Worldwide piracy crackdown threatens ISPs

As you may have read, the UK government has said that it is becoming increasingly frustrated by the volume of illegal file swapping taking place online, and has threatened new legislation by April 2009 if the situation doesn't rapidly improve. The grumblings come from a report issued by the Department for Culture, Music & Sport (DCMS) called "Creative Britain: New Talents for the New Economy".

The report calls for collaboration between internet service providers (ISPs) and rights holders to deal with online piracy. The DCMS states: "While a voluntary industry agreement remains our preferred option, we have made clear that we will not hesitate to legislate in this area if required."

The UK music industry is an important part of the UK economy, bringing in £5 billion a year and employing some 126,000 people. It is therefore perhaps unsurprising that UK gov wants to protect this prized asset.

The UK government's announcements are part of a wider trend. The music industry worldwide is lobbying for ISPs to be made responsible for pirated materials being sent across the internet. This lobbying is reflected by increasing noise from the industry in the media. For example, see the calls for legislation at an EU-level by the IFPI. Already, the industry has had some success: in Japan, the 4 main ISPs have reportedly agreed to disconnect users who use the most common methods of file sharing.

Online file sharing is a complex and messy set of issues. In the rest of this post I'll try to outline at least some of the issues that governments across the world and their electorates are having to consider.

?Existing laws

Most countries have laws that make it unlawful to make unauthorised copies of copyright materials (such as music and movies). Unsurprisingly the UK has such laws in place. The key one is the the Copyright Designs and Patents Act 1988, which gives copyright owners the exclusive right to copy their works, authorise copying, and communicate their works and provides remedies for infringement of these rights.

Over recent years the music industry has used copyright law to sue individual file sharers, with a view to deterring this activity.

Tackling other aspects of copying

The current UK laws deal with persons making unauthorised copies of works, not at the means by which works are copied or how those copies are communicated to others. The music industry has made past efforts to tackle other aspects of copying:

• In the 1980s, in both the UK and USA record labels took the manufacturers of tape copying equipment (e.g. hifis with twin cassette decks) to court because that equipment can be used for making unauthorised copies of copyrighted music. The court cases failed, mainly on the basis that the equipment could be used for both lawful and unlawful copying.
• In 2001, a US legal action resulted in a file swapping service called Napster being shut down because Napster was held to be aware that its service was being for unauthorised copying and had not stopped that copying.
• In 2005, another US legal action saw the Grokster file sharing service being shut down.

Despite these actions, and the actions against individual file sharers, unlawful file sharing of music and movies online is still reportedly very common.

The proposed "three strikes" ISP law

The UK government has not released the details of what laws it would propose to bring in should ISPs not take up its call to arms against illegal file sharers. However, the widely held view is that we will end up with some kind of "three strikes and you're out" system, where an ISP will give a customer two warnings to stop making illegal copies, and then cut off the connection if a third instance of copying is found.

There have been reports in the press that initial surveys of consumers on this proposal have shown that consumers would stop making illegal downloads/uploads if they were threatened with disconnection. (Apologies, I can't find a link at the time of writing).

In the EU ISPs are protected by legislation that limits their liability for the content that users send or receive using their networks: see section 17 of the Electronic Commerce Regulations (the UK instrument that implements EU law on the issue). This law might have to be changed to give effect to UK gov's final proposal on ISPs.

A whole load of issues

The debate on illegal content distribution and how to tackle it has been going on for years. Here is a selection of the issues:

• Should ISPs be targetted at all? ISPs have argued themselves to be "mere conduits" who cannot monitor all data sent by their customers, work out of it's infringing, and then tackle infrings.
• Even if ISPs could monitor all customer data, would customers be happy with them doing so? Ther are both data protection and wider privacy issues to consider here.
• The way we use the internet for entertainment is changing rapidly, thanks to increased bandwidth. For example, services such as Youtube, Last.fm and the BBC iPlayer stream content to your machine, so you can watch/listen without having to download the content first. It is very early days for these type of services, and they are already very popular. In terms of content usage, this could result in users simply watching/listening to stuff online and not keeping copies; why fill up your hard disc with music when the music is there (legitimately) at a click?  For governments, the question is: why legislate to tackle a problem that may just be a 'blip' in the history of digital content?
• Some users still aren't showing themselves to be open to legitimate ways of getting content online, even when those ways are cheap and DRM-free. For example, see his story from The Register about the number of illegal downloads of the latest Nine Inch Nails album, an album that can be purchased for $5 without DRM.
• If you cut off a home internet connection, you are not just stopping the person making the illegal copies from accessing internet, you are also ending access for the rest of the house. When more and more services (including from government and local authorities) are accessed online, this does seem very unfair.
• Rather than punitive remedies for file sharing, governments could impose a 'content tax' on each ISP accounts, with the revenue being passed to representatives of the content industries for distibution amongst members. Laurence Lessig proposed something along these lines a while back in his "Free Culture" book.
• With the internet now providing a means for musicians to bring their music to market directly without needing record labels, some have taken the view that the music industry's lobbying on the matter is an attempt to get every single last penny out of a failing business model.

Comments

[Neil]

A good summary, thanks! Just one point: the band name mentioned above should be Nine Inch Nails.

[simply wondered]

much to chew on here. beyond the mere issue of unfairness in removing internet services from those suspected (i believe it would be largely 'suspected' rather than 'proven' given technological and manpower issues involved in checking) of illegal file-sharing, is the issue of legal challenge.
if services were to be withdrawn, do you foresee legal challenge a) on contract basis (whether breach of existing or freedom to contract?) and b) on human rights grounds. are there issues of a quasi-phone tapping nature on checking what people are doing with their connections? given that the isps will be acting under governmental pressure, are they acting disproportionately, unfairly unreasonably or illegally? could we see this being JR'd in the UK or taken to Europe?