The politics of downloading

First off, before I get started, let me say quite clearly and absolutely that I do not hold with people downloading music and films illegally. There are proper outlets for such media and they mostly require payment, a portion of which goes to the performers and creators involved. I categorically consider them wrong. Saying "illegal" though is, I believe, going too far as such behaviour appears to me to be a civil, not criminal, matter.

However I believe that life is not so straight-forward when it comes to certain other media available via the internet. There are, for instance, many 'radio stations' both narrowcast and broadcast available over the web. There are also many "watch again" services from the BBC iPlayer and Channel Four's '4OD' (On Demand) services in the UK through to NBC and other US broadcasters, each in their respective markets. There are also suppliers such as hulu.com who provide something between the free-to-air and pay-by-the-month models.

Back when I was young and innocent I would watch a series on television and discuss it with friends in the playground or lecture theatre the next day. The only television available to us was that by the terrestrial broadcasters of the time; BBC and ITV. Even when Channel Four came along nothing much changed; we consumers weren't really aware of what happened outside our own contry and it was many years before I, for one, realised how old some of the programmes were that I was seeing broadcast here for the first time.

And it didn't matter.

But in the last ten to fifteen years things have greatly changed. Not just the more recent 'facebook generation' but those of us online during those fifteen years have made friends around the world, and chat and discuss things with them. And one of those things has often been our favourite television series.

In my case there have been some shows which I found I was reading friends' blogs — or even news reports — about what had happened in that week's instalment where we in the UK were still a season or more behind. And it isn't that one can — or should — stop interacting with friends, or ask them not to post their thoughts in case you might see it and be 'spoilered'.

So one is left with either an unacceptable option of retreating into some sort of shell, or considering whether to download the episode ahead of its broadcast in the UK (and remember that nearly everything worth seeing gets transmitted on free-to-air free-to-watch channels in the UK).

It isn't an easy decision, by any means. There are many considerations about whether getting to see something that you will get for free within some months — eg. Gossip Girl — or years — eg. Burn Notice — is necessary to not ruin the series for you. Of these, ITV2 now seems ahead of the USA on the first, and it doesn't bother me that the second is three years behind, so I'm happy to watch both on the television in the corner of my room.

But some years ago I was in this position with what I consider one of the top television programmes of all time. Aaron Sorkin's ' The West Wing'. Scheduling in the UK (on Channel 4 and its cable channels) meant one season was being broadcast at the same time as the succeeding one and, very clearly, not only would watching both spoiler me without any external interaction, but we were also somewhat behind my friends in the USA and elsewhere who, like myself, were deep in discussion about the series' storylines and arc.

So I torrented it to catch up.

And, whilst I admit that fact let me also add that I bought the DVD box sets for every season as soon as they became available (as well as re-watching it on UK television once it arrived here). No studio or artist lost out, indeed they profited over and above what they would have received had I solely watched it on the local services. I could also keep up with discussion online about the story arc of the show at the time it was happening. Even now I have an annual 're-watch all seven seasons from the start'.

And The West Wing isn't the only show this applies too. Buffy, Angel, Dark Angel, Firefly, and others too have seen me buy the DVDs once they are available.

So I'm left wondering what the answer is. Where a television programme is going to be available to me and everyone else in the country to watch for free, is there any actual financial loss incurred by anyone if I were to download it ahead of broadcast? I'm as likely to see the same advertisements, where the commercial channels are involved, and I pay my annual licence fee to the BBC and very happy to do so as it represents great value. I also pay for my bandwidth with (three) ISPs, and when I have occasionally torrented something more recently I do so after midnight so as to not disrupt other UK users.

The world is a globe now. It isn't a series of flat-earth countries each doing their own thing. Scheduling a week apart in different places is pretty acceptable, but longer causes problems to a great many people who aren't so blinkered as to ignore friends in the rest of the world. If there is no income reduction for keeping up to date — and possibly an increase from subsequent DVD sales — then should it be wrong at all?

