Pirate Bay decision.

Ow ow ow... sorry, I think I just cartoon-rubbed my eyes a little too much. Oliver is using the "success" of closing down Grokster four years ago as a model for what happens next? You mean, Jo, the time when you actually closed down a service, and it had no effect at all upon the volume of unlicensed music? That's your hope?

It's a bit like deciding to take your sick cat to the vet whose slip killed your dog, isn't it?

But, it turns out, the closure of Grokster and Napster weren't miserable failures:
I don't necessarily agree that other cases haven't had an impact. They've certainly changed the way people can operate on the Internet.

By inventing a piece of armour that stopped them stabbing us with small knives, we won an important victory, as they then had to invent the blunderbuss.
We have market-by-market statistics and, in some cases, P2P has been contained against the growth of broadband penetration, so there's different ways of cutting the numbers.

Only "in some cases", then? And can you actually prove that in those cases, this has anything to do with your activities, or is it just that later adopters of broadband are people who are less interested in exploring all the possibilities of the internet and so less likely to be installing bittorrent clients anyway?
The Pirate Bay was an incredibly popular service that has a certain symbolic importance.

That does suggest that, contrary to the claimed importance of closing down the earlier services, Oliver is now admitting that there was no real impact.

When Billboard challenges Oliver's claim that what we have here is a "very important precedent", she changes tack a little:
Billboard: But Napster and Kazaa were important legal precedents as well and other sites sprang up to take their place. What's different this time?

Oliver: Parallel with the development of the legal cases against sites like the Pirate Bay, we've also seen a huge increase in the number of options available (to access digital music) legally, which certainly wasn't the case around the time of the Napster case. There weren't the myriad of options that there are available now, like Spotify or Nokia (Comes With Music). You can't have a legitimate market unless those who don't have a license are stopped.

You'll note the tangential admission that the music industry dropped the ball totally by not getting a legal option in place a decade ago, but here again Oliver is managing to both elude the question and misrepresent the truth in one move.

Given that the 'precedents' of Napster and the others were still extant, it's not entirely clear why another precedent would make any difference this time. And can any intelligent person really claim that "you can't have a legitimate market" while unlicensed music is swapped with the sales generated by iTunes, Amazon and the smaller services? That Apple alone have sold billions of songs while The Pirate Bay has been bobbing about shows that simply isn't true. Perhaps Oliver hasn't quite understood that what licensed services sell is not downloads, but convenience and quality.

But you couldn't be counsel for a business organisation if you didn't understand what the business was, could you?

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