New research on filesharing in the Netherlands ignites debate on anti-piracy measures

The Institute for Information Law of the University of Amsterdam (Ivir) issued a report on the current attitude of Dutch consumers towards filesharing. The report, “Filesharing 2012, - on downloading in the Netherlands” cosponsored by several Dutch Internet Service Providers, shows that the amount of music downloads from illegal sources decreases. The researchers have interviewed some 2000 people about their downloading habits and their view on purchasing books, movies, games and music.

The main reason for the decline of illegal distribution of music files is, as mentioned by consumers in the interviews, the growing availability of legal options to download entertainment content. "This is a positive achievement of the industry, particularly the music industry, where new digital business models have found their way up to the general audience", says Joost Poort, one of the researchers, to newswebsite NU.nl.

The study has reignited the debate on the effect of enforcement against illegal supply, by drawing some compelling conclusions. Ivir concluded, for example, that "Illegal downloads of films and tv series have clearly increased in recent years, that points out that the effectiveness of law enforcement is not the explanation for the reduced number of illegal music downloads. Successful enforcement would not only affect music but also movies and other content."

From a legal perspective, this conclusion by Ivir is quite controversial. The market for music content and the market for film content are not the same, which may explain the different impact of piracy on the digital distribution of content. Furthermore, the suggestion that enforcement will not help to combat piracy is too simplistic, particularly in the Dutch context. Under Dutch law, downloading copyright protected content from an illegal source is not expressly forbidden. Therefore, consumers may technically use a p2p platform to collect pirated content. However, sharing pirated content, for example by uploading it, is forbidden.

This situation has left the Dutch entertainment sector in a difficult position for the past years. As filesharing platforms are not responsive to complaints on copyright infringements, while at the same time consumers cannot be targeted for illegal conduct, the sector is currently battling this phenomenon by asking local ISPs to block access to file sharing platforms. Most notably, this led to court orders, forcing ISPs to block access to the Pirate Bay. On this course of events, researchers of the study comment that  "Only about 5% of consumers report that they will download less pirated files or have actually stopped doing that as a result of the blockade. That is quite a low return;" according to the Ivir researchers. Simultaneously, the questionnaire revealed that of all the respondents that were used to illegal filesharing, over 60% indicated that they still do this, even after the blockades of TPB but that they are now using other platforms. Almost 30% of the illegal downloaders now use a proxy route. These figures could indicate that, in practice, enforcement actions are effective, as the amount of visitors to the illegal site has dropped, however, that the enforcement effect is mitigated by the fact that Dutch consumers still have an abundance of other illegal (read: free) options to download entertainment content. Unfortunately, there is little incentive for them to change their behaviour, as long as their behaviour is not illegal.

Despite the questions around enforcement, it is of course the question how the digital market for entertainment content can progress in this tough environment. The study revealed potential for this to happen. Although illegal downloads are still quite popular in the Netherlands, consumers are nonetheless willing to pay for digital content. Also, many downloaders indicate that the quality of pirated files is lower than the real product. Probably, the solution to the piracy debate will be to find a balance between more effective legislation and enforcement and, at the same time, offering attractive legal alternatives.

Reference: Ivir, University of Amsterdam

For additional scientific analysis in this field, see the study Feiten om te delen (Dutch only). Read more on the “download debate” on Future of Copyright:

•  Study reveals harmful effects of piracy on digital media sales
• The Netherlands major player in distribution of illegal content