the music industry has many problems, and , some would say, enemies. THis talk looks at some of these and summarises the outcomes to date of the "war on piracy". It also however foresees a newer threat - the algorithmic curation and , perhaps, creation, of popular music. Do we need new music and human musicians any more?

1. From piracy to “The Producers?”
Lilian Edwards
Professor of E-Governance
University of Strathclyde, Glasgow
Deputy-Director CREATe
Cambridge
April 2015

2. ?

3. CREATe’s work on music (create.ac.uk)
• Copyright law eg exceptions, fair dealing,
transformative use; term; moral rights
• Socio-legal or socio-cultural studies around musicians
eg rappers, jazz musicians, amateurs
• Role of collecting societies
• Behavioural economic/psychology work on why people
fileshare or act unlawfully (Watson, Zizzo and Fleming)
• Business models (not especially music)
• Quantitative analyses (ditto)
• Enforcement of copyright
• Role of intermediaries as tools for policy making online
(copyright, porn, hate speech, libel etc)

5. Law vs piracy - the P2P wars
• Napster, first centralised P2P client, 1999; Grokster, decentralised P2P, 2001
• Suing intermediary chokepoints rather than millions of individual downloaders
obviously attractive
• Question of “secondary liability” for copyright infringement – authorisation,
vicarious liability, profit from, etc – both (eventually) lost
• Did piracy then end? No.
• Torrent sites continue to disregard law, enabled by extraterritoriality, ease of
movement offshore, “whack a mole”
• So eg Pirate Bay (torrent site) lost in Swedish courts, 2009, but has continued
to function mostly by moves to other jurisdns, global proxies, distributed cloud
storage (drone servers in space? Undersea subs on high seas?)
• What next? Go back to suing users? But - Unpopular, scattershot, costly, often
seen as tantamount to blackmail (UK Goldeneye v Telefonica case), penal
damages not allowed as in US.
• Instead, the rise of graduated response laws
• Note lobbying based on extremely contested or no or partial evidence

7. “Graduated response”
• Seeking ISP co-operation (by legislation, by court order, by voluntary
co-operation) in some or all of–
– Identifying users from IP addresses harvested by rightsholders
– Passing on allegations of infringement (warnings, strikes) to
identified filesharers (“notice and notice”)
– Imposing sanctions on identified filesharers, usually on some
threshold , eg, “three strikes” (France) “six strikes” (USA), 3 or
none (S Korea)
– Sanctions can include traffic slowing, restricted access to certain
sites, monitoring (DPI), disconnection/suspension ; fines
• Imposed by law, France (HADOPI), UK (Digital Economy Act) , NZ, S
Korea, Taiwan; voluntary schemes Ireland, US (“six strikes”); Oz?

8. “Graduated response” – pros and cons
• Speedy and cheap for © industries compared
to suing (some) users in court - and better
PR?
• IFPI 2007 “disconnection should become the
parking fine or speeding ticket of ISP
networks”
• Deterrent, as more chance of “being caught”
and educational, as user typically gets several
warnings before sanction
• BUT : (arguably)did not work (UK, France) –
why?

9. The fall of graduated response- 1
• Moral foundations shakey – why should ISPs act as copyright
cops? Complicity of ISPs in pirate profits always shakey
• Adverse implications for society: Human rights eg expression,
privacy, due process, digital inclusion? Effect on public sector
bodies eg libraries, universities?
• Adverse implications for economy & innovation: Newer
intermediaries may suffer uncertainty about potential liability
• Even more unpopular than volume litigation – part of the
global reaction against PIPA, SOPA, TTIP – Anonymous group
– Creative Commons etc..
• Doesn’t work: easily avoided (eg proxy servers) plus much
evidence biggest downloaders also biggest spenders. No clear
evidence of success in improving sales, plus muddied by
replacement of sales by streaming.

