UK Record Companies Want To Bring In 'Three Strikes' Using A 'Voluntary Code' For Punishing Alleged Illegal File Sharers

from the where-have-we-heard-that-before? dept

As we reported a few months back, the UK's misbegotten Digital Economy Act continues to go nowhere fast, with warning letters for alleged illegal filesharing unlikely to go out until 2016, if ever. As you can imagine, the UK recording and film industries aren't exactly overjoyed by this prospect, and have come up with Plan B, as reported by The Guardian:

Broadband providers are being asked to create a database of customers illegally downloading music, films and books, which could be used to disconnect or prosecute persistent offenders.

…

BT, Virgin Media, BSkyB and TalkTalk are being asked by music and film companies to sign up to a voluntary code for policing illegal downloading. Negotiations have been under way for months with the BPI and the British Video Association, whose members include the BBC and Hollywood studios.

The idea is that after three warning letters, more serious action would be taken:

Measures could include throttling internet connections to slow them down, blocking users from particular sites, disconnecting offenders from broadband for a limited period and ultimately prosecution.

Of course, this bears a striking resemblance to the "six strikes" plan in the US, and shares with it the same deep flaws, notably that it is based on allegations and that the burden is on the accused to prove that they are innocent. Compounding that difficulty is the fact that this is intended to be a purely voluntary code, and so there are no well-defined mechanisms for challenging such accusations in the courts or obtaining redress for being wrongfully accused.

Fortunately, the Guardian article indicates that UK ISPs are worried about the legal implications of creating a database of customers who are accused of illegal file sharing:

There are concerns that such a database may be illegal under the Data Protection Act, which states companies can only retain information about individuals where it is needed for commercial purposes.

Moreover, ISPs can hardly be keen to punish their own customers, who will probably just leave for another supplier. As a result, ISPs seem to be responding robustly to the idea. Virgin Media described the current proposals as "unworkable", while TalkTalk said:

"our customers' rights always come first and we would never agree to anything that could compromise them."

That's good news, but it's troubling that media companies are trying to bring in the discredited "three strikes" approach by the back door, circumventing debate and the democratic process using a "voluntary code" that takes no account of what the general public thinks, and which provides no protections for their basic rights.

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Filed Under: digital economy act, record labels, three strikes, uk, voluntary agreement
Companies: bpi, bskyb, bt, talktalk, virgin media

Warning Letters Under UK's Three Strikes Plan Unlikely To Be Sent Out Before 2016 -- If Ever

from the let-the-beast-die dept

Techdirt readers may recall that over three years ago, the UK's Digital Economy Act was passed in totally disgraceful circumstances. Since then, almost nothing has been heard about it, as British civil servants grapple with the fact that this poorly-drafted law is almost impossible to implement in any sensible way. If you were wondering what is going on behind the scenes, James Firth has put together a fascinating post piecing together the information that he was able to glean. The main point is that the UK's "three-strike" warning letters won't be going out for years:

Assuming a 2015 general election [in the UK], and factoring-in time to establish the necessary body or bodies to oversee the operation of the notification and appeals systems, it will be 2016 at the very earliest -- and possibly 2017 -- before the first warning letters go out.

In other words, it's likely to be six or seven years after the Digital Economy Act was passed that it starts to come into operation, if ever. What makes that particularly ridiculous, is that the pioneer of the three-strikes approach, France, is clearly backing away from it. For the UK to plough on with an outdated and discredited scheme regardless, is just farcical. But it gets worse:

Government advisers are aware that the creative industries are not currently on the point of extinction due to online copyright infringement, and are also aware of the concerns raised by ISPs and civil rights groups.

That is, the delay in implementing the law has meant that the claim that piracy would kill the UK copyright industries if left unchecked has been shown to be demonstrably false, removing what little justification there ever was for bringing in such disproportionate and vindictive legislation. Given that fact, and the evidence from France that three-strikes simply doesn't work, there is only one sensible option here: for the UK government to stop wasting the public's money and to repeal the entire misbegotten law immediately.

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Filed Under: copyright, digital economy act, three strikes, uk

UK's 3-Strikes Plan Continues To Grind Through The System; Still Not In Force, Still Awful

from the put-it-out-of-its-misery dept

As Techdirt reported in 2010, the passage of the Digital Economy Act was one of the most disgraceful travesties of the UK parliamentary process in recent times; it was badly drafted, hardly revised and then pushed through with almost no debate in the dying moments of the previous government. Since then, two UK ISPs -- BT and TalkTalk -- have challenged the Act in the courts, but lost earlier this year.

