Tiscali and BPI go to war over 'three strikes' payments

'I thought we were friends'

Only earlier in the day on Thursday, Tiscali had told us its warning and punishment regime for copyright infringement was up and running: "We support the music industry in tackling illegal downloads and have agreed a voluntary 'three strikes' graduated response scheme with the BPI.

"This is based, in the first instance, on a standard submission and initial specified evidence and is the process we are offering to other rights holders if they approach us."

Part of the evidence the BPI provided Tiscali last summer were screenshots showing that the IP number under suspicion was part of a BitTorrent swarm downloading and uploading a copyrighted material at a specific time. To collect the relevant screenshots all investigators need to do is join an infringing swarm and trace which IP addresses belong to Tiscali.

BitTorrent encryption does not obscure the IP address, rather it scrambles the data stream. Encryption would make life difficult for Tiscali if it was trying to directly detect illegal content itself - but it's not. Determined users can use other methods to avoid their net connection being traced to them from a BitTorrent swarm, however, and anonymous peer to peer protocols are under development.

In common with all major ISPs, Tiscali's terms and conditions forbid illegal filesharing. They say: "You agree not to use the services to do anything, or allow anything to be done, which constitutes a violation or infringement of the rights of any person (including rights to copyright or confidentiality)."

Such terms give ISPs the right to terminate a customer's account, but action has been extremely rare.

The process Tiscali thought it had agreed does not involve any inspection of packet data by the ISP. Opponents of ISPs taking an active role in copyright enforcement often compare the plan to expecting the Royal Mail to open every parcel to look for dodgy shipments. The arrangement Tiscali has with the BPI, where the rights holder is responsible for identifying the infringement, shows that analogy is disingenuous. Other arguments, such as those over the use of open Wi-Fi networks and the ability of hackers to control connections remotely, will rage on.

The news that what appeared to be the first accord on filesharing between the record and broadband industries has fallen apart does not change the fact ISPs fear new legislation more than an outcry from BitTorrent users.

The BPI said: "We want to work with ISPs, including Tiscali, to address internet piracy on the basis of fair partnership, and without the need for legislation. But unless Tiscali agrees to drop these charges, we can't get out of the starting blocks."

Before the "deal" fell apart yesterday, an ISPA spokesman said: "Tiscali's commercial decision is for them right now.

"A uniform self-regulatory process that includes every ISP and every rights holder is the much preferred option, and that takes time."

On this evidence, relations between ISPs and rights holders are as bad as ever. ®