The accidental criminal: Using policy to curb illegal downloading
First Monday

The accidental criminal: Using policy to curb illegal downloading by Kalika N Doloswala and Ann Dadich

Illegal downloading is a multifaceted social issue. In addition to the loss of intellectual property and revenue for copyright holders, it can implicate perpetrators into the criminal justice system. Despite legislative attempts to curb illegal downloading, lessons to date suggest these do little to reduce the activity. Drawing on psychological literature, this paper offers an innovative approach to address illegal downloading. Attribution theory aims to aid understanding of the causes of human behaviour and highlights the important role of perception. It suggests that illegal downloading might be moderated by increasing opportunities for engagement between the owners and users of intellectual property. Rather than using policy and legislation to restrain access to intellectual property, this theory suggests that policy that closes proximal distances and creates psychological contracts might be effective in curbing these practices. Examples from the music industry are discussed as evidence that this approach can be successful in changing downloader behaviour. To date, public policy informed by attribution theory has not been tested as a way to prevent illegal downloading. The paper concludes that there is a need to examine and critically evaluate non–punitive approaches to curbing illegal downloading from a policy perspective.


Illegal downloading
A way forward: Attribution theory




“Hundreds of Brits are being forced to fork out £500 after being accused of illegally downloading digital audio and pornography files. According to Which? around 50,000 Web users in the U.K. have received letters from legal firms such as ACS Law. The letters claim the recipient has illegally shared files and is subsequently required to pay a £500 fine and sign a legal undertaking agreeing not to illegally file–share in the future … According to Matthew Bath from Which? many recipients are choosing to pay the fine rather than fight them in court because they’re unsure of how to prove they are innocent. Others, meanwhile, are concerned that fighting the accusation could affect other areas of their lives such as their employment or even their marriages, in the case of those accused of downloading pornography … Andrew Crossley, founder of ACS Law said … ‘it is insufficient for people to say in relation to the identified infringement that ‘it did not happen’, as we have evidence that it did.’ Crossley also said it was insufficient to blame it on a child ‘as the parent should take responsibility for the actions of children under their care’.” (Skinner, 2010)

Illegal downloading — or online piracy — is a complex social problem. It affects copyright holders whose intellectual property is appropriated (and the loss of the associated royalties); it affects perpetrators who become implicated in the criminal justice system — sometimes unwittingly (Delahunty, 2009); it affects the legal system, which evolves to control the activity; and, it affects Internet service providers (ISPs) whose primary role is redirected into one of Internet service provision and surveillance (Federal Court of Australia, 2010).

Legislation to curb illegal downloading is largely ineffective in changing downloading behaviour or redressing aggrieved artists (Allen, 2008). Despite the time and effort expended to develop and apply appropriate legislation, many copyright lawsuits are settled out of court (Karnowski, 2009). Although these settlements collectively amount to millions of dollars, seldom are they directed to the aggrieved parties; they more commonly implicate illegal downloaders — unwitting or otherwise — into the criminal justice system (Anderson, 2010).

Given the consequences associated with illegal downloading, this paper argues that an innovative approach is needed to moderate the activity. Drawing on psychological literature, this paper argues that public policy informed by attribution theory (Heider, 1958; Kelley, 1979) might help to curb illegal downloading within some circles; this might be achieved by increasing opportunities for engagement between the owners and users of intellectual property. Rather than using policy and legislation to restrain access to intellectual property, attribution theory suggests that policy approaches that close proximal distances between creators and audiences, and fosters psychological contracts, might be effective in curbing these violations.

The paper commences with a discussion of illegal downloading, legislative approaches to prevent it, and the consequences associated with these approaches. Following this, the paper presents a novel way to address this issue — that is, policy informed by attribution theory (Heider, 1958; Kelley, 1979). Examples from the music industry are then presented to demonstrate the viability of this approach. The paper concludes with a discussion of this newfound opportunity to address illegal downloading, and highlights directions for policy development and future research.

The significance of this paper is three–fold. First, it broadens the debate around effective ways to address illegal downloading and its associated consequences. Second, given recent developments in Western public policy that espouse participation and inclusion (CICA Network, n.d.; European Commission, n.d.; Gillard, 2007; Gillard and Wong, 2007; H.M. Government, 2006; Ireland. Department of Social and Family Affairs. Office for Social Inclusion, 2007), it is important to explore innovative strategies that align with this approach — like that presented in this paper, which aims to promote engagement between the owners and users of intellectual property. Third, it has potential benefit for both artists and their audiences — for artists, it may open funding opportunities that actively encourage innovative audience engagement; for audiences, it may reduce the lure of illegal downloading. Although the focus of the paper is the music industry, its thesis has theoretical and practical application to illegal downloading in other fields — this has particular importance given recent concern about the illegal downloading of e–books (Conroy, 2011; Martin, 2011; Page, 2011).