This has cleared the way for the UK communications regulator Ofcom to spell out how the 3-strikes system would work by publishing

a draft code for consultation that would require large internet service providers (ISPs) to inform customers of allegations that their internet connection has been used to infringe copyright.

Here's the summary:

The code will initially cover ISPs with more than 400,000 broadband-enabled fixed lines -- currently BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media. Together these providers account for more than 93% of the retail broadband market in the UK.

The draft code requires ISPs to send letters to customers, at least a month apart, informing them when their account is connected to reports of suspected online copyright infringement.

If a customer receives three letters or more within a 12-month period, anonymous information may be provided on request to copyright owners showing them which infringement reports are linked to that customer’s account. The copyright owner may then seek a court order requiring the ISP to reveal the identity of the customer, with a view to taking legal action for infringement under the Copyright Designs and Patent Act 1988.

A crucial aspect of this approach is how those allegedly infringing on copyright can appeal:

Customers would have the right to challenge any allegation of infringement through an independent appeals body. Ofcom will appoint this body and require it to establish transparent, accessible appeal procedures. Copyright owners will need Ofcom approval of their procedures for gathering evidence of infringement before they can be used under the scheme.

That last point, that the evidence-gathering system employed by copyright owners must be approved by Ofcom, is one welcome change to the first draft of the code, which was put out for comments in May 2010. Indeed, Ofcom has announced that it plans to sponsor the development of a publicly-available standard to help promote "good practice in evidence gathering". This should ensure that at least the IP addresses of alleged infringers are obtained in a reasonably rigorous way.

However, an IP address on its own doesn't identify the person responsible for the alleged infringement -- the use of an open wifi network is an obvious reason why not. This touches on one of only four grounds allowed for appeal (in the original draft, other reasons were permitted, but Ofcom has now narrowed this down "following a direction from the [UK] Government"):

the act constituting the apparent infringement to which a copyright infringement report relates was not done by the subscriber and the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service;

The big question, of course, is what constitutes "reasonable steps": would, for example, WEP-encrypted wifi be enough, even though WEP is now easy to break? Ofcom passes the buck on this one:

we believe it is for the appeals body, not Ofcom, to assess the evidence presented by subscribers and to determine the basis on which it will assess the reasonableness of any steps that the subscriber may have taken to secure its internet access service.

This means a crucial aspect of the Digital Economy Act -- on what grounds people can appeal against allegations of copyright infringement -- is still unclear. And remember that this current code is only about sending out warning letters: we still don't know what might happen after that. Ofcom merely says that any "technical measures" -- like throttling speeds or disconnection -- would require further legislation before they could be considered.

Although far from complete, the current code already imposes an unnecessary burden on ISPs that are merely providing the digital plumbing. Worse, it starts from the assumption that those accused of infringement are guilty, and must prove their innocence in an appeals process – but how on earth do you prove a negative: that you didn't download a file?

What makes this even more deplorable is that the copyright industries still haven't provided any credible, independent evidence that unauthorized file sharing is damaging them. In fact, as Techdirt has shown in its report The Sky is Rising, they are all flourishing. This means that fundamental rights are being harmed, and costs incurred, without justification and probably for no ultimate benefit, since determined downloaders will simply switch to using VPNs or other means. The longer the great Digital Economy Act farce drags on, the more absurd it becomes from every viewpoint.

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Filed Under: digital economy act, isp, ofcom, open wifi, three strikes, uk, wep
Companies: bt, talktalk

UK ISPs Lose Their Challenge To The Digital Economy Act; Entertainment Industry Responds Condescendingly

from the ok,-start-your-censors dept

UK ISPs BT and Talktalk challenged the Digital Economy Act soon after it was passed, complaining about how the law was approved, about the implementation details and how it would put them at a competitive disadvantage. Unfortunately, the final appeal in that lawsuit has been rejected, and the ISPs may now be forced to start cutting off users and playing the role of copyright cops for the entertainment industry. The court's basically said that there's nothing against European law in the Digital Economy Act. Even worse, it found nothing wrong with putting a significant chunk of the costs (about 25%) on the ISPs themselves. In what world is it reasonably to force an industry to pay to protect another industry from innovation? The only point where the ISPs won was on not having to pay 25% of regulator Ofcom's costs in setting up an appeals body.

