…the “Safe Harbour” concept was really a Thieves’ Charter. The legal precedent that device-makers and pipe and network owners should not be held accountable for any criminal activity enabled by their devices and services has been enormously damaging to content owners and developing artists. If you were publishing a magazine that was advertising stolen cars, processing payments for them and arranging delivery of them you’d expect to get a visit from the police wouldn’t you? What’s the difference?

The above quote is from a speech by Paul McGuinness, U2’s manager, at MIDEM’s first International Manager Summit. ‘Safe harbour’ is a component of US law that states a service provider cannot be held liable if the service is used for illegal purposes. Sure there’s far more to it, but that’s the jist.

His quote is typical of music industry thinking in a few ways. The first is the music industry’s presumption that they can delegate the responsibility of preventing illegal music copying to whoever they please. How is it an ISP’s responsibility to monitor what its customers are doing, much less prevent some actions? And more importantly, why should the ISPs incur the costs of doing this and ultimately pass them along to the customer?

Second, McGuiness’s logic, like much of the logic shown by the music industry, falls apart from the slightest contact with the real world. For example, he’s suggesting companies not be immune from responsibility if the products or services they provide are used illegally. Okay, so why has the phone company never been responsible when the telephone is used to facilitate violation of the law? Why isn’t Ford dragged into court when one of its cars is used to flee a bank robbery? Perhaps the largest elephant in the room is why firearm manufacturers are not responsible for crimes committed with their wares. Goodness, what if I were in a clinically depressed state because my girlfriend left me and listening to U2’s With or Without you pushed me over the edge to suicide? Would he suggest the band dispense with any legal defence and just pay-up?

His example of a stolen car magazine is specious because a magazine selling stolen cars can only be used in one way. If he’s trying to describing portable music players by analogy, he’s failed because these players can clearly be used legally. Peer to peer music networks can be used to distribute legal content. To make his example an accurate reflection of what the music industry is trying to do, the illegal magazine would be the reason all magazines should be taxed, controlled, or made illegal. This is entirely different. Do you think my counter-example is equally specious? Consider what UMG CEO Doug Morris said about personal music players in 2006: “These devices are just repositories for stolen music, and they all know it.”

God forbid you make kitchen knives in the world Paul McGuinness sees as entirely reasonable.