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What freetard are you: Justified, transgressor or just honest?

Ofcom has you pigeonholed

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Who's getting paid a decent wage? Hint: Not the musician

The segment labelled "transgressors" is said to be younger and many are in education, and they "showed the least remorse about infringing material, but also had the highest fear of getting caught".

Whereas the "justifying" freetards, who mostly download music, "felt they had spent enough on content already, and this sentiment was confirmed by their high total spend offline".

But is the "justifying" downloader truly justified? We know from elsewhere that he has a decent job, is higher up the social scale, and can pay - in a physical world he was a Fifty Quid A Week Bloke - someone who liked to spend because it was a treat. Once you bear that in mind, the reasons offered by Justified Man really do look like a great Middle-Class Whine.

Now recall that the justified downloader earns far more than the typical artist. The ABC1 category he belongs to encompasses "higher or intermediate managerial, administrative or professional jobs, down to supervisory or clerical, junior managerial, administrative or professional jobs". These are well-paid gigs. Contrast this with the lot of the creator, who makes the stuff that Justified Bloke downloads for free. 80 per cent of musicians in the UK earn less than £10,000 a year, while 95 per cent of songwriters and composers earn less than £15,000 in royalty income.

Ofcom/Kantar gives voice to Justified Man, inviting us to infer that digital cultural goods should be even cheaper. It even mulls an "optimum music price". Ofcom asked pirates what the price should be, and the answer will amaze you. Downloads and subscriptions should be even cheaper, the pirates replied.

To its credit, Kantar notes that "the claims people make when asked about their future likely behaviour given changes to their options do not always closely reflect their real-life behaviour". But Ofcom/Kantar is pretty selective about which claims it chooses to promote. And it chooses to promote a highly regressive model of society, in which the creators must get poorer, to satisfy the whining of "justified" middle-class pirates.

Dig deeper, and there's another curiosity

Kantar suggests that people who obtain TV shows, movies and games do so both through legal and unlicensed channels. People who don't spend less acquiring them. The top 20 per cent of infringers spent £168 over the six-month period on cultural goods, rather than £105 (bottom 80 per cent) and £54 non-infringers.

But when we look closely, we discover that Ofcom/Kantar's definition of legal "spending" is very broad. It actually includes spending on live concerts and T-shirts. This is not part of the digital economy, and a more meaningful exercise would be a like-for-like comparison on licensed and unlicensed consumption of the same stuff.

Similar correlations between infringement and legitimate consumption have been noted many times before, and the correlation is a politically charged one, with the "hug a Pirate" crowd inviting us to conclude that copyright enforcement actually harms the legitimate market. In fact, the opposite case can also be made: that any enforcement should focus on the hardcore few - by making the wealthy ABC1 Fifty Quid Bloke pay a bit more - rather than the casual or occasional downloader. People who really want the stuff should pay for it.

The difference between merchandise and gigs is that payment for them is not optional. A few people will blag their way onto a guest list, or jump over the fence, but for most people most of the time there's penalty to gatecrashing. For digital music, payment is largely optional. So in the absence of penalties or disincentives, it's quite natural to expect people to divert the share of their wallet that went on recorded media to live concerts instead.

One vast area is left unexplored by this work - quite strikingly - and it's whether consumer behaviour would change if this incentive structure was changed. Would Justified Man change his spending in response to copyright enforcement? Would he be a copyright martyr?

Would he risk a month of dialup speed internet - a punishment meted out by his ISP for sharing files unlawfully - in order to save a few quid? Given that we know he's fairly well off, it's doubtful - but we don't find out, because the questions are not asked.

The music and film industries made a catastrophic error a few years ago when they began to sue individual file sharers indiscriminately. Evidence of a handful of unlicensed downloads was enough to earn a lawsuit - and in the US system, the threat of punitive damages. It simply made the industries look like bullies, and they later acknowledged the mistake, introducing a graduated response to digital pirating instead. Under such a system, only serial piss-takers earn a counter measure.

The reasoning is that most people would value continued full-speed internet access than saving a few quid.

In 2010 Ofcom was given a democratic mandate to reduce digital copyright infringement by putting into practice a gradual system to punish repeat file-sharers: to regulate the "stick" that goes with the "carrot" of licensed digital services.

You'd never guess that from this report, though. Everything is on the table, except enforcement against copyright infringers itself. Even though Brit pirates have said in earlier surveys that they favour stronger penalties for fellow file-sharers, The Great Middle Class Whine - how it's somehow OK to download supposedly overpriced material - is given a voice, and amplified, by Ofcom. ®

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