As the recession continues to bite, the Media Industry is lobbying the Government to take a stand against internet piracy. Later today, representatives from Virgin Media, Channel 4, Sony, Universal and the Premier League will call for the Government to force ISPs (Internet Service Providers) to take more responsibility for file-sharing and disconnect persistent illegal downloaders.
In the past, the Media has focussed on educating the public on the effects of illegal downloading through initiatives such as the “Knock Off Nigel” campaign, with proposals being made earlier this year for a “three strikes and you’re out rule. Virgin Media even went as far as sending warning letters out to individual file sharers using their network to download songs by the likes of Amy Winehouse.
However, it’s been difficult to say the least for the Government, the Media and the ISPs to come to an agreement as to how to deal with the problem. The Government has held off from forcing ISPs to take action against file sharers, mainly to avoid the creation of an environment where “teenagers are arrested in their Bedrooms” and have pledged to introduce other measures to crack down on the problem, which is estimated as making up half of all traffic over the Internet in the UK.
Today’s joint statement from nine bodies representing the Creative Industries is the first time that Lord Stephen Carter, currently producing the final version of the Government’s “Digital Britain” report is being asked to commit the Government to take action after the Culture Secretary Andy Burnham revealed plans for an international strategy to combat illegal downloading in February. Recommendations will include the establishment of an enforcement body to be overseen by Ofcom to warn and ultimately prosecute offenders.
It’s no surprise that the Creative Industries are pushing for the Government to tackle the illegal downloading problem, simply because it is losing them so much money. The legal position here is pretty simple – most Music, Movies, Games, TV programmes and any other material which can be copied electronically will be protected by Copyright. This gives the copyright owner, usually the songwriter, director or author but in this case the Record Label, Movie Studio or Game Developer who makes the content available, the ability to stop anyone else from copying the material and passing it on to third parties. Even in the 80’s, LPs bore the slogan “Home Taping Is Killing Music” and the problem has only been made worse by the advent of the Internet and other technology which makes copying much quicker and easier.
ISPs can’t ignore the fact that they allow their users to share files by connecting them to the web and need to take some responsibility for the problem. For a long time, they have sad that they are not in a position to police the activities of their users as so many of them download illegally as well as that they are only obliged to step in and take action where a copyright owner makes them aware of their content being posted on a website which they host, or where they bring individual users to an ISP’s attention. This is the “mere conduit” defence from the 2002 Electronic Commerce Directive Regulations, which also say that ISPs can be sued for copyright infringement if they do not quickly remove infringing content after being notified that it is on a website which they host or downloaded by their users.
Earlier this year, ISPs faced a deadline to come up with a deal with the Music and Film Industry on how they intended to deter illegal downloading by April 2009 or face new legislation. Signing up to a voluntary code of practice would have been sensible, however many ISPs depend on business from the younger generation, many of whom are among the worst offenders in illegal downloading. Will they still want to use an ISP that could cut them off if they’re not willing to buy music legally?
This isn’t a black and white issue. ISPs monitor traffic on their network for a number of reasons and while it’s easy to identify traffic which moves through file-sharing programs such as LimeWire and Pirate Bay, it’s much more difficult to show exactly what that traffic consists of and what content is being shared. File Sharers are also becoming much better at hiding their IP addresses, which Record Labels and Movie Studios use to track them down. Even if you have an IP address, a number of people could use that computer, meaning that you won’t always get the right man. Not only that, but current technology used to digitally fingerprint files is already falling behind the times and may not be admissible as evidence in any court case, especially in a criminal prosecution where the standard of proof is higher. The EU has also expressed concerns that a Court ruling should be obtained before any user is disconnected.
The irony here is that the Media will want to go after the demographic which the Government doesn’t want to target – the younger end of the population who thinks that they can get away with it. ISPs won’t want to disconnect their own users but they may now be forced to. Recently, the summer blockbuster “Wolverine” was made available online before its release date, which many think had had an impact on its box office takings and which the Media is using as an example of how illegal downloading cut put many jobs in the creative industry at risk and is forcing them to bring thousands of claims against individuals. However, ISPs are pointing the finger back at the Media, claiming that their business models are behind the times and that the problem would not exist if a larger amount of material was available for legal download. For example, you wouldn’t need to illegally download a Beatles track if you could buy it through iTunes.
Realistically, a Code of Practice for ISPs is the best way forward. The one thing that is certain is that the problem is not going away and needs to be dealt with, either by choice or by the creation of a new set of legislation.