The laws surrounding file-sharing and online copyright infringement are confusing, and nothing proves it quite so startlingly as a press release that landed in my inbox today.

The Federation Against Software Theft (FAST) sent over a statement about the ACS Law case currently stumbling to a close in the Patents County Court.

First, a quick round-up, in case you haven’t been following the story as closely as we have (I’ve never spent so much time in court, and hopefully I never will again):

ACS sent out letters demanding payment from people it accused of illegally downloading content. Many paid up, some didn’t. After thousands of letters, ACS Law’s sole solicitor Andrew Crossley finally brought 27 cases to court. Then, Crossley and his client, porn licensee Media CAT, promptly tried to ditch the cases — or discontinue them, to use the proper legal term.

Despite the two firms since shutting up shop entirely, the judge at the Patents County Court has refused to end the case, in order to give the defendants the chance to claim costs against ACS and Media CAT, and to give the real rights holders — as in, the people who made the pornography, who are effectively unknown — a chance to join the case. If they don’t — and no-one expects them to — the trial looks set to end in March, without any of the evidence really being examined.

‘Indignation’

If that wasn’t too mind-boggling, let’s head back to FAST, and its head-scratching email. FAST wants the case to continue, apparently to a full trial, with the lobby group’s General Counsel Julian Heathcote-Hobbins saying:

“The indignation about one or two law firm’s antics is a distraction from the real issue. People should know that if they wish to ‘lift’ a product, it carries a risk and that is of being caught. We would never question that due process must be followed and other rights respected, but these reasons are a smoke screen that illegal file-sharing should still be tackled.”

Let me jump in here. This case isn’t about “indignation”. The excellent Judge Colin Birss isn’t using due process and “other rights” as an excuse to shut down the case, though they would be perfectly good reasons to do so.

He’s doing exactly what FAST wants; he’s trying to keep the case going, long enough to ensure the real rights holders have a chance to join, and that the defendants can’t be “vexed” a second time over accusations of illegally downloading the same porn using questionable evidence. No-one here is advocating illegal file-sharing, least of all the defendants.

Public scrutiny

FAST continues: “Judge Colin Birss at the patents County Court in London has himself stated that ‘I cannot imagine a system better designed to create disincentives to test the issues in the court’ and that it cannot drop the cases to avoid what he terms ‘avoid(ing) public scrutiny.”

FAST seems unclear who is trying to avoid public scrutiny: it’s ACS Law and Media CAT. The defendants aren’t — they’re fighting to keep the case going, to pull the weak evidence against them into the spotlight, so it’s clear they’ve been harassed for no good reason.

The “system” Judge Birss rails against is ACS Law’s own system, not the court’s. Here’s what Birss said in his judgement, where that half sentence I’ve highlighted comes from:

“Simple arithmetic shows that the sums involved in the Media CAT exercise must be considerable. 10,000 letters for Media CAT claiming £495 each would still generate about £1 million if 80% of the recipients refused to pay and only the 20% remainder did so. Note that ACS Law’s interest is… they receive 65% of the revenues from the letter writing exercise. In fact Media CAT’s financial interest is actually much less than that of ACS Law. Whether it was intended to or not, I cannot imagine a system better designed to create disincentives to test the issues in court. Why take cases to court and test the assertions when one can just write more letters and collect payments from a proportion of the recipients?”

The judge wants the evidence tested, the defendants want judical scrutiny — the only parties who don’t are the claimants themselves.

No comment?

More from the lobby group’s lawyer: “FAST is simply not going to comment on the actions of the two companies involved.”

FAST should comment on the two firms: it should call them out for making the anti-file-sharing lobby look ridiculous and horrible.

“Our argument is that the cases therefore need to be seen to conclusion so that if the judiciary criticises methods, these may be in turn improved meaning the innocent are not accused and those who persist in this activity can be held to account.”

If this case does ever reach a conclusion, it looks highly likely that it won’t be the alleged file-sharers that are “held to account”, but the lawyers who are speculatively invoicing seemingly innocent people without just cause.

Astonishingly, it appears not even a legal expert from an anti-file-sharing body has a good grasp of what’s actually going on here, leaving FAST so eager to jump in against illegal file-sharing that it’s missed the entire lesson of the ACS Law debacle: that this country needs clear, sensible anti-piracy laws, and until then, abuses of power against innocent people and wastes of court time such as the ACS mess will continue to happen.

And that helps no-one, on either side of the piracy debate.

The French are good at many things. Nice wine, good cheese, and a fine line in shoulder shrugging. But let the bureaucrats within a metric mile of the real world and Gallic pragmatism falls apart.

The French authorities have come up with a scheme aimed at encouraging young people (anyone aged between 12 and 25) to buy music rather than download it illegally. All well and good, but the Government proposes using taxpayer money to subsidise the scheme. Youths that buy into the project will receive a card to the value of €50, for which they will pay €25. The other half is covered by the State.

This is enough to make this French taxpayer (vested interest declaration) mad on so many levels.

While one would never condone illegal file-sharing, there are plenty of reasons to dislike the record companies’ aggressive stance and action on copyright. It is a matter of personal pride that the last time I lined the pockets of the recording industry fat cats, The Verve were the next big thing.

