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ISPs lose appeal against cutting off file-sharers

piracy

By Stewart Mitchell

Posted on 6 Mar 2012 at 10:54

TalkTalk and BT have lost their appeal over anti-piracy measures in the Digital Economy Act.

The ISPs had argued that the potential to cut off repeat downloaders as punishment for copyright infringement was contrary to EU law and had sought to scupper the unpopular legislation.

The firms' lawyers claimed the three strikes anti-piracy measures were an invasion of privacy and could run up disproportionate costs for users and service providers.

However, the decision was welcomed by lobbyists for the creative industries, who claimed that illegal downloads cost millions in lost revenue every year.

Though we have lost this appeal we will continue fighting to defend our customers’ rights against this ill-judged legislation

According to a report on the BBC, the general secretary of actors union Equity said it was now time for the ISPs to "stop fighting and start obeying the law".

"Once again the court is on the side of the almost two million workers in the creative industries whose livelihoods are put at risk because creative content is stolen on a daily basis," Christine Payne said.

Consumer risks

However, consumer rights groups decried the decision and said the legislation still needed work to avoid it becoming a tool for the creative industries to exploit at the expense of consumers.

"There is one thing the court cannot tell us: that this is a good law," said Peter Bradwell, an advocate at the Open Rights Group.

"The Department for Culture, Media and Sport had no evidence when they wrote this Act, except for the numbers they were given by a couple of industry trade bodies.

"So significant problems remain. Publicly available Wi-Fi will be put at risk. Weak evidence could be used to penalise people accused of copyright infringement. And people will have to pay £20 for the privilege of defending themselves against these accusations."

TalkTalk response

It is unclear at this stage whether the ISPs will take the case to a higher court.

‘We’re disappointed that our appeal was unsuccessful though we welcome the additional legal clarity that has been provided for all parties," TalkTalk said in a statement.

"We are reviewing this long and complex judgement and considering our options. Though we have lost this appeal we will continue fighting to defend our customers’ rights against this ill-judged legislation."

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User comments

Whatever

In the future they won't even know that all the "hard" work put in by "creative" types is being shared.
Equity can be as proud as they like for having a (establishment) court uphold the (establishment's) ridiculous plan to ensure (establishment) status quo. As we regularly see in governmental circles, the law can be used to imply legitimacy in overtly unethical situations.

By dubiou on 6 Mar 2012

The only winners here are lawyers

Justice has been seen to be bought.

Downloading a tune or whistling it is the same thing; "Copyright infringement", to prosecute anyone for it or spy on them "in case they might.." is big brother gone mad, but clearly the judge has no technical education or he'd know that.

The music industry steal songs all the time and go unpunished. Where's justice for the artists?

All the figures they give are absurd over-estimates based on multiples of misquotes. On top of that the whole "money lost" premise is based on the farcical idea that if someone couldn't get something for free, they'd HAVE to go and buy it. When in reality, if it wasn't free, they'd just go without.

So what has been achieved? Nothing. Except a slower, less secure internet where ordinary law-abiding people will be forced to use encrypted data tunnels to trusted recipients in order to send data securely.

After all, who appoints the guy reading your email and logging your browsing? Your ISP? The government? The BPI? Someone at SONY?

I for one don't appreciate being spied on for the financial benefit of a small minority (mostly outside the UK), at my cost, just on the off chance the email to my wife has an MP3 attached!

By cheysuli on 6 Mar 2012

I still remember members of the music industry arguing against government plans to update the law to allow e.g. ripping a cd.

Plus 1 download does not equal 1 lost sale, I bet that allot of illegal downloads are not something that would have been bought, maybe even caused by them e.g. DRM OR (gasp) potentially leading to a sale (try before you buy).

I'm sorry but there's too much BS involved to make me even remotely sympathise with the media industries.

By tech3475 on 6 Mar 2012

I look forwards to the successors of Lulzsec downloading naughty things over organisations connections and seeing 'em taken offline. One can imagine the red faces at EMI, Sony etc as they realise why they can't email out press releases denying reports they've been stealing from their own artists. Oh the irony.

By Mark_Thompson on 6 Mar 2012

I for one will not be paying £20 to defend myself. If they want to prosecute me they do it at there cost and I only pay if they prove me guilty.
The law still stands- innocent until proven guilty-And it their responsibility to prove me guilty not mine to prove my innocence.

By curiousclive on 6 Mar 2012

right to try before we buy

We should have the right to try before we buy.
I buy a music CD for my listening pleasure, if I buy and find that the majority of tracks are not to my liking then the CD is not fit for the purpose. However, I would not be able to return the CD and get a refund.
So, in my opinion, taking my money and giving me something not to my listening pleasure would be braking the law, but it would be acceptable by so called law.

On top of that, I buy more albums after listen to them a couple of times as opposed to buying an album after only hearing one song that had been released from that album incase it turns out that the 1 song ends up being the only song I like.

I for one would end up buying less music and less movies. And if there are houndreds of people out there like me, there would be a greater loss in media sales.