Illegal downloading

Internet use at home has grown exponentially in the Western world. In Australia for instance, it has quadrupled from 20 percent to almost 80 percent (Australian Bureau of Statistics, 2008), and there are currently about 8.4 million Internet subscribers (Australian Bureau of Statistics, 2009). The use of high–speed and high–bandwidth Internet is characterised by a similar but much steeper growth. Broadband use has tripled in three years (Australian Bureau of Statistics, 2008). Similarly, download volume in Australia has increased by 66 percent in 12 months, rising from 81,352 TB to 135,674 TB over the 12 months to December 2009 (Australian Bureau of Statistics, 2009).

Bangeman (2007) suggests much of the content downloaded from the Internet is copyrighted material including software, music, film or image commonly referred to as illegal downloading or online piracy. It involves ‘the free exchange of content files such as MP3 music files, movies and TV show files through Web sites such as Kazaa or Grokster in which no royalties are paid to recording artists or companies’ [1]. Following the legal actions against these entities and their eventual closure, a new means of exchange emerged, the BitTorrent protocol (Rajagopal, 2004). This enabled larger files to be exchanged — thus drawing the film industry into the illegal downloading arena (McGuire, 2007). Although file sharing technologies are both capable of substantial non–infringing uses (such as large Linux distributions or Creative Commons content) they are primarily used in ways that do infringe copyrights (Allen, 2008).

The costs associated with illegal downloading are high. The major lobby groups for affected industries, such as the Business Software Foundation, International Federation of the Phonographic Industry, and Motion Picture Association of America (MPAA), argue that moving beyond simple substitution (for instance, one downloaded article replaces a purchased file) is more appropriate to quantify the financial loss suffered. The Institute of Policy Innovation suggests that the one–for–one substitution method must be further complemented by multiplier effects that quantify the impact of lost output, jobs and employee earnings (Siwek, 2007). Although the dominant approach to valuation of illegal downloading this approach has attracted some criticism (Macdonald and Turpin, 2008). The U.S. Government Accountability Office (2010) has suggested the economic loss from file sharing cannot be accurately substantiated and that expert opinion as to the impact, positive or negative is difficult, if not impossible to determine (Martin, et al., 2010). The intention here is not to debate the pros and cons of illegal downloading — or the way it is addressed; but rather, to draw focus to an aspect of this debate that has attracted scant attention — more specifically, that legislative change combined with infringement activity is specifically designed to target the low–hanging fruit — namely, casual users and the IT un–savvy. Despite interest in the prevention and management of illegal downloading — within academe (Beckerman, 2009; McKenzie, 2009), the third sector, and popular press (Needham, 2011) — this has largely neglected the implications for these low–hanging fruit.

Litigation is the vehicle typically used to curb illegal downloading — but success has been limited. This is demonstrated in three ways — first, of the 30,000 lawsuits filed by music companies against individuals accused of illegal downloading, all but one have been settled out of court — the average settlement being $US3,500 (Karnowski, 2009); as such, settlement seems to follow the threat of legal action, rather than its initiation. Second, proceeds from these settlements are not always forwarded to victims. With the exception of high–profile artists like Metallica, there is little evidence to suggest that artists who have had intellectual property stolen receive monies from settlement action (Lauria, 2008). Third, despite recent attempts to curb this activity through tightened legislation and litigation, the prevalence of illegal downloading has not diminished (Butler, 2008).

Technological advances make it difficult to curb illegal downloading. For instance, the identity of perpetrators is becoming increasingly difficult to distinguish. This is exemplified by the Darknet — closed private networks that are difficult to access (Lasica, 2005). This is because users are trusted; they generally build reputation by sharing large quantities of high–quality content, representing a largely invisible layer of illegal downloading. Advanced technology is also helping to obscure the recognition of individual copyright violations. For instance, Internet protocol (IP) blockers — like PeerGuardian and PeerBlock — allow users to block connections to certain addresses (King, 2003). These might include IP ranges of the Recording Industry Association of America (RIAA), MPAA, government departments, and record labels. Although anonymity is not guaranteed, IP blockers provide some protection against identification by copyright infringement authorities. However, it requires a degree of IT aptitude, not to mention an understanding of copyright infringement. Similarly, commercial re–routers, like Relakks, obfuscate IP addresses information for a fee (Relakks, 2010).

