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.

If the music industry only goes for the big sharers, then it really can't hope to do much more than damp it down, and the more it does it, the more obvious it will become that modest levels of sharing are, apparently, safe. Which means that if they don't do something broader, it's even arguable that they'll be making most people more confident that they're safe from lawsuits. This presents a nasty choice to the BPI - widen the actions, or view the current campaign as a limited, short-term measure and think of something more sustainable.

We think they'll go for option two there, but it's their decision and we'll leave them to it, noting as we move on that they still haven't nailed down "making available".

Or "unauthorised distribution of music over the internet" which they tell us "is against the law". In this case authorisation is relevant, but what constitutes "distribution"? Traditional distribution tends to involve some measure of involvement in transportation, putting things in vans and taking them round to customers, that sort of thing. Putting files in a shared directory might be counted as distribution (and "making available" is potentially broader), but you can envisage scenarios where stuff could be in a shared directory without it being rational to call it distribution.

Say you've got the family music collection in digital form, and you share it round the house and the garden via a wireless network. And yes, you may have seen a known RIAA-friendly company recommending something along these lines just a couple of days ago. So are you "making available" if the neighbours can share too because you've no barriers to entry? Or if your router is shouting out the default name for a well-known manufacturer's routers, and it's still set to the default password? Or if you're a klutz and have put all your music in the Windows shared music directory, and somehow managed to share it with the world?

We queried the BPI about this, giving similar examples, a couple of times, but the best we got was: "We think it's pretty clear that in UK law uploading or 'making available' our members' works that are protected by copyright without permission is illegal; we don't think there's much more to say on that issue."

So, we had asked them to provide some information on how they propose to define terms such as "making available" and "uploading", they (after some prompting) responded by telling us that it's pretty clear they're illegal. Shall we take that as a refusal to comment?

Events in the US in the past few weeks suggest that this is not simply an esoteric UK issue. The 'Induce Act' didn't make it this time, and nor did the Piracy Education Act. But as noted here, the latter would among other things have established "offering for distribution" and "making available" as violations, regardless of whether there was any distribution or copying (Public Knowledge's resource on the Piracy Education Act can be found here).

You could read this as meaning that in the US, the music industry has been trying and, so far, failing (they'll be back, and the DoJ recently came out in support of both Acts) to make an offence of something that the industry in the UK is claiming is clearly an offence already. But as the RIAA suits are also intended to hit people who are likely to fold, they're really in a similar position, although the RIAA is rather further down the road in industrialising the process (762 in the latest batch). And in the case of the BPI, should a suit actually make it to court then it's likely the BPI will want to set a precedent in defining what "making available" actually means over here.

Note that the BPI could argue that under UK law you're not supposed to be copying CDs anyway, so your whole digital music collection is illegal (and therefore the making available bit doesn't matter), but as that would criminalise the whole future of digital music, including the DRM-friendly one, it's probably not a good idea.

There are already a couple of cases in the US where the subjects of the suit seem inclined to fight rather than opt for the nominal fine and public confession, and the more suits there are, the more likely it'll be that the music industry hits such cases. This won't necessarily be entirely an accident - if there isn't a honeypot out there waiting to ambush the RIAA with a battery of lawyers already, there will be. So you can see how having 'passive distribution' outlawed before this happens would be pretty helpful.

But if we return to the shared files examples we considered earlier, we can see it isn't totally helpful without very severe (even weird) restrictions having to come along with it. OK, you're sharing music on your home network. Maybe there are instances where you want remote access to it now, and if not there certainly will be in the future. Listen to it at work? Give access to your kid at college? Listen to it on you mobile phone? France Telecom and Nokia recently announced they were working on a 'your stuff from home, anywhere' initiative, and developments of this sort are clearly going to come.

So we can envisage a future where more all less all of everybody's stuff is available more or less everywhere. We expect most Register readers will have good reasons of their own to place terms and conditions on access to their stuff, but that they'd be unlikely to agree that the Ts & Cs ought to be compulsory. If they're not compulsory, however, how can the music industry differentiate between actual 'passive distribution' (person giving general access to 20 gigs of MP3s with the intent of having it copied) and blooper/honeypot distribution (person, accidentally or deliberately, giving access to 20 gigs of MP3s with the intent of listening to them at the office, or ambushing the RIAA with a counterbust)?

The preferred Microsoft solution of policing rights in detail, file by file, location by location, device by device, clearly provides some kind of way out here, but is absolutely dependent on near universal adoption, and although Microsoft is trying very hard (Hey, the site's up again!), persuading the public that this is in their interest is not going to be easy.

Back to the Big Sticks then? We can try summing up the music industry's immediate problem as that it needs to bust the wrong (from a legal point of view) people. You might say it's like a company suing the record store because somebody shoplifted a record, or maybe like suing the householder when a burglar makes off with their DVD collection. These aren't completely ideal analogies because with digital music you don't lose anything when it gets stolen, but they point in the right direction. It's clearly not feasible to sue the shoplifters, so they sue the people who're inciting the shoplifters instead.

But defining what constitutes incitement is already not as easy as might superficially appear, and it'll get harder as the years go by. As we keep arguing, the music industry is trying to sustain an unsustainable model, and the only thing it can do in the long run is give in and embrace a new one. ®

Related links

BPI announces actions
BPI piracy backgrounder
BPI notes on EU Copyright directive (note 'Making Available' section
The fipr on EU copyright law implementation MP3 music service draws industry fire
9 out of 10 cats prefer CDs to downloads
Music biz should shift to flat-fee, P2P model - industry exec