IFPI, P2P and an Article that Disappeared

Claude AlmansiBy Claude Almansi
Editor, Accessibility Issues
ETCJ Associate Administrator

[Note added 4.5.11: My apologies to Claude and our readers. I accidentally released this article a few days ago before it was ready, and in doing so I caused quite a confusion. Claude’s erudition in a wide range of fields is legend in ETCJ, and her sense of irony and humor as well as wit, combined with her passion in standing up for her beliefs, make her one of the most entertaining, enlightening, and popular writers on our staff. In asking her to expand on this piece, my intent was to make her works even more accessible to readers who may not share her level of expertise. -Editor]

Note: The first version of this text was only a brief note about the odd disappearance after a few hours of an article describing the interest the German tax authorities are taking in the affairs of the Swiss branch of IFPI (International Federation of the Phonographic Industry), more particularly in the  relations between the Swiss IFPI and  IPGate.

However, Jim Shimabukuro, our chief editor, rightly pointed out that this note was difficult to follow in its concision. So this is an expanded version, with more about the background of that disappeared article, and something about the educational relevance of this matter. My former title does not fit this revised version, so  I have changed it; but as the draft has already been indexed by search engines, I kept its original URL.

Apologies to those of you who thought that this piece had been deleted, maybe due to pressure exerted by IFPI: I only set it on “private”  while I was editing it. Thanks to Franklin Trankett who e-mailed me about possible misinterpretations of its temporary disappearance.

Background

Since 2005, IFPI Switzerland has been tracking P2P users in an operation it calls “Game Over”. IFPI’s Nov. 15, 2005, communique about it has been removed from the IFPI.ch site, but the page is still available in the version saved by the Internet Archive on Aug. 27, 2006. The communique explained how “Game Over” works with the following graphic:

scheme of IFPI's P2P spying scheme
Translation of the caption: A pirate [1] establishes a connexion with another user towards transmitting music files via a P2P network [2]. The IP address, which identifies every internet-connecte computer, gets saved as evidence [3] while the pirate is copying the file. The internet service provider [4] knows the pirate’s identity.

IFPI outsources this spying activity to private firms: initially, to NetMon, then Logistep. After saving the “pirates” ‘ IP addresses, IFPI writes to their ISPs, demanding that they send the “pirates” a registered letter demanding that they pay “damage compensations” (up to CHF 1000, ca $800) and sign an acknowledgment that they have violated the law. These letters, in German, can be downloaded from Briefe der IFPI Schweiz an die Provider, Netzpolitik, Dec. 21, 2005.

The operation was very profitable. However, on Sept. 9, 2010, the Swiss Federal Supreme Court issued a decision stating that:

… IP addresses are clearly personal data and are thus subject to the Data Protection Act (DPA). Furthermore, (…)  it [is] unlawful for private companies to covertly probe IP addresses. […] With immediate effect, the company Logistep AG is no longer allowed to collect or pass on any further data, i.e. it is required to cease all data processing related to copyright matters. …

In a comment on the Court’s decision published by Le Matin on Sep. 9, 2009, IFPI Switzerland’s general director affirmed that IFPI itself “does not systematically collect IP addresses” and hence does not illegally monitor Swiss web users: rather surprising in view of the detailed explanation about this collection and monitoring in  IFPI’s  above-mentioned Nov. 15, 2005 communique. Even odder:  he further announced that IFPI would go on hunting P2P users who exchange copyrighted music, in spite of this court decision, “… by providing the Attorney General with the IP addresses of P2P users and suing, thus obtaining their names”. How IFPI is going to get these IP addresses without collecting them by monitoring P2P users is not explained in the article.

The Swiss branch of IFPI was also “massivement représentée” in the Commission for the revision of the Swiss copyright law in the years 2007-8, as it used to state in its “Qu’est-ce que l’IFPI?” page (which has disappeared too, but is still available in the version saved by the Internet Archive on Aug. 21, 2007).

One of the effects of this “massive representation” was an attempt to get the Commission to remove paragraph 4 of article 39a of the new version of the law, which stipulated the exceptions to the prohibition of copying digital copyrighted content: very roughly, an equivalent of “fair use” in US copyright law. See, for instance, the June 11. 2007 Internet Archive copy of IFPI’s open letter to SKS (a Swiss consumers’ association)  about this matter. The removal of this paragraph would have rendered illegal  copies for private and educational use, as well as screen reader accessible copies made for blind users. However, when the Federal Parliament voted on the revision, it chose to maintain this paragraph, by 150-11.

