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UK.gov prepares for filesharing fracas

Voluntary ISP warnings 'not successful'

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None of the government's ideas on how to address widespread copyright infringement via peer-to-peer networks has won support from both the rights holder and internet industries, it admitted today.

The failure to achieve consensus on the issue spotlights Lord Carter's Digital Britain report, which will be published later this month. It is set to include the government's policy response to the peer to peer consultation.

The Department for Business, Enterprise and Regulatory Reform (BERR) has been consulting on options to clamp down on internet users sharing copyright music and video since July. Its suggested measures included extending the voluntary system of warnings to broadband subscribers seen illegally filesharing, currently being trialled by major ISPs in partnership with the record industry.

However, the government has clearly signalled it is willing to legislate if no long term agreement can be reached. The consultation also called for opinions on making ISPs legally liable for copyright infringement on their networks and on the use of filtering technology.

The polarisation of responses from rights holders and ISPs sets the Digital Britain report up for controversy. "The role of technology was addressed by most respondents, however there were conflicting views as to whether it could offer all or part of any solution," BERR said as it published the responses today. "For almost all the options, questions were raised as to their legality under the existing legal frameworks and again, views varied."

The record industry lobby BPI, which has been pushing for a French-style "three strikes" regime where repeated illegal filesharers would have their internet access cut off, said in its submission that the voluntary warning system has been a failure. "A purely self-regulatory or voluntary approach to dealing with illegal file-sharing has been attempted between BPI and ISPs but, for various reasons, has not been successful," it said. "The [memorandum of understanding] is not likely to achieve the objective of a significant reduction in illegal file-sharing unless it is underpinned by new statutory obligations on ISPs."

It added that it remains in talks with ISPs on what "range of measures" might be applied to repeated copyright infringers. Any regulatory regime should be administered by Ofcom, BPI's submission to the consultation suggested.

In its submission the Internet Service Provider's Association (ISPA) was critical of the government's approach, saying it was too vague and had ignored the voices of smaller ISPs. It said: "The [consultation] document is ambiguous about its proposals and lacks clarity on some issues. The Government's stated preference [a voluntary agreement] is dependent largely on discussions where the outcome is yet to be determined and the views of the full range of stakeholder groups is not being sought at this stage.

"It would appear that the Government has placed particular emphasis on agreeing appropriate sanctions for repeat infringers. ISPA members would like to see equal emphasis and resources devoted to user education and viable legal alternatives."

The Register understands that a major UK ISP is in advanced development of a peer-to-peer service, where users can pay a monthly fee on top of their broadband subscription for unlimited legal music sharing.

ISPA's call for licensed alternatives to the illegal peer to peer was echoed today by Malcolm Hutty, head of public affairs at Linx, an ISP cooperative. He said: "The united response of the Internet industry, charities, public interest and consumers groups and the general public is that it's time for the music and film industries to develop real alternatives to illegal file-sharing."

BERR noted its consultation had drawn concern from consumer groups worried about the standard of evidence needed to accuse an internet user of illegal filesharing. A recent campaign of demands for money on behalf of videogames publishers by the law firm Davenport Lyons has highlighted the pitfalls of detecting infringing IP adresses, as non-tech savvy pensioners were accused of sharing hardcore porn via BitTorrent.

Davenport Lyons obtained the real names associated with IP addresses using a High Court order. In its consultation submission, the Information Commissioner's Office (ICO) cautioned against making access to such private data easier. "Streamlining legal processes for the purpose of bypassing these [privacy] protections might give the impression that too much weight is being given to the rights of the industry at the expense of the rights of individual users," it said.

However, the ICO said Data Protection Act should not discourage right holders from pursuing illegal filesharers in partnership with ISPs. "A 'serial' uploader who is well aware of the illicit nature of his activities clearly has limited scope for arguing that his rights have been infringed in the event that his ISP complies with a reasonable request from a rights holder," it said.

All sides in the debate now await Lord Carter's report.

BERR's peer-to-peer consultation document is here (pdf). The non-confidential responses to the consultation are here. ®

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