Who would you back in a fight between the ISP industry and the music business?
In the red corner, a multi-faceted, multi-billion sector with deep pockets and an urgent need to maintain the immunity from liability that comes with its status as a “mere conduit”.
In the blue corner, a once-mighty, publicity-rich, but now rather anxious bunch of businessmen, impresarios and artists who see their financial lifeblood draining away down the arteries of illegal peer-to-peer downloading.
For the ISPs, the issue is simple. As a UK High Court ruling in 2006 put it: “Persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers.”
Nor, it is safe to assume, can they be characterised as “shoplifters”, as the irrepressible Paul McGuinness, manager of U2, described them in a speech at the Music Matters conference in Hong Kong.
“One way or another, ISPs and mobile operators are the business partners of the future for the recorded-music business,” he said. “But they are going to have to share the money in a way that reflects what music is doing for their business.”
He chides the ISPs for failing to confront the piracy that he claims is ruining the music industry financially and simultaneously preventing new acts from being funded to the point where they can reach wide audiences.
There was nothing in Mr McGuinness’s words which would surprise anyone who heard him speak at the MIDEM music industry conference in Cannes in January. The message was delivered with some ferocity, though.
The ISP industry, which he describes in terms that makes it look like an overweaning bully, will certainly respond that the music business is blaming it for faults that cannot be rightly be laid at its door. Close supervision of what is passing down the metaphorical pipework is both impractical and illegal, the ISPs argue.
Their language, too, often tends towards the intemperate.
The fact is that both want to do some kind of deal, but neither wants to be seen to flinch.
They evoke the image of two antagonists standing still, their right hands locked in a handshake that neither develops into an embrace nor ever disengages. But with their left hands, they punch each other ceaselessly in the face.
Meanwhile, consumers continue to enjoy the product of musical creativity using ISP-owned infrastructures and the vast majority of them doing so are paying nothing for it.
Answers are out there, as Mr McGuinness says in his speech, but until the two antagonists stop hitting each other, they cannot reach out for them.