Published:
22-Jun-09
The government's Digital Britain report is consulting on a proposal that, via Ofcom, would make it a legal obligation for ISPs to reduce illegal file-sharing, by a target of 70% in the 12 months after the law comes into effect. To do so, Ofcom will require ISPs to:
i) Notify subscribers that their connection appears to have been used to infringe copyright (subject to reasonable levels of proof from rightsholders)
ii) Maintain anonymous data on serious repeat infringers (derived from their notification activities), and make it available to rightsholders, along with personal details, on receipt of a court order.
The report intends that rightsholders and ISPs will form a "rights authority" body to draft a code of practice for this two-step process. If this body and code fails to materialise, Ofcom will be charged with drawing it up.
Ofcom will be given the task of establishing the current level of illegal file-sharing and to assess its level after 6 and 12 months to test the efficacy of the notification process. If after a 12-month period of the code being in operation, file-sharing activity has not been reduced significantly, Ofcom should move to demand ISPs take further action. This will include blocking (site, IP, URL, protocol, port), capping (connection speed and/or subscriber's data transfer allowance) and content filtering.
Our take...
Screen Digest has doubts that the notification and court order code of practice will bring a significant reduction in illegal file-sharing. The notification method has historically failed to bring piracy levels down significantly; similarly, while a number of cases have been brought by music labels and Hollywood studios against end users in the USA and other countries, there is no indication that online piracy has reduced dramatically as a result. Further, prosecution on a mass scale has not previously been tried. Rightsholders and ISPs will be reluctant to avoid potential damage to their businesses by appearing to criminalise users. For rightsholders, this includes denting content sales, while for ISPs it includes driving up churn as customers switch to rivals. Additionally, from a practical perspective, it is unclear whether a user may avoid prosecution by swapping provider after receiving a notification – a prospect ISPs will fear, particularly in light of high customer acquisition costs.
In the longer term, the expectation is that the onus will be on ISPs to introduce technical measures to curb piracy online. Screen Digest believes that a potentially successful method for creating an obstacle to mainstream users indulging in unlawful distribution could be a creative content industry watchdog akin to the Internet Watch Foundation (IWF) that combats images of sexual abuse of children online in partnership with police, government and the online industry. Such a body could ensure that ISPs block access to the most popular websites hosting unlicensed material, and to file-sharing applications known to be used for illegal purposes. The aim in tackling piracy is to create hurdles rather than enforce prohibition, since no solution is ever likely to prove 100% successful, given the sheer number of sources of illegal content, persistent users' ability to tackle or avoid technical roadblocks (e.g. encrypted peer-to-peer distribution, anonymous IP proxies) and the continually evolving techniques for distributing illegal content. However, by making it sufficiently laborious or technically complex for at least a large section of users to access pirated content online could at least reduce the activity to a tolerable level and in turn open up space for legal alternatives to grow (e.g. Spotify for streaming music).
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