Friday, July 04, 2008

Three strikes and you're, er, confused..?

This is long. Get a cup of tea. Sit down and put some chill out music on. But there's a surprise at the end, I promise :)

The story so far: long ago in a galaxy far away in , ooh, March 08, a rumour swept the land that UK ISPs were going to be co-opted by the content/music/movies industry rightsholder groups to apply a doctrine originating from France, and known as "graduated response" or colloquially, "3 strikes and you're out", as part of the continuing battle against the Forces of Evil, namely illegal downloaders/fileswappers.

Under a "3 strikes law", ISPs must warn a detected uploader (or possibly downloader) if they appear to be breaking copyright law. On the third such warning, access to the ISP is disconnected. If such a doctrine is applied by law (or as a voluntary agreement by all ISPs, as "soft law" to fend off "hard law" regulation, then effectively the price of filesharing becomes banishment from access to the Internet.

Pangloss gave a talk on this at the LSE which was reasonably well received in which I asserted that such a step would be illegal under EC law, both because of the hosting and mere conduit exemption from liability for third parties applicable to ISPs under Art 13-15 of the ECD; and because the "penalty" would be disproportionate to the "offence", and thus fall foul of various human rights guarantees in both the ECHR and the EC Charter of Rights.

In particular, access to the Internet for all members of a household might be suspended even if only one person the household had file-shared - or perhaps even a mere friend , guest or user of an unsecured wi fi network. This is because filesharing can only be detected as connected to a particular IP address; and IP addresses identify only a particular computer, not the person using it. A final problem might also be that home machines are often compromised by malware nowadays: how would some one prove it was not them but a remote zombie master who was using their machine to upload or download?

Adjudication and fairness problems also exist: how does the ISP know that an IP address passed to them by the content industry is truely of an illegal file sharer? Difficult grey areas exist of fair dealing and private use, and it can by no means in this our day of the iViewer be assumed that all P2P use is likely to be copyright-infringing.

So far, so bad. After that things went quiet. BERR, the former DTI, said they were bringing foward a consultation paper about "3 strikes and you're out" in the spring but seemed rather unenthusiastic about it with the latest word in June being that the consultation would be delayed till next year (Now why would that be? read on..).

MEPs in the European Parliament voted against it. Even the major ISP, Talk Talk/Carphone Warehouse came out publicly against notice and disconnection despite near-threats from the BPI. A reported attempt by the ISPA, the ISP's own trade asociation to broker a 3 strikes and you're out equivalent prgramme for video/movies, also appeared to die the death. In France, opposition also mounted against the proposed law, but the bill was proposed anyway. Was this the end for 3 strikes or not?

In the UK, developments seemed to take a different turn. First Virgin, one of the "big 3" ISPs , agreed to go in with the BPI on 9 June on a so-called campaign to "educate" users. Users would be warned that they had been detected swapping infringing tracks and to stop, but apparently no actual proposed sanction was included in the letter.

When the first letters arrived c 3 July to 800 Virgin users, all hell broke loose. Students and others (alerted like Pangloss, by that fine news organ , Radio 1 Newsbeat) complained that file sharing was their god given right and anyway, they'd been accused of downloading Amy Winehouse whom they didn't even like (what poor taste, says Pangloss. ) It couldn't have been them; must have been someone using their wi fi network, or a slumber party guest, or a big boy who ran away.

Virgin, stung by information in the latest polls that 63% of their potential subscriber audience had admitted to filesharing, backpeddled and plead that there was "absolutely no possibility" of Virgin taking legal action or banning internet users as part of a campaign against illegal file-sharing on its broadband network. This despite the fact that , embarassingly, "the letters came in an envelope marked: "Important. If you don't read this, your broadband could be disconnected." ." (Bit of a giveaway.)

Interestingly the music industry itself - before the storm broke - presented this not as a one off but as a first stage in attempts to "reach a voluntary agreement with [implicitly, all] ISPs over illegal file-sharing".

Meanwhile, BT the other of the big 3 UK ISPs which unlike TalkTalk had not already publicly rejected "3 strikes", was found in a rather good Register scoop, to have been sending individual letters to suspected filesharers, this time overtly threatening disconnection on further "strike". "If further evidence is obtained of infringement via your internet connection," it writes, "then further action is likely to be taken against you. That action may include litigation against you, as well as the suspension by BT of your internet connection." (This time perhaps deserved as the victim - er infringer - had been caught listening to Girls Aloud. Mon dieu.)

