It seems the rights holder community, their parasitic lawyers,and the authorities haven’t learned their lessons when it comes to taking on illegal downloaders. Despite court rulings on both sides of the Atlantic that have declared scatter-gun lawsuits based on flimsy IP address evidence to be untenable, lawyers are being allowed to continue to pursue the money-spinning tactic.

In the US, a judge has given the US Copyright Group permission to start legal proceedings aimed at identifying an unprecedented 23,000 BitTorrent users alleged to have downloaded Sylvester Stallone’s The Expendables – a film deemed so poor that the Twittersphere believes watching it should be punishment enough for pirates.

The fact that lawyers are going after illegal downloaders is nothing new – and, yes, intellectual property holders have a right to protect their wares – but it’s the manner of the legal action that is so despicable. It’s not as if the US Copyright Group – actually a business registered by the law firm Dunlap, Grubb and Weaver – doesn’t know that the practice has been widely discredited by judges, consumer groups and politicians.

Still, why let that get in the way on the chance to make some easy money?

Legal letters

In what is a growing practice in the US – and one which has been tried in the UK with the ACS Law fiasco – lawyers are expected to write to anyone identified via their IP address as having downloaded the film. The letters – if they follow a pattern adopted over the last year – will demand up to $3,000 from each alleged infringer. If all the accused paid up, the scheme could gross some $69 million, not a bad bonus for a film that reportedly made just over $100 million at the box office.

And if they don’t pay up? The standard modus operandi for the artists running this money spinner would see the accused threatened with court action – with damages of $150,000 at stake per infraction. It might not be “pay up, or we’ll break your legs”, but the end result is similar.

Once again, the key issue is whether or not the alleged infringers actually downloaded the film themselves – an allegation that relies on IP address evidence. Fewer than ten days ago, an Illinois judge ruled that  IP address evidence was not enough proof that the connection’s owner had done anything illegal, a ruling that mirrored what consumer campaigners have been arguing for years.

“The infringer might be the subscriber, someone in the subscriber’s household, a visitor with her laptop, a neighbour, or someone parked on the street at any given moment,” said Judge Harold Baker, who went on to describe similar mass lawsuits as little more than fishing trips.

In the UK, the judge in charge of the ACS Law case branded the practices of the companies involved – porn peddlars and lawyers alike – as “chaotic and lamentable”, and even record industry lobby group BPI railed against the mass-mailed legal action.

Bullied?

Neither judge’s ruling, of course, will alleviate the fear and anxiety of worried consumers and parents if a demand for $3,000 lands on their doormat to pay for an offence which they may know nothing about. Many may well be guilty, but it’s impossible to know how many innocent parties will feel bullied into coughing up their hard-earned savings rather than risk the crippling cost of court action and a potential $150,000 damages claim.

It’s the sort of practice that if it were performed by a South London loan shark would have the authorities taking action as fast as you could say “blood-sucking bullies”. But instead, despite court rulings against such tactics, the authorities are inexplicably letting US Copyright Group have another go.

Last month I came across one of the most interesting books I’ve had the pleasure of reading in a long time: Appetite for Self-Destruction: The Spectacular Crash of the Record Industry in the Digital Age by Steve Knopper.

As well as a riveting account of changes in the music industry over the past several decades, it tells the story of the birth of Napster, the rise of peer-to-peer downloading, and the terrible choices the industry has made that have directly led to the situation we find ourselves in today.

The sheer scale of the head-into-sand plunging that evidently went on in industry boardrooms until very recently – and still does in some – is astounding, and it’s hard to feel sympathy for the fat cats who are now seeing their bottom lines being squeezed by punters with more technological nous than they. The plight of the artists themselves, and the music they make and we enjoy, is a different matter entirely – one which the book seeks to address.

But Knopper’s not looking at ways of preventing illegal downloads. He’s more interested in how the industry can make legally downloading a song a better experience than taking the free alternative route. It’s an obvious point, but in my opinion Apple’s recent stranglehold over the digital music market and its rigid pricing (not to mention the appalling design of iTunes) were standing firmly in the way of that ever happening. To this end, even though I use my iPhone as my primary music player, I’ve never purchased a track from Apple.

This Christmas I received the best present I’ve ever had: the knowledge that my Apple boycott (if you can call it that from someone who handed over an arm and a leg for an iPhone…) may long continue. It was thanks largely to the Rage Against The Machine vs X Factor internet campaign that somehow managed to spark a million people into action. I didn’t buy either track, for the record, but I was surprised by the number of alternative MP3 stores offering both. Amazon, Play, 7Digital, the legal Napster… the list is growing and the competition means we’re seeing plenty of prices below those offered by iTunes. In fact, a visit to the Amazon MP3 store revealed the RATM single was being sold for a loss-leading 29p, but that wasn’t what caught my eye.

Armed with a “Best Albums of 2009″ list, I found recent, hugely successful albums selling for £5, and £4. Some for £3 or less. Twelve tracks for less than the cost of a London pint is firmly inside the realms of the impulse buy, and before the hour was out I found I’d bought 14 new albums – more than I’d bought in the whole of 2009, 2008 and 2007 combined. The whole lot cost me less than £45, and they immediately downloaded and automatically added themselves to Windows Media Player at my request.

I know I may be late to the party here, but the prices on offer changed my view on downloading music so completely that I’ve since found myself asking friends for recommendations, looking through specialist websites and exploring the back catalogues of bands I’ve recently enjoyed. A quick look on iTunes tells its own story, as those very same 14 albums would have cost me more than £85 – the kind of unappealing amount I had previously associated with buying music.