By jayscsi on 8 Mar 2012

Privacy

ISP's monitoring everything we do is as much of an invasion of privacy as famous people having thier phones hacked. That being the case could we not take ISP's to court for hacking our pc's? although it is not technically hacking they still have access to our personal details. For example, banking details, if we book holidays online, credit card info. It would make people more causious of online purchasing so other avenues would see a drop in purchases and profits. People will get paranoid and avoid the net through fear of identity theft.

By jayscsi on 8 Mar 2012

An amazing Farce

As has already been mentioned, this law and the legal teams who represent companies believing they have lost money from illegal downloading and file sharing, is based on the absolutely incorrect assumption that if people are prevented from sharing a product then they will go and purchase it. There is absolutely no proof this is so, indeed, the opposite has actually been shown to be true.

A few seconds on Google using an appropriate sentence as search terms brought me rather a lot information, far too much to be incorporated here, yet that same information may be accessed by any defence legal team and, indeed, by the judge in this case.

Many research and other studies have been conducted over recent years since this has become a "hot topic". The results are published worldwide, usually in the quality press whose readers generally want facts rather than topless models and advertising. I will therefore cite just one example which is available on the net for all to read, it is an article in The Independent, considered a quality UK newspaper. It is dated Sunday 1st November 2009 and headed "Illegal downloaders 'spend the most on music', says poll". The opening paragraphs read:

"People who illegally download music from the internet also spend more money on music than anyone else, according to a new study. The survey, published today, found that those who admit illegally downloading music spent an average of £77 a year on music – £33 more than those who claim that they never download music dishonestly.

The findings suggest that plans by the Secretary of State for Business, Peter Mandelson, to crack down on illegal downloaders by threatening to cut their internet connections with a 'three strikes and you're out' rule could harm the music industry by punishing its core customers."

These same findings are worldwide in all studies, there is absolutely no foundation in the outcry that a person who is prevented from illegally downloading will rush out and purchase an original copy. The reverse is shown to be true, that those who illegally download actually then go and make a purchase, spending far more on average than a person who does not illegally download.

The legal team in the case under review here should be dismissed instantly and fresh eyes, people who actually know what to research when compiling information to be put to a judge, put in their place.

Let us not forget that file sharing is not a new thing. It has been going on since music was available on vinyl when people borrowed one another's records. The introduction of tape, either reel-to-reel or cassette, caused an enormous industry outcry because people were "copying" product from radios and from their friends. The introduction of twin cassette players caused a massive storm in the UK for the same reasons. And the latest witch hunt is now centred around the internet. Fifty, sixty years this trite argument has been going on that industries, mostly the music industry, is losing moneyh because of product sharing, yet a quick look over the last fifty years shows that is rubbish.

What, then, has happened over the last decade? Sure, people still lend/borrow product; people still copy product to tape; people still copy product to their pc (and even that caused an outcry with artists insisting they should buy separate products for this); people now download product or share mp3 files. But what has actually happened is the actual quality of much of the product offered for sale has reduced. The music industry, the movie industry, to take those as just two examples, weep that they are losing money and blame illegal downloading for this when, in many cases, it is their own fault. They are marketing sub-standard product, they are investing in sub-standard product, they do not have a stable of artists or new material that is even worth paying for.

Before these industries cast any more blame on the general public, they should look at themselves and see where the blame really lies - it is in the artists they contract, the material they allow to be released, and it is in the grossly over-inflated price of product that we, in the UK, are expected to pay.

The days are long gone when I used to be able to stand in my local record store and listen to an album on headphones in a booth and then rush to the counter to purchase it. This means I buy far less product now even though I can afford to buy more, simply because the quality of the material on an album is now not up to the standard I expect. Take this view over the entire music/movie/games (and other software) industry and we see a completely different picture.

Music companies, if you wish to make vast profits again, if you wish to see your artist stable at the top of the charts, contract artists who actually have talent and produce material that is worth listening to. An album used to be exciting, many times now it is just one "hit" single with the remaining time padded out with sub-standard jingles or absurd re-mixes.

As studies and research has shown, those accused of illegally downloading material are actually the people who give industry the most money. Cut off their supply and what will happen? The industry will lose even more money.

By eliotnpt on 8 Mar 2012

@eliotnpt

Interesting that you should mention listening booths. In my late teens, before the days when security-shrink-wrapping all CDs was commonplace, I went through a phase of buying 10 vaguely interesting albums every Friday lunchtime from my local Virgin Megastore. I would then exercise the store's well-publicised 100% satisfaction guarantee, and routinely return 4 or 5 of those the following Friday in perfect condition, once I'd had the opportunity to listen to them at home. I discovered many fantastic artists that way and spent far more purchasing their back (and forward) catalogues. Eventually, after a few weeks, the manager asked me not to do it. "We're not a library." Fair enough, I said. So I stopped spending £50 net every week in Virgin Megastore and went shopping in my local second hand store instead, where at one point I started spending £150 a week on 20 or more CDs at a time - none of this money went to the artists.

Incidentally I now have 800 CDs, and I don't know what to do with them because they are virtually worthless. Do I care? No. I see that money as not wasted, but well spent on my own listening pleasure for the last 10 years. And selling the odd album that is still collectible for a few pounds on eBay makes it worth my while as I understand that there are people out there who think like me and will still pay for good music.

By baldmosher on 8 Mar 2012

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