Government to consult on legislation to curb illicit filesharing as industry agrees voluntary scheme

Only 3 months late, the Government has finally released a consultation into potential legislation aimed at curbing illicit filesharing on the net. Several of the legislative options on the table are worrying, and mirror schemes being discussed in various national and international fora. They include streamlining the legal process to require ISPs to provide personal data relating to an IP address, handing responsibility for taking action against illicit filesharers to a third party body, or requiring ISPs to take action against users themselves or to install filtering equipment to block infringing content.

At the same time, the Department for Business, Enterprise and Regulatory Reform (BERR) have also announced a “landmark industry agreement” to address unlawful filesharing, signed by the UK’s six major ISPs – Virgin Media, Sky, Carphone Warehouse, BT, Orange and Tiscali – as well as the British Phonographic Industry and the Motion Picture Association.

This “Memorandum of Understanding” (MoU), negotiated behind-the-scenes with strong influence from the Government, is appended to the consultation (Annex D). Its stated objective is to achieve a significant reduction in illicit filesharing and a change in popular attitudes towards copyright infringement, within 2 to 3 years.

Signatories endorse five principles in the MoU:

1. That a joint industry solution is the best way forward

• That they will work together to educate consumers about why illicit filesharing is wrong

• That making content available in a wide range of user-friendly formats is important

• That they will engage in a 3 month trial to send letters to 1,000 subscribers per week suspected of downloading or uploading unlicensed, copyrighted material

• That they will work with OfCom to identify effective measures to deal with repeat offenders

A BERR press release out this morning describes how the MoU and legislation arising from the consultation will work together:

“The approach will pilot letters to be sent to the registered user of an internet account when their account has been identified as having been used to unlawfully share copyrighted material. The letters could point consumers to other sources of material available legally and in a variety of formats.

“ISPs and rights holders will produce a Code of Practice together on how they will deal with alleged repeat infringers. Government will consult to give this Code legislative underpinning.

“Ofcom will facilitate discussion between the parties and approve the final Code of Practice. Ofcom will also ensure that the self-regulatory mechanism is effective, proportionate and fair to consumers.”

For dealing with repeat infringers, the MoU mentions “technical measures such as traffic management or filtering, and marking of content to facilitate its identification”. Although there is no mention of disconnecting users, such a course of action is not ruled out. More worryingly, negotiations around the code of practice to deal with repeat infringers will not involve direct consumer participation, relying instead on Ofcom to ensure consumers get a fair deal.

As the Open Rights Group has set out exhaustively on this site and in the media (also see our appearance on Channel 4 News below), disconnection is not a good option – either for internet users or for the artists whose livelihoods are harmed by illicit filesharing. Not only is the punishment disproportionate to the crime, in most households, an internet connection is shared by a number of people. What’s more, as soon as law enforcers start snooping for IP addresses to pass on to ISPs for disconnection, hardcore filesharers will simply start using encryption and IP-masking to obfuscate their identities. Then they’ll develop software that makes it easy for non-technical people to do the same. Driving illicit filesharers further underground isn’t going to earn artists a penny, and will further irritate their fans.

Instead, offering consumers legal, attractive and competitive alternatives to illicit filesharing is the vital component in any programme to curb illicit filesharing. The MoU mentions that such alternatives might include subscription, on demand or sharing services. But unlike with the proposed enforcement measures, no timetable for providing legal alternatives is mandated. In this way, today’s announcement has its priorities wrong – preferring criminalising consumers over catering to them.

ORG will be responding in detail to BERR’s 60+ page consultation on a legislative approach over the coming weeks. The consultation will be up on our interactive consultation tool soon – and you’ll be able to help us respond by leaving your views. The consultation closes on 30 October 2008.