Yet now the French Government is making a choice on my behalf. Rather than continue funding the excellent health service or declining education system, politicians think supporting the music industry is the way forward. And this at a time when the country is striking as the politicians raise the retirement age to cut costs.

And how much of that money will go to French artists? Have you heard French music? The top 40 is littered with international names that will take the money back to Japan or the US.

State-sponsored music is clearly about as Rock’n'Roll as Richard Clayderman. Hopefully youngsters will avoid it in droves

There are a few talented local artists in the mix, but the number one single this week is, for example, a song that translates as Cute Cute by René the Mole. It is a track so execrably bad it makes the Crazy Frog ringtone sound positively tuneful. A music industry this bad doesn’t deserve saving.

Whether or not youngsters will take up the offer is another matter. Getting €25 for free is a nice idea, but still relies on people stumping up €25 themselves. So the cash-strapped adolescent sitting in a café has a decision to make. Free music, two beers, and 60 Gitanes against a few tracks from René the Mole and The Best of Serge Gainsbourg. Tough call.

That’s without taking into account the teenagers’ “cool index”. State-sponsored music is clearly about as Rock’n'Roll as Richard Clayderman. Hopefully youngsters will avoid it in droves.

With no common-sense justification for the scheme, conspiracy theorists might be left to ponder whether it’s part of a wider policy aligned with the unpopular Hadopi law that threatens internet ejection after three downloading strikes. A cynic might wonder whether this is just a way to harvest the names and IP addresses of people taking part in the scheme – a contingency in case ISPs continue to kick up a fuss about handing over customer details in copyright cases.

All in all, it’s enough to make you want to go and download a hooky Vanessa Paradis track out of spite.

However, one thing the show did throw up was the abject attitude of one set of parents to their childrens’ file-sharing habit. The program followed a family with four kids from Manchester, in a bid to prove how teenagers were stuffing hard disks with dodgy downloads, unbeknown to their poor parents.  Lo and behold, Panorama’s “computer expert” (bloke who can read filenames) finds that the teenage sprogs have indeed been giving Pirate Bay a good hammering, filling the family laptop with more suspect albums than the Status Quo back catalogue.

Cue interview with shocked parents, who throw their hands up in despair at their file-sharing fledglings. “Your [the father’s] work laptop is taken from wherever it’s been left and we find Iona’s on it at 11 O’clock at night,” confides a bemused mum. “We don’t know what she’s doing”.

Well, you could try exerting basic parental control, for starters. Like not letting them scurry off to their bedrooms late at night with the laptop or checking what they’re up to once in a while. Why is it that some parents simply abdicate all responsibility when it comes to their children and the internet?

Mum rehashed the gossamer-thin argument that the kids knew what they were doing with computers, while she was merely a PC simpleton who wasn’t brought up with all this new-fangled file-sharing malarkey. Sorry love, not good enough. She was savvy enough to know that if her ISP choked her connection because of the kids’ download habit, she wouldn’t be able to open the email attachments she needed for work.  If she can work out how to use Outlook, she can work out how to take a peek into the Music folder every so often or set up the parental controls on their Windows 7 laptop.

Parents literally can’t afford to give their children free rein on the internet or plead technical ignorance. Not when copyright holders and their insidious legal firms are slapping demands for hundreds of pounds on doormats for nothing more than downloading a single game. But parents who wilfully ignore what their children are up to online can have no cause for complaint if they suddenly find themselves out of pocket.

“The [music] industry has been extremely slow to listen to the demands of its customers, and has had something of an abusive relationship with them, seeking to punish them before thinking of how to serve them better,” Lord Lucas told the House of Lords recently, when debating whether to cut-off file-sharers or not. He’s not wrong.

Yet, there is a small part of me that’s tinged with sympathy for the music overlords. Perhaps I’m being overwhelmed with Christmas good spirit (although that sounds ridiculously out of character), but I can’t help thinking BPI chief Geoff Taylor had a point when he commented recently that: “There are now more than 35 legal digital music services in the UK, offering music fans a great choice of ways to get music legally. It’s disappointing that levels of illegal P2P use remain high despite this.”

I spent a good portion of my weekend wrapping presents (with the ability of a man in a strait jacket) and writing Christmas cards, with Spotify merrily playing away in the background. In between Spotify sessions I would fire up my Xbox 360, and flip between the Elbow and Tom McRae channels on the excellent Last.fm service (I’m a sucker for moribund male vocalists).

I didn’t pay a penny for either of these services – if you exclude the necessary Xbox 360 Live subscription required for Last.fm. And yet I could listen to pretty much any song I wished for on Spotify, or sit back and listen to a tailored stream of songs based on my tastes on Last.fm. And for £10 a month for Spotify and absolutely chuff all on Last.fm, I could take both of these services with me on my iPhone.

They took their time about it, but Taylor’s right: the music industry has finally delivered decent, legal music services that benefit us as much as the record labels. Plus, you could  buy the Christmas number one for only 29p from Amazon, so even the argument that digital music is overpriced is beginning to fade.

