Comment: Don't let the record industry duck the law

 

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Posted on 17 Mar 2008 at 14:39

Who would be an ISP? They have profit margins slimmer than Girls Aloud, they take the rap from customers even when BT's faltering network is to blame and they're the first port of call when copyright holders - be it record labels, movie studios or publishers - want "illegal" file-sharers booted off the net.

Under enormous pressure from the British Phonographic Institute (BPI), the Federation Against Software Theft (FAST) and even our own dear government, the ISPs currently face Hobson's choice: reach a voluntary agreement with copyright holders on relieving file-sharers of their internet connection, or face legislation that compels them to do so.

The ISPs, with good reason, are keen to avoid legislation: I'm horribly fearful of them taking the law into their own hands.

It recently emerged that Tiscali quietly reached an agreement with the BPI last summer, which saw four subscribers removed from Tiscali's network after the BPI produced screenshots showing their IP addresses being used to distribute illegally copied material.

Under the three-strikes-and-you're-out rule, Tiscali sent two warning letters, then cut off those who didn't respond or who continued sharing. Before each "strike", the BPI produced fresh screenshots showing the IP address in question was still being used to share copyrighted content, according to a Tiscali spokesperson.

Not surprisingly, Tiscali didn't publicise the deal. It only came to light in February after the ISP and the BPI fell out over who should foot the bill for "implementing the policy". The BPI says "Tiscali is trying to force us to pay a substantial levy to enforce its own terms and conditions"; Tiscali says the costs should be shared.

What alarms me is that the BPI and Tiscali formed their cosy little pact without any public discussion or consultation whatsoever. What would have happened, for example, if one of the 21 "illegal" file-sharers identified by the BPI (17 responded before the third strike) had proclaimed their innocence?

"We haven't got to that point," says the Tiscali spokesperson. "Any appeals process would have come out of an appeal." I'm glad to see it was properly thought through...

Brought to book

So why are the ISPs so reluctant to go down the legal route and have measures to combat illegal file-sharing enshrined in law? Look at the mess the government's made of previous computer-related laws, argues a spokesman for the Internet Service Provider's Association (ISPA). The Computer Misuse Act 1990 could theoretically imprison perfectly innocent software developers and the Regulation of Investigatory Powers (RIP) Act 2000 was in force for three years before the police could legally gain access to data held by ISPs.

"We favour a self-regulatory system - we know it works," says the ISPA spokesman. "It's virtually eradicated child pornography images on the internet in the UK."

There's another key reason why both the ISPs and the industry want to avoid legislation: expediency. Laws are invariably complicated - they require consultation, a White Paper, parliamentary debate and, crucially, a successful vote in the Commons and Lords to enter the statute book. Why, they argue, should they bother going through a tedious process that could take years to resolve when the two sides could come together and carve out a deal?

The idea of the BPI and ISPs playing judge and jury with people's internet connections horrifies me. At some stage, the BPI's going to get it wrong - it's going to identify Mrs Gibbons of Acacia Avenue as a hardened file-sharer, when it was actually 15-year-old Billy Smith from next-door-but-one who was taking advantage of the fact that Mrs G hadn't secured her wireless connection.