What was an impoverished student in need of a JayZ fix to do? The answer was obvious: leave Virgin and BT and join Talk Talk (or one of the 100s of other ISPs who wanted well out of all this politics and legal risk.) One conspiracy theory Pangloss rather likes, may have been that Virgin were in fact quite keen to lose major downloaders and uploaders: as the current charging model for broadband simply does not reflect the market costs of high usage: it has been said that for some users the real cost of Mbs used would be c £200 a month, not the more normal £10-£20.

But did even Virgin and BT want to lose 63% of their clientele? Probably not. And could all the other ISPs, including TalkTalk be argued into forming a cartel all offering the same policy? Again, probably not. But look!... like the cavalry coming over the virtual hill to the rescue, or the carrot coming to join forces with the stick, the music industry then revealed their ace in the hole on 26 June : stop filesharing illegally and we'll let you go on using P2P but as a legal service, administered via ISPs, with users paying a flat monthly fee added on to their broadband charges, which would then be divvied up back to the rights holders. And aha! this was why the government had been dragging their feet on the 3 strikes consultation, right, because they were brokering this deal? Surely so!

Wonderful, said Pangloss. The answer to all this insane cat and mouse luddism-vs-technological innovation lose:lose scenario we've been dealing with now for, what, nearly a decade? Pangloss has long been a supporter of flatrate levy schemes to finance the correct royalty payments to record companies and artists - ever since she first came across such as scheme back in as promoted by the very clever William Fisher of the Berkman Institute, Harvard, in his book Promises to Keep.

But the music industry has generally not been keen on them, since in theory more profit can be made by a market-driven digitised distribution system such as iTunes, where the industry can still decide how high a price it thinks it can get pers ong or per video, not just what the levy gives it. But hey, any profits are better than no profits right? Or better than 37% of profits anyway. For the average user it would be marvellous: all you can eat Napster, not for nothing but for a reasonable monthly fee. 80% of punters said they'd be happy with that, in the music industry's own poll. It seemed that sanity was at last beginning to prevail.

OK. Deep breath. With me so far?

Menawhile in a galaxy far away.. oh yeh done that bit .. at the European Union we find the reform of the Telecoms law framework underway - known as la Quadrature because it involves reform of (at least) 4 Directives.

Pardon you say. What does telecoms have to do with copyright and P2P?

Well not much, except that both involve Internet access and regulation, yes? The Telecoms reform work is massive, complex, detailed and inpenetrable even to most EC law anoraks. And taking place in the dog days of summer, just before the MEPs go home, and when the academics are already mostly on holiday and the IT journalists want to watch Wimbledon and the Dr Who finale. And over the US Fourth July weekend. The perfect time to bury a copyright bomb.

I have been helpfully given a briefing document by Monica Horten, PhD researcher at the University of Westminster and part of La Quadrature du Net, anti 3-strikes civil society body, which is difficult but alarming reading. Monica has made a close study of someof the proposed amendments to the Telecoms reform package, which have in the main been pushed through committees by industry lobbying and are scheduled to come up for voting on July 7. Yes - in 3 days time. There are 800 amendments and only a handful concern copyright. This is a legislative needle in a haystack. I have seen no publicity for these very important amendments except one report in EDRI-gram: the general press seems unaware. I have checked the amendments myself , but it has to be said however, that interpretation of what exactly they mean is in many cases difficult. Full details can be found in Monica's brief and at the Quadrature de Net page.

Monica suggests that the amendments promoted by copyright interests will, if passed on July 7:

1. Impose an obligation on ISPs to "co-operate" with the content industry in removing filesharers from the Web. In EC speak , this is almost certainly a euphemism for being required to put in place a system akin to a 3-strikes regime and is certainly capable of being interpreted that widely in implementing legislation.

The Internal Market committee report (IMCO) amendment, promoted by UK Conservative MEP Malcolm Harbour, specifies that

"national regulatory authorities and other relevant authorities shall also as far as appropriate promote cooperation between undertakings providing electronic communications networks and/or services and the sectors interested in the protection and promotion of lawful content in electronic communication networks and services. These co-operation mechanisms may also include coordination of the public interest information to be made available as set out in Article 21(4a) and Article 20(2).

The reference here is to another amendment to the same Directive, which would require ISPs to regularly distribute "public interest information" to all users including "the most common uses of electronic communications services to carry out unlawful activities or to disseminate harmful content ". This could be interpreted as narrowly as basic information on copyright (arguably, fine); or it could be clear information from the ISP that a user had been accused of illegal filesharing by a rights holder (a "strike"). The use of the word "also" (enlarged by Pangloss) suggest that the co-operation envisaged is certainly more than just the mere provision of information/warnings.