10. The fall of graduated response - 2:
Costs too much
France: Lescure Report 2013
18m infringement reports
Reported cost of 12 million Euros – all paid by French govt in return
for 4 trials and one 15 day suspension
French culture minister Aurélie Filippetti: “unwieldy, uneconomic and
ultimately ineffective”
Similar issues in UK – where costs not paid by govt but to be shared
between rtsholders and ISPs 75: 25 (after litigation)

12. More fun with laws and code
• Voluntary agreements , see Us, Ireland, replaced DEA stautory graduated
response scheme in UK, “notice and notice”, VCAP, starting 2015?
– No sanctions – will this last?
• Website blocking
– Popular in UK since Newzbin2 [2011] EWHC 2714 (Ch) using CDPA s 97A,
orders since vs Pirate Bay et al
– BPI report 70% reduction in traffic to 25 blocked sites
– But effect on sales??
– Still easy to avoid (and blocking easily misused)
• Non judicial (& non transparent) measures
• Tampering with search engine results eg depreciating torrent site returns
– What of search neutrality? Algorithmic transparency? Redress if wrongly
obscured?
• And “follow the money” – stopping payments made by advertisers via
Visa, Mastercard et al
• Are these measures needed given music revenues now rising, in UK and
globally (IFPI, 0.8% growth in 2013; BPI,1.9% rise for UK, 2013) – but
mainly due to legal streaming?

13. Another approach – getting paid for
things other than copies
• Live music – overtook
recording revenues since
2009 (UK), $1.3bn vs 1bn for
recorded music 2013 (BPI,
2014)
• Merchandise, teeshirts etc
• Advertising revenue from
“free” ad-supported
services services – eg from
YouTube, Vevo, grew by 31%
in 2013 (BPI, 2014)
• Repurposing music for ads,
soundtracks etc
• Patronage? Kickstarter – will
this help all artists or only
the media-savvy, trendy and
Twitterati supported?

14. Legal streaming as the cavalry?
• October 2012 – IViR study for Netherlands 2012 - downloading
illegally 3rd for acquisition of content, after buying physical copies
and legal digital acquisition – mostly streaming for free
• Not apparently connected to sanctions on filesharing –cf Pirate Bay
users reported no difficulty finding other illegal routes when it was
blocked - but because legal alternatives available
• “Alternate business models” – lawful online streaming services-
finally coming of age – eg YouTube, Spotify, Pandora, last.fm, Tidal
• Spotify (also Poort) claim access to legal streaming in NL has
reduced piracy by c 10% cf Italy, rates twice as high, poorer access
to legal streaming. Artist “holdouts” also suffered more from piracy
eg Rihanna, Swift.. (Red : for every sale, one illegal download)
• Many issues for users (lack of complete backlists, diversity);
publishers (cannibalises own for-sale product, associated ads,
brand); artists (how much do they get?, the death of the album)

15. So is the world safe for young musicians
now?
• Do online streaming services simply shift problem of getting paid in
a digital world from piracy paying nothing, to free/freemium
streaming services paying v little?
• Is streaming more like radio or buying copies? What is a fair price?
Is permanent ownership now overvalued in a mobile+cloud world
• Should artists drive own distribution rather than go through 2 layers
of intermediaries? -> Beyonce, Swift, JayZee etc launch of Tidal,
2015
• NY Times “Is Spotify the music industry’s friend or its foe?” Nov
2014
• Spotify pays 70% of its revenue to labels but little transparency
beyond that – c 1 download pays same as 150 streams?
• “Here’s the simple fact that no one wants to talk about. Spotify says
it pays out seventy per cent of its revenues to rights holders. Well,
that’s very nice, that’s lovely. But if I’m making a shoe, and it costs
me a hundred dollars to make it, and the retailer is selling that shoe
for ten dollars, then I don’t care if he gives me seventy per cent, I
don’t care if he gives me one hundred per cent—I’m going out of
business. Dead is dead.”

16. Future problems – the algorithmic
creation of music?
• Imagine all music in future consumed via legal streaming services
(Spotify soon to be rivalled for streaming by Apple, YouTube (Music key),
Amazon, Google etc)
• Complete knowledge of audience consumption – duration, frequency,
mood, stops etc
• Netflix model – creation of new TV done algorithmically using big data
collected from streaming AV content - > ? Hits like House of Cards,
Orange is the New Black.
• For music? Software already algorithmically creating novels, newspaper
articles. Is music the work of a creative spark – or can it be automatically
produced?
• The new Producers?? Back to the bad old days of SAW? Or are we there
anyway? Spotify playlists already curated by AI to fit mood.
• “Music’s always been produced to a formula.” Ghetta, Rudimental.

17. https://youtu.be/PGNiXGX2nLU?list=RDPGNiX
GX2nLU
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