Why be creative if you can be a mere conduit?

"Music labels lose downloads case" is the title of an article in today's Irish Times which has been thoughtfully sent to the IPKat by his Irish friend Gemma O'Farrell.  The story is a sequel to the efforts made in Ireland to get a "three strikes" policy up and running in the Emerald Isle in respect of unauthorised copying and file-sharing by internet users. Big-name recording companies Warner Music, Universal Music, Sony BMG and EMI Records brought an action in which they sought to have unauthorised internet copyists identified and then cut off, but in today's High Court judgment Mr Justice Peter Charleton held that there was no legal basis for such relief in Ireland.

According to the press report, the judge agreed that online infringement not only undermined the recording companies' business but "ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry". However, there were no laws in place in Ireland to enforce disconnections over illegal downloads despite the record companies’ complaints being merited. He also said this gap in legislation meant Ireland was not complying with European law.

Meanwhile defendant internet service provider UPC predictably said it would work to identify and address the main areas of concern in the file-sharing debate, doing everything it could, short of actually being helpful:
"UPC has repeatedly stressed that it does not condone piracy and has always taken a strong stance against illegal activity on its network. It takes all steps required by the law to combat specific infringements which are brought to its attention and will continue to co-operate with rights holders where they have obtained the necessary court orders for alleged copyright infringements. Our whole premise and defence focused on the mere conduit principle which provides that an internet service provider cannot be held liable for content transmitted across its network and today’s decision supports the principle that ISPs are not liable for the actions of internet subscribers".
It is not yet known what effect this decision will have on ISP Eircom's agreement with record labels, which it settled on out of court last year. Meanwhile the recording companies have consoled themselves with the small solace that for once they are characterised as occupying the moral high ground.

The IPKat can't help feeling sorry for the recording companies and for those whose employment and well-being depends on them, but the technology that facilitates illicit downloads and file-sharing is now available and isn't going to disappear.  New business models for investing in and promoting recordings aren't going to magic themselves into existence, and a public that has become addicted to free access to whatever it wants on the internet isn't willingly going to pay. The old order is dead, but the shape of the new order has yet to crystallise.  Meanwhile, it looks as if it's better to be a conduit than a creator.

Merpel wonders why the full text of this decision is not yet available on BAILII, and indeed why there have been no Irish High Court cases posted on BAILII since August.
Why be creative if you can be a mere conduit? Why be creative if you can be a mere conduit? Reviewed by Jeremy on Monday, October 11, 2010 Rating: 5


  1. Come on Kat, don't buy into the "poor creative industries" nonsense!

    Record companies create nothing. They have been screwing creators for decades.

    More to the point - are their profits going up or down?

  2. @Anonymous: 'Record companies create nothing'? They don't just make and sell bare recorded tracks. If you'd been alive in 1967 to experience the frisson of holding your own copy of 'Sgt Pepper's Lonely Hearts Club Band' in your hands, you'd know how creative record companies can be!

  3. @Jeremy I was (just about) alive in 1967, but too young to be holding anything in my hands at that age.

    However, I would say that the undoubted excitement of that experience (or my comparable one in holding say an access all areas pass to a Motorhead gig; or in running a successful musical event) was 100% down to the people who made the music and put the album/show together - not the money men who run the so called "creative industries".

    Those people have been leaching off those who are genuinely creative since before both of us were born. And I have yet to see any real evidence that new technology has stopped this (or reduced their profits) in any way. ;-)


  4. The full text of the judgment is now available here: http://www.scribd.com/doc/39104491/EMI-v-UPC
    Thanks, Leanne O'Donnell, for letting us know!

  5. Judgments in Ireland tend to be uploaded periodically to the Irish courts.ie website - unfortunately it will often take some time until the judgment is approved and uploaded. Electronic versions tend to be circulated quickly though.

  6. @JD You give no credit for the outstanding artwork on the cover and indeed inside it -- the conception and creation of an object of reverence and desire ...

    As for evidence, I'm all in favour of it. Let's watch the income streams, ROI etc as the years roll by and see what happens.

  7. To all the above comments; I have some sympathy for some record companies, but not generally the giants who are ruthlessly pursuing this kind of action. And I agree to an extent that record companies have a limited role to play in the creative process.

    I further think that they are dinosaurs who refused to acknowledge the marketing opportunities of the internet until it was far too late - if they had accepted at an earlier stage that the business model surround music needed to change to reflect the file-sharing opportunities of the web, they might not be in the defensive position they find themselves in now.

    Jeremy - as you rightfully point out, holding a beautiful piece of vinyl in your hands is a wonderful thing. Holding a cheap plastic CD is not quite as wonderful. Holding nothing tangible, as you've downloaded your songs, is even less thrilling. Therefore it strikes me as ridiculous that the prices of online music still don't reflect this. A CD requires material, manufacturing, transport logistics, retail space, and staffing costs well above those of an MP3. So why aren't MP3s an order of magnitude cheaper?

    Simple reason: greed. Greed by the music companies, dressed up as the need to invest in new talent. Let them show us what proportion of their income is spent on genuine investment in new talent. Not buying semi-established artists from more minor labels, or poaching artists from other majors, but actually digging out and developing new acts.

    I bet it's not as much as they spend fighting over Robbie Williams, or funding a U2 tour... Or on their bonuses.

    Incidentally, I'd be interested in knowing which EU law the judge thinks hasn't been complied with, which would fill said "gap in legislation".

  8. @ Jeremy I agree with you that an old LP was a much more evocative thing than a CD or a download.

    However a quick look at Wikipedia suggests that the Sgt Pepper's example indicates a lack of input from the record company and instead gives a list of independent, creative people who were behind it.

    @ Dave Like you, I think these greedy monoliths that are crying foul in respect to online downloads just crying foul because of a combination of corporate inertia coupled to inherent greed.



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