Interestingly also, proposed recital 12c provides that "Such public interest information should be produced either as a preventative measure or in response to particular problems". This is I would argue clearly wide enough to cover the "strike" interpretation as well as the "general info" interpretation.

This , as French commentators have recognised, thus potentially puts in place all the groundwork of warnings, and legal requirements, for 3 strikes to become law throughout Europe, or at least in whichever of the national legislatures chooses to adopt the wider interpretation (s).

In conclusion, I am worried . Worried at the lack of consideration for what the public wants; the lack of balance between legitimate protection of IPRs, and vital interests such as the access of students and workers to the Net, as well as of the families of alleged filesharers; the apparent disregard for privacy and the personal data safeguards of the data protection laws; the apparent washing away of the E-Commerce Directive immunities; but more than that, aghast at this blatant attempt to sneak through vital changes to the law without proper notice or debate, across Europe, in the Trojan horse of a giant and extraordinarily hard to understand reform exercise.

Hence this rather long post :(

NOTE: this post was edited on 6 July 2008 to make clearer and explicit reference to the exact text of the amendments proposed.


Anonymous said...

OK, what can normal non-lawyer types like me do about this?

Unknown said...

Many thanks for the quite extensive post on the subject. I'd heard things were happening but received little in the way of detail.
Thanks again.
I'm a little less er confused now.

Anonymous said...

Couldn't someone come up with a friendly virus that just mimics P2P behaviour? If everyone is doing it then it's going to be hard to stop.

Anonymous said...

and we can then all rejoice in watching the music industry die overnight as all those horrible filesharers - some 63% of the market - stop buying music in protest. or simply cannot.

because the one thing Muso's cannot quite seem to grasp is that file sharers buy more music than non-sharers. This is fact, and has been proven many a time.

fools fools fools fools.

Alex B said...

"because the one thing Muso's cannot quite seem to grasp is that file sharers buy more music than non-sharers."

'Muso's' are fully aware of that. Don't tar musicians with the same brush as the money grabbing, desperately worried labels. Most musicians realise that things have got to change and are actively trying to find solutions, it's the labels that are clinging onto a now dead business model.

Unknown said...

Wow, this is scary. I'm a Yank but I seriously don't want this to set a precedent. More proof that the record companies are pure EVIL. Good luck fighting this guys.

Anonymous said...

Politicians all have the likely possibility of being two-faced ignorant blow hards with the intelellect one can only be left with after generations of inbreeding heavy alcohol and cocaine abuse while being exposed to large amounts of crude oil in a dangerously hot climate with access to large sums of money which results in people voicing empty compliments in an parasitic attempt to benifit from someone whom they are fueling delusions of self worth and the need to bestow the wisdom of his lobotomized like mind on the public...

Wait wait wait....i'm sorry, i see some underhanded attempt by a politician to screw over a large percent of the population and i just assume it's Georgie #2 here in the states again. Boy is my face red =oD.

Copyright infringement is completely subjective. Usually dependant upon how much money someone calculates they could theorhetically lose due to things like filesharing.

Take for example a television show. Something on a freely broadcast network, in the states, FOX would be a good example. Now anyone with a televsion set, and a metal hanger, or aluminum foil...any cheap thing metalic that could be rigged as an antena can watch, lets say American idol. I hate that show and would rather break dance on broken glass then watch it. You can legally record it to a VCR, DVR, PVR, to your computer via a tuner card. You can edit out the commercials, you can generate Subtitles or captions for it. You can legally reencode it to fit on your IPoD, PSP, cell phone, you can purchase devices to allow you to watch the things you've recorded in your home anywhere, on any one of a dozen devices. If you missed it, you can go online and watch it free in streaming HD via If you have cable service you could most likely get it through Video on demand, any time you wish, free to pause, fast forward and again record to where ever you want. Perhaps you've bought, sadly, the entire season on DVD. YOu can back it up in all the same fashions. Because it's yours. You paid for it...even though you could have gotten it free to begin with.

But say after you've bought it on DVD, recorded it through your free magic air waves what done make the picture box have the purty colors. the cable or satilite service you pay for monthly to another medium....and you want to put it on your ipod. But you don't have time. Or know how, or just are too lazy. You cut out the middle man, get exactly what was either free to aquire from your television to begin with, or the DVD you can legally back up....and you download it, no commercials, but not as high quality as the DVD, none of the special features, subtitles, audio tracks, or the spiffy plastic box that cost 10 cents to make that holds the spiffy plastic dvd that cost another 3 cents to make...over the internet connection that you have paid for with an expectation of i give you $50 a month, i can download whatever i want at the bandwidth advertised.

Who loses money?

