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.