Most people use torrent sites not out of a desire to get their entertainment for free, but to acquire it at a price that doesn’t feel like they’re being taken for a mug. Whether a supermarket-style price war on digital music is good for the industry is a question for another blog, but making music legally available at attractive prices is by far the best way to drag the vast majority of torrent addicts back to legality.

Among the drive’s long list of features is the ability to run BitTorrent downloads in the background. This is great news for anyone who currently leaves their PC running overnight. But before you do, the manual has the following warning:

“Warning: Please be warned against illegal downloading of copyrighted materials. The Download Station functionality is provided for downloading authorized files only. Downloading or distribution of unauthorized materials may result in severe civil and criminal penalty. Users are subject to the restrictions of the copyright laws and should accept all the consequences.”

All well and good, of course. We wouldn’t want people illegally downloading content, and no sane hardware manufacturer would condone it in a manual. Except that QNAP has used the following screengrab:

This suggests two things: firstly, someone at QNAP has a much more realistic idea of what people are going to do with their products than the text of their manuals suggests. And secondly, that person has horrible, horrible taste in films.

Because the fact is that BitTorrent is only gaining momentum. A huge number of people now get their music this way (and see nothing wrong with it, as noted by Tim Danton in another recent blog post). As I write this, one popular BitTorrent tracker is reporting over 21 million users currently uploading or downloading data. A recent study by Jupiter Research estimates that a fifth of Europeans actively use file sharing sites – twice as many as use the iTunes store.

Clearly this is a problem. When such a large segment of society is at odds with the law, something needs to change. But what? Do we need to rethink the law, or do we just need to work harder to stop people sharing music and video files?

Before we can answer that, I think we need to understand what we’re actually trying to achieve. I believe the presumption should be that people are free to do what they want on the internet (and elsewhere) so long as it doesn’t harm anyone else. So the first question is: what precisely is the harm that’s done by file sharing? Why, in a nutshell, do we care about all these people sending music files back and forth between their computers?

I’ll return to this subject in my next blog post; but before I do I’d be interested to hear your views on the above questions. So please, comment below and let me know what you see as the problem with file sharing.

Like Napster and every other file sharing service since, BitTorrent has altered (some would say scarred) the digital landscape immensely. I’m not going to go into the legalities here – we all know people who use it, a noble few for genuine legal file sharing, vastly more for getting the latest Coldplay album without having to shell out for it (I’ve heard it, I can sympathise).

It’s part cause and part by-product of the fact that the Internet has hugely magnified the hype and speculation around new albums, movies and games, to the extent where we often know far more than we need to about something before we experience it.

Simon over at fanboy site Den Of Geek makes the point well here, with even seemingly innocent Facebook walls proving a minefield before a much anticipated film release. I can understand this to a certain extent – I read previews and speculate about films more than is really healthy. But I stop there.

The people I simply won’t ever understand are those seemingly intent on deliberately ruining their own enjoyment of the thing they’re so desperate to get hold of. I’m talking about the pre-release hounds, feeding on dodgy leaked movies and unfinalised games. Why? Just, why?

There’s an interesting interview here with SCEE President David Reeves, in which he drops his guard for a moment and comments honestly about the scourge of BitTorrent, particularly with regard to a company like Sony which often staggers releases across different regions. I quote:

“We are a PAL market and we are going to do it in PAL and we are going to do it properly, you can wait for it and you can have it in good quality, you know you can get the stuff from Bittorrent if you want to and download PSP games, it’s up to you.”

Aside from the fact that it’s so refreshing to hear a high-level Sony executive acknowledging that people are going to use BitTorrent and there ain’t much anyone can do about it, it’s the tone of his quote that really hit home.

In essence he’s saying, yes you can download the dodgy leaked version before it’s ready, but why on Earth would you want to? If you’ve waited so expectantly for a game or movie that’s going to knock your socks off, why don’t you want to savour it in all its glory, rather than seeing it as filmed by a bloke in the back row with a handycam?

A quick check of one popular torrent portal gives a depressing chart of the current top searches, with cracked copies of Wanted, the new Mummy film, Hancock, and even PSP games – the subject of Reeves’ resigned comments. But the worst is at number three.

Why why why oh why would anyone in their right mind wait three long and tense years for The Dark Knight to finally arrive – a film so mindblowingly perfect that scenes are still hurtling round my head days after witnessing it – only to download a dodgy copy to watch on a laptop? Whether it has the back of someone’s head in view for the duration is irrelevant – I doubt its $180 million budget was spent to be watched at 1,280 x 800 while you’re on the lav.

I can just about begin to understand some of the reasons behind it. Yes, the cinema is increasingly expensive, and bafflingly few people seem capable of holding their bladder for two and a half hours these days. And games that arrive across the pond months before they do so here can be infuriating when reviews are gushing with praise.

But the popular argument that these people then go on to buy a ticket or a copy of the DVD upon release just doesn’t cut it for me. You only get one first time. Rewatching a film when it then arrives in the cinema won’t let you unlearn the plot twists, and you’ll never get the same exhileration as the first time you sat in a crowded cinema and saw Batman turn his [SPOILER REMOVED] into a [SPOILER REMOVED] before [SPOILER REMOVED] into [SPOILER REMOVED] all in glorious HD. (See, I’m better than that.)

It’s like watching Match of the Day when you already know the results – you may as well just fast-forward to the goals.

But it’s human nature that some people would rather be the one to spoil the plot twists for others than to actually enjoy them for themselves, and the great shame is that innovations like BitTorrent have, unfortunately, given any spotty oik the means to do it.