The RIAA and Lars with all his heavy metal metalicaness can sod off. Those $15-20-25 cd's are 1/100th the audio quality of vynil, the mp3 they want people to shell out $1-2-3 persong are 1/20th the quality of cd audio. That's assuming the audio is anything worth listening to in the first place. The majority of people, and i mean like 99.5% of people that do take part in file sharing
1) do not profit financially in any way.
2)either already own what they are downloading, or want to see if it's worth buying.. Because ya know, free TV, Radio, internet..hell library gives you acess to all the stuff anytime you want.

Those who do download things they did not own, or did not buy.....never had any intention of doing so. A download does not equate to a lost sale...a download means either maybe this is good and i'll go buy it, or i'm bored and this content will make me mildly less bored though i would never waste the time, energy or money to pay for this rubbish that airs 20 times a day for free on tv or radio.

If someone doesn't enjoy the movie they paid $12 for the ticket to see do they get their money back? the $25-50 for the dvd? the $20 for the cd from the empty pop bimbo or middle aged sell out?

I don't think so. But imagine what would happen if the 60% of downloaders didn't go to the movies for oh say a year? or buy a cd, for cable. Hell, how bout they just boycott one of those lovely $200 million summer block bordems. Just one CD...refuse to watch one hour of primetime TV a day.

The entertainment industry would be begging to give away free crap.

That's what will happen. you drum up theorhetical 10% lossed earnings from 0.5%? 60% actually lossed earnings will hurt alot more.

Supply and drives the econmy....but without the customers there is no demand..suppies will just continue to last. The market won't, the bussiness won't. But the customers will find something better.

Perhaps we all could do something nice for the nice sleuthy politicians. I think if we all pitched in, we could get a nice singing telegram delivered every night between 12am and 5am...for a whole year. Never at the same time, never from the same place twice in a row. But every night, just to say thanks for thinking of the big picture. =oD

Anonymous said...

I wrote to my MEP about this and he was kind enough to reply. To be honest it's all gobbledygook to me but this is his political party's position.

Ian Hudghton MEP

Telecom Universal Service Directive

Some questions and answers

July 4th 2008

Greens/EFA Group

On July 7th the IMCO Committee will vote on the proposal for a Directive on universal service and users' rights relating to electronic communications networks (= USD: Universal Service Directive). The Rapporteur is Malcolm Harbour (PPE, UK) and a working group involving shadow rapporteurs from the 4 main political groups (including Heide Rühle for the Greens/EFA) has met several times in the last few weeks in order to come to compromise amendments. Controversial points of view have been recently expressed by sectors from the civil society about the draft directive, the amendments and the draft compromises in IMCO, in particular by the BEUC, by "Quadrature du Net"or by CMBA.

The purpose of this note is to clarify the position that Greens/EFA have defended in IMCO regarding the main issues at stake and to explain our strategy.

1. According to some interested parties, IMCO "politicians" would be engaged in summer manoeuvres, relying on the fact that nobody watches them a week before parliamentary holiday, to divert the telecom package from its primary objectives of consumer protection. There would be currently a series of secret, backroom negotiations between a handful of MEPs who would not always understand all the implications of these issues.

The Commission proposal has been issued in 2007 and since then the IMCO Committee has had several public debates about it. The Rapporteur has drafted his Report on April 14th, the amendments by IMCO MEPs were tabled by the end of April and since then there have been several discussions among the shadow rapporteurs, who are all very well informed and follow closely the dossier. The time schedule (vote in IMCO beginning of July) has nothing to do with "manoeuvres" and the strong reactions by civil society prove that if anyone in IMCO expected that "nobody watches them", well they were wrong (fortunately) !... Attempting to arrive at compromise amendments on EU legislation is the normal procedure in the European Parliament. In any case Greens/EFA would not support compromises which would not guarantee citizens' rights.

2. Net neutrality. Will Internet Service Providers (ISP) be able, due to the content of subscribers' electronic activities, to filter, monitor and eventually block subscribers' access to the internet, thus substituting themselves to the judicial authorities ?

This is not what the current compromise amendment on Article 22 says. The original Commission proposal said that the national regulatory authority can set minimum quality of service requirements, and that the Commission may adopt measures to ensure that such requirements do not slow down the traffic over the internet. Greens/EFA in IMCO agree with that because they consider that using the internet is a service of general (economic) interest and that therefore it is very important indeed to ensure appropriate network management in order to prevent degradation of service. Furthermore, we had tabled an amendment to add in this article that ISPs must ensure that subscribers can send and receive any form of content without prejudice of the needs to preserve the integrity and security of the networks. The compromise amendment keeps the same idea by stating that "the ability of users to access or distribute lawful content or to run lawful applications and services of their choice is not unreasonably restricted". Recital 14 confirms that "it should be the end-users' decision what lawful content they want to be able to send and receive, and which services, applications, hardware and software they want to use for such purposes, without prejudice to the need to preserve the integrity and security of networks and services". So these provisions do not give ISPs the right to monitor or block the traffic on the internet because of the content of subscribers' activities. Their purpose is rather to avoid slowing down of the traffic. Some sectors of the civil society may consider that there should be no restriction at all, even for unlawful content but this is not the Greens/EFA position.

