Legal Research

ISPs face prospect of legal obligation to do rights holder copyright policing

By scott

I note that the UK government has published the responses to its consultation on unlawful Peer-to-Peer (P2P) file-sharing and its impact on the British arts and entertainment industries. The consultation called for evidence on the issues involved and invited views from rights holders, Internet Service Providers (ISPs), consumer organisations and the wider public on a range of options to tackle the problem.

Perhaps unsurprisingly, the responses did not give united support for the proposals, or the government’s preferred co-regulatory proposal, which would give legal footing to an industry code of conduct agreed by the rights holders and ISPs.

There was across the board rejection of the governments proposals by the country’s ISPs. According to BT ?Unauthorised P2P file sharing of copyright material is fundamentally a market issue which needs to be addressed through a range of commercial means.? Almost all ISPs suggested the way to deal with P2P was through the provision of legal offers, education and the use of the existing legal system to enforce copyright holders rights, and that any other approach jeopardised “the development of the ISP industry and reduce incentives for investment in infrastructure etc.? (BSkyB), and/or would constitute a “tax on the legitimate internet use? (Orange).

The ISPs are also united on their desire not to be seen as being the entertainment industries’ policing arm. BskyB argued that it should not have to warn their customers merely on the basis that a rights holder has said that a particular file was downloaded by a particular IP address. BSkyB states it should not be forced to act against any of its customers without actual proof of infringement- proof it would have to put to its customers before weighing up the claims of both sides. This is a job for the courts BSkyB argue. They - and others - also point out that the proposed technical solutions are also a none starter for ISPs unless it can be guaranteed to them that in doing so they would not jeopardise their ‘mere conduit’ protection from liability under regulation 17 of the Electronic Commerce (EC Directive) regulations.

Tiscali and others criticised the consultation for virtually ignoring the current legislative options open the rights holders, and for taking the view that because rights holders find the process onerous that ISPs should be made to do their work for them instead. The current laws protect rights holders - use them, they say. They also point out the false - or at least unproven - assumption that a reduction in illicit file sharing would lead to an increase in legitimate revenues to rights holders. According to them, the consultation’s proposals all have the goal of obliging “ISPs to take action to safeguard/grow the revenues of rights holders. No obligation is proposes nor foreseen for the rights holders.”

The ‘lost revenue’ argument is one that I have long held to be false. In rights holder logic, every track, album, film downloaded illegally robs them of the revenue for each and every one of those items. Now, you don’t need a PHD to spot the flaw in this logic. If person A downloads 5 albums and 3 films a month for free, if they are prevented form doing this they are no suddenly going to go out and spend the money on those 5 albums and 3 DVDs. True that person might buy 1 albums and 1 DVD, but that is not the one for one argument that the entertainment industry have continued to claim. The additional problem is that that person is probably ALREADY buying that 1 albums and 1 DVD legitimately, and the 5 albums and 3 film downloads are additional to that ‘legal’ buying, not instead of.

On the other side of the argument, it will come as no surprise to find that rights holders are in favour of the government proposals and the co-regulatory approach in particular, seeing ISPs as needing to take some responsibility for copyright infringement on their networks. Some responses to the consultation were in favour of streamlining the legal process to enable personal information to be passed directly from ISPs to rights holders. However, the Information Commissioner expressed concern about any move in that direction.

Lord Carter stated that the government would respond to the views expressed as part of the interim ‘Digital Britain report’ due to be published at the end of next week. No-one is expecting the government’s views to have altered, and see the threat of a legislative solution now very firmly on the table.

Full post as published by Information Overload on January 16, 2009 (boomark / email).