Digital Britain: UK plans to reduce unlawful file-sharing · Jul 1, 08:38 AM

Pirates in the digital age

The UK Government has just released its Digital Britain report that details a strategy “to secure the UK’s position as one of the world’s leading digital knowledge economies”. The report has been written by government, for government, but it is important to record labels and other rights-holders as it includes plans which will affect what can be done to combat unlawful file-sharing.

Digital Britain is an ambitious report and it’s great to see that a strong importance is being placed on the future of the digital economy in Britain. The relevant chapter for those of us who work in the music industry is Chapter 4 – “Creative Industries in the Digital World” and that is the section that this blog post aims to discuss. In particular, the proposed legislation to reduce unlawful peer-to-peer file-sharing. The proposals look to streamline the process by which a rights-holder can take action against a rights-infringer. At the moment, if a record label wants to take action against someone unlawfully sharing their files, they need to follow a process similar to the following example.

1. A record label finds one of their tracks on a peer-to-peer network and notes down the IP address of the person sharing it.
2. The label then has to go through the law courts to obtain a Norwich Pharmacal order (a court order requiring the Internet Service Provider (ISP) to disclose the identity of the file-sharer).
3. The label then has to take legal action through the law courts to prosecute the file-sharer.

This is obviously time-consuming and expensive and so far, it has only really been attempted by the majors. Under the new proposals, ISPs will be required:

“to notify alleged infringers of rights (subject to reasonable levels of proof from rights-holders) that their conduct is unlawful; and to collect anonymised information on serious repeat infringers (derived from their notification activities), to be made available to rights-holders together with personal details on receipt of a court order.”

The report then goes on to list a bunch of technical measures that ISPs may be asked to implement (like blocking certain sites or certain ports), which will come into effect if the levels of file-sharing, based on the number of notifications sent out by ISPs, is not reduced by 70% in the first year of operation. Overall, the proposal seems like a fairly sensible approach and presumably, it will work along the lines of the following example.

1. A record label finds one of their tracks on a peer-to-peer network and notes down the IP address of the person sharing it.
2. They lookup the IP address and see that it’s managed by an ISP in the UK.
3. They then notify the ISP, who in turn, issue their customer with a “notification to stop unlawful file-sharing”.

Apparently there is “evidence that most people who receive a notification stop unlawful file-sharing” and a survey has been done which “found significant numbers of people say they would stop or significantly reduce their file-sharing activity upon receipt of a notification”. Both of these statements lack sources. In fact, the report is full of such statements. This is disappointing. How was this information collected? Which “recent study in Scandinavia has shown that the biggest users of unlawful peer-to-peer material are also the biggest paid-for consumers of music.”? Which “…surveys indicate there is real interest in new business models that offer a similar experience and content to file-sharing.”? C’mon guys, [citation needed]!

Potential problems with this approach

A question that arises with the new proposals is: How do rights-holders prove that a person has unlawfully shared their music? The term “reasonable levels of proof” needs clarification. Finding the name of a file on a p2p network is surely not enough. If that were the case, how long would it be before Virgin Media are asked to send a warning to all of their customers with a file called “Track01.mp3” in their shared folder?!

For the individuals or groups who actively participate in illegal file-sharing, it will be fairly simple to avoid being caught. The proposals rely on an individual’s IP address being found and that that IP address is managed by an ISP in the UK. A cunning pirate could use an encrypted connection to a server outside of the UK, from where they could operate, to avoid any chance of receiving a notification. The success of this scheme will be judged by the number of notifications being sent out by ISPs, which means that if such techniques to avoid being caught are widely adopted, the scheme will be deemed a success, when in reality its success will be over-estimated.

Praise for this approach

It is good to see that the proposals do not involve ISPs being forced to monitor their users’ internet activity, although the idea must surely have been considered. Placing the responsibility on the rights-holders, rather than the ISPs to identify pirates, while not without its own set of challenges, makes a lot more sense. At FATdrop, we have always been happy to fly the .co.uk banner, and proposals for ISPs to monitor their users’ activity, such as those put forward by the French government (which now look unlikely to happen), would cause problems for companies like ours whose clients legitimately need to send files. How they propose to distinguish between lawful and unlawful sharing of a file is anyone’s guess. It is a difficult balance to get right: to attempt to reduce unlawful file-sharing, but not to restrict the activities and drive out the very companies that will form the heart of Digital Britain and the new proposals seem to have done a pretty good job in getting that balance right.

As always, we welcome your comments below.

— Alex FATdrop

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