The BBC ran a story yesterday about the impending agreement between the UK based industrial content and the ISPs to adopt a warning system whereby the top four ISPs, will on notification from the industry trade associations write and warn their customers who allegedly download potentially copyright infringing material. The BBC covered this scoop in the morning on the Radio 4 today program and later in the evening on News Night. Both articles prove one of the media consumption rules in the Levy house,
“the more you know about a subject, the more inaccurate the news reporting is”
Monica Horton on her IPtegrity site quickly picked up the story in an article called, UK ISPs & music industry broker 4-strikes copyright anti-piracy deal with a sub title, suggesting it’s the Digital Economy Act without the backing of law. It seems they plan to, on notification from the rights holders, send up to four letters if required in a 12 month period, each harsher, but there will be no database and no sanctions. Monica suggests that this is the minimum that ISPs think they can do without changes in the law. Since this scheme is both voluntary and a private agreement between companies, the limited protections and appeal procedures defined in the Digital Economy Act, themselves weakening of our basic rights, will not be in place. It seems these plans still need to be approved by the Information Commissioner.
Torrentfreak in an article, called UK ISPs Agree to Send Out Music & Movie Piracy Warnings also takes the view that the warnings will escalate but there will be no sanction. The number of total warnings to be sent by the ISPs will be capped, that only the top four ISPs will be involved, which is 90% of UK broadband users and that the Information Commissioner is being consulted as to whether the record keeping with respect to the warning letters is legal, since it needs to be asked if these facts are necessary for the conduct of the business of broadband supply. Since the broadband providers are happily supplying connectivity and making money without this data, it would seem the answer is No! The Torrentfreak article ends with a quote from the BBC material that if this doesn’t work then industrial content will call for the rapid implementation of the Digital Economy Act.
The day was finished with an article on BBC News Night with an intro including in without comment a clip from the Federation against Software Theft’s once compulsory video preview “You wouldn’t steal a car”, and included a short interview with Jim Killock of the Openrights Group arguing that the record keeping is the most insidious part of the proposal, thus missing that the rights holder generation of untested allegations is equally egregious. The article ended with a head-to-head between Tinchy Stryder and Milo Yiannopoulos. Stryder is inarticulate in his attempted defence that because its art it must be paid for; it’s the other way round. It’s just commerce which is why they claim all use must be paid for. Yainnopoulos correctly stated that this can’t be stopped. And he’s right, but basically the moral dimension was missing from the debate.
The move from law to government brokered voluntary commercial agreements is as a result of the rejection of ACTA and SOPA in the EU and US and the failure of Hadopi in France. It is also occurring in the US as well as here. The worldwide democratic political consensus is that graduated response, especially if disconnection is a penalty should not be law. The US companies, because most of them are US companies, are now looking to get their ‘graduated response’ regime privately imposed. This is hugely advantageous to them because they can ignore the rights of ISP customers and other citizens. The appeals and protections in the DE Act and the pre-DE Act legal position can be subverted. It is wrong that ISP consumers are not represented in court when web blocking hearings are undertaken, but the desired end game of the content companies is that neither consumer nor judges are present when they exclude fans and competitors from the internet, that their ‘evidence’ remains untested in a court of law and these prohibitions and sanctions can be conducted on a global scale. This will allow them to make the UK ISPs, who unlike Google have a customer service relationship with their ‘customers’ who pay them money, just have their computers delete users from the network.
It’s the industrialisation and privatisation of justice.
This is because the DE Act is and has always been about money, but now, in the UK, they have the law they wrote, industrial content don’t want to pay for it which makes their threat to fall back on the DE Act hollow. BT & Talk Talk’s seemingly failed judicial review has ensured that the DE Act infrastructure is too expensive for the content companies to pursue. Despite this, the new proposals involve an agreement that the content companies will subsidise the ISPs i.e. they are paying for the voluntary agreement; which is presumably why the ISPs are insisting on an activity cap. Horton in another article explores the scale of the costs that might be incurred by the content companies if the DE Act was to be implemented and we must all ask ourselves if the content companies still want it now they know how much it’ll cost.
Graduated response refers mainly to Peer to Peer file sharing or Bit-torrent swarms. Industrial content use web site blocking to ban sites distributing alleged infringing content using other protocols. We are all aware, from examining the struggle between Google and the content companies of the carelessness with which they ‘notify’ other interested parties about alleged infringing content.
I and others write about the legality of discovering & notifying the IP addresses in a bit-torrent swarm. In my review of the outstanding issues left over after the DE Act judicial review, I consider if the copyright holders use of computers to collect and handle ‘private’ data is legal under European privacy laws. Felipe Moreno Romero, in his paper to BILETA 2014 questions if the scale, un-targeted, pervasive and constant nature of the content owners search for file sharing pirates breaches the proportionality requirement of actions “necessary in a democratic society”. One needs to question if private actors, not beholden to public prosecutors are acting “in accordance with the law”. Their historic inaccuracy suggests not!
Since FAST embedded their video on tapes and disabled the playback controls, an activity that some might describe as non consented use of a computing device, I have no desire to embed their video in my blog. But so you can get an idea of the contents, I have embeded the IT Crowd version of the “Piracy is a Crime” video.