17 February 2008

To live outside the law you must be honest ...

The government proposes to make ISPs responsible for disconnecting users who are caught downloading infringing material three times, and it seems that the opposition supports them. It looks as if it is a stick with which to encourage a voluntary arrangement between rights owners (for which read multinational record companies: I am becoming more and more Marxist as I get older) and the internet service providers, and there have already been some attempts to put such an accord in place. But is this the right way to deal with the problem, and is it going to have the slightest effect?

A cursory glance at discussions on the internet reveals that users will find ways round it in very short order. There is talk of encryption, of the limitations of deep packet inspection, of the problems in distinguishing legitimate peer-to-peer filesharing from the illegal. There is talk of using anonymous networks and VPNs that route traffic through jurisdictions where the law is less fierce.

You can’t even assume that all MP3 files are shared illegally: plenty of copyright owners permit the distribution, or making available, of their material. Attempts to get deep into the packets of data will invade privacy and bring the speed of traffic on the Internet down to central London rates.

There are ways in which data protection issues can be dealt with, essentially by not requiring the ISP to hand over any data to the rights owner. All the ISP needs to to do is issue the two warnings and then pull the plug. Tiscali has, however, had problems with the BPI over who pays for these steps to be taken: BPI take exception to paying for Tiscali to enforce its own contract terms, but ISPs are concerned not only about the cost of taking steps against alleged infringers but also about being indemnified by the rights owners – who are the source of the information that enables them to identify the infringers.

On the other hand, it is worth considering who benefits from the millions of tiny infringements that take place every day on the Internet. It’s the ISPs, the telcos, and probably most important the device manufacturers, and they should be the ones to put their houses in order. They need the co-operation of the record companies, but there’s a vast overlap in their respective interests here and it should not be beyond the realms of possibility to get them to agree. Experience shows (as Nick Holmes explained in his Binary Law blog not long ago) that while digital content is hard to control, digital delivery services are something most people would pay for. They need to know that they are going to get what they want, in terms of up-to-date content (the latest episodes of their favourite US television shows, for example), quality, portability and longevity.

The record industry has secured protection for its DRM techniques, and looks set to get an increase in copyright protection for its recordings to 95 years: it should be prepared to come part of the way to meet the other players over the three strikes rule.

The government's threat to legislate sounds just like what we have become accustomed to from New Labour: legislation as a solution to every problem. I doubt it has worked in even a small proportion of the cases in which they have tried it, and this is certainly not one which stands much chance of succeeding. What's worse, though, is to see the opposition going along with it so uncritically.

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