2018-12-13 14:05:16
How government will save you from P2P deviance In Focus/isps/legislation/middlemen/technology

The Register

Thousands – or to be more precise, six thousands – of lucky alleged infringers a week are to be informed of the error of their ways, according to the terms of the deal struck this week between the British government and six major ISPs. They will in the first instance be “informed when their accounts are being used unlawfully to share copyright material and pointed towards legal alternatives.”

And in the second instance? That is yet to be determined, and the ISPs and rights holders signing the Memorandum of Understanding with the government have been sent off for four months to figure out the ‘or what?’ bit of the deal.

In the meantime those letters will be cranking out. The targets will be identified by “music rights holders” who will pass the data on to the ISPs, who will then run the system as a trial for three months. So that’s about 70,000 letters in total, the number of suspects being dependent on whether they’re going to bombard the same people with information regarding the unlawful nature of some of their account’s activities, or whether they go for a ‘one per deviant’ rule.

The evidence of this trial period will be analysed, and depending on what that tells them they’ll agree with Offcom an escalation in numbers, a widening of content coverage (presumably to video), and “a process for agreeing a cap.” That is, not a cap in itself, but a process for agreeing one. This (we speculate) might take into account factors such as cost of stamps to ISPs, level of music business profitability, percentage of deviants in total user base, ratio of ridicule experienced by music industry to ridicule experienced by ISPs, and the price of sardines. Or something.

The two aspects of the letter – drawing the user’s attention to the infringement and pointing them at legal alternatives – are likely to be important in determining the success of the trial. Some users – possibly, as Feargal Sharkey thinks, most – are likely to be scared off when they learn that somebody’s watching them, but adequate legal alternatives (which the ISPs say they’re going to set up) will have to exist in order for the customers to be directed to them, and to carry on using them.

It seems doubtful that this will be the case in four months time, when the working group is due to report back back with proposals to deal with the hard cases. Despite fevered reporting in some newspapers, ‘three strikes’ doesn’t figure in this and the measures being considered are light on savagery. “The group will… look at solutions including technical measures such as traffic management or filtering, and marking of content to facilitate its identification. In addition, rights holders will consider prosecuting particularly serious infringers in appropriate cases.”

The ISPs already do traffic management, so that could just mean more of the same. Content marking would have to be done by the rights holders and would simplify filtering, if they decided they were going to do filtering, while rights holders busting serious infringers is pretty much what rights holders do already.

Fevered press coverage of a ‘crackdown on filesharers’ seems to derive in the main from the government’s “alternative regulatory options”. These are effectively various things the Nasty Party might do if the preferred option of voluntary measures and a little light rule-making enforced by Offcom doesn’t pan out. One of these light rules will ensure “that all ISPs are required to undertake an appropriate level of action to achieve the desired result.” So the ISPs signing the MOU won’t be disadvantaged by users fleeing to refusenik ISPs, because there will be no refusenik ISPs -“ISPs who choose not to engage in the self-regulatory arrangement would remain bound by the underlying requirement to have an effective policy on unlawful P2P file- sharing.”

Currently four tougher alternatives to this regime are being floated, and they still don’t include ‘three strikes’. Option A1 proposes legislation making it possible for rights holders to get personal data of infringement suspects on request, rather than having to apply for a court order. This would make it cheaper to sue infringers than it currently is, and could possibly mean an increase in prosecutions, but this only seems possible if the rights holders decided all deals were off, threw their toys out of the pram and went nuclear. Or they might just want to add everybody to their mailing lists, but we doubt that.

Option A2 seems similarly BPI-friendly. “Typically, under the terms of the contract between an ISP and an Internet service subscriber, the subscriber is not allowed to use the account for illegal purposes. Obliging ISPs to take action to enforce this contractual term in some way, for example to warn, suspend or terminate the Internet accounts of file-sharers, or to use other technical options would avoid lengthy, costly legal action.”

Getting the ISPs to “implement their own terms and conditions” is one of the BPI’s refrains, and if they were to do this in accordance with the BPI’s wishes, then they’d be warning people, suspending them, kicking them off… Which could indeed end up looking and feeling like three strikes, but these are alternative options, remember – they are not currently on the table.

Option A3 is basically Option A2, but sitting in between the rights holders and the ISPs would be a third party regulatory body which would assess the evidence, direct the ISP to take appropriate action and hear appeals and complaints. This would be costly and complex – and the government seems not to like it much.

Finally, Option A4 (there are no B options, or if there are they’re secret) covers filtering equipment. The government seems quite taken with this, claiming:

“There are technologies available which can filter Internet traffic. These can identify particular types of file (eg music files), check whether the file is subject to copyright protection and then check whether the person offering the file for download has the right to do so. If no such permission is found, the filter can block the download. These technologies vary in their effectiveness and cannot guarantee 100% accuracy given the lack of conformity between different computer and software technologies.”

And: “If the download is in breach of copyright the filter can block the download before it has been completed. No breach therefore occurs.”

Which is cool, if true. The rights holder doesn’t lose revenue because there’s no infringement, the ISP doesn’t need to do any threatening or booting, and it “may not require costly regulatory processes to be established or require issues of data protection to be addressed.” It could indeed be the government’s preferred magic bullet if all of that turned out to be true.

Unfortunately: “Opinion seems to be divided between stakeholders on whether filters could be an effective, long-term, cost-effective way of tackling not only P2P piracy but also other forms of copyright infringement. It might be valuable, in addition to moving forward on P2P, if rights holders and ISPs jointly investigated the technical, legal and cost issues around filters and assessed their utility in addressing unlawful online activity.”

Which is how the filtering bit got into the brief for the MOU group that’s reporting back in four months. Tune in then to see whether the ISPs and the BPI can save their marriage. ®

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