P2P Consultation: ORG responds

The government’s consultation on P2P legislation closed last night. We hear they have received a considerable number of responses from members of the public since disconnection was put on the table.

ORG, like Consumer Focus and many ISPs has told the government in no uncertain terms that disconnection and shortcuts to justice are unacceptable breaches of human rights.

Disconnection, for whatever period, would disrupt people’s lives in an unprecedented manner:

Disconnection and other account restrictions are an abuse of people’s basic human rights, including freedom of expression and association. These punishments will damage citizens’ education, finance and welfare. There is no equivalent punitive measure for any other financial misdemeanour. As a financial misdemeanour, a proportionate response would be a monetary penalty.

We also pointed out the abuses and errors that will result from this process if due process – another fundamental human right – is not respected:

We do not yet know how robust evidence will be in practice, or how well individuals will deal with the notification process. We do know that several million file sharers may be dragged into a trawl net of automated identification and notification letters, with an estimated 20-30% not changing their behaviour and potentially going forward on the basis of that evidence for punitive measures. Given such a large number of potential cases, errors are bound to occur, and evidence needs to be tested before a court before punishments are imposed.

If these punitive measures are imposed without testing the evidence before a court, then citizens will be wrongly accused and punished. Errors will undermine the legitimacy of this scheme and UK justice in general.

Copyright already suffers from a bad reputation among a growing section of the population, and this risks further harming its reputation.

Instead of rushing into a scheme to deal out what amount to ‘drive-by’ convictions on behalf of rights holders who do not make use of existing court procedures, government should be extremely cautious about establishing new layers of semi-judicial procedures and evidence gathering involving large sections of the population.

Due process is more important when dealing with new fields of evidence and misdemeanour, not less.

As part of the work, we also surveyed the behaviour of the rights holders, who are calling for disconnection and punitive measures, to see how well they had done in holding up their side of the bargain, bringing their content forward in legal services, and developing a thriving market. What we found was a story of market abuse, unreasonable terms and attempts to ‘pick winners’. Successful businesses have been sued out of existence, and other projects have been doomed by arbitrary conditions from the licensors. We named Mp3.com, Datz, Virgin Unlimited, Tiscali Jukebox; we could have cited more.

Other businesses have been interfered with in other unjust ways, suggesting abuse of market position. Spotify has handed over large chunks of equity, Napster is forced to use DRM, YouTube has been forced to halt its music video business and renegotiate terms. Imagine a radio station being told to stop playing music: they’d quickly go bust. This is why radio licence disputes are settled through tribunals.

Only the largest players, like Apple, Amazon and Google / YouTube seem to be able to exercise enough power to get into the market and survive.

Yet the answer is simple: licensing on reasonable, non discriminatory terms. A level playing field and an open market. This needs government action, and seems distinctly trickier than playing a blame game about the morality of downloading tracks without payment. But we cannot accept excuses any longer.

We concluded:

Online music services have been repeatedly blocked by the same people now arguing for punitive action: music rights holders. This is abuse of market position and anti-competitive behaviour by rights holders. Licensing on reasonable, non-discriminatory terms requires government action.

We regard the current position of creating punitive measures while failing to reform the market as highly irresponsible. It is likely to result in a backlash, particularly if legal services are not first allowed to properly develop. In market terms, the strategy can at best repress demand, but will not make any money for artists or the music industry. It may even cost more than the alleged damage

The government needs a strategy to liberate and grow licensed online music services. We are yet to hear what it is.

Our full submission can be read here