This month's announcement of a back-room deal between ISPs (internet service providers) and the big record companies to spy on suspected copyright infringers and reduce the quality of their internet connections is just the latest paragraph in the record industry's long, self-pitying suicide note, and it's left me wishing they'd just pull the trigger already and stop beating their chests and telling us all how unfair it all is.
Under the new scheme, the rule of law is replaced by a cosy inter-industry deal. Whereas before, anyone who wanted your ISP to spy on your internet connection would have had to show evidence to a judge and get a court order, now any joker who claims to be an aggrieved copyright holder can do so.
And whereas actual criminals are punished by judges who make rulings that are proportional to the offence, and which are calculated to minimise external harm, the new scheme allows ISPs and their pals in the record industry to randomly shake up your connection like a snow-globe, dropping some or all of your services – whether you're using your VoIP phone to speak to your dying granny in Australia or downloading the latest hit single from the guy who did the "Crazy Frog Song".
They claim that the surveillance data will only be used to police copyright and not to spy on every communication you make. But Transport for London claimed that Oyster cards would only be used to simplify paying for travel, and not to bulk-surveil Londoners, and yet here we are. As novelists say, "A gun on the mantle in act one is bound to go off by act three."
I'm a science fiction writer by trade, but even I am impressed by the incredible inventiveness on display in the figures used by the record industry to justify this measure: they add up all the kids who've downloaded a song this week, multiply by the highest retail price, add 30% to account for the wear and tear on their faces from tugging at their beards in dismay, and announce a billion quid "piracy loss" that government and ISPs have to step up and do something about right now, please and thanks, and forget about all that tedious law business.
The law is for "minor crimes" like rape and murder – when it comes to serious crimes like downloading songs, we need a "streamlined process" that makes the War on Terror look like a slow-moving, cautious thing.
Will this stop kids from trading infringing files? Kids are time-rich and cash-poor and have an infinite supply of ingenuity and impecuniousness to apply to the job of getting music for free. Last year, my freshman university students in Los Angeles regaled me with stories of "hard-drive parties" where everyone would gather with guitars, beers and whopping great hard drives that cost less than either the guitars or the beers. While the students jammed, sang and danced, they simply synchronised their drives using whatever laptops were lying around, transferring hundreds of gigabytes' worth of music while composing and recording songs of their own.
It made me wish I was a teenager again: that sounded a lot more fun than painstakingly recording my vinyl to 90-minute cassettes and shyly giving them to girls in the hope of impressing them.
So no, I don't think this is going to have any appreciable effect on filesharing. However, it will succeed in driving music-swapping even further underground, to encrypted protocols and offline hard-drive parties and private swapping networks. These are every bit as efficient at getting music into the hands of kids, but they're a lot harder to monitor and charge money for.
The original Napster had a fine proposition: they would charge their users for signing onto their network and write a cheque for as-many-billions-as-you-like to the record industry every quarter. After all, they had the fastest-growing technology in the history of the world at their disposal, 70 million internet users in 18 months, and they'd found that the average American user was willing to spend $15 a month for the service. The record industry sued them into a smoking hole instead, and out of the ashes of Napster arose dozens of new networking technologies. Each one was more hardened against monitoring and disconnection than the last.
These days, if you wanted to charge a flat fee for access to all music (something that consumers all over the world would be eager to accept), you'd have to do stuff that's a lot more complicated and funky to get anything like the clean reports we'd have gotten off of Napster 1.0.
And yet that's just what we're going to end up doing. It's historically inevitable: whenever technology makes it impossible to police a class of copyright use, we've solved the problem by creating blanket licences.
The record industry itself was the first beneficiary of this system: when the US sheet-music publishers sued the record-makers for selling recordings of their compositions, they were given a simple solution: anyone is allowed to record your music, provided they pay you a set fee for it. No one has to pay a lawyer $500/hour to negotiate whether this track on this album will cost $0.10 per disc or $0.05. And when the record companies objected to the radio stations playing their discs without compensation or permission, the answer was a blanket licence for records played on air. It's the tried-and-true answer to the problem of copyright-disrupting technology:
* acknowledge that it's going to happen;
* find a place to collect a toll;
* charge a fee that's low enough to get buy-in from the majority;
* ignore the penny-ante fee evaders;
* sue the blistering crap out of the big-time fee-evaders.
This is the shareholder-value-maximising answer that actually brings revenue into the pockets of artists and record companies. It co-opts the majority of filesharers into being active participants in a legitimate transaction instead of everyone starting off as outlaws who have nothing to lose and no reason to come to the bargaining table except for fear of legal reprisals (this fear is notoriously ineffective at moderating the behavior of children).
Ten years ago, the record industry had a simple little problem they could have solved by showing a tiny amount of future-looking flexibility. A decade of intransigence and stubborness has bred a killer strain of antibiotic-resistant filesharing technology that grows more and more difficult to police by the year. The sheet music publishers didn't get to control the destiny of the record companies, who couldn't control the broadcasters, who couldn't control the cable operators, who couldn't control the VCR makers.
The record industry will not be in charge of the characteristics of filesharing systems. They may get remunerated for their use, but they won't be able to dictate their functionality, no matter how many children they criminalise. If they want to cash in on filesharing, they'd better do it soon, before every potential licence fee payer decides to opt out of the system forever.