What's somewhat ridiculous, however, is to then watch the entertainment industry practically gloat about this result. Geoff Taylor from the BPI responded by claiming that:

"The ISPs' failed legal challenge has meant yet another year of harm to British musicians and creators from illegal filesharing."

That's ridiculous on multiple levels. First of all, prove the harm. We'll wait. And wait. Because BPI can't do it. But, second, that assumes that kicking people off the internet will actually solve "the problem." It won't. The problem is with the fact that the companies represented by BPI refuse to adapt in a significant way, and thus users move towards more convenient, more efficient and better priced offerings.

PACT -- a UK trade group representing "independent creative content producers," the kind of folks who rely on an open internet and who should be terrified about the impact of something like the DEA, again, was extremely condescending to the legitimate concerns of ISPs:

John McVay, CEO of Pact, said: "Rather than needlessly spending more time and money on further legal challenges, BT and TalkTalk now need to focus on working with rights holders and the Government in implementing the Digital Economy Act with immediate effect."

Immediate effect to raise costs and decrease access -- none of which will do a damn thing to get people to pay more for content. Others were equally condescending and obnoxious. There was Equity general secretary Christine Payne:

“Once again a judge has made it extremely clear that the Digital Economy Act is a fair, focused, proportionate and efficient system for consumers and the creative industry,” she added. “Rather than individuals being hauled into court, the DEA makes it possible to conduct a mass consumer education programme. BT and TalkTalk need to stop fighting and start obeying the law.”

Hint to Christine: no "education programme" involves legislation requiring one industry to police users to stop them from doing what they want because a different industry is too lazy or clueless to adapt.

The Film Distributors’ Association president Lord Puttnam CBE hoped the court decision would put an end to “a long chapter of uncertainty, and the DEA can now help in implementing a mass consumer education programme so that people, especially young people, can come to appreciate the damage piracy inflicts on the whole of the creative community”.

Kicking people offline and making ISPs copyright cops is not an education program, and the "problem" the industry faces is not an education problem. People know that copyright infringement is illegal. It's not because of ignorance that they're doing what they do. It's because the industry refuses to offer what they want in a convenient manner at a reasonable price.

The British Video Association’s director general Lavinia Carey added: “Several other countries are adopting this measure and it would be bad for Britain’s creative industries to be left behind more forward thinking nations who are supporting their creative economies at this difficult time of transition towards increased digital consumption during this period of recession.”

Not that many countries, actually, and there's widespread opposition where it's happening, as well as significant concerns about the collateral damage. Over in France, of course, there are efforts under way by opposition parties to dump Hadopi as soon as possible. Pretending that this is some sort of widespread, agreed upon strategy that other countries are adopting widely is simply false.

But, in the end, this reaction shows how the industry continues to have its collective head in the sand on this particular issue. They think that users just need "education." That's wrong. It's the industry that needs education. It needs innovation on how to adapt, on how to meet consumers needs and on how to actually embrace what the technology allows. Until it does that, no "education program" is going to help... and the collateral damage of the DEA's program is only going to make things worse, and make sure that another generation of young people have no respect at all for the entertainment industry.

Filed Under: digital economy act, isps, uk
Companies: bpi, bt, pact, talktalk

UK Labour Party: Let's Just Get On With Kicking People Offline Over Copyright Infringement

from the give-us-data-not-dogma dept

As Techdirt reported at the time, the UK's Digital Economy Bill was rammed through Parliament, without proper scrutiny or even much democratic process, in the dying hours of the previous government. Since then, the implementation of the Digital Economy Act has moved forward relatively slowly. That's partly because there have been a series of legal challenges from ISPs concerned about its legality (and likely cost for them). In addition, it made sense for the current UK government to wait for the completion of the Hargreaves report on copyright in the digital age before proceeding.

But the people who drew up the Act and its punitive approach to tackling unauthorized file sharing -- the UK Labour Party -- have no doubts; they want extreme measures brought in now. Here's what Harriet Harman, the party's deputy leader, thinks the UK government should do:

implement the Digital Economy Act under a clear timetable including getting on with the notification letters and publishing the code of practice

lead and set a deadline for agreement in the industry for site blocking, search engine responsibility and digital advertising

That is, she wants people thrown off the Internet for allegedly sharing files (the three-strikes "notification letters"); censorship ("site blocking"); search results to be doctored ("search engine responsibility"); and extra-judicial punishment (cutting off revenues from "digital advertising".)

