As Congress once again considers a response to the latest outbreak of “inadvertent” peer-to-peer file sharing, the P2P software industry will doubtless point to its efforts to bring the problem under control. But the latest survey on the state of enterprise computing security, just released by a Silicon Valley area firewall company, isn’t likely to contribute to a general sense of well-being around this issue.

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Those who download illegal copies of music over P2P networks are the biggest consumers of legal music options, according to a new study by the BI Norwegian School of Management. Researchers examined the music downloading habits of more than 1,900 Internet users over the age of 15, and found that illegal music connoisseurs are significantly more likely to purchase music than the average, non-P2P-loving user.

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The success of “graduated response” programs in the U.S., U.K., France, New Zealand and elsewhere around the world may depend, in large part, on just how quickly file sharers will buckle. If most will quit after a simple warning, the campaign to enlist ISPs (and back down on the mass legal threats) may be a huge success.

But, if only draconian sanctions like disconnection are enough to “stop the swap,” the entire graduated response program could arouse critical opposition from the public and from lawmakers. The European Parliament, which has already considered the issue, has voted several times against such “three strikes” laws, largely due to the possibility of extreme sanctions such as Internet disconnection.

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If you pay any attention to the endless debates over intellectual property policy in the United States, you’ll hear two numbers invoked over and over again, like the stuttering chorus of some Philip Glass opera: 750,000 and $200 to $250 billion. The first is the number of U.S. jobs supposedly lost to intellectual property theft; the second is the annual dollar cost of IP infringement to the U.S. economy. These statistics are brandished like a talisman each time Congress is asked to step up enforcement to protect the ever-beleaguered U.S. content industry. And both, as far as an extended investigation by Ars Technica has been able to determine, are utterly bogus.

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On Sept. 8, 2003, the recording industry sued 261 American music fans for sharing songs on peer-to-peer (P2P) file-sharing networks, kicking off an unprecedented legal campaign against the people that should be the recording industry’s best customers: music fans. Five years later, the recording industry has filed, settled, or threatened legal actions against at least 30,000 individuals. … But suing music fans has proven to be an ineffective response to unauthorized P2P file-sharing.

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In the universe of the free (”free” as in beer), getting ripped off is the norm. Yes, many products and services are deliberately priced at zero these days, but a significant portion of consumers will gravitate to illegitimate free versions of not-free stuff. Free versions of pricey digital products are not hard to find on underground file trading sites, or in bits and pieces on above ground aggregators like YouTube. Most high-priced wares like expensive commercial software can be had for literally nothing. But very cheap things are widely pirated for free as well. 

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The Free Press issued a report this afternoon casting doubt on the theory of network congestion that has been cited by ISPs as the reason behind P2P blocking or broadband caps, and offering more rational solutions for dealing with sporadic congestion. It also claims that tiered broadband and limitation pricing–in which a carrier charges per gigabyte fee after users exceed a certain cap–is unlikely to become reality. Prior to the report coming out, I had spent the afternoon asking people about this issue, trying to figure out if our series of tubes is really clogged or if the carriers are merely seeking financial and/or competitive gain.

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This month’s announcement of a backroom deal between internet service providers and the big record companies to spy on suspected copyright infringers and reduce the quality of their Internet connections is just the latest paragraph in the record industry’s long, self-pitying suicide note, and it’s left me wishing they’d just pull the trigger already and stop beating their chests and telling us all how unfair it all is.

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AT&T is admitting that if it discovers users of its wireless broadband 3G service are making use of P2P apps, it will cut them off completely, and claims that it makes this clear in the terms of service. It hasn’t happened yet, but this bit of data will supposedly be used by a dissenting FCC commissioner this week to show that Comcast’s traffic shaping is pretty tame compared to other “rules” out there on network usage (ignoring the very different nature of the networks in question, of course).

