Columns

Leaked details of draft legislation, which suggests implementing a 'three-strikes and you're out approach' to file sharing has prompted a predictable knee-jerk response from bloggers and, no doubt, smug smiles of satisfaction in the boardrooms of record companies and movie studios. But the positioning paper raises some serious questions and issues that need to be tackled before producing a workable solution.

Before coming up with a solution, of course, we need to define the problem, but seem to be some way off even that preliminary stage. Record companies say they're losing millions of pounds every year because users of peer-to-peer file-sharing applications are illegally swapping copyrighted material. They assert that ISPs don't do enough to prevent the illegal activity being carried out over their networks. The ISPs claim that this status is enshrined in the 2002 E-Commerce Regulations. Furthermore, say the ISPs, inspecting every packet that crosses their servers is both impractical, and was likened by the Internet Service Providers Association to the Royal Mail opening every letter it processes, and likely to fall foul of existing laws on surveillance.

The government, meanwhile, having digested the Gowers report, is determined to turn the UK into a 'creative hub' and figures that in order to foster creativity, it has to strengthen the protection for creative works. It's also being put under pressure by record companies and their trade association, the British Phonographic Industry, to crack down on illegal file sharing. Somewhere, in among the exaggeration, excuses and hidden agendas lies something approaching the truth, and uncovering that is the first step to identifying the real problem, as opposed to the formulation offered by the record companies.

Few of us would disagree that artists

That assumes that everyone who illegally downloads a song, movie or TV show would otherwise have bought it, which is nonsense. It's no more true than to claim that those of us who taped songs from the radio, made tapes of friends' LPs or set the video for an episode of Star Trek would have sought a legal, paid-for route if the easier, free but illegal method had been unavailable to us. So before we start to discuss proposed legislation, a more accurate assessment of financial loss would be useful.

What's strange about the record companies use of multi-million pound alleged losses as their argument, is that it is irrelevant. Either breaching copyright is illegal or it's not. If it is, we should legislate to prevent it and enforce that legislation. Financial loss shouldn't come into it. But therein lies another difficulty. We all know that breaking copyright is, technically, illegal. But we also know that everyone records TV shows, and a blind eye has been turned for so long that we figured some sort of de facto legalisation had taken place: until the record companies started losing money to file sharers, or at least believed they did.

ISPs aren't immune from hyperbole either. The claim that inspecting packets to determine who is sharing files illegally would be akin to the Post Office opening letters is at best disingenuous. Sure, illegal activity takes place using the Royal Mail as a conduit. But not on the scale of the mass illegal file sharing now occurring in the UK - 6 million of us, according to one study last year, have shared files illegally. And although packet detection at a granular level is both impractical and undesirable, the ISPs know they could do more to deter the large scale offenders. They already employ 'traffic management' techniques to limit the download speeds available to customers who consume too much bandwidth at peak times. And, say supporters of legislation, Nicolas Sarkozy has introduced a three-strikes law in France.