The Register joins The Pirate Party
...in a mass debate
It's the most controversial choice of guest for years - not the BNP on the BBC, but something that caused almost as much controversy.
The Pirate Party founder Rik Falkvinge made his first UK address at the In The City music festival convention and conference this weekend. And I took part in the panel that followed.
Yvette Livesey, who's run the Manchester event since she founded it along with her partner, the late Tony Wilson, in 1992, alluded to pressure from the music business to cancel his appearance. A call apparently went round for delegates to cancel, though we have no corroboration of this.
"I haven't been in trouble at all with some very important people in the music industry," Livesey joked. "They've been shouting at me for the past month. But I do believe in freedom of speech, it's very very important to have these debates. If we'd had them ten years ago we wouldn't be in the position we are now in, in the music industry."
Falkvinge's solo keynote address was changed to "a keynote discussion" - which is where I came in. The panel also included Patrick Roscow of composers' group BASCA, and technology entrepreneur Paul Sanders, who's on the Open Rights Group Advisory Board, as well as the BPI - a most unusual combination, although he did say the large record companies wanted him dead.
What we actually got, largely thanks to Sanders, was a deep discussion on P2P and where copyright could go. By the end, too, some of the veils had fallen away from Falkvinge's carefully tuned presentation - and there was some amazement as the Pirate's position was eventually made clear. One member of the audience, astonished that Falkvinge could advocate copyright expiry after just five years, vowed to burn him at the stake.
"Fuck you," was the conclusion of Dave Smith of Sparkle Street. More on that later.
What made the panel interesting was the composition - which defied media wisdom of a polarised debate that pits terminators against P2P-ers. A majority of the panellists, if not all of them (I can't speak for Roscow, and he doesn't answer his phone) were in favour of file sharing. Falkvinge wants legalised file sharing too, but differs from the others in insisting that the creator's rights must be compromised to permit it to happen legally. If this distinction wasn't clear at the start, it was by the end.
I'm not really into banning odious political speakers, and was delighted that ITC had booked a Pirate. The philosophy the Pirates express might not be very coherent (single issue groups struggle on anything other than their single issue) but it is reflected in big chunks of academia, the media (particularly at the BBC) and amongst some "think tanks" and policy makers. I heard this year, for example, that one part of Whitehall was mulling ending automatic registration of copyright. This gesture would not only have breached the Berne Convention but required all authors, songwriters, journalists, poets and software writers (to name but a few) to opt in.
The Manager's View
Jon Webster, chair of the Music Managers Forum and former Virgin boss gave a prelude to the Pirate presentation. He said sharing music was not going to go away, and discussed a compulsory or statutory licence "as a backstop". Creators must be rewarded, he said, but pointed out only huge established stars could make money from playing live. Ominously, he acknowledged a statutory license "may contravene the rights of the artist - but we have to start making difficult decisions".
"If I hear once more that artists, songwriters or musicians can make a living by playing live and selling merchandise I'm going to scream," he said. "Because the only people who make a lot of money playing live are the people who play really, really big venues - and they make a lot of money. But most of the people cannot make huge amounts of money. And I don't see why Kate Bush who hasn't played live for 31 years should go and tread the boards to be rewarded for her creativity."
Webster said he didn't believe in technical measures. Decent affordable services mattered more than disconnection.
Now for Falkvinge. I got the impression that Rik's talk - with its jokey references to Battlestar Galactica - had been delivered many times before - but almost always to nerds.
Rik Falkvinge salutes (pic: Jon Åslund)
He said the Party had 50,000 members and 18,000 volunteer activists. First-time voters in Sweden gave the party 37 per cent of the vote. He followed with a weird claim: "Any group in society that has an information advantage will climb to power over other groups in society - if your group knows more about any other group than they know about you, you will have an information advantage in society's competition for power."
(Politics has never been so easy!)
Then came the Pirate Party's History of Copyright. The winners always write history on their own terms - it's a key part of the Pirates' argument that they've already won. So the history gets delivered in the style of a teacher explaining to a slightly stupid child.
This history had the many familiar errors and selective use of facts that anti-copyright campaigners include. The internet was just the latest information distribution technology that other people tried to stop. He gave a long list of technologies that copyright owners wanted to suppress.
That bit is correct. But he omitted to mention that all had eventually flourished, with the copyright owners' blessing, once a settlement had been made, and a bit of money chucked the way of creators.
"At our core we're a civil liberties group," Falkvinge said, backing transparent government and the right to communicate in secret. "The freedom to create without a permit from anybody."
It later turned out Rik was a bit less than transparent himself.
Heliene Lindvall, Guardian website columnist, asked him how he'd squared working for Microsoft with his current views on copyright. At first he waffled, in response to her pressing him on the point, offered this: "I didn't go to work for Microsoft," he said. "I went to work for small company Send-it that was later bought by Microsoft. I stayed and saw what happened. For three years."
He may be new to politics, but that's a great politician's answer.
The Pirates proposed reducing the copyright term to five years, and removing the remuneration right but keeping the attribution right. So, in a Pirate world, anyone could release your CD after five years, or a Kate Bush CD, and could keep all the dosh - but would have to credit the artist.
