Consultation on legislative options to address illicit P2P file-sharing
To leave a comment please click on the blue bar at the left of the screen. Its best if you support opinion with evidence, otherwise we can’t use your views. We have only made available the Executive Summary for comments, please indicate if you’d like more of the 6o-page document. The closing date for all responses is 30 October 2008
1. Executive Summary
1.1 Copyright owners (rights holders) have struggled to develop effective business models in the digital world against a backdrop of pervasive and illicit P2P copying of copyright material. Existing remedies are slow, expensive and have proved largely ineffective. That being the case they have sought to engage with ISPs to agree ways in which they can co-operate to reduce illicit P2P traffic. Increasingly this is in the interests of ISPs as well, since high users of illicit P2P are not the most profitable customers, and are taking up bandwidth that could be utilised for more commercial uses to the benefit of ISPs and potential partners.
1.2 Because there would appear to be common interest between ISPs and rights holders to come to a voluntary solution the Government has been keen to give the different parties the time and opportunity to develop such an agreement, though we would wish to be assured that it was legal, effective and fair. More recently we have worked closely with ISPs and rights holders to arrive at a set of principles encapsulated in a memorandum of understanding (MOU) that would provide an agreed industry framework for action. This approach has garnered a good deal of support from industry
but it has not been possible to arrive quickly at an agreement that covers the whole industry. As such we need to consider what regulatory action might be appropriate.
1.3 No regulatory option is straight forward. There is a complex legislative environment already in place here including privacy, eCommerce and copyright laws. We are therefore keen to hear from all stakeholders their views on the pros and cons of the options put forward, bearing in mind the existing legal framework within which such solutions need to work, and would welcome responses that are able to put a value on both the benefits and the costs.
1.4 The regulatory options identified in the consultation are:
Government’s preferred option:
A co-regulatory approach consisting of:
- A self-regulatory industry approach, designing codes of practice under principles such as those set out in Annex D, covering both rights holders and ISPs and dealing with education and awareness; making content available to consumers in a choice of formats at a range of prices; and notifications to alleged infringers. The self-regulatory approach would be overseen by a regulator who would have the responsibility for approving codes of practice;
- The regulator will invite stakeholders, including ISPs and rights holders to join a group to explore effective mechanisms to deal with repeat infringers. Members of the group will look at solutions including technical measures such as traffic management or filtering and marking of legitimate content to facilitate identification, as well as ways in which rights holders can take action against the most serious infringers. The group will report within 4 months and the Government and Ofcom will consider the findings of the group, leading to a Code of Practice on mechanisms to deal with repeat infringers; and
- An obligation on ISPs to take action against subscribers to their network who are identified (by the rights holder) as infringing copyright through P2P. This obligation could be fulfilled by compliance with the codes of practice mentioned above, including on mechanisms to deal with repeat infringers.
1.5 Alternative regulatory options considered:
- Option A1: Streamlining the existing process by requiring ISPs to provide personal data relating to a given IP address to rights holders on request without them needing to go to Court.
- Option A2: Requiring ISPs to take direct action against users who are identified (by the rights holder) as infringing copyright through P2P (this is essentially the same legal obligation as in the preferred option in section 8, but without any self-regulatory element).
- Option A3: Allocating a third party body to consider evidence provided by rights holders and to direct ISPs to take action against individual users as required, or to take action directly against individual users.
- Option A4: Requiring that ISPs allow the installation of filtering equipment that will block infringing content (to reduce the level of copyright infringement taking place over the internet) or requiring ISPs themselves to install filtering equipment that will block infringing content.
Several phrases in this opening paragraph deserve unpacking:
- “Copyright owners have struggled to develop effective business models” - yes the challenges copyright holders face are hard, but what about Pandora? Or Rhapsody? Copyright holders have been slow to license their rights to new business models.
- “Existing remedies are slow, expensive and have proved largely ineffective”. DRM has proved ineffective. Getting courts to force ISPs to disclose the names and addresses associated with IP addresses might be called “slow and costly”.
- One way to “reduce illict p2p traffic” is to offer legitimate alternatives.
Consumer advocates should also be part of this group
Is it hard to do this without falling foul of existing privacy legislation?
What kind of “direct action”?
What kind of “direct action”?
This is similar to the French scheme…
See developments in Ireland and Belgium, where ISPs are being taken through the courts by rightsholders who want them to be compelled to install filtering equipment.
Also note that filtering equipment will not work against encryoted content.
[…] put the Executive Summary of the consultation document online. Please use our interactive consultation tool to tell us what you think of the Government’s options for combating illicit filesharing. The […]
This option (A1), along with option A2, looks dangerously open to abuse by large companies. As has been seen recently they certainly aren’t afraid of issuing cases with real evidence, requiring the isp to hand over data or to press charges without going through the courts would be a mistake.
