Whack-a-mole

The news that the RIAA has failed in its legal action against Morpheus and Grokster is a pleasant surprise, because it’s a rare example of a judge being sensible. Of course, the RIAA will appeal, and there’s the spectre of the rather scary US INDUCE act which, if implemented, means that manufacturers of iPods, CD burners and other useful objects could be sued for contributing to piracy.

The case against Morpheus and Grokster is just the latest instalment in a rather tiresome game of whack-a-mole that’s been running since 1999, when Napster first appeared on the horizon, and it won’t be the last: if the RIAA manages to get Grokster and Morpheus shut down, there’s still Kazaa, Limewire and many, many others. And then there are the FTP sites, the Russian sites such as Allofmp3.com, the private file sharing that occurs via instant messaging, and so on ad nauseam.

For years the record industry has refused to enter into licensing talks with P2P networks, and P2P file sharing has continued to flourish; using legal measures to get rid of the problem hasn’t worked since 1999, and it won’t work in the future. The answer seems pretty obvious: rather than lobbying for new and daft laws, the record industry in various countries should be lobbying for some sort of compulsory licence scheme such as the ones affecting public performance of music, radio broadcasting, webcasting and so on.

A compulsory licence might work like this: a P2P network provider must either pay the record industry a licence, or block any unauthorised content; if it fails to pay and to block, there’s no legal grey area and the company can be sued silly. Or the onus might be put on ISPs: pay a licence fee or block access to P2P. In both cases the cost of the licence would be passed on to the consumer, who might pay an extra couple of quid for broadband in exchange for free music; ISPs who don’t want to pay the licence could simply block the P2P ports and run the risk of customers heading for firms that do pay for music licences.

There’s nothing particularly new or exciting about such things. Venues and pubs where music is played need to have a licence from the Performing Right Society; when radio stations play music, they have to pay royalties to the PRS. If I record cover versions on CD I have to pay a royalty to the Mechanical Copyright Protection Society, and so on. The system’s there, it works, and it could be expanded to cover P2P networks or ISPs relatively easily.

By implementing such compulsory licences the record industry would get money, artists would get paid, consumers could continue to use P2P services and any firm who refused to pay the licence could be sued into the middle of next week. The alternative – a continuation of whack-a-mole, with consumers downloading for free, nobody getting paid and the record companies chasing after network after network, site after site – will just prolong a situation that’s bad for technology firms, bad for the record industry and bad for artists.