On the Gripping Hand

[Warning - this one is quite long with lots of juicy links]

Mauricio Frietas has posted a Q&A session with Campbell Smith, the CEO of RIANZ that happened in one of the Forums. It’s an interesting read but Smith is still convinced that his cause is just and, hey, RIANZ are not the RIAA so just trust us already.

He cites a report by Entertainment Media Research in the UK (don’t go there if, like me, you use anything other than IE) which is the 2008 Digital Entertainment Survey (direct link to full report PDF 8.6MB, Summary report PDF 848KB).
Actually, he says:

Independent research has found that the main driver of piracy is the
availability of music for free. For example, a recent survey in the UK
by Entertainment Media Research found that 7 in 10 file-sharers cited
the availability of free music as their reason for using peer-to-peer
networks and our focus group research in New Zealand suggests that it is
a similar driver here.

Okay, I’m up for some independent research. Let’s go looking for the report.

Interestingly, EMR’s site says

The 2008 Digital Entertainment Survey, commissioned by Wiggin , is a
comprehensive audit of entertainment and digital activity in the UK
today, investigating behaviour, trends, preferences and attitudes across
all forms of entertainment activity

while Wiggin’s site says

The 2008 Digital Music Survey, conducted by Entertainment Media Research and supported by Wiggin, makes encouraging reading at a time when it’s most needed

The distinction between “commissioned” and “supported” may be a little sharper when you know that Wiggin LLP is a media law firm in London. In my experience of lawyers, they don’t do much unless someone else is footing the bill and giving the instructions. I’d be interested to know who gave the instructions on this one, but I don’t think they’ll tell me somehow.

So, naturally I wondered who “Wiggin” is and it turns out, according to the Chambers UK Guide, that:

Wiggin LLP is a boutique firm of solicitors, recognised by many as the best in the media business. The firm specialises exclusively in music, film, TV, broadcast, new media, sport, gaming, technology and publishing and has earned an international reputation for fresh thinking and innovative approaches.
The 46 lawyer firm takes instruction from publishers, broadcasters, regulatory bodies, football clubs, sports governing bodies, production companies, telecommunications companies, film studios, record labels and TV channels. Its impressive roster of clients includes Al Jazeera, Bauer, BBC Films, British Phonographic Industry, EMI, BT, Channel 4, Columbia Pictures, Condé Nast, Emap, Five, HBO, ITV, The International Cricket Council, Macmillan, Manchester United FC, Middlesbrough FC, Paramount Pictures, Party Gaming, Racing UK, Miramax, Setanta, Time Warner Books, Trinity Mirror, Turf TV, 20th Century Fox Film Corp, Virgin Media and Warner Brothers.

In 2006, they acted for the British Phonographic Industry against Tiscali, a UK ISP, and looked remarkably like our own “industry bodies”. According to thelawyer.com:

The music industry is not only rich and powerful, it is also raging a war against illegal filesharing. But after focusing its wrath on individual filesharers, music industry body the British Phonographic Industry (BPI) is now eyeing bigger prey – the internet service providers (ISPs).

Last week the BPI, advised by media specialist firm Wiggin, wrote to providers Tiscali and Cable & Wireless (C&W) demanding that they suspend 59 internet accounts used for filesharing. But by doing this it might
have scored an own goal, invoking the anger of established internet players that until now have been on the sidelines in the music industry’s war on filesharing.

Legal actions of this nature against ISPs without a High Court order have no precedent, making the legal ground a little shaky. And the ISPs are ready for a fight.

Apparently they went back and forth over that summer and eventually made a deal to implement a ‘three strikes policy’. But the deal went south as soon as they tried to implement is, according to the Register:

Tiscali, the UK’s fourth largest broadband provider, implemented a “three strikes” arrangement with the record industry to disconnect illegal filesharers last summer, The Register can reveal.But over a matter of hours yesterday any deal that Tiscali thought it had made with the BPI evaporated in a row over money.

Relations between the pair are in disarray as they battle over who should cover the costs of sending warning letters to peer to peer users and then disconnect persistent copyright infringers. The system the two-million-customer ISP believed it had agreed with the BPI is the same one that the government is pushing all ISPs to enforce.

[...] A Tiscali spokeswoman said late on Thursday: “The BPI led us to believe we had concluded an agreement to implement their preferred process in October last year, which not only demonstrated joint leadership in this area but also that both of our industries could work together to tackle this issue.”

The UK government was planning to implement such a proposal as law, but recently decided against it.

Anyway, the upshot of this is that, far from being “independent research”, the EMR report was commissioned by a law firm, that regularly acts for big media clients, and used a research company that was set up by a former MTV Europe executive:

Entertainment Media Research was founded in 1997 by Peter Ruppert, formerly Head of Music Information at MTV Europe in anticipation of the digital entertainment revolution.

Today, Entertainment Media Research is Europe’s foremost entertainment research consultancy. Headquartered in London it serves the film, music, broadcast and advertising industries in the UK, Continental Europe, Scandinavia, USA and Australasia. The company is independent and privately-owned.

Our business is the supply of research intelligence that enables entertainment decision-makers to push their creative and commercial boundaries and minimize their risks to achieve the greatest financial return.

Radio programmers, A&R heads, marketing execs, television broadcasters, commercial departments, advertising creatives, media planners & buyers, strategists and chief executives all use Entertainment Media Research.

The company’s key assets comprise a large and continuously refreshed database of music and entertainment consumers, a suite of ground-breaking research methodologies that have become the industry standard across Europe and unrivalled expertise in entertainment and music research with a hard-won reputation for flexibility and highly actionable findings.

