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Much smoke to BPI's fileshare suits, but where's the fire?

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Analysis As we've learned recently, the British Phonographic Industry (BPI) has finally decided to bite the bullet and sue a first batch of 28 illegal filesharers in the UK. In doing so, it's following the example of the Recording Industry Association of America (RIAA), which has mounted a series of high profile strikes. The BPI remains 'kinder and gentler' than its US counterparts: "We have resisted legal action as long as we could," says chairman Peter Jamieson but: "We believe we have no alternative..."

What, though, is the BPI suing these people for? The answer might seem obvious, but perhaps it isn't. It's suing for illegal filesharing, right? No, not really. Although we deliberately led into this piece by using the term (tut), the BPI says it is taking action against "major filesharers who illegally make copyright music available to millions of people across the world on peer-to-peer networks."

This is not quite the same thing, and the difference is highlighted by the BPI backgrounder that tells us: "Although the technology itself is not illegal and offers lots of potential for the development of legal services, the vast majority of songs currently available on file-sharing networks are copyrighted works that are being distributed illegally."

So filesharing is not illegal of itself, but most of the content of current filesharing networks is "being distributed illegally." Having categorised filesharing in this way, the BPI then seems to allow itself a certain linguistic slackness, including the use of the term "illegal filesharing" and referring to KaZaa as being the "best-known unauthorised filesharing network."

A difficulty here is the fact that the BPI has at best defined an area where there is a high probability of illegality, but is snookered beyond this by the fact that filesharing is not illegal. Probable guilt isn't good enough in a court (not always, not yet), and we need to know what it is that will establish guilt conclusively. The introduction of "unauthorised" doesn't help - what's authorisation got to do with it? But the BPI goes on to tell us: "It is absolutely clear in UK Copyright Law that unauthorised filesharing is illegal."

Which it absolutely isn't. It is obvious that illegal filesharing is illegal, but that'd be just the teensiest bit circular. So what is the BPI suing people for? Fortunately, it gets down to a couple of specifics.

It cites the Copyright, Designs & Patents Act 1988, and zeroes in on "Section 16, which reserves to the owner exclusive rights to copy and to communicate their works to the public", and Section 20, which says that communication to the public includes "the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them."

These terms are actually amendments brought in by statutory instrument in October 2003, so you won't find them in the original Act, but you will find them here. The 88 Act is pre-Internet, so it's not surprising that it's not exactly fit to face filesharing. The 2003 amendments make it a somewhat better fit (and include numerous other changes related to electronic communications), but they don't nail down the BPI's case absolutely.

In Section 20 we now have one definition of communication to the public as being "making available" a work electronically. But we don't have a definition of "making available", and this could be critical. The BPI is currently going for a few big targets, the 'uploaders' of large quantities of files which are then copied by large numbers of people. Here though we've another tricky one to nail down. Says the BPI: "uploading files to the internet using peer-to-peer services is illegal, and therefore illegal file-sharers may face legal penalties." Yes, but what constitutes uploading?

We'll go through a couple of scenarios - first, the low-hanging fruit. Presuming the BPI hasn't accidentally included a catastrophic own-goal in the first hit-list, the people being busted now will have several gigs of MP3s on their computer which have somehow been made available for sharing on filesharing networks. If you concentrate very hard you might be able to conceive of innocent explanations for how this might have happened, but they're going to be tough ones to argue in court. It's also possible that you could go to court and succeed in proving that your having files on your computer in this way did not constitute "making available", but it's not something we'd advise you to bet the farm on.

The first wave of BPI actions will therefore be nicely judged, the calculation being that the people involved will almost certainly capitulate rather than go for the full legal experience, and this is what's tended to happen in the US. So the arguments, so far, haven't taken place.

But there are going to be limits to the effectiveness of this route. The actions will make an impression on the general public, but the message that gets across is more likely to be that it's really not smart to be sharing large numbers of files, rather than 'It Is Stealing and It Is WRONG'. So they share less files, and as the memory of the publicity subsides, they slowly share more files. So they have to be reminded. And reminded again, and again.

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