BPI litigation threat means even the kids aren’t alright

After a phoney war lasting months, and a similar time spent on attempts at educating the masses, the British Phonography Industry (BPI) has finally got tough. In the equivalent of the cavalry coming to the rescue of a posse of stranded cowboys, the law is coming to save the music business.

At the end of last month, the BPI revealed its plans to pursue individual music up and downloaders through the courts. It’s an approach pioneered last year in the US by the Recording Industry Association of America (RIAA). Judging by the results so far, it’s an approach that works. A survey of internet users in the US (by research group Pew Internet & American Life Project) found that the percentage of downloaders had halved since the first RIAA lawsuits in 2003. Now the UK equivalent of the RIAA, the BPI, is hoping for similar success in combating the internet pirates.

The BPI has been working for years with the in-house teams at record companies on combating piracy, both physical and digital. But despite efforts described by Alasdair George, Sony Music Entertainment UK’s vice-president of legal and business affairs, as “superb”, the organisation that represents 95 per cent of the record companies in the UK has failed in its aim of reducing downloading via education. There’s still a belief that it’s not wrong to download a song, whereas it’s clearly and unambiguously theft if you go into HMV and walk out with half-a-dozen CDs in your pocket without paying for them. Hence its new get-tough policy.

The RIAA’s hard-line approach caused a storm when the first cases came to court. Among them, famously, was 12-year-old New Yorker Brianna Lahara (the case was subsequently settled last September, with Lahara’s mother paying $2,000). The fact was pounced upon by critics to highlight the apparent ridiculousness of multinational corporations suing children. But as Tim Smith, senior business affairs manager at Sanctuary Records, says: “If you trawl, you always catch some things that you didn’t intend. You’re trying to catch the big fish, not the 12-year-old. But on the other hand, those people also need to know that they’re depriving artists of revenue. Not just the record companies.”

Since then, the 12-year-old has become the leitmotif of the anti-litigation group. It helps explain the reticence of the BPI to get too bullish about going after individuals. It’s okay taking down the Kazaas and the Napsters, because that’s big business against big business, but when you start going after individuals it becomes a whole different ball game in terms of PR. It’s understandable that there’s been a reluctance until now to grasp that particular nettle.

Yet, encouragingly for the BPI, the US experience turned out to be positive – eventually. “The RIAA started out with the assumption that when they went after the 12-year-old living in the Bronx, they were going to get bad press, and sure enough there was initially,”
admits George. “But the press came round, bizarrely enough. It was helped by fairly vocal support from eminent politicians, but it’s got to the point now where if we’re not going to get really serious about this, then the future of our own industry is at stake.”

‘Getting really serious’ means that going after individuals is a virtually unavoidable step.“The option of taking action against primary infringers for file sharing became more attractive to the RIAA after they lost their initial action against one of the network facilitators, Grokster,” says The Simkins Partnership’s Julian Turton.
“Grokster was able to fend off the RIAA with the argument that it had no control over its end users, although this is being appealed.”

The industry is also pinning its hopes on the level of illegal downloading in the UK falling once legal options such as Apple’s iTunes and Napster are introduced later this year. How much later, though, remains to be seen. The legal cause is hardly helped by the delays in launching the legitimate services (last week Napster signalled that its launch, originally planned for the summer, may be postponed because it is having trouble securing licences from labels and publishers to begin selling downloads).

In the meantime, the BPI’s aim is to make clear its legal threat while continuing its attempts at re-educating the public. A spokesman for the BPI claimed that 74 per cent of illegal files are placed by 16 per cent of users. In other words, there’s a hardcore of uploaders to go after. He stressed, however, that there were no plans at present to litigate against anyone, 12 years old or otherwise. “The aim of the announcement was to let people know that we’re prepared to go after the major uploaders,” he said.

So the BPI is aiming to educate, and if that doesn’t work, litigate. And according to Denton Wilde Sapte partner Charles Law, that’s likely to be sooner rather than later. “I suspect they’ll prosecute someone relatively soon to give it teeth,” says Law.

One beneficiary of this is likely to be Wiggin & Co. The Cheltenham-based media boutique acted for the BPI on its successful battle against CD importer CD Wow! and is in pole position to pick up any file sharing-related civil litigation. And that, the first of its kind in the UK, is sure to be a headline-making event. Especially if the culprit turns out to be six.