Of course, she wants all this without producing any specific evidence that it would actually help the music industries, or any awareness that innocent people might suffer as a result. That's to be expected, since the Digital Economy Act was drawn up in exactly the same way: without any research that its measures were appropriate, proportionate or effective.

To be fair, Harman does quote a few figures in her speech, such as this one:

Research by [the University of Hertfordshire] and UK Music found that:

Over 60% of 14-24 year olds were downloading music without paying for it.

Of course, that figure is pretty meaningless, since it includes people who have downloaded just once as well as those who download frequently. Moreover, they may have downloaded without paying in order to sample before before buying, or because they weren't able to buy what they wanted -- something the research quoted by Harman explicitly recognizes (pdf):

40% said their main reason for filesharing is to save money or because it's free. 23% said they did so to get hold of music they could not buy (for instance, pre-releases, DJ mixes) and 22% to experiment and try-before-they-buy.

So at most, 40% of that 60% were downloading music because it was free -- only 24%, which is rather different from 60%. Not only that, but the same research reported:

85% of illegal downloaders say they would be interested in paying for an unlimited, all-you-can-eat download service.

In other words, the vast majority of these unauthorized downloads are because of a failure to offer a product that people would gladly pay for.

Here's another number she mentioned:

Research from Harris Interactive found that:

3/4 of all digital music obtained in 2010 was downloaded illegally.

This is what the research report, commissioned by the British recorded music industry body BPI, said (pdf):

Harris conservatively estimates that 1.2bn tracks will be illegally downloaded in 2010 -- equivalent to a stack of CDs some 74 miles high stretching well into space.

Illegal downloads represent three quarters of all music obtained digitally, when set against BPI's prediction of 370m tracks in total across singles and albums bought legally by the end of this year.

That is, it's an estimated figure, but without any methodology given for how it was obtained. Here's another estimate from the same report:

Harris Interactive calculate that the total number of people in the UK illegally downloading music on a regular basis is 7.7m.

That's almost exactly the same figure that Jupiter Research obtained in its own research on the subject. Harman used another claim from that company in her speech:

Of course every illegally downloaded track would not translate into one which was paid for but even taking that into account Jupiter Research estimate:

That revenue lost to the recorded music industry last year through piracy was £236m.

Unfortunately, neither the research nor its methodology is publicly available as far as I can tell, making it hard to judge how reliable that figure is. But we do know something about Jupiter's estimate elsewhere that there were 7 million people downloading in the UK. As Techdirt noted at the time, this figure had been extrapolated from just 136 self-reported filesharers, using some pretty shaky logic. A more realistic number is likely to be closer to 3.9 million -- rather less than the Harris Interactive estimate quoted above.

The final figure that Harman quotes is in many ways the most important:

And despite the success of UK music, piracy has contributed to the fall in revenues of UK record labels - down 1/3 since 2004.

This, in a way, is the key "justification" for the harsh measures that Labour believes are "necessary": the UK music industry is suffering because of piracy, and must be saved at all costs. Unfortunately for Harman -- and for Labour's logic -- that's simply not true. As Techdirt reported, even the industry's own economists admit that the music industry is growing, not shrinking; the industry doesn't need "saving".

Although it's welcome that Harman tries here to justify her call for guilt upon accusation, censorship and extra-judicial punishments with some figures, it's significant that none of them stands up to scrutiny. In fact, there is no independent evidence whatsoever that the kind of measures the Labour Party embodied in the Digital Economy Act are either needed or effective. It's sad to see Harman continuing to suggest otherwise: surely it's time to move the debate on from one based on rigid dogma to one using real data?

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Filed Under: censorship, digital economy act, internet access, labour, search engines, site blocking, three strikes

UK Government Admits That It Has No Evidence (Zip, Zilch, Zero) To Support Its Claims For Draconian Copyright Law

from the faith-based-policy-making dept

One of our biggest issues with the constant beating of the drum to extend and expand copyright law, is how much of the policy making is totally faith-based. We always go back to the famous speech by Thomas Macaulay in 1841, in which he declared (among other things):

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty. My complaint is, that my honorable and learned friend doubles, triples, quadruples, the tax, and makes scarcely any perceptible addition to the bounty.