"How do you make money today with the internet?" he asked, answering it with the word "free". The marginal cost of producing a digital copy "will always equate with the end price of the customer", he asserted. Because the marginal cost of producing a copy was "exactly zero", that's what the price was. (Neither assertion is true, but they're often repeated.)
You should compete with free or P2P by "looking at Volvic or Evian", who make expensive water. (He didn't elaborate how this translated to cultural goods, since the source is the same.) Labels need artists but artists don't need labels anymore, he added.
He ended with a few principles beyond copyright-bashing - mostly around private communication. And "creating without a permit" - using samples without permission or having to pay anybody if it was a hit.
I was up next - and I'm supposing most of you already know. In a nutshell I thought the Pirate Party was really an indirect creation of the music business - and the product of ten years of enforcement without developing the technology.
I said I want to see all file sharing technologies legal and on the market and new ones developed - but all should pay the creators. Technology and creators usually work in harmony to their mutual benefit, given the odd temporary wrinkle. I found the Pirates as a single issue group self-serving and reactionary, and anti-political.
Nothing original there, and it's enough to get me struck off a few Christmas card lists. But it got a round of applause, to my surprise - I turned out to be the only panellist who got any of that. If you want a verbatim transcript, I've posted one here.
P2P pioneer Paul Sanders gradually steered the discussion from outrage into practicalities. He first showed the internet to In The City in 1994, and his company had spent six years trying to persuade ISPs and the music business that P2P could be a winner, in a licensed and managed environment.
Basically it was a wholesale Kazaa, he explained. Virgin had nearly brought it to market, and the major labels still wouldn't sanction it.
"They still want us dead, but we aren't going to die just because it's convenient for a major record label."
He lamented the disappearance of "the mid-level, progressive, independent company" and the dominance of "very large corporations, run like corporations are run". He cited a recent Vivendi financial conference call as an illustration of the thinking.
"They had poor results for the music division. They explained this by saying they couldn't find anyone big to sue, and couldn't find another joint venture like MySpace Music to put on the balance sheet. There was no forward thinking.
"That gives you a fantastic window on the kind of thinking that goes on at these companies."
From the audience, We7's Steve Purdham agreed:
"At the moment the music industry is doing a rape and pillage exercise on the investment community, and trying to suck out as much investment as it can. And it's destroying the potential to deliver the single thing of putting the artist directly in touch with the listener."
Sanders advocated supply side reform - possibly by introducing software-style RAND licensing so that if a Major Record Company (for example) sold tracks to one service at 17p it had to sell them to every other service, in the same form at 17p. In the online world the Office of Fair Trading dealt with discriminatory practices, but regulators were reluctant to look at digital market discrimination, he said.
Suppliers should not dictate the price either, said Sanders. If the tracks were on the wholesale market at 10p, somebody should be able to sell them at a loss for 8p or at a profit for 50p - let the retailer decide.
He also highlighted digital deals where the major label got paid on a guaranteed percentage of market share basis - not its share of actual downloads or streams.
But Sanders, taking the long view of copyright battles, rejected the notion that anyone had to throw their rights overboard.
"It's been ten years now, that's not a hiccup, it's a bloody long burp," said Webster.
Not if you take a 500 year view - the first date mentioned in Falkvinge's presentation.
Responding to a question about compulsories, he explained:
"Copyright is as much worth saving from the ISPs and Googles as much as from the major labels who are currently witholding… What we need to do is make sure we don't say we have to make compulsories because we've got a small hiccup in the market. You need to protect your right to create and own and protect your market position as a creator, and not burn the route to market in order to unblock a temporary bit of cash."
"If you make a sound recording, you need to protect it from the businesses that will rape you on the way to the market.
"And that includes all the middlemen, and Google, and ISPs, and that includes the Government too. They'll burn you if they can see some short term advantage in doing so before an election."
Rip-offs on the way to market
The discussion touched on packet inspection and ISPs' privacy obligations.
"You can't go to the nanny state and tell ISPs to start interfering with the ordinary connections of their customers."
Lawyer Tom Frederikse thought Falkvinge's presentation was "either seriously manipulative or downright dishonest". He thought the Pirates were promoting an agenda without discussing the issues.
In a way they do, but much like previous incarnations of "copyfighters" the response is that creators' rights are someone else's problem. Particularly the remuneration right.
"It's a challenge for enterpreneurs," said Falkvinge. Then we heard from an entrepreneur. Dave Smith from Sparklestreet, which manages Mr Scruff amongst others, stepped up to the mic. He sounded incredulous.
"We earn a living from our artists' creativity. My artists are working really hard, and they think they're creating a legacy for themselves and their families. I'd like to think that when they're in their forties and if their record is being played on the radio for the second time that they're being paid again. Now here comes this guy out of the fucking blue, saying to me you should only have that for five years."
He continued: "I'm looking at this standard, flakey, slightly evasive historical stuff that is misrepresenting a few things here."
"We know the industry has been screwing the artists over, but that's not to say that copyright is equated with the artists who are being screwed over. It's different things. You can't mix up copyright with the idea that 'well, artists get fucked over anyway'. It's naive and old stuff. Right now I'm so incensed that if it was the middle ages I'd burn you at the stake."
Referring to Frederikse's diplomatic disagreement, he concluded: "Someone at the back of the room said they're not taking this personally - well, I am. So fuck you." ®