These technological advances suggest that people who are relatively IT–naïve may become the targets of legal action. Those at risk of attracting punitive action are those least able to take advantage of technological developments in anonymity and IP address concealment. The current shift in the bodies responsible for legal action away from content lobby organisations such as the MPAA and RIAA towards private legislators illustrates this point. The U.S. Copyright Group — represented by Leesburg, Virginia–based Dunlap, Grubb & Weaver) have initiated 14,583 copyright infringement lawsuits against thousands of anonymous defendants with demands to settle for between $US1,500–2,000 to make the legal case go away (Anderson, 2010). Gay pornographer Corbin Fisher has taken this one step further by not filing any legal action but rather engaging private investigators to identify p2p downloaders of his content and track down their private addresses over time (Anderson, 2011). A consequence of these activities is that casual downloaders —like young people — and those responsible for Internet connectivity — like their parents and grandparents — can become victims of litigation. This represents the human cost of illegal downloading — a cost that is likely to be significant given prevalence of Internet use among children and young people. For instance, Australian data revealed that, of the 88.7 percent of young people aged 12 to 14 years who had accessed the Internet within a 12–month period, 39.6 percent had downloaded music (Australian Bureau of Statistics, 2006).

Technological advances also imply that, conversely, people who are relatively IT–savvy remain a step ahead of the legal game. Anonymous file sharing networks, encrypted systems, and large private networks allow them to evade legislators (McGuire, 2007) while those without these skills are more likely to be targeted by private litigators.

The likelihood that the IT–naïve will become accidental criminals is increased by recent legislative changes in which burden–of–proof is reduced. In Australia, for instance, piracy laws now include three, rather than two infringement levels, with varying levels of severity and proof (Australia. Attorney–General’s Department, 2007). For example under Division 5, Sub–division C 132AI Distributing infringing copy, the summary offence stipulated under Section 5 states:

  1. A person commits an offence if:
   a. the person distributes an article; and
   b. the article is an infringing copy of a work or other subject–matter and the person is negligent as to that fact; and
   c. copyright subsists in the work or other subject–matter at the time of the distribution and the person is negligent as to that fact; and
   d. the extent of the distribution affects prejudicially the owner of the copyright and the person is negligent as to that fact.
Penalty: 120 penalty units or imprisonment for 2 years, or both. [2]

This negates the importance of wilful intent and encourages the policing of all instances of illegal downloading — unwitting or otherwise.

In addition to legislation are other ways to combat illegal downloading — yet these too are problematic. One approach gaining traction involves the surveillance of Internet activity by ISPs, or another independent body. Used in France and Ireland (Charleton, 2010; Pfanner, 2009), ISPs monitor customer Internet use and act on instances of illegal activity. However, this approach is problematic on six counts — the first is the cost, which seems out of parity with harm. BT Broadband in the U.K. suggests that the cost of ISP monitoring to prevent illegal downloading is likely to cost in excess of £one million per day — an amount that far exceeds the estimated annual loss of £250 million the music industry suffers consequent to illegal downloading (Roach, 2009). As such, the option does not represent a sound investment, particularly for consumers who are likely to pay for it (Marshall, 2009b). As Allen (2008) further suggests, ‘At a minimum, it requires teams of technology specialists to track the online behaviour of millions of Internet users; hundreds of lawyers to pursue thousands of lawsuits through courts in numerous countries, including the U.S. Supreme Court; and, dozens of political lobbyists, positioned in political centres worldwide, armed with persuasive arguments and deep pockets’ [3].

The second reason is the likelihood of driving illegal downloading further underground (Lasica, 2005; Roach, 2009). In light of current and emerging technologies, the IT–savvy will probably venture towards highly encrypted networks and identity obscuration steps that sidestep blanket monitoring.

Related to this is the third reason — the likelihood of merely detecting illegal downloading activities among the (relatively) IT–naÏve. The recent actions of Dunlap, Grubb & Weaver and Corbin Fisher in terms of targeting and identifying suspected illegal downloaders with the intention of harvesting settlement proceeds is a unsettling indicator that the ‘low–hanging fruit’ involved with content piracy are being targeted (Anderson, 2010; Anderson, 2011).

