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UK rattles 'three strikes' filesharing sabre (again)

'Change of tone' signals no change in reality

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The culture secretary Andy Burnham has repeated government threats to legislate against ISPs if they don't voluntarily agree a system with the music and film industries to disconnect illegal filesharers.

Ahead of the launch of the government's culture strategy document* today he warned that rules would be imposed in April next year.

"Let me make it absolutely clear," Burnham told the Financial Times. "This is a change of tone from the government."

No it isn't, and the deadline isn't new to the debate. In January then-intellectual property minister Lord Triesman said that the government was working towards including anti-filesharing legislation in this November's Queen's Speech.

That would indeed mean laws passing through parliament in early 2009. It would likely be a rubber-stamping job, as opposition leader David Cameron has indicated strong sympathy with rights holders' concerns on filesharing.

The Liberal Democrats seem unlikely to offer serious opposition either. Shadow culture secretary Don Foster said today: "We need to find a balance which allows rights holders to target the criminals raking in huge profits from this crime without threatening basic civil liberties or dramatically changing the relationship between internet service providers and users.

"Self-regulation would be preferable and it is now up to the internet service providers to demonstrate this will work."

ISPs are still briefing political hacks that they are being asked to look at every data packet entering their networks, which would plainly be impossible. Their favoured analogy that it would be like asking the Royal Mail to open every letter is a red herring.

Under the system actually being pushed, copyright infringement would be identified by rights holders by joining a BitTorrent swarm, for example. They would then send a list of IP addresses to the ISPs who would send out two warning letters to their customers. Being detected filesharing illegally a third time would mean disconnection.

There are several tricks technically savvy filesharers could use to avoid this kind of scrutiny. The record industry's lobbying campaign is aimed at changing the mainstream perception of infringing music copyright as a normal online activity. The BPI, which represents the UK record industry, concedes it has no idea whether a three strikes regime would have any direct impact on revenues.

As we revealed last week, in summer 2007 the scheme was implemented briefly at Tiscali, the UK's fourth largest broadband provider. Four people ended up being kicked off the internet, but Tiscali's arrangement with the BPI subsequently fell apart in a row over who should cover the costs.

Burnham claimed today that the three strikes regime was never part of the strategy document, and that the government is still working out the practical details, aware of a host of existing data protection and privacy laws that could trip up a bill. The BPI has pointed out that it is not asking for any data to be shared - under three strikes the ISP would not need to hand over any customer details.

Burnham's sabre-rattling today is aimed at stepping up the pressure on ISPs in the voluntary negotiations. Industry and the government would much rather a self-regulatory solution than face the cost and difficulty of internet legislation.

The culture secretary said legislation could be avoided if there is "a change in the nature of the dialogue [with] good and innovative business solutions that can address the problem in a different way". ®

*The same document widely misreported as a Green Paper last week. It isn't. A strategy document is a commitment to action; a Green Paper is a consultation on how laws should be implemented. As Burnham said, the government is still a long way from that level of detail.

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