Cot death and rebirth of an article about IFPI

On April 2, 2011, the Argauer Zeitung published an article about the German fisc’s inquiries about the Swiss branch of  IFPI (“Steuerbeamte sehen sich Umfeld der Schweizer Musiklobby IFPI an”). After an explanation of  the “Game Over” operation and of the revenues derived from it, the article described the interest the German fisc was taking in the Swiss branch of IFPI and  IPGate, which is represented by this Swiss branch of IFPI.  The article also linked to the PDF file documenting the IFPI-IPGate relationship (the file is still available at http://wikileaks.estrilento.com/newstuff/ifpi.pdf – and also on this blog: ifpi,pdf).

A few hours later, the article disappeared. However, it was immediately republished  by zuerifluestern in Zensurslifpi schlägt den Boten tot (“IFPI’s censorship kills the messenger”, archived it at webcitation.org/5xfQLgzLt – for those who do not read German, the Google translate English version is passable). E-mails to the journalist who wrote the article, and to the Argauer Zeitung, asking for an explanation of this disappearance, have remained unanswered so far.

Educational and international relevance

What I have written so far concerns Switzerland. However, IFPI also tracks P2P users and their IP addresses in other countries, at times on behalf of major recording companies. This has a direct impact on  educational institutions’ policies concerning the use of P2P (and other file-sharing solutions) on their networks. Some are now blocking file sharing altogether, thus depriving their students and staff of very useful tools that, per se, are perfectly legal.

Moreover, the editing out of Swiss IFPI’s former declarations from its ifpi.ch website, while it is its own business, might become an interesting learning object in a course in communication studies. The same is true of the disappearance of the “Steuerbeamte sehen sich Umfeld der Schweizer Musiklobby IFPI an” article from the website of the Argauer Zeitung. It will be interesting to see if queries about the reason for this disappearance get an answer in future.  Whether IFPI did exert pressure on the newspaper or not, the immediate republication of the article by by zuerifluestern proves, once more, that such removals do not work in a digital age.

2 Responses

  1. … and another article that has not disappeared – yet: Sie machen die Hits unter sich aus – Voruntersuchung gegen die Spitzen der Schweizer Musikindustrie (They invent the hits between themselves – preliminary inquiry against top Swiss Music industries) by Bänz Friedli, NZZ Online, April 10, 2011. Summary:

    The Swiss Competition Commission has opened a preliminary inquiry about a possible violation of the Cartel Law by the top Swiss music firms, actually Swiss branches of international Major Companies Universal, Sony, Warner und EMI, represented by IFPI.ch.

    The inquiry was started at the request of Shigs Amemiya, CEO of iMusician Digital, who produced “Slow Down, Take it Easy” by Da Sign and the Opposite, which was the theme song of the 2009 road safety campaign of the Swiss federal Bureau for the prevention of accidents.
    Though the song stayed among the 5 top itunes downloads for a month, it never made it to the Swiss Hit Parade list. Moreover, IFPI.ch refused Amemiya’s membership request. Motive: “Several of the 7 big IFPI members ‘do not know’ iMusician Digital”, even though it distributes the songs of ca 5000 musicians to ca 200 retailers.

    The NZZ article also tells how the Swiss Hit Parade list is defined by IFPI.ch’s marketing commission, then elaborated by Media Control. As Majors who are members of IFPI know what retailers will be sampled for the hit parade, they can – and do at times – massively buy their own titles at, or offer them with a big discount to, these outlets, thus influencing the chart artificially.

    IFPI.ch’s president Ivo Sacchi, who is also chief of Universal Music Switzerland, refused NZZ’s request to comment on the Competition Commission’s preliminary inquiry. From Shigs Amemiya’s comment:

    Natürlich ist dies ein Kampf von David gegen Goliath… Ich bin zwar nicht besonders bibelfest. Aber hat damals nicht David den ungleichen Kampf gewonnen?

    (Of course, this is a David-against-Goliath fight. I’m not particularly knowledgeable about the Bible, but didn’t David win the unequal fight, back then?).

    Just in case the NZZ article should disappear too, it is archived with Webcite®.

    And here is Slow down. Take it easy: Franky Slow Down Talks To The Boss (in English with German subtitles), one of several clips used in the 2009 road safety campaign of the Swiss federal Bureau for the prevention of accidents:

  2. The article in the Argauer Zeitung that had disappeared in April is now back online at Steuerbeamte sehen sich im Umfeld der Schweizer Musiklobby IFPI um (also archived at http://www.webcitation.org/5zT3Av0g6).

    While Zensurslifpi schlägt den Boten tot did offer a copy of the text of the article, the original article also has scans of the IFPI “Beschluss-Protokoll” (decision minutes) which are quoted in it.

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