The fourth reason pertains to civil liberties. There is concern about reduced privacy for consumers. The swing towards private litigation that seeks, from the outset, settlement outcomes (at amounts lower than it costs to hire legal representation (Anderson, 2011) suggests a lessened harm minimisation approach than previously instituted. The RIAA at their peak targeted ‘substantial or egregious file trader or people, groups and organisations that derived some commercial gain from these activities’ (Allen, 2008). The recent tightening of copyright infringement legislation combined with a settlement oriented new ethic of targeting illegal downloaders suggests a greater potential for a loss of civil liberties through an absence of appeal mechanisms. In addition law suits from the U.S. using software to gather IP addresses to be used for infringement purposes have seen the dead and elderly falsely flagged (von Brasch, 2010).

The fifth reason is that of practicality. It is largely difficult to ban Internet access in entire households, when only one person is suspected of copyright infringement. The ‘three strikes and you’re out’ approach to ISP blocking at the insistence of corporations generally contains no requirement that a judge must hear a case before someone is cut off the system; equally, avenues for appeal are typically onerous (von Brasch, 2010).

Finally, whether surveillance is the responsibility of ISPs is also contested. The National Internet Association argues that ISPs are the conduit rather than the enforcers of copyright (Gilmore and Armstrong, 2008). Some ISPs are electing to delete IP address information in an attempt to protect user anonymity (Cheng, 2009). Although legal in Sweden, this is viewed critically by some industry lobby groups given their belief that ISPs are required to do more than merely provide the conduit through which Internet activity flows.

Despite the challenges that surround ISP surveillance, it continues to be of interest to some government and industry groups; consider Australia (Gilmore and Armstrong, 2008). In 2008, a lobby group for the television and film industries pursued legal action against iiNet for not acting on notifications of copyright breaches (Foo and Bingemann, 2009). The ISP maintained that this was not its role; but rather, copyright holders are responsible for acting on these breaches (Miller, 2008). In a landmark decision, Justice Cowdroy agreed, ruling that ISPs are not responsible for customer actions, even when ISPs are aware of illegal activity and do not take preventative steps (Federal Court of Australia, 2010). In response, Brett Cottle, Chief Executive Officer of APRA/AMCOS — the Australian organisation responsible for ensuring composers, songwriters and publishers are rewarded accordingly, stated:

If you can’t set up a sensible regime with the gatekeepers, then you leave the rights–holders with no alternative but to look to the individual infringers, and that, I think, would make for really bad public policy. [4]

Coupled with stronger punitive measures against IT–naïve downloaders, this ruling suggests that increased litigation against individuals is merely a matter of time. And this has considerable implications.

One such implication is embroiling IT–naïve downloaders in the legal system; Elektra v. Santangelo (2005) aptly demonstrates this. Patricia Santangelo, a mother of five, resolved to challenge the copyright infringement notice issued by several record companies for alleged file sharing. Heard before the U.S. District Court for the Southern District of New York, it was revealed that Santangelo had limited understanding of peer–to–peer (P2P) exchange. The focus then shifted to two of her children and a relatively small financial agreement was reached (Delahunty, 2009). This case indicates that those targeted by organisations like the RIAA are not necessarily the largest downloaders, the most active commercial pirates, or the most politically motivated. But rather, they include the IT–naïve who in turn become the accidental criminal. As stated by the Electronic Freedom Foundation (EFF):

There is no question that the RIAA’s lawsuit campaign is unfairly singling out a few people for a disproportionate amount of punishment. Tens of millions of Americans continue to use P2P file sharing software and other new technologies to share music, yet the RIAA has randomly singled out only a few for retribution through lawsuits. Unfortunately, many of the people in this group cannot afford either to settle or to defend themselves. [5]

It is difficult to argue the merits of further tightening legislation to curb illegal downloading. Given legal experiences to date — such as that against Santangelo (Delahunty, 2009), these sanctions are not likely to control the largest downloaders, but rather, they will target vulnerable populations, like young people and those responsible for Internet connectivity (like parents and grandparents). Some governments, like the French and the English, have moderated their approach, adopting a ‘three–strikes–you’re–out’ Internet suspension policy for illegal downloaders (Hefflinger, 2010). Similarly, but perhaps more prudently, the European Union states that Internet suspension cannot be executed by an ISP without a ‘prior fair and impartial procedure’ [6]. While seemingly judicious, these moderated approaches will not necessarily rescue accidental criminals. It is thus important that an alternative approach is considered.