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When it comes to broadband Internet access, you can have speed or large volumes of data transfer. You can’t have both. One certainty in the broadband world is that for those of us with cable or DSL modems connecting us to the Internet, there is still a finite amount of bandwidth available. When a user consumes a disproportionate and significant amount of bandwidth, it can and will slow down everyone. I hate that.

If the choice is between your being able to download more movies or other video and my getting the best possible speed from my Internet connection, I’m thrilled when you get kicked off. It can’t happen soon enough. Speed is what I need. Take all your P2P downloads and get the hell off my Internet.

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To catch college students trading copyrighted songs online, the Recording Industry Association of America uses the same file-sharing software that online pirates love, an RIAA representative told The Chronicle at the organization’s offices during a private demonstration of how it catches alleged music pirates. He also said the group does not single out specific colleges in its investigations.

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Two weeks into a Federal Communications Commission public comment period on whether Comcast deliberately degrades P2P broadband traffic, there’s no shortage of angry users who feel cheated and want the tampering to stop. Evidence is also mounting that Comcast is blocking more than just P2P traffic.

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Recently I produced a CD. It was independently recorded and distributed–and it was available for free on every peer-to-peer service on the planet weeks before it was officially released, so it was only a modest commercial success.

Don’t feel bad. It was entirely expected. Even if there was such a thing as a record industry anymore, no one would expect a double-disc tribute to a 27-year-old album by The Clash to keep Avril or Pink from the top of the charts. But there’s one reaction the record has received that has helped me understand something about the broader media business: the danger of looking backward.

Back when I started the project in 2003, I was delusional enough to think I could get someone else to fund it. I spoke to executives at large multinational record companies and small independent companies, and they all told me, with varying degrees of politeness, to get lost. A few told me it was a crazy idea, a few more told me it was a bad idea and some told me, with that level of snideness only record-company executives can manage, that I’d never finish the project.

But when the record came out, I heard from several record-company executives. Some of them just wanted free copies, some wanted to offer me mild kudos and almost all of them–including one who had rejected the record back in 2003 but forgotten–asked me some version of “Why didn’t you come to us so we could have put this out?”

Aside from reminding me that some people in the record industry view memory loss as a core competency, this reversal in my fortune now that I could no longer do anything about it gave me a clue to where the media industry is right now. Around the same time the record came out, the founder of a dot-com magazine that crashed and burned reminisced with me about an email newsletter I started while the ashes of that magazine were still warm. The newsletter failed, too, in large part because in 2002 online advertising had fallen off a cliff and hit the bottom of the canyon a la Wile E. Coyote. “If you started that now,” he said, “It would be a big success.”

Perhaps. But I don’t have to start it now. The media and technology businesses are now different than they were in 2002 and 2003. When I started the online newsletter in 2002, no one else was dumb enough to try that. Now it seems as if everyone has at least a semipro blog. When I started soliciting performers for the record in 2003, no one else was stupid enough to try and assemble 36 performers to redo–for free!–a long-forgotten record. Now tribute albums are all the rage. Is it just that I have uncannily bad commercial timing?

It is true that I would have an easier time funding something now than four to five years ago. Everyone else is. Indeed, as uncov and others report so gleefully, moronic ideas are getting funded again, while five years ago even a recipe for eternal life might have had trouble scoring a meeting on Sand Hill Road.

But the response I received should make entrepreneurs–and the people who fund them–wary. In both the case of the record and the email newsletter, I was told by experts that something I did at a different time would be successful now. Wrong! If I merely updated or replicated an old idea, it would still be an old idea. But today’s business environment is all about innovation. At its best, it’s about the next thing, not a redo of the last thing. The start-ups most likely to fail are the retreads, the wannabes, the copycats, the ones that mistake features for full-fledged services.

Look at the record industry if you want to see what happens to an industry that reflexively looks backward for ideas. Know your history but don’t be limited by it. At their best, media and technology are about the new. If you had an old idea that people like, say thank you. But, if you want success, keep that old idea where it is and come up with something fresh.