The arguments about filesharing

It seems that every day there are new comments about the issues involved in people downloading content over the internet, be it music, films, television, books, or images. 'Copyright' is the argument against it, alongside the suggestion that by downloading something for 'free' there is a direct, attributable, and identifiable loss of income to the producer or owner of that content. The Guardian has written about the Illegal filesharing crackdown launched by UK government whilst the BBC tells us that musicians' pressure group FAC — Featured Artists Coalition — along with other industry bodies say they "vehemently oppose" plans to punish downloaders. Various organisations, such as the Open Rights Group are running petitions on the subject of the proposed "three strikes" disconnection, planned by Lord Mandelson. So let's look at the issues here. With a first-run film the argument against downloading (aka 'file sharing') is that the producer, distributor, cinema, and everyone else involved in the making of the movie, lose out directly by the loss of income from the sale of seats. I'd agree, mostly. The downloading of a first-run film which is currently on release is a clear loss and wrong. When the film concerned is years after its tour of movie theatres though then whether someone would pay to locate and purchase a DVD (which might not even still be available) is not always going to be a loss to the production. The costs would almost certainly have been covered and the profit made when it was on release. Music, again, has a logical difference between new output — available in your local record store with ease — and old, out-of-production LPs which wouldn't be available in any other way. Many rights holders of music do not even make it available after only a few years have passed since the original release, and many older-but-still-in-copyright performances would be completely unavailable without people sharing what they have already purchased. And there is also the 'format' question. I started buying music on big circular slices of squashed vinyl and shellac. Yes, I can still play them on my record player, but each time I do they degrade in quality. Some I have purchased the CD of the same performance, but I've also recorded some of them to computer in order to create a WAV or MP3 version which is both easier to listen to and won't degrade further. This is, in reality, no different to my copying an LP to cassette so that I could listen to it in my car, as I now do with MP3-formatted CDs. So if I make my own 'digital copy' or I download one of music I already own there is no difference; no loss to the creator-distributor. There are no circumstances in which I would be buying a further copy and they aren't losing out as they've already received payment from me for that item (sometimes twice!) And then there is television. When I was at Capital Radio in 1999-2000 it was pointed out to me that — along with independent television broadcasters — the station didn't sell what it produced. Radio programmes, just like Pop Idol, I'm a celebrity, Despatches and Big Brother on ITV, aren't actually sold to the public at any point. The gaps between and within the programmes are sold to advertisers, but not the actual programmes themselves (as a primary income stream, anyway). I don't download music or films (other than from paid-for sites like Amazon and HMV)† but I see TV as different. When it is broadcast free-to-air then there is no fee payable to watch it so, I would argue, there should be no prohibition against downloading it - much as once upon the past we would 'tape' a programme to watch again later, or even to lend to a friend. The producers' costs have already been covered by the initial broadcasts, so there is no direct loss of income. Indeed, if you were to argue that it may detract from eventual DVD sales I note that many people (including myself) will then buy those once they become available so they can have a higher-quality experience. (Points to 26 retail-purchased box sets on her DVD shelf of 'television' programmes) Before the internet it didn't matter that each country saw the same series on a different schedule, sometimes years after it was originally broadcast in its 'home' country. Now, though, we have friends around the globe and keep in touch with them in near to 'real time' online or by telephone. These conversations mean that we now easily get 'spoilered' for the storylines of the shows we follow but haven't reached our own country yet. The only option, therefore, is to download. Indeed, some series are considered 'unsuitable' for some countries and may never reach us on broadcast (terrestrial or satellite/cable) television or DVD. When I was Treasurer for the British Softball Federation, Warner Brothers invited a few of us on the BSF and BBF to see a private viewing of Cobb, starring Tommy Lee Jones as Ty Cobb, to ask us whether we thought it would be worth them releasing it theatrically in the UK. We said it was, and they did. This doesn't seem to happen though with television programmmes and so some wonderful content never gets beyond its country of production. I understand that the BBC programme 'Top Gear' has a fanatical following by downloaders in the USA. So turning to the proposed 'three strikes' rule — also named for baseball, as it happens. It has been reported that if someone is alleged to have illegally downloaded or shared copyrighted material and has been warned about it three times then their internet connection should be cut off. Without, it seems, any opportunity for the person concerned to make representations of any sort. But an 'allegation' is not a 'truth'. Without any evidence being properly examined in a court of law then convicting and punishing someone on the grounds of hearsay would be incompatible with a society based on the rule of law. And the 'evidence' would be very difficult to obtain. ISPs have said that the technical means to check every connection on the internet just isn't available. File sharing protocols — such as BitTorrent — are legally and frequently used by Open Source developers and companies to circulate and deliver new builds and by independent music and film producers to circulate content under development. They also underpin the broadcaster's own delivery services such as the BBC's iPlayer and Channel Four's 4OD. One can also legally watch some television online by purchasing a subscription, such as I do for MLB.tv 's baseball service. Internet traffic is just a stream of ones and zeroes; it doesn't inherently have meaning as a film, an email, or a web site, legal or illegal. Then there is the issue of terminating a broadband connection. How many people share it? Is the person who pays for it the one who allegedly did something wrong? Should the sins of the son or daughter be visited upon the parents or siblings? And if the 'illegal download' is made by someone in a school or business? Do they get get off under this proposal where someone at home wouldn't? File sharing, of itself, is completely legal in the UK and many other jurisdictions. If material is not otherwise available, despite it being in copyright, should the Government be making it a criminal law matter instead of a civil law question? 'Piracy' is something clearly criminal that involves the direct and unauthorised removal of a tangible item — often on the high seas off of West Africa or in the China sea — but the use by individuals of downloading or sharing something isn't the same. It is, instead, primarily a civil matter between a content rights holder and an individual who may be alleged to own a copy without paying the proper cost of that copy, even though they may not actually have the option of purchasing a legal copy anyway! Cutting a whole family off from the internet is not a way to solve that. It is time to rethink the whole proposal. † I've since recalled that I did download a poor copy of Serenity. A few days after I'd paid full price to see it in a cinema and the afternoon after I'd pre-ordered the DVD online. It was then deleted.