The issue: Nothing is for free

Text: Geert Maarse / Photography: Ronald van den Heerik

The European Parliament wants to curb the illegal downloading of videos, games and music pursuant to the controversial Gallo report. According to copyright law specialist Tobias Cohen Jehoram, this is nothing more than logical. “Sound alternatives have been too long in coming.”

For the first time it would appear that plans to constrain illegal downloads will actually get off the ground, now that the European Parliament wants to amend the legislation. Do you think that the proposed amendment will make it through? “It is a politically sensitive subject. In the Netherlands almost no one is in favour of it. However, Mariëlle Gallo, the euro-parliamentarian who got the debate going, comes from France. There they have adopted a strict law that makes it possible to exclude people from the internet. Three illegal downloads and you're done. This is not likely to get through the European Parliament: the internet today has almost become a primary necessity of life. But there are other solutions as well. In Norway they have instituted some kind of downloading tax. Codes are associated with videos and music files. One possibility would be that providers may be forced to identify and block those.”

Thousands of people will soon be cut off every day in France. Does that not seem ridiculous? “You have to assess whether this is in proportion to the desired effect. I don’t know if this will catch the major downloaders. It primarily has a deterring effect. That is the major benefit.”

Many legal proceedings were initiated in the past against websites such as Kazaa, Napster and The Piratebay. But each time that did not appear to have any effect. “There is a gap in our legislation. Is it not odd that an internet provider can earn money from a site which is known to constantly infringe on copyright laws? You’ll see how quickly the problem would be solved if providers were immediately held liable for the losses suffered due to illegal downloads effected via their service.”

Is it really possible to hold providers accountable for the behaviour of their customers? “When you publish a newspaper, you also have to ensure that it does not contain any racist advertisements. You cannot just say: I am only passing this on. With very little effort you can install a program that prevents the major portion of illegal downloads.”

You know that critics are raising a hue and cry about censure and privacy. “So?”

Do you consider that rhetoric justified? “It is a major misconception to think that you have a right to anonymity on the internet. Why should someone who deals in the ordinary world be forced to identify him/herself, but not online?”

Are the laws that apply to the internet not different? “I would not know why. You have to take care not to create any Big Brother-type situations. But why would you expect to have the right to anonymously download illegally? People are now having a fit because they are afraid of losing their free toy.”

Technology is changing at an extremely rapid rate. Can the internet in fact be curbed? “Currently it is easy to download something without paying for it. There will always be techno-nerds who will be able to get around anything. But that is not where the major funds are being drained. This is effected by the average man on the street who with a single press of a button downloads the Top 40 of the past decade. Once you halt these types of simple downloads, you intercept 90 percent of traffic. Some form of constraint will quickly lead to a legal alternative.”

The new legal services are not doing all that badly, are they? Digital music and bookstores such as Amazon and iTunes are very successful. “The future is not in downloading a copy, but in acquiring access to music that is located somewhere in the cloud. Smart distributors such as Spotify or Netflix took a long time to arrive on the scene. That gave the illegal side a chance to grow as much as it has.”

A writer whose book is for sale in a bookstore for € 20 only receives € 1 for each copy sold. A lot is being raked off by publishers and distributors. And they are primarily the ones to complain. Have the intermediaries not simply become redundant? “The author could also sell his book directly himself. But he doesn’t do that because others are better at it."

To what extent can the current problem be blamed on industry, which has primarily involved itself in the anti-download lobby, but does not offer any suitable alternatives? “You are right, they did not deal with the situation in a very creative and productive way. On the other hand it is important to realise that it is extremely difficult to compete with free services. It is therefore easy to see that a money-making model was not immediately evident.”

Chris Anderson, editor in chief of Wired in his book ‘Free’ writes that ‘free’ is precisely the new money-making model. “Only the sun rises for free. Services that are offered for free often come with all kinds of catches. You are served up all kinds of advertisements. And if people knew what websites do with their surfing behaviour, they would break out in a sweat.”

Intermediaries are increasingly more often forced to clear the field in the music industry. Radioheadputs an album on the internet for free and says: you decide what you want to pay for it. “For people who have already made a name for themselves, this is not a problem. But those are not the people we are talking about. We are talking about artists who are unable to make the investment needed to communicate their creative expression to the public at large. Unknown, unloved.”

That should not apply to the internet. What happened to the ideal of the ultimate democratic medium, where the best automatically rises to the top? “The internet keeps expanding, and must therefore be structured. But the ease with which something can be found is not only dependent on the quality. This can be influenced. In this respect the online world is rapidly beginning to resemble the offline world.”

Do you mean that companies are bombarding us with suggestions? “People are influenceable creatures. Marketing is of vital importance, no matter whether it concerns the sale of a bar of soap or a movie. Of course the internet threshold is very low and there are hypes that appear out of nowhere. But most commercial success still requires tremendous investment in advertising. There is no such thing as a perfect world. Not even online.”

Friday, Oktober 15th 2010 (week 41).

The issue is a section in Erasmus Magazine, the opinion and information magazine of Erasmus University Rotterdam, in which an EUR-academic responds to a current-social issue.

Tobias Cohen Jehoram (1967) is endowed professor of Intellectual Property at the Erasmus School of Law. He obtained his doctorate in 2009 with his thesis Benelux Trademark Law in European Perspective. As a partner in the Amsterdam De Brauw Blackstone Westbroek lawyer’s office he specialises in trademark law, copyright law and media/entertainment law.