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IFPI drafts 'code of conduct' for ISPs

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Not content with creating a continent-spanning lawsuit-sharing network using special P2P (person to perpetrator) technology, the record companies' consortium, the International Federation of Phonographic Industries (IFPI) now wants your ISP to sign up to a new "code of conduct" that it has helpfully drafted with the help of the Motion Picture Association (MPA). A warning, though: you probably won't like it.

Here's a sampler. Under the new code, ISPs would put in place filtering technology to block services and/or sites that "are substantially dedicated to illegal file sharing or download services". They would retain data beyond what law enforcement agencies require, with the aim of helping track down copyright infringement. They'd hand that data, plus your identity, over to the IFPI or MPA if there was even a complaint - not a court order - against you for, you guessed it, copyright infringement. (And you'd have signed or clicked something agreeing to allow that.)

Want more? According to the draft, the duo want ISPs and network operators to "enforce terms of service that prohibit a subscriber from operating a server, or from consuming excessive amounts of bandwidth where such consumption is a good indicator of infringing activities." A summary of the draft can be found at the Electronic Digital Rights site's latest EDRIgram.

We wondered if it might be some clever hoax, and called the IFPI. "Oh yes, the draft" they said breezily and knowledgeably. The draft is for real.

And to back up their modest proposal, the MPA and IFPI aren't afraid to wave their big stick at the ISPs and network operators. Speaking last month at the invitation of the European Telecommunications Network Operators' Association (ETNO) , the head of the IFPI, John Kennedy, said: "Quality digital content is a key driver that makes consumers embrace new services. You invest billions in your pipes and cables and satellites but without content you have empty pipes and boxes. At this stage I am not even asking for much if anything by way of a financial commitment. I am asking for your time your energy your commitment and some social responsibility."

Tony Soprano couldn't have put it better. "Nice content-carrying pipes you've got here. What a shame if anything were to happen to them... now, we've got this little agreement for you to look at..."

Expect an interesting discussion next Monday, when this issue, and the draft code of conduct, will be discussed at a meeting in Geneva of WIPO, the World Intellectual Property Organisation. Which as you know has a stellar record defending the little guys against claims of copyright infringement.

If all that has you fizzing, then you're in good company, along with the UK's Internet Services Providers Association (ISPA). There will be an ISPA representative at next week's meeting, and if they're anything like as annoyed as the spokesman we talked about this with, they're so close to nuclear they already glow in the dark.

"This is obviously something they [IFPI and MPA] have worked on together," ISPA's spokesman almost spat. "They have made proposals like this in the past but that doesn't necessarily mean they have gone anywhere. They should really be going through the established takedown procedure. Some of these proposals contravene current laws and go beyond others. If you take the example of requiring subscribers to allow their identities to be given out - that's something that ISPs take very seriously, and only when required to by law enforcement. And they aren't a law enforcement authority."

But sometimes it seems like the MPA and IFPI feel this latter point is only a minor detail, which could be fixed in time.

France's ISPs seemed to have rolled over already. A version of this code was signed last July by three French ministers, representatives of the music industry, major ISPs and telecoms operators there. It allows collection societies and the like to create files from telecoms traffic data of supposed copyright infringers to "mutualise the battle against the piracy of works". Some subscribers have been cut off; others have been sued for file-sharing.

In the UK, ISPA's not happy about the growing pressure. "ISPs have obligations to protect the privacy of their subscribers," said ISPA's man. "This could be seen as the thin end of the wedge to get access to everyone's organisation. But these suggestions are impossible and impractical." The idea of blocking access where someone is using a lot of bandwidth just doesn't work. What if they're using a webcam? Or voice over internet? They all use similar ports as some of the file-sharing systems. There's no real way of determining whether just because someone's using a lot of bandwidth that they're contravening copyright."

As for banning access to P2P services, ISPA's position - and remember, they'll make this next Monday - is that "it's important not to criminalise the technology. There are people who misuse the internet; that doesn't mean that you shut down the Net."

More interesting though is the question of why the ETNO invited Mr Kennedy to address its conference. Why would it want to hear from a content person, when its members have stolidly insisted, as do ISPs, that they just carry content, they don't censor or control it?

"We felt it was important," said an ETNO spokesman. "It's the beginning of a long process." Does it mean that ETNO, previously agnostic about content, is moving towards the MPA/IFPI position, where members will police content on behalf of third parties? The spokesman repeated that this was the beginning of a long process.

However, ETNO's members have reacted by telling the European Union's working party on data protection that they don't like the "constant pressure to ... create a situation where intermediaries [ETNO members] are liable for illegal content transmitted across their networks." The EU's E-Commerce Directive of 2000 is clear: there should be no "systematic obligation of surveillance or monitoring .. imposed on ISPs."

And then ETNO's man wondered where we'd heard about it, in particular Mr Kennedy's speech. "This was a closed conference, it was only the business people," he said, puzzled.

Well, perhaps those irrepressible types at the IFPI should be told. We had wanted to talk to them about it further. But regrettably they couldn't talk to us, being tied up having meetings about how they would announce the latest round of file-sharing lawsuits. ®

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