Original URL: http://www.theregister.co.uk/2008/02/15/tiscali_bpi_agreement/

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

Filesharing shambles revealed as 'deal' collapses

By Christopher Williams

Posted in Media, 15th February 2008 10:06 GMT

Exclusive Tiscali, the UK's fourth largest broadband provider, implemented a "three strikes" arrangement with the record industry to disconnect illegal filesharers last summer, The Register can reveal.

But over a matter of hours yesterday any deal that Tiscali thought it had made with the BPI evaporated in a row over money.

Relations between the pair are in disarray as they battle over who should cover the costs of sending warning letters to peer to peer users and then disconnect persistent copyright infringers. The system the two-million-customer ISP believed it had agreed with the BPI is the same one that the government is pushing all ISPs to enforce.

It had been thought that the dialogue between the BPI and Tiscali would serve as a model for the rest of the internet industry, which is threatened with legislation if it does not come to a voluntary agreement to act against copyright infringement. The issue hit the mainstream at the beginning of this week, when leaked documents confirmed Westminster's plans to bring in new laws.

Last summer, the BPI sent Tiscali a list of 21 IP addresses it identified as having engaged in illegal peer to peer filesharing. Warning letters were sent out, and eventually four customer accounts were shut down.

That Tiscali became the first ISP to attempt this kind of deal with the record industry is not surprising. The pair had been in negotiation since a stand-off over 17 filesharers in 2006. At the time, Tiscali refused to hand personal details to the BPI without a court order, saying it had failed to provide any evidence. The three strikes system they subsequently developed does not require any personal information to be handed over, as the ISP acts as enforcer rather than the courts.

A Tiscali spokeswoman said late on Thursday: "The BPI led us to believe we had concluded an agreement to implement their preferred process in October last year, which not only demonstrated joint leadership in this area but also that both of our industries could work together to tackle this issue."

In a statement however, the BPI told The Register: "We are pleased that Tiscali agrees that our three step proposal is an appropriate way to begin dealing with the problem.

"While there have been discussions between BPI and Tiscali, we have not been able to reach agreement on a long term solution. That's because Tiscali is trying to force us to pay a substantial levy to enforce its own terms and conditions.

"Discouraging customers from using their accounts unlawfully is an obligation that any ISP should bear as part of its core business. That is the socially responsible thing to do, and it's disappointing if Tiscali sees illegal behaviour on its network as a further opportunity to make money at the expense of the music community."

Tiscali replied: "We certainly take our responsibilities very seriously and have never sought to make money out of this process. We are very disappointed with the BPI's response and we will of course continue our conversations with them."

The question of who will pay for a three strikes process seems a major stumbling block for the broader negotiations between ISPs and the BPI. The ISP Association (ISPA) said on Tuesday its members want money to indemnify them against court cases.

Tiscali had said it was satisfied that giving people two chances to stop sharing music illegally means wrongful disconnections are highly unlikely. The payments it thought it had agreed with the BPI covered cost of warnings and disconnections, it said.

'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. ®