First, copyright holders have made very little effort to “develop” effective business models. Rather, they have worked very hard at bending reality to allow them to carry on with their existing business model. Witness the possible closure of Pandora because they are pricing web-casters out of business.
“Increasingly this is in the interests of ISPs as well, since high users of illicit P2P are not the most profitable customers, and are taking up bandwidth that could be utilised for more commercial uses to the benefit of ISPs and potential partners.”
So, the people who actually want to use the full extent of the service they are paying for are not profitable. The train companies have the same problem with people who buy weekly tickets and have the nerve to show up expecting a seat each day of the week.
And why is it a given that bandwidth is better used for “commercial uses”? Non-commercial use of the Internet is, arguably, far more important to everyday ordinary voters.
This is essentially the current arrangement, with the role of the third party being performed by the courts. If the principle of due process is to be retained, the current arrangement is the only one which is acceptable.
This would put the copyright holder in the position of judge and jury. The accuser would be in a position to force the ISP to take action against the accused with no set burden of proof and no right to a fair trial.
The idea that “Copyright owners (rights holders) have struggled to develop effective business models in the digital world against a backdrop of pervasive and illicit P2P copying of copyright material” is a myth. This may be true of the mainstream music and movie businesses, which have consistently refused to adapt to the digital world, but those industries which have shown a willingness to adapt, rather than fall back on draconian legislation, have been perfectly able to find those business models. Perhaps the most high profile example is the pornographic industry. Because governments aren’t keen to be seen standing up for the holders of copyright in pornography, the industry has to go it alone and its continued existence in the digital world seems to prove that it can be done.
The use of the terms “rights holders” in this context seems to be implying the creation of a two tier copyright system. Anybody posting a work on the internet is a copyright holder. The suggestions within the document seem to be leading toward a situation where a select group of large copyright holders have access to enforcement options not available to the rest.
Clearly there are serious privacy issues here.
The other question is what constitutes a “rights holder.” If it is merely the large film and music industries, this is would create a two tier copyright system.
If a rights holder is viewed as anybody holding the copyright in any material, this would allow virtually anybody to acquire the details relating to any IP address.
Neither situation would be desirable.
Where in the document is the user supported? It does seem that the views of the *actual* stakeholders (those who actually use this blessed thing!) are missing entirely.
I object to this phrase “taking up bandwidth that could be utilised for more commercial uses”, which seems to imply that the only important reason for the Internet to exist is commerce and all other uses are secondary.
When I pay for Internet connectivity, I’ll use the bandwidth I buy for the uses I want to, which include keeping in touch with friends and family, socialising, meeting new people, reviewing and commenting on government decisions, poltical activism, private research, etc.
I do buy and sell things on the Internet, and I’m glad I can do so; but to say that commerce is the most important function of the net is profoundly stupid and — because it implies money is the only important thing — immoral.
This proposal represents a “privatisation of justice”.
The actions taken must be proportionate and reasonable. Bandwidth throttling is acceptable, but the reduced speed must be no less than 256kbps to retain core functionality of the internet connection. Disconnection (assuming the user is prevented from reconnecting with another ISP) is equal to the denial of the user to a vital means of communication. This should require more than just the IP address and screenshot evidence provided by the RIAA and similar organisations.
Once again what is proposed is an unbalanced law. There is no redress against a rights-holder who falsely accuses a person of infringing. Balance it with a punishment at least as damaging to the rights holder as it would have been to a guilty infringer. A recent case of an unemployed person receing a £16000 fine would suggest that it is somehting like 200% of turnover. Piracy is wrong, but so is falsely accusing someone. All I ask for is fairness for all.
Copyright owners have certainly “struggled to developed effective business models in the digital world”, as they’ve delayed the said development by about a decade. The term “shortsighted” feels inadequate in the extreme. All 1.1 shows is a misguided view of the nature of the internet. Not only is it obviously putting the “interests of the ISPs” ahead of the (already) paying consumers and over-sympathising with commercial companies for not being able to do what they are supposed to do best (ie, make money) but they are not grasping that the internet was built on and for the sort of technologies that allow file-sharing in the first place. The internet was never meant to be a commodity.
Certain companies should not be given a special form of legal protection simply because they can afford it and can’t innovate any other way around it.
Copyright owners have certainly “struggled to developed effective business models in the digital world”, as they’ve delayed the said development by about a decade. All 1.1 shows is a misguided view of the nature of the internet. Not only is it obviously putting the “interests of the ISPs” ahead of the (already) paying consumers and over-sympathising with commercial companies for not being able to do what they are supposed to do best (ie, make money) but they are not grasping that the internet was built on and for the sort of technologies that allow file-sharing in the first place. The internet was never meant to be a commodity.
