UK Govt Invites Public to Comment on Plans to Fight P2P

Gives until October 30th for individuals and organizations to voice their opinions on proposed partnership between ISPs and copyright holders to combat illegal file-sharing.

Many have been troubled, myself included, over recent news that UK ISPs and copyright holders have agreed to a voluntary plan in which Internet subscribers will face yet to be determined sanctions for illegal file-sharing.

The Department for Business Enterprise & Regulatory Reform (BERR) helped broker the deal whereby the UK’s six largest ISPs – BT, Virgin Media, Orange, Tiscali, BSkyB, and Carphone Warehouse – all agreed to combat P2P piracy on behalf of copyright holders like the British Phonographic Industry (BPI), who has been the most vocal on the issue.

The only thing that remains now is for ISPs and copyright holder groups to draw up a code of practice on how they propose to deal with copyright infringements, and the government will then consider how this can be backed with legislation.

Enter BERR which has now announced a three-month consultation period in which individuals and organizations can comment on a number of proposed regulatory options to address the problem of illegal file-sharing.

“This consultation is intended to set out and gather views on a proposal for a coregulatory approach that could be adopted in order to facilitate and ensure co-operation between Internet Service Providers (ISPs) and rights holders to address the problem of illicit use of Peer-to-Peer (P2P) file-sharing technology to exchange unlawful copies of copyright material,” reads the report. “The consultation also identifies and seeks views on other potential options and calls for evidence on issues related to illicit use of P2P.”

The Government makes clear in the report that it prefers an “industry solution in this area, provided it is not anti-competitive, is effective and is fair to all parties, particularly citizens,” but considering that the public is made to burden the costs of a failed business model on the part of copyright holders – especially the music industry – is it really “fair” to UK citizens?

“While the co-regulatory approach is the government’s preferred approach at this stage, we have also identified a number of other possible regulatory solutions and are seeking views on all of these options (and on any other options that people might identify),” BERR continues.

As such it proposes a series of regulatory proposals which are as follows:

Co-regulatory approach (govt’s preferred option):

  • 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 selfregulatory 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.

Alternative regulatory options:

  • 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 selfregulatory 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.

As usual, the devil is in the details. For even in the alternative options – A1- a compromise would be for ISPs to provide copyright holders the personal information of suspected file-sharers “without them needing to go to Court?” Is giving up ones legal rights really a necessary compromise?

BERR does thankfully address the burden of proof necessary to accuse someone of illegal file-sharing by voicing several consumer protection concerns:

  • 7.15 A consumer subscribing to an Internet provider enters into a contract with that ISP. The breaking of the contract terms by either party could lead to legal action and/or termination of the contract. Although the ISP contract is with a named individual to provide internet access, in most cases they are not the only person who will use that service (eg other family members in the same household, employees or staff in the workplace etc). This raises issues when someone other than the actual subscriber is responsible for unlawful file-sharing activity.
  • 7.16 If action is taken without the individual case being tested in Court, there must be a sufficiently robust level of proof. It is also important to consider who will be responsible for examining the evidence and determining whether or not there has indeed been an infringement.
  • 7.17 It is clear that any action taken to tackle infringers who continue unlawful P2P file-sharing needs to be proportionate, and must allow the consumer the right of appeal and a clear channel through which they can seek redress if necessary.
  • 7.18 It is important that consumers are able to object/appeal to any action being taken in relation to an alleged infringement where they do not consider that their actions have infringed copyright. For example the consumer may be entitled to make use of statutory exceptions to copyright law or may believe that they have been given the appropriate permissions by the rights holder.

Fair enough right? But, with copyright holders making the infringement accusations there isn’t even the faintest hint of impartiality. Without impartiality there can never be any true “consumer protection.”

Option A2 is the same rubbish with a different face.

Only options A3 and A4 are palatable, but again they fail to address the failures of the entertainment industry in representing the best interests of artists and musicians when they are clearly not. With musicians getting some 11 cents from a 99 cents iTunes download that costs nothing in terms of packaging and distribution can it honestly claim to have the best of intentions? When you take it a step further and allow their “best intentions” to begin filtering the Internet and spying on Internet users they’ve certainly gone too far.

Now in the same report it states that any proposed regulatory action needs to be considered in the context of the govt’s stated “better regulation” principles which BERR describes as follows:

It is important that any proposals for Government intervention:

  • are evidenced-based;
  • address a demonstrated market failure;
  • show a positive NPV in the Impact Assessment – i.e. their benefits justify their costs over time;
  • are rooted in the ‘Principles of Good Regulation’ set out by the Better Regulation Task Force (BRTF), namely: proportionate, accountable, consistent, transparent and targeted only where needed;
  • use risk-based enforcement; and
  • start from a presumption that small business will be exempt or subject to a lighter touch approach.

These are all intelligent concerns and “address a demonstrated market failure” stands out above them all. The music industry, for example, couldn’t even tell you what it’s market is. Is it selling physical or CDs or digital albums? Is it single tracks or entire albums? To use DRM or not to use DRM? The list goes on and on and it’s been schizophrenic about its approach to file-sharing ever since Napster entered the scene back in 1999. It’s been hopelessly banging its head on the wall and cursing the digital music age ever since, yet has steadfastly refused to change and address its own failures in the marketplace.

The marketplace didn’t fail the music industry the music industry failed the marketplace. When music fans wanted digital music for their iPods and other portable music devices where was the music industry? Apple forged iTunes with the music industry kicking and screaming all the way for the music industry knew that it spelled the inevitable death of CDs, long its bread and butter.

In any event, at least the govt is giving people a chance to respond to the anti-piracy proposal. As I mentioned before you have until October 30th of this year to respond, which you can do so by following the instructions below. If you want to read more about the govt consultation effort you can read the entire report HERE.



“How to Respond”

When responding please state whether you are responding as an individual or whether you are representing the views of an organisation. If responding on behalf of an organisation, please make it clear who the organisation represents and, where applicable, how the views of members were assembled.

A response can be submitted by letter, fax or email to:

Michael Klym/Adrian Brazier
Communications & Content Industries
Department for Business, Enterprise & Regulatory Reform