Legitimizing downloads of pirated content 'fallacious'

Permitting illegal downloads for personal use won't help businesses or curb rampant piracy and any multi-pronged solution should target problem, not symptoms, observers say.
Written by Jamie Yap, Contributor on

Giving legitimacy to unauthorized downloads of copyrighted content such as music and movies for personal use, is neither an option nor solution that will help the media and entertainment industry or curb rampant digital piracy, say observers.

In late-November, the government of Switzerland said downloading pirated content such as music, movies and games for personal use would remain legal in the country, and its existing copyright laws that permitted this practice would not be amended.

The government pointed to a study it conducted which revealed that unauthorized downloads did not cause as much damage or disadvantage to businesses--as claimed by the entertainment industry and media reports--to warrant such activities illegal. It added that consumers spent the dollars, saved via piracy, on other legitimate entertainment-related expenses such as merchandise.

The Swiss government also noted that around a third of its citizens aged above 15 had downloaded pirated content, and urged those in the industry such as content providers and copyright holders to adapt to this changing consumer behavior, rather than fight against it.

Observers in the music licensing, telecommunications and legal practice industries, however, did not agree with actions to legitimize unauthorized downloads. They also dismissed suggestions that any negative impact from piracy on businesses was unfounded.

Cheah Yew Kuin, a Singapore-based senior associate in intellectual property practice group at Baker & McKenzie.Wong & Leow, described the argument that users were still contributing to the entertainment industry despite downloading illegal content as "strangely fallacious".

"One does not go into a bakery and steal a loaf of bread, justifying it on the basis that one bought a loaf the day before and will buy another the day after," Cheah said.

He argued that downloading illegal, pirated content should not be legitimized, regardless of whether it is for private use. By legitimizing it, the lawyer noted that a government would also be implicitly endorsing the conduct of pirates and illegal uploaders that distributed the content.

Permission to pirate won't solve problems
The copyright industry is "like any other type of industry", where investors expect to receive returns and be suitably compensated, Cheah explained. So a "permissive attitude toward piracy" will inevitably lead to a decline in the willingness of rights owners to continue investing and expending efforts and resources to create new content, he said.

"For each piece of copyrighted content that is illegally downloaded, the copyright owner is losing a piece of revenue that would have been generated. This effect would be felt throughout the entire distribution chain from the creator of the copyrighted work down to the distributor, publisher and the retailer," he noted.

If pirate downloads are legitimate, the first most immediate implication is that content providers and copyright holders can no longer take legal action against consumers. They instead will have to focus their attention to uploaders and distributors of illegal content, Cheah said, but noted that legal action against end-users traditionally has always been seen as a last resort and is generally not a preferred course of action.

The lawyer, though, said legitimizing illegal downloads could lead to a bigger problem in creating a permissive attitude among consumers themselves, who would then "not think twice" about downloading illegal content.

"As cliché as the saying goes, as long as there's demand for illegal content, there will always be an increasing supply and distributors of illegal content to satisfy the demand," Cheah said.

Ruuben van den Heuvel, principal at GateWay Entertainment, also argued against moves to legitimize illegal downloads. The Australian company focuses on procuring licensing agreements with rights holders including music record companies and publishers.

"Illegal use of copyrighted material prevents the creative community from prospering," van den Heuvel told ZDNet Asia in an e-mail interview. "The argument that music should be given away to support other means of entertainment-related income such as live concerts, does not remunerate those involved in the creative process like songwriters and composers who do not partake in the performance of those songs."

"Illegal downloading is theft and there are laws that govern society. Music should not be singled out as an exemption to the rule," he added, noting that the music business had been singularly scrutinized in digital piracy reports.

He also stressed that there is no link between support for legitimizing pirate downloads and the rise of mobile device ownership and cloud services for music. "Free music will fill the devices that are sold, but it is only a short-term evolution.

"The digital age means there's an abundance of music available for consumers who can choose what they like and want to listen, and legitimate music services are devising music recommendation and music curation systems to optimize the music experience," he explained. "The future of music is organizing listening patterns and socializing them. Legitimizing music piracy does nothing to enhance this progression. In fact, if legitimate music services have to compete against 'free', then the business model for them to develop for the future quickly evaporates."

Cure the problem, not the symptoms
Rene Summer, director of government and industry relations at Swedish telecommunications giant Ericsson, said pirate downloads "is and should continue to be treated as an unlawful act", but added that policy makers need to understand the reasons behind unlawful consumption of media content.

He said the root cause of why unlawful file-sharing is widespread is due to an inadequate supply of lawful, timely, affordable digital content, which is "a fundamental market supply failure", rather than the "free rider" motive.

Therefore, discussions on piracy must move away from deciding whether legitimizing illegal downloads is the appropriate response to piracy and instead address the root cause of the problem that is providing or stimulating lawful access to digital content or services, Summer highlighted.

   hHe added that there is "absolutely" a need for digital copyright laws. "The answer to illegal downloading is not liberalization, but rather the promotion of a lawful digital content market," he said.

van den Heuvel noted that, ultimately, the goal is to continue to create and develop a better alternative to piracy that provides value for money to consumers. "Content owners need to work together to simplify licensing and enable digital service providers to launch their services and provide choice to consumers."

He also recommended that digital rights management (DRM) and any other gating mechanism that prevents a seamless music experience be phased out.

Cheah agreed that part of the responsibility falls on rights owners, adding that these companies need to constantly establish new business models to "give users the content they want, at the time, place and device they want, and of course, at a reasonable and sustainable price".

The lawyer acknowledged that there is "no one single method" that the media industry can adopt to ensure copyright protection in today's age of digital piracy. For instance, public education should also be part of the solution to generate user awareness to respect copyright and explain why it is necessary to compensate rights holders to encourage additional investments and create more new and innovative material, he explained.

Governments should also send a strong message that it supports copyright industries and views unauthorized downloads as against the law, he concluded.

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