On the same kind of topic, the current compromise amendments on Articles 20 and 21 specify the contractual and non contractual information that subscribers must receive and that operators must provide.

It is true that the compromise on Article 20 makes it clear that contractual information must include "information on any restrictions imposed by the provider regarding a subscriber's ability to access, use or distribute lawful content or run lawful applications and services". But if such restrictions exist, it is clearly in the subscriber's interest to be informed of it in the contract. Besides, the same provision existed in the Commission's proposal, which imposed that the contract should include information on "the action that might be taken by the undertaking (...) in reaction to security or integrity incidents or threats and vulnerabilities".

In order to clarify further that any restriction should be motivated by network management purposes, it is envisaged that we and the PSE would propose an oral amendment in Article 20, specifying that information on restrictions concern restrictions imposed to ensure the security and integrity of networks.

Regarding Article 21, the current compromise amendment adds a paragraph 4a which specifies that the operators will be obliged to distribute public information produced by public authorities in order to inform the public about "the most common uses of electronic communications services to carry out unlawful activities or to disseminate harmful content, particularly where it may prejudice respect for the rights and freedoms of others, including infringement of copyright and related rights and their consequences, and means of protection against risks to personal security, privacy and personal data". So again, that does not give ISP any right to block anything lawful for content purposes, it only says that the public should be informed about activities that are unlawful. Greens/EFA in IMCO consider that this is justified, in particular because many parents do not know what their children do on the internet.

The current compromise amendment in Article 33 (2a) says that national regulatory authorities shall promote cooperation among ISPs regarding "the protection and promotion of lawful content". This seems admissible for Greens/EFA as part of a compromise to avoid precisely that ISPs could cut internet connections without prior judgment. But in order to make it clear that we are not in favour of over-protecting intellectual property rights, Greens/EFA and the PSE could ask for a split vote to delete the words "protection and".

3. Contract duration. How easily will it be for subscribers to change ISP ?

This is a key aspect for Greens/EFA because the duration of contracts should be short enough to promote a truly competitive market and to facilitate access to contracts especially by younger subscribers. We have tabled an amendment obliging ISPs to inform subscribers every year about their more interesting tariffs. In addition, and together with the PSE, we have tabled a consolidated amendment for a new paragraph in Article 30 to ensure that ISPs must offer users the possibility to subscribe to a contract with a maximum duration of 12 months, and that in any case any contract shall not exceed 24 months. The Rapporteur is opposed to this provision but it seems that we can win on it because we would be supported by the ALDE Group.

4. Our voting strategy in IMCO

Greens/EFA in IMCO have co-signed the compromise amendments, not only because these compromises include a series of our concerns, but also because they avoid the worst amendments to be adopted, in particular those amendments tabled by certain, mainly French MEPs, which would enable ISPs to act as a sort of internet police or jeopardise the right to privacy in electronic communications. Therefore we carry on negotiations with the Rapporteur (Harbour) and the shadows so that we can find a joint and stable solution.

Anonymous said...

Ecommerce is one word that has uncannily boosted the economies of all, the first world, the second world and the third world countries. Though the trend of buying and selling through the electronic media, predominantly through the net,is a trend that has seen the upswing in the developed countries, the technicalities involved with it like making an ecommerce solution, is something that the firms in the developed countries hire from the poorer countries, thus giving a boost to the latter’s economy. Unfortunately, the benefits yielded by fields like ecommerce are yet to reach the grass root levels especially in the third world countries.

Anonymous said...

Anonymous, I've never read such a protracted, glib and diabolically-flawed piece of rhetoric for the justification of theft in all my life.

Question: 'do you own the material?'
Answer: 'no'.
Question: 'did you take it?'
Answer: 'Yes'.
Conclusion: Theft. Look it up.

Anonymous said...

I wrote to a clutch of MEP's on this subject. I've had three replies so far, two of which were polite and provided information and feedback on the issue. The third was from Den Dover (currently continuing to answer questions regarding his expenses) which simply stated;'The situation is not as bad as you think'. So - that's all alright then!!!!!