http://www.ispreview.co.uk/index.php/20 ... tters.html
A new report claims that the United Kingdom’s four largest home broadband ISPs (BT, TalkTalk, Sky Broadband and Virgin Media) are expected to imminently agree a controversial new Voluntary Copyright Alert Programme of Internet piracy warning letters with the Motion Picture Association and British Phonographic Industry.
Regular readers will note our March 2014 report in which we revealed that the Government’s Communications Minister, Ed Vaizey, had told a recent Westminster Hall debate that the new VCAP system could be “up and running before the end of the year” (here). In this setup Rights Holders would identify suspected pirates by their IP address (e.g. through monitoring public P2P File Sharing activity) and notify the ISP, which would then send a letter or email “alert” (warning) to the user.
At the time Vaizey’s comment seemed optimistic given that Virgin Media had previously described the proposal as “unworkable“, while TalkTalk pointed out that the idea would have required them to create a database of repeat offenders and that this could conflict with the Data Protection Act (i.e. ISPs can only retain personal details where they are needed for commercial purposes).
On top of that the Open Rights Group (ORG) also questioned what personal information might be used, who will have access to it, what standards of evidence would be adopted in order to help identify customers whom are suspected of Internet copyright infringement (piracy), will there be an appeals process and would whole homes / shared networks face sanctions on their connectivity if a pirate is identified.
Sadly the closed-door negotiations meant that no answers to any of these questions were forthcoming, which is perhaps unsurprising given that the Prime Minister’s own Intellectual Property Advisor, Mike Weatherley (Conservative MP for Hove and Portslade), has already threatened legislation against broadband ISPs that don’t capitulate.
So today’s report by the BBC, which reveals that an agreement between the major ISPs and Rights Holders is now “imminent“, will not come as much of a surprise. But the good news is that the plan has been watered down, which means that customers won’t face “punitive measures” and Rights Holders won’t be granted access to a database of suspected offenders.
What Can Suspected Pirates Expect?
Customers suspected by Rights Holders of Internet piracy can expect to receive an “educational” alert letter that will prompt the subscriber to increase their awareness of legal downloading services. The letters will recognise that an IP address cannot be used to identify a specific individual (most fixed line broadband connections are shared between more than one person) and thus the account owner will not be directly accused.
The ISPs will also be required to keep a record of customer accounts that have received alerts, which must be retained for up to a year. However the Information Commissioner’s Office (ICO) will need to approve this approach (collection of customer data) before it can be adopted and crucially this data will not be shared with Rights Holders.
Rights Holders will pay £750k to each of the major ISPs in order to help them set-up the new VCAP system (plus £75k per year to assist with running costs), which the BBC suggests represents 75% of the overall costs (i.e. ISPs are likely to pick-up the remaining tab but the report isn’t clear). The industry’s other ISPs are expected to join at a “later date“, although we’d be very surprised to see a mass adoption among the smallest providers (costs are much more of an issue at that end of the market).
Statement from the BPI and MPA:
“Content creators and ISPs, with the support of government, have been exploring the possibility of developing an awareness programme that will support the continuing growth of legal creative content services, reduce copyright infringement and create the best possible customer experience online.”
In addition, a cap of 2.5 million alert letters has been set for all four ISPs combined (this will be raised as more providers join). But broadband providers will only be able to send a maximum of 4 letters to any given subscriber and after that no further action will be taken, which will no doubt be a big frustration for Rights Holders. It’s understood that the language of the letters will “escalate in severity” but not contain threats.
The system is initially expected to run for 3 years pending regular reviews and or later extension.
The reason for this approach, which has been tried once before and is even enshrined in legislation through the 2010 Digital Economy Act (DEAct), is because the latter law has struggled to be implemented due to legal challenges (e.g. BT and TalkTalk’s efforts to seek a Judicial Review), political disagreements, concerns over the reliability of IP address based evidence (even good data only identifies the bill payer [might not be the perpetrator]) and cost concerns.
The Act and Ofcom’s related code broadly described a method by which ISPs would issue Notification Letters to customers (suspected pirates). Customers who chose to ignore the warnings would have faced service limits, possibly including disconnection (“temporary account suspension“) and or having their details passed on to the relevant Rights Holder for possible court action.
Needless to say this approach was deeply unpopular and all of the various delays meant that implementation of the Acts measures had, at the last update during mid-2013, been delayed until “the latter half of 2015“ and some have since suggested that 2016 was now more likely. A few even doubted whether the measures would ever materialise. So instead the Government decided to pursue development of VCAP, with a threat to bring the DEAct back again if the systems proves “effective“.
However the BBC does not explain what it means by “effective” because in our view a successful system would help to reduce the level of piracy to such a point that the DEAct would not be necessary. In any case what we have now is effectively a return to the original 2009 Digital Britain Review proposal, before Lord Peter Mandelson waded in to make it more aggressive at the last minute (largely without debate) and thus trigger years and years of delay.
At the end of the day this is what we should have started with and it’s a shame they took so many years to get back to this point. The question now will be whether or not any of this actually makes a difference or if it will simply encourage casual pirates to educate themselves in how to avoid being detected in the first place (e.g. VPNs etc.).
Industry sources have told ISPreview.co.uk that there may still be a long way to go before the new measures are agreed, not least because at least two of the ISPs aren’t happy with the current approach and this in turn means that the other two don’t want to sign (i.e. the desire for a level playing field to avoid competitive advantages etc.).
Meanwhile the Internet Service Providers Association (ISPA) has been left excluded from the talks, which means that smaller ISPs have had practically zero say in the progress. The hope appears to be that if the Government and Rights Holders get the big boys on-board then the rest will follow, which rarely seems to work in practice (e.g. website blocking).
The ISPA itself thus cannot comment on the matter until the contents of the policy have been made available for scrutiny by their membership and all the potential impacts analysed.
This all begs the question, did the latest document leak via the Government or Rights Holders since ