Opinion:Legal Downloads

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The Netherlands wants to forbid (now) legal downloads of movies and music. Criminalizing individual consumers who have no alternative (the content industry has offered no solution) will not stimulate innovation or progress. Instead, let Buma/Stemra shake up the content industry once more, and apply the copy levy to newsgroup and torrent downloads. Let's compensates the authors and performers, get rid of the need for deep packet inspection, and stop criminalizing consumers.

This article represent the personal opinion of Freek Dijkstra. It was written in April 2011. Remember that opinions may change over time, and this article will likely not cover a topic in detail. With the rise of legal content providers, such as Netflix and Spotify around 2014, some of the original arguments no longer hold. Modification by third parties is disabled. If you do not have your own website and really like to leave feedback, do so on the discussion page.

Copy Levy

In the Netherlands, it is legal to download music and movies (but not software), as long as it is for private use according to the thuiskopie (home copy) law (Artikel 16c auteurswet). A copy levy is charged for blank media, such as blank CDs (but not yet hard disks). Dutch organisations Thuiskopie (for authors and performers for , Buma/Stemra (for authors) and Sena/Norma (for performers) collect these fees and distribute these among the authors and performers.

This system has done a great job in shaking up the content industry. Since its inception in 1991 individual user could simply view and record television or exchanging content without friends without making an agreement with individual rights holders. Collective licenses in general had positive effects on the consumption of artistic content. A radio station no longer has to make agreements with individual rights holders, but can simply hand over a reasonable fee and their playlist to Buma/Stemra. Individual musicians could decide to join the Buma/Stemra collective or not. Those who preferred to keep their work in their own control could still do so, but at the risk that radio station would not play their songs.

This model has worked well till 10 years ago. Nowadays people don't buy CDs or DVDs, but simply want to download their content from the Internet. As always, the content industry offers no solution and stifles innovation. Till this day, they have not managed to offer a easy to use movie download service to the general audience. So the public is forced to come up with it's own solution: download from newsgroups or peer-to-peer networks. In neither case do the rights holder get any compensation for their work.

It is clear to everyone that the lack of compensation for rights holders is bad, and needs to be solved. Unfortunately the content industry only complains they can't compete with "free" (ignoring that most users are willing to pay for a easy one-click download solution that compensates the rights holders), and offers no real solution. Secretary of State Fred Teeven has now proposed to make downloads illegal. His ideas are absurd. It is already possible to stop uploaders who distribute content, and suing individual consumers who have no alternative is not likely to stimulate innovation or progress.

Proposal

Let's shake up the content industry once more. Let Buma/Stemra and Norma/Sena come to an agreement with Dutch providers of newsgroups and torrent sites leverage a copy levy for those subscriptions. The fee can be distributed proportionally to the rights holders based on anonymized download statistics.

If Buma/Stemra is unwilling to come to an agreement with newsgroup providers or torrent sites (such as Mininova), then the government should enforce them to collect fees at any content provider, regardless of the technology they use.

Advantages

While this will roughly double the subscription price, it has many distinct advantages:

compensation for authors and performers
Authors and performers are currently not compensated for downloads of their work. This proposal will fix that.
no fee for non-downloaders
if you don't download, you don't pay a fee.
privacy for downloaders
no deep packet inspection is required to find out who is downloading what content. The newsgroup services can simply provide anonymized data to Buma/Stemra and Norma/Sena with the statistics which files was downloaded how often.
stop criminalizing consumers
downloading remains legal, and no money is wasted on suing individual consumers
promote high quality content
the better the content, the more often it is downloaded, and the higher the fee the rights holder receives. There is a clear incentive for rights holders to offer high quality content.
stimulates economy
it stimulates consumption of content
stimulate innovation
it shows the content industry that it is profitable to offer download solutions to the consumer. Because they can no longer claim that downloading is "free", they now have an incentive to offer cheaper or better alternatives.

If the model works well, Buma/Stemra can even take the next step and allow legal uploads. They can even (let a third party) offer a high-quality torrent index site, which is only accessible for a subscription fee, the copy levy.

Disadvantages

Any possible disadvantages can be remedied:

Users don't want to pay the fee
All Dutch newsgroup providers leverage the fee. If consumers move to foreign providers, that can be remedied by leveraging fees to that providers (just like Amazon charges Dutch VAT levels when ordering from the Netherlands). If that does not help, it could be outlawed and enforced in court (just like companies need permission to offer online gambling in the Netherlands).
High quality contents leaks to other countries
If uploads are allowed, it is possible to not to let these uploads be distributed outside the Netherlands, for example by only allowing posting in some nl.alt usenet hierarchy, or restricting access to the bittorrent index site.

Conclusion

In short, Buma/Stemra: shake up that content industry once more!!