So how about we call a truce with the music industry in this season of goodwill? They drop this ridiculous campaign to persuade Government to cut off file-sharers, and we’ll stop “borrowing” albums from BitTorrent. Happy Xmas (War is Over).

Hence today’s announcement that the Government will now urge Ofcom to suspend people’s broadband connections as a “last resort”. But on what evidence will ISPs be forced to clip your connection?

Rights holders will be required to identify the IP addresses of people they claim to have caught file sharing, and pass those details to the relevant ISP (as they do currently). But here comes the clincher. “The standard of evidence required from rights holders should, as a minimum, establish an infringement on the balance of probabilities,” the Government’s own consultation on legislation for illegal P2P file sharing states. So no innocent until proven guilty – a high likelihood that you’re in the wrong is all that the rights holders need to press the ISPs to cut off your broadband.

Astonishingly, the Government claims that these plans have the full approval of consumers and the six ISPs it bound to a Memorandum of Understanding (MOU) on file sharing earlier this year. “The template used by the BPI in the MOU trial should serve as a model for this as it has proved satisfactory to all the ISPs in the trial and has not provoked any particular concerns by consumers affected,” the consultation states.

That’s not what TalkTalk – one of the six ISPs involved – is saying this morning. “The evidence that is used to identify offenders is unreliable due to the prevalence of multi-users per account and Wi-Fi-hijacking and so will result in innocent customers being cut-off from broadband,” says TalkTalk, which branded the proposed legislation a potential “breach of human rights”.

And Which? has been running a long and admirable campaign against the heavy-handed law firms employed by the rights holders, which the watchdog claims have been “bullying” innocent people into paying hefty settlements for offences they say they didn’t commit.

The Government is inviting interested parties to respond to its proposals by 29 September, by emailing mike.klym@bis.gsi.gov.uk. We’ll be sending the Government our response to this ill thought-out, knee-jerk legislation. We hope you’ll do likewise.

Except that the new law is such a ridiculous piece of legislation that we can’t quite believe it’s going to come into force. Section 92 of the Copyright Amendment Act will be introduced at the end of February 2009, and says that any individual who is even alleged to have shared files illegally can be disconnected from the internet.

The actual text of the law states that the ISP must ‘reasonably implement’ a policy of termination of the accounts of people who, ‘in appropriate circumstances’, repeatedly infringe copyrights. Except that there’s no definition of what either of these terms mean, which leaves the law open to interpretation from almost any direction, and could leave individual users open to abuse from ISPs or organisation protecting the rights of artists – whether there’s evidence for their file sharing or not.

They don’t even need any proof – merely an allegation.

There have been numerous lawsuits over the years that have seen the RIAA get the wrong end of the stick in spectacular fashion – accusing grandmothers of downloading songs that they’d never heard and the user who even offered to let authorities search her PC to prove that she had nothing to hide. At least that time the RIAA had some evidence, however misplaced, to back up its claims and bullying tactics of its lawyers.

All that’s needed now, though, is a suggestion that someone has, at one time, illegally downloaded their favourite song. And that’s it – you’ll be banned from the Internet because someone suspected you of downloading a tune. You’ll be instantly tarred with the P2P brush and guilty before having a chance to prove yourself as innocent.

Several groups have already sprung up opposing the new law in New Zealand. The Creative Freedom Foundation has launched a campaign against Section 92, with the founder of the campaign, Bronwyn Holloway-Smith, saying that ‘The result of this law could be that one rogue employee or even one virus infected computer could bring down a whole organisation’s internet and it’s highly likely that schools, businesses, hospitals, and phone services will be harmed.’ It’s certainly a tricky situation, and one that huge swathes of people on the other side of the world aren’t taking lightly.

The New Zealand government has said that this will become law unless there’s a major showing of public outrage – so it’ll probably end up happening anyway. At least in the past the RIAA and other organisations needed a shred of evidence to begin legal proceedings – however misplaced. It seems that, come the end of February, they won’t even need that anymore.

The highlights of my bleak two-hour trawl of our nation’s capital involved four people claiming not to speak English, despite the English-language novels sticking out of their pockets, half a dozen “not interested, never heard of online music, don’t want to hear about it, go away before I set the hounds on you”, a couple of “got a meeting”, two “late for buses”, and my personal favourite – one woman who looked like Nicholas Anelka, telling me “not to follow her” after my opening gambit of “hello, sorry to bother you, I’m a journalist with PC Pro and…”

Needless to say, after a couple of hours of this soul destroying work I trudged back to the barn, slumped in my seat and quietly reflected – through sobs – on what had happened. I’ve done these things before and normally people are quite happy to have a chat with a slightly dishevelled, Ringo Starr-voiced journo. I can only assume it’s the issue. The bald facts are that a lot of people download music illegally and they probably felt I was trying to herd them straight into a confession and subsequently the clink. Which is fair enough – but I beg you, if ever you see a slightly gangling, youngish man, with a slightly vacant expression and wayward hair approaching you with a tape recorder in the street, give him a minute of your time, or at least, a funny excuse.