Sorry, I posted in the wrong section, will repost in 1.1!
The question is “how can you identify infringing content?”. All that will happen if filtering becomes widespread is that P2P clients will be upgraded to use encryption and port randomisation. This reflects the hopelessness of the old business model.
A user, copyright holder or not, has no right to demand to know the identity of any other. Simply knowing the indentity of a user you suspect of stealing something from you removes the internet’s version of ‘innocent until proven otherwise’. If a company knows its product is being stolen, it is down to the courts to investigate who, and if it cannot find reasonable evidence that a user is stealing or distributing copyrighted matter, this user should remain anonymous. I can well see the issue arising whereby users falsely accused (in the case of a user who has their wireless system “piggybacked” on for example) having their IP barred by ISPs; the very real danger of introducing the concept of the ’stigma of the wrongly accused’ to the internet.
Also, the idea of by-passing the court system means that is information request doesn’t realisticly have to be about copyright infringement - it can simply be about personal details, the theft of which is a huge international problem already.
Aside from the fact that the issue of whether ot not the “direct action” is appropriate or not, and even if any laws have actually been broken, but it also means ISPs may damage their relationships with customers, current and future, all at the legally binding request of someone who claims, rightly or not, that they have been left out of pocket.
You cannot force the antiquated, clumsy and bullish commercial business model that these companies refuse to abandon onto the more complicated, democratic and anonymous framework that the internet as we know it relies on.
This proposal in fundamentally flawed in that ‘filtering’ of this type of content is highly unreliable if not altogether unfeasable.
Bypassing the court system is fundamentally flawed and open to abuse, since the accuser no longer has to provide a good level of proof.
Note that researchers at the University of Washington have found that it is possible to frame innocent users, and for innocent users to be identified by rights-holders as infringers even without being framed.
See http://dmca.cs.washington.edu/ for more information.
This seems to imply that ISP’s simply act on the say-so of ‘rights holders’. Assuming everyone is a potential rights holder what’s to prevent this system from being abused or devolving into total chaos?
This won’t work, because of encryption.
Furthermore, if any monitoring system like this is to be enforced, the people who are pushing for it and who stand to benefit from it, i.e. IFPI and the content industries, must be made to pay every single penny of the cost. Internet users, many of whom are struggling on low incomes, should not have to pay for it.
I am infavour of this. Note that such third party bodies already exist — they are called “courts of law”.
It has been argued that courts of law are a bad solution because they are too expensive. If that’s the case, then the remedy is to reduce administrative costs and delay so that they are cheaper for all court cases. If the government says they can’t do that because the quality of justice will suffer, then they are in effect admitting that whatever kangaroo court system they set up for broadband users will not deliver justice.
The contention that existing remedies are ineffective seem to have been disproved by the recent Davenport-Lyons/Pinball case. The flipside of that though is that some companies seem to have realised that threatening prosecution - or indeed prosecuting in itself could be lucrative - especially when courts seem to award ‘punative’ damages.
those breaking the law by commiting copyright infringement should be dealt with provided the rights holder has actually identified the right person. like many out there i have been targetted as a copyright infringer yet i certainly did not download / upload the game in question - IN FACT i had never heard of p2p sites or knowingly used one. the game is not on my computer that i can find and i believe i have adequate security on my computer to protect me against someone else using my connection. therefore, from experience, i would comment that these proposals involving the rights holder identifying infringers can only be successful if the methods they use to make these identifications are 100% accurate, as they obviously aren’t at the moment. i now face an ongoing battle to clear my name in this matter and avoid any further threatening letters and legal action. a situation i would not wish on anyone as it is extremely stressful and somewhat scary.
This option potentially allows anyone in the media access to millions of peoples’ personal infromation, thus opening a whole new dimension to identity theft. To remove the ‘going to Court’ element of collecting personal data essentially denies the average person their right to privacy. As, i imagine, a certain amount of evidence is needed before a Court would allow personal data be disclosed (!) the process of thorough (!) investigation would cease and there would be many more instances of wrongly accusing someone of infringement.
[…] In other news the UK government has answered an epetition to the Prime Minister seeking “to not force internet service providers to act … for the RIAA and be treated like a common courier.” The Prime Minister’s response does not go much further beyond the position already stated in the Government’s current consultation. […]
[…] An interesting call with Colin McKay got me thinking about some of the different tools available which I thought I’d write up here: 1. Wordpress + Commentpress Examples: Innovation Nation: Interactive, Open Rights Group internal consultation on legislative options to address illicit P2P file-sharing […]
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