Friday, July 31, 2009

Brein succeeds in blocking TPB in the Netherlands

Brein just scored a major win against The Pirate Bay, as a Dutch court ruled that TPB had to block Dutch users from the website. (Linked sites mostly in Dutch; Brein is the Netherlands' equivalent of the RIAA, mixed with the MPAA and then some.)

I am not amused. Not only is Brein's move utterly futile, it will further alienate users, it is censorship and it is showing again that the entertainment industry refuses to enter the 21st century.

Let me explain myself.

First of all, Brein's move in having TPB blocked is futile in their grand scheme of things. Why? Because TPB is only one of such sites. And there are not a few of them, there's dozens of them and with each one that goes down and two new ones will pop up. Thus what Brein is doing, is showing it's overlords that it is doing it's job. No more, no less. Futile.

What is Brein's job anyway? It is to protect the rights of the entertainment industry. Let's see how much protection they already have and how much they actually need. To start with, consumers in the Netherlands pay a levy on most digital and analogue media to Stichting Thuiskopie. With prices of about €0.60, currently the largest part of the price of an empty DVD, is Thuiskopie's levy. Thuiskopie is supposed to compensate artists for the fact that is actually legal in the Netherlands to make a copy of original media for personal use. Good idea? Well, partly. Biggest problem is that Thuiskopie doesn't actually function that well. As Thuiskopie receives money from consumers like you and me, it has proved to be unable to pay out the compensation moneys to artists.

Making a copy of an original work for personal use - the so-called 'thuiskopie' - is considered fair use and the entertainment industry is properly compensated for it. Or at least, it could be, if it's Stichting Thuiskopie would be able to do half a decent job. But it isn't and that really is not my problem.

Now for how much protection the entertainment industry actually needs or should get. First of all, let me put forward that I think that the artists are the ones who should receive my cash if I decide to buy music. If we take a look at how we tended to spend our money on entertainment products in 2008, we'll see that the music industry's profits over 2008 are actually up! So much for the sad stories about how profits decline and artists are left without income due to piracy. But wait, there is more: we actually spent less on recorded music and more on live performances. That is really interesting, because most artists get the better part of their income from the concerts they give and much less so from selling CD's. Our money actually landed where it is supposed to over 2008! Good news!

Not for record companies of course. They are the ones who reap the profits of CD sales. But still, the music industry as a whole was up last year, so I'd say there is protection enough.

I think knowledge of the above is bound to drive consumers away from the traditional record companies as most consumers will view it as unfair to first pay a compensation levy and then hear over and over that what you do is wrong. I even think that the levy is regarded as having paid for the right to copy and download digital works. Even though I understand that's not quite what the levy was intended for, I do understand the reasoning.

Finally, and I consider this to be the worst part of the outcome Brein's successful campaign, blocking a website is morally wrong. It is censorship. For the benefit on a few companies, who failed to update their business model for too long, we are tampering with freedom of speech! Freedom of speech, people, is sacred. That is why we try not to interpret it too much. Freedom of speech is as absolute and broad as is, well, as is possible.

Their are a few exceptions and even over those exceptions there has been (and still is) a lot of debate. Things that are utterly criminal, like outings of child abuse or enticement to terrorist activity are part of those exceptions and thus illegal, and -imho- justly so. But even attempts to outright insult another person (or organisation, or religion, or whatever) have to be pretty harsh to not be covered by the freedom of speech. Which, too, is good, imho.

What we see happening now, is that for the profitability of a few companies with nearly obsolete business models, we start accepting censorship of the internet. Profitability can never, ever come in the way of free speech.

I know a lot of people will now object with 'but showing links to download copyrighted material is not covered by the freedom of speech'. Ah, but it is. At least, according to article 10 of the European Convention on Human Rights, which goes above most law in European countries. Needless to say, that most constitutions of western countries implement the freedom of speech as well.

Reading that text, it seems that the freedom of speech and the freedom to express oneself are (almost) absolute. The ECHR does allow for some restrictions, but those restrictions should always be '[...] necessary in a democratic society'.

Now ask yourself: who is society?

Disclaimer: I hold the opinion that censoring is almost always morally wrong. However, I do not refuse to pay for music, video or other forms of digital entertainment. I do refuse to have large corporations dictate law and allow censorship of the internet on their behalf. Yes, the internet is an anarchy. Let's keep it that way as much as possible, because that was the root of it's success. Spend your money on concerts instead of CD's. Bring it to the ones that actually make the music.

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