A way forward: Attribution theory

Developed by social psychologists (Heider, 1958; Jones and Gerard, 1967; Kelley, 1979; Ross and Nisbett, 1991), attribution theory helps to explain the way individuals develop causal deductions — that is, how they rationalise or make sense of an event or a behaviour (Drozdenko and Jensen, 2005). According to the theory, individuals ascribe cause in two ways. The first suggests they award primacy to external or contextual factors that are largely uncontrollable; the second suggests they turn to internal or dispositional factors, which can be controlled — however, combinations of external and internal factors are also recognised (Kelley, 1967; 1971; 1973; Weiner, 1972; 1986). Applying the theory to cyberspace, the act of illegal downloading might be attributed to a situational factor, like opportunity, and/or a dispositional factor, like the ethical attitude of a perpetrator (Levin, et al., 2004).

When rationalising the behaviour of another, the development of attributions is influenced by many factors. Although interconnected, for ease of clarity, these might be described as personal factors and interpersonal factors. The former include attribution style (Abramson, et al., 1978; Kent and Martinko, 1995; Russell, 1991); demographic variables, like gender (Cash, et al., 1977; Dobbins, et al., 1983), age (Ferris, et al., 1985; Mezulis, et al., 2004), and culture (Diener and Diener, 1995; Martinko and Douglas, 1999); personality variables, including locus of control (Anderson and Schneier, 1978), self–efficacy (Silver, et al., 1995), and negative affectivity (Martinko, et al., 2006; Martinko, et al., 2002); as well as personal bias (Zuckerman, 1979). Interpersonal factors that affect attributions include the actor–observer bias (Mitchell and Wood, 1980; Ross, 1977); social desirability (Jones and Nisbett, 1972); degree of choice an actor is perceived to have (Jones and Harris, 1967); social role (Hamilton, 1978); and expectancy (Jones and McGillis, 1976) — that is, whether the behaviour aligns with previous observations.

Attributions are also influenced by partiality (Heider, 1958). More specifically, the more an individual is liked, the more probable their agreeable behaviours will be attributed to internal factors — and conversely, the more an individual is liked, the more likely their disagreeable behaviours will be attributed to external factors. Applying this to cyberspace, the financial cost of purchasing music files might be attributed to the dearth of funding opportunities in the music industry if a musician is known and deemed favourably by his/her audience. Conversely, this cost might be attributed to greed if the musician is unknown to the audience or is not considered favourably.

To improve understanding of human behaviour, attribution theory has been applied to many contexts, particularly within organisational psychology. These include consumer perception of: discounted products (Drozdenko and Jensen, 2005); the provision of competitor price information by electronic stores (Trifts and Häubl, 2003); online shopping environments (Lim, et al., 2006); fairness of price increases (Vaidyanathan and Aggarwal, 2003); negative word–of–mouth communication (Laczniak, et al., 2001); and penalties implemented by service organisations (Kim, 2006; Kim and Smith, 2005). Collectively, these studies suggest that attribution theory can be a useful framework to understand and influence consumer behaviour, particularly through the use of trust–enhancing strategies.

To date, there is little research in which attribution theory is applied to understand or influence the act of illegal downloading. The potential value of this framework was suggested by Levin and colleagues (2004) who identified a relationship between partiality and illegal downloading. In a mixed–method study involving college students, the researchers examined ethical views towards illegal downloading, as well as attitudes towards recording companies and artists. Among their conclusions, Levin and colleagues found that students who downloaded music files without paying were more likely to believe that their behaviour did not cause detriment to companies or artists. They indicated: ‘The qualitative and quantitative data are consistent … there is a common theme among the students who download music in that they believe it is a harmless act’ [7].

In light of this finding, Levin and colleagues (2004) suggested that illegal downloading may be addressed by fostering a psychological contract between the owners and users of music files. They stated:

If the record companies intend to persuade the public that downloading songs without paying is wrong, they may consider implementing a marketing campaign in which popular artists make the plea that this behaviour harms everyone involved in creating music. Alternatively, they may consider a campaign in which newer, less popular artists say that they will have to leave the industry due to illegal downloading. [8]

The MPAA used this approach in a major advertising campaign that targeted both cinema and DVD viewers (Yar, 2005). Anti–piracy messages were presented at the beginning of films, telling stories of how piracy affected the livelihood of a range of people within the film industry, ranging from producers and writers to gaffers and caterers.

To determine whether this strategy dissuades illegal downloading, Levin and colleagues (2007) examined the attribution of harm. More specifically, they investigated the effects of informing consumers of the harm caused by illegal downloading to recording companies and artists. Through a survey of college students, the researchers found that this information had no bearing on intention to download music illegally. Although this contradicted the researchers’ hypothesis, they suggested this might be partly consequent to socio–demographic variables. The researchers explained:

Contrary to our predictions, we found that attribution of harm had no impact on students’ intentions to download in the future. It is quite possible that college students, who are typically not yet financially independent, have a hard time believing that music artists and/or companies truly need the money that is lost due to downloading music … A sample of working adults would possibly yield quite different findings. [9]

Despite the potential value of attribution theory, research has not yet explored how policy informed by this framework might help to curb illegal downloading. Research to date has concentrated on marketing techniques (Levin, et al., 2007; Levin, et al., 2004), much to the neglect of public policy. However, lessons garnered from other fields — like social marketing (Fleiter, et al., 2010) — suggest the role of connectedness and familiarity in swaying individual behaviour. This is yet to be explored within the music industry. This paper helps to fill this void by presenting three relevant examples.

Despite the potential value of attribution theory, research has not yet explored how policy informed by this framework might help to curb illegal downloading. Research to date has concentrated on marketing techniques (Levin, et al., 2007; Levin, et al., 2004), much to the neglect of public policy. This paper helps to fill this void by presenting three examples from the music industry.

Examples from the music industry

For some musicians, Internet–based approaches have superseded traditional ways to engage with their audience. Rather than rely primarily on tours, releases, and promotional activities — each of which can be irregular and costly, they have harnessed the Internet as a way to communicate directly with their following, and in turn close the proximal distance. To demonstrate this, three examples are briefly discussed.

The first example relates to audience participation in funding mechanisms. Having started with ArtistsShare in 2003, a number of initiatives have developed within cyberspace that allow audiences and fans to directly participate in the financial support awarded to artists (ArtistShare, 2005). Currently, the largest fan–supported initiative is SellaBand (2010). With over 67,000 members, over US$3,000,000 invested, and 34 successful projects, SellaBand represents a different approach to supporting artists. Rather than require musicians to secure a contract from a record label, SellaBand releases donations to the musician once the target identified by the musician is reached. If the suggested target is not achieved, all monies are returned to donors. Although the system relies on established fan bases, it represents an avenue for fans to actively and directly participate in the creation of music. Furthermore, it facilitates a psychological contract (Rousseau, 1989; 2004) between fans and artists. Unlike the static relationship evident when buying a CD or digital download, SellaBand offers dynamic interaction, which is largely absent from the traditional consumption model.

The success of social networking to promote new acts and build a fan base is a recognised alternative to the major label approach of touring and saturation marketing (Wendel, 2008). In 2009, Amanda Palmer, of the band Dresden Dolls, leveraged the social network site Twitter to connect with her fan base and make $US19,000 in 10 hours (King, 2009). She achieved this by collaborating with fans to design a t–shirt; selling the t–shirts; holding an online auction of sell personal items; and, using Twitter to invite a select few to a performance at which donations were requested. The financial windfall was a consequence of interacting in a very dynamic manner with audiences and fan groups and developing stronger social contacts with fans. The social networking approach leverages a number of emerging elements that represent a departure from the major music industry model. These include peer–driven recommendation engines and the emergence of alternate gatekeepers and tastemaker (such as blogs and Twitter communities) that can create significant attention for emerging artists.

Of particular relevance to this paper is the number of fringe initiatives that are adopting unique approaches to engage audiences. One of these initiatives is by Canadian artist, Richie Hawtin and his label, minus. In 2008, Hawtin started touring with CUBE, a WiFi–based radio frequency identifier (rfid) transmitter that enabled audiences to interact with performers dynamically and vice versa. Using the CUBE, members who had purchased a rfid–based membership card were able to interact with the machine via iPhones and WiFi–enabled devices, receive messages from performers, download unreleased tracks, and upload artistic demonstrations (XLR8R, 2008). Although this technology is in its early stages, and leverages Hawtin’s reputation as an artist and innovator, it represents a novel attempt to actively engage audiences during performances using increasingly common mobile technology, such as bluetooth and WiFi.

Ostensibly, these three examples of engagement do not represent a panacea for the music industry as a whole. But rather, they suggest that significant gains can be made by engaging audiences in a dynamic manner and thereby creating stronger social bonds between the participants.




This paper was guided by concerns over the tightening legal structures over copyright infringement and the increase within illegal downloading. The wholesale use of legal sanction has the potential to lead to the creeping criminalisation of significant parts of society, many of whom are vulnerable. This paper examined the extent to which attribution theory (Heider, 1958; Kelley, 1979) is a useful framework to better understand and develop alternative strategies to addressing illegal downloading. Attribution theory suggests that, by increasing social proximity between people, some behavioural changes might be witnessed. Traditional music industry structures are not effective at creating strong social contracts. Web 2.0 developments in social networking, like Twitter, allow artists to engage with audiences in new ways; however, the extent to which they affect illegal downloading is uncertain.

There are several gaps in both the systems of audience engagement in the dominant music industry paradigm and emerging initiatives within the Web 2.0 developments. One such gap is the level of audience–artist interaction at the point of performance (beyond the performance itself). SellaBand illustrates that audiences are willing to engage with artists in very dynamic ways. Palmer’s example of engaging fans through Twitter illustrates the efficacy of new technology for engaging audiences and the desire of audiences to engage with artists they like and respect. Similarly, the innovative work of Hawtin represents an initial foray into leveraging technology to increase social proximity using ubiquitous mobile technology. These three examples support the contention that attribution theory presents an alternative conceptual framework for understanding illegal downloading.

Although exploratory, this paper provides a strong case for rethinking ways to address illegal downloading. A critical analysis of current strategies to curb these violations suggests their efficacy is questionable. Given the personal, social and economic costs associated with this, an innovative approach is required.

This paper suggests that policy informed by attribution theory (Heider, 1958; Kelley, 1979) may help to curb illegal downloading. Support for this was provided by examples from the music industry. Despite its musical focus, this paper is also relevant to other industries affected by illegal downloading. Industries with digitised intellectual property may benefit from closing the proximal distance with users of their material. However, this will require empirical research to test the value of policy change.

Implications for policy

To develop public policy that curbs illegal downloading, a number of key questions need to be considered. Without such deliberation, public policy might in fact thwart access to, and the use of intellectual property, and as such, hinder creativity and innovation. While not exhaustive, the following questions provide a useful starting point:

  1. How is it possible to develop a public policy that has the elasticity required to encompass the diverse and changing way that individuals engage with intellectual property in cyberspace?

    Not only does this require the development of a coherent and an inclusive policy, but it also requires continued opportunities to test the strength of the policy and amend it accordingly. This reflexivity will help to ensure that policy reflects the realities of engagement within cyberspace. Through this process, inadequacies in the current discourse might also become apparent. For instance, it may reveal weaknesses in dominant orthodoxies — like the provision of arts grants predominantly for touring, rather than for mechanisms that help artists to engage with their audiences in a more dynamic manner.

  2. How will a broader understanding of engagement within cyberspace affect the exchange of dialogue between policymakers, researchers, theoreticians, practitioners, and ultimately, the owners and users of intellectual property?

    Changing the way in which key concepts are understood can stymie effective communication between stakeholders. While this can be problematic at a global level when international discussions are held, it can also hinder communication at a national or state level. As such, broad is not always better.

  3. Will broadening the concept of engagement, at least as it is understood within cyberspace, diminish experiences with and consequences of illegal downloading?

    If government rhetoric was to encompass more diverse instances of engagement, it then follows that more citizens might be regarded as engaged, socially active, and IT–savvy, rather than disenfranchised. Consequently, this might minimise the prevalence of disengagement, particularly among young people who remain detached from conventional social systems like education, employment and community services (Edwards, 2008). It might also undervalue the consequences of disengagement. In simple terms, the more citizens that are seen to be engaged, the more comfortable our consciences.

    Within the current political climate of neo–liberalism (Béland, 2007; Quiggin, 1999), this point warrants particular consideration. Under the guise of economic rationalism, neo–liberalism supports a range of practices including the reduction of public expenditure for social services by the government, such as health and education, as well as altered perceptions of public and community good to individualism and individual responsibility (Martinez and Garcia, 1997). Consequently, those who are in most need of support become less likely to receive it (Hamilton and Maddison, 2007). For this reason, there is a need to exercise caution when broadening public policy, as it might in fact shadow experiences of disengagement.

  4. Finally, will broadening the concept of engagement provide policy–makers with the opportunity to falsely claim greater political clout?

    Following from the previous question, if more citizens are deemed, socially active, it is possible that the government bodies that broaden current policy will claim ownership of positive change. More specifically, they might allege it was they who encouraged such engagement, particularly among citizens who were (and perhaps remain) disenfranchised.