Entertainment Media Research is staffed with specialists from the entertainment, music, broadcast, marketing and advertising industries supported by MRS- qualified market researchers who truly understand how to maximize entertainment audiences.

EMR also produced surveys in 2005, 2006 and 2007, commissioned by Olswang, which is billed, by chambersandpartners.com as “a leading law firm renowned for its ground breaking work in the technology, media, communications and real estate industries. Founded in 1981, the firm has grown to a staff of 650, including more than 100 partners in four offices in Europe“. Five of the Wiggin partners are ex-Olswang, but there appears to be no other connection. Either the prime movers for the survey at Olswang moved to Wiggin, or EMR went looking for a new sponsor.

Oddly, only the 2006 report (PDF 428KB) is readily available on EMR’s website, and there’s not even a mention of it on Olswang’s (correction: Google found it). In 2007 and 2008, Olswang shifted their sights and produced Olswang Convergence Consumer Survey with YouGov.com but I couldn’t see any reference there.

By the bye, with regard to the 2007 report, an interview in the Globe and Mail with EMR produced the following statement:

“The music industry is in a state of considerable flux,” said Entertainment Media Research executive director Russell Hart in an interview. “The decline and value of the CD market is not being compensated for by the increasing growth and volume of the digital market.”

This is one of the few times I’ve heard anyone involved with the business officially not say it’s all down to piracy, and was echoed, perhaps inadvertently, by comments from Ant Healey in a recent Media7 program. The interview goes on to say:

Although the poll is based in the U.K., Mr. Hart says that the data can be applicable anywhere in the developed world.

“Of all the major music markets, the U.K. has been least affected by piracy. Consumer behaviour and attitude toward music is pretty common around the developed world, so the basic lessons still apply,” said Mr. Hart.

The best way of counteracting piracy, Mr. Hart says, is for the record industry to, “focus more on the quality of the music being released and spent more effort communicating the availability of the product targeted at a specific audience.”

“Piracy can be reversed if there’s a will to do so,” Mr. Hart said.

This indicates to me that EMR were at least trying to be objective. So I looked a little deeper.

In 2005, he said :

“The findings indicate that the music industry is approaching a strategic milestone with the population of legal downloaders close to exceeding that of pirates,” said EMR’s chief executive Russell Hart.

EMR apparently did not have a website in 2005 and I can only find references to the report. If anyone’s got a copy, I’d love to read it.

Anyway, that’s a side show. Back to Wiggin. Poking around Wiggin’s site, I found their Seminars page:

DIGITAL ENTERTAINMENT 2008
Wiggin LLP hosted the first Digital Entertainment Seminar, delivering the results of a major survey commissioned from Entertainment Media Research.
TUESDAY 4 MARCH 2008, LEWIS MEDIA CENTRE, MILLBANK, LONDON

So maybe they did commission it on their own behalf after all. Following the link brings one to a page which tells you:

On 4 March Wiggin hosted a seminar in London to discuss consumer attitudes to converging media. The seminar centred on the findings of a survey of 1,600 UK consumers commissioned by Wiggin and carried out in January 2008 by leading media research company Entertainment Media Research. The survey questioned the behaviour, trends, preferences and attitudes of respondents to all forms digital entertainment across the board; how consumers want to access digital services, using which devices, and perhaps most importantly, how much are they willing to pay?

Linked from this page is a 30 minute edited video of the event. It seems to have been reasonably balanced, though the EMR presentation shown focuses on piracy. And the “stealing” word is used by a member of the panel, though the analysis is reasonable. A nice point was the finding that only 10% of those surveyed are using their phones for mobile entertainment, and only 20% were even interested in doing so. I wondered how many were using iPhones (remember, this is a year old) although many said data charges were a barrier. The majority of the discussion is actually about advertising and how to cajole/persuade/threaten(?) internet and mobile users to pay for content.

So I had a flick through the actual report, which is actually a very interesting picture of the UK market. It only surveyed 1608 people – while the current UK population stands at 61 million. I have some trouble with that. The breakdown is even more odd:

EMR_sample

While the latest nugget from the UK Stats people does note that Grannies now outnumber the under 16′s, it still doesn’t break down the way EMR have done. The 2001 Census data makes it clearer.

The report notes that:

The survey reveals an astonishing divide in digital entertainment take-up and technology ownership between consumers of different ages. Furthermore, there is a substantial proportion of consumers that feel left behind. All this adds up to a significant untapped market for digital technologies and services.

and breaks this down:

EMR_detail

Apparently, once you’re over 54, you no longer care about the Internet, technology or music – who knew?

The significance of this last bit is that it’s those under-reported <25s that have the most familiarity with and use of digital technology. They are the people that should be surveyed in depth, because they’re the ones determining the future, but their weighted percentage of the survey is only 24%. Yet the survey then is held to be authoritative (by Cameron Smith, anyway) when talking about piracy, which even in the summary report is only 1 slide in 29.

And this is the level of research that s92A is based on.

This is not what I call “independent research”, or even “good research”, I’m sorry. This is what I call “industry research”.

When a company that specialises in litigation on behalf of the content industry commissions a report in order to host a seminar presenting that report, that’s not independent. When a report bell-curves its audience to minimise the major market segment, that’s not an accurate reflection of the marketplace. And when a report samples 1608 people, from a population of 61 million, that’s not even representative of that population, let alone the entire world. And Campbell Smith should know that.

Lies, damn lies and statistics.

[UPDATE] Apologies for the format of the tables – it’s a new plugin that I’ll have to go hack at]