There is, these days, in the minds of certain policy makers that copyright must be good and more copyright must be better. That the actual evidence suggests otherwise is ignored. Evidence is not even sought. Instead, they take on faith the claims of the legacy entertainment gatekeepers that they need such extensions and expansions. This is why we were so happy to see the Hargreaves report in the UK repeatedly bang home the idea that copyright policy must be evidence based. And while the government claimed that it was effectively supporting the recommendations of the Hargreaves report, it appears that they still have a bit of a blindspot for needing evidence.

The folks at the Open Rights Group filed a Freedom of Information Act request for what evidence the government was using concerning the "scale and nature of infringement of copyright by websites and on the efficacy of different strategies for dealing with it." The response? They had no evidence:

I have dealt with your request under the Freedom of Information Act 2000. After a thorough check of the Department’s records, I can confirm that we do not hold the information you are requesting.

Instead, the government just repeated the same faith-based talking points:

The creative industries are an important part of the UK’s economy, and they regularly report copyright infringement as a serious problem.

Is it really so difficult for the government to provide any evidence other than "these few companies claim it's a problem"?

Filed Under: copyright, digital economy act, evidence, faith based, uk

UK Business Secretary: Blocking Sites Under DEA Is 'Unworkable'; Time To Add More Exceptions To Copyright

from the about-time dept

Well, well. When the Hargreaves Report came out in the UK, we wondered if it would follow the same path as the similar Gowers Report, in which the government thanked everyone involved, but failed to follow through. That might not be happening in this case. UK Business Secretary Vince Cable is apparently moving forward in trying to back many of the recommendations in the Hargreaves Report. As we noted, the report is quite tame. It doesn't go nearly as far as many of us would have liked, but it is surprising in that it supports greater exceptions under copyright law.

In fact, part of Cable's statement is that blocking websites under the Digital Economy Act is "unworkable." Such sense from politicians? That's a surprise. He's also going to move to finally make it official that folks in the UK can rip their own CDs without breaking the law.

Of course, as I predicted when the Hargreaves Report first came out... the usual suspects are freaking out about all of this.

Lavinia Carey, director-general of the British Video Association, said such a change would be “extremely damaging”.

“It’s for the rights owner to decide how to offer the [digital] copy,” she said. “People will find it much harder to forecast revenues to investors who are looking at funding new projects.”

This strikes me as disingenuous. Saying that it's "up to the rightsholder" is an interpretation of the law that assumes the rightsholder has full control. Yet, the law does not say that. And furthermore, the entire point of this discussion is to figure out who it's really up to, so just declaring that it's entirely up to the rightsholder, when that's the point of the discussion, seems misleading. And the clear argument here is that the law should be clear that consumers have rights to make their own personal copies of media they have legally obtained. Claiming that this will hurt investment in the industry is pure nonsense. It's FUD from an industry that still refuses to adapt to what the technology allows.

Filed Under: copyright, digital economy act, uk, vince cable

UK Gov't Admits That Protecting Big Record Labels More Important Than Getting Poor Online

from the regrettable-indeed dept

Via Glyn Moody, we learn that the UK government has responded to a question about how the Digital Economy Act might increase the price of internet access. The government's response? Yes, the Digital Economy Act might price poor people out of the internet, and that's "regrettable," but somehow necessary. Huh? So it's more important to protect the profits of a few obsolete record labels, than to help get more people connected to the internet? Remember, this is the UK, where it's already been determined -- by the music industry's own numbers -- that the music industry has grown quite a bit over the past few years. So there's no need for the Digital Economy Act to help the music industry. The only parties it really helps are a few record labels who refuse to adapt to the changing market. So, the only clear meaning of this statement from the government is an admission that protecting some obsolete businesses is more important than getting poor people online.

Filed Under: connectivity, digital economy act, lobbyists, poor, uk

UK May Reconsider COICA-Like Plan To Have ISPs Censor Websites Deemed Infringing

from the good-for-them dept

One part of the Digital Economy Act in the UK was that the UK government could have ISPs ordered to block certain websites deemed to be infringing upon copyrights. This is similar to what the US is trying to pass with COICA (or, already doing via Homeland Security's domain name seizures). However, it appears that at least some folks in the government are realizing this is a dangerous idea, and they're now exploring whether or not it's actually a feasible plan. That's better than just implementing it, of course. Perhaps most interesting is that this "rethink" was driven by a government website which asked the public to "nominate laws and regulations they would like to see abolished." Apparently this was a big one. What a concept: having citizens in a democracy point out what laws they believed were unfair.

Filed Under: bans, coica, digital economy act, free speech, uk, websites