Evidently, these issues will not be overcome easily, as the questions posed do not have clear or definitive answers. However, confronting these (and other) challenges is a useful reminder that the concept of engagement is not necessarily without costs and consequences. Admitting this will help to ensure that those interested in the concept are not easily seduced by it.

There is a pressing need for governments and policymakers to examine illegal downloading through a range of lenses. Although punitive approaches might appear attractive, they confront technologically advanced efforts at circumvention, like private P2P exchange networks and IP address–cloaking strategies. Punitive approaches might also criminalise vulnerable populations, like young people and those who support them. For these reasons, research is needed to explore non–punitive approaches to curb illegal behaviour.

Implications for research

Given the novelty of the thesis here presented, research is yet to test whether policy informed by attribution theory can in fact curb the act of illegal downloading. Such research might compare communities guided by modified policies, with those that are not. In light of attitude and behaviour consistency theories — which suppose that attitudes and behaviour are highly similar (Azjen and Fishbein, 1977; Fazio and Zanna, 1981), comparisons can be made based on attitudes towards illegal downloading, which might include the way in which the behaviour is rationalised, as well as acts of illegal downloading.

There is much opportunity to explore innovative mechanisms that foster engagement between artists and their audiences. At present, this onus is largely on individual artists — and, as demonstrated in this paper, the few who have experimented with these mechanisms seem to have benefited — so too have their audiences. These benefits may be enjoyed by others via policy–based initiatives. For instance, funding schemes that encourage artists to connect with audiences (both existing and new) in innovative ways might afford them opportunity to focus on their creative capacities while leveraging different technologies. Evidently, the benefits (or otherwise) of this and other approaches warrants empirical testing — this could involve logic model evaluation to determine the relationship between inputs, outputs and outcomes (Cooksy, et al., 2001; McCawley, 1997; Daponte, 2008); cost–benefit analysis ‘to assess whether decisions or choices that affect the use of scarce resources promote efficiency’ [10]; and/or cost–effectiveness analysis to examine social costs.




There is considerable potential for further development of this thesis both within the music industry and also further afield to other digital industries that are suffering the ill effects of illegal downloading. There is a pressing need to explore closing proximal distance between audiences and artists that is beyond the individual initiatives of particular artists. Significant change can be achieved by examining these initiates through a policy lens and adopting policy–based approaches that assist artists and audiences straddle this gap, thereby forging stronger social contracts between them. Although this paper is exploratory in nature, combined with further research, it stands to be an important contribution to approaches to address illegal downloading in a way that stymies the creeping criminalisation of society. End of article


About the authors

Dr. Kalika N. Doloswala is a research associate with the Centre for Industry and Innovation Studies (CInIS) Research Group, and educator with the School of Management and the School of Communication Arts at the University of Western Sydney. He is passionate about emerging technology, radical innovation and illegal networks.
E–mail: K [dot] Doloswala [at] uws [dot] edu [dot] au

Dr. Ann Dadich is a registered psychologist and a Research Lecturer affiliated with the Centre for Industry and Innovation Studies (CInIS) Research Group and School of Management at the University of Western Sydney. Her research passions lie in the related areas of social policy, community psychology, health/mental health service systems, and knowledge translation. Prior to her life in academe, she worked in both the government and non–government sectors with people who experience mental health issues. These experiences continue to inform her research interests and her approach to conducting research that is both empirical and respectful.
E–mail: A [dot] Dadich [at] uws [dot] edu [dot] au



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2. Australian Government, 2006, p. 18.

3. Allen, 2008, para 41.

4. Cited in Colley, 2010, para 10.

5. Electronic Freedom Foundation, 2008, p. 5.

6. Marshall, 2009a, para. 14.

7. Levin, et al., 2004, p. 56.

8. Levin, et al., 2004, p. 57.

9. Levin, et al., 2007, p. 121.

10. Fuguitt and Wilcox, 1999, p. 35.



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Editorial history

Received 21 February 2011; revised 24 March 2011; accepted 24 April 2011.

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“The accidental criminal: Using policy to curb illegal downloading” by Kalika N. Doloswala and Ann Dadich is licensed under a Creative Commons Attribution 3.0 Unported License.

The accidental criminal: Using policy to curb illegal downloading
by Kalika N. Doloswala and Ann Dadich.
First Monday, Volume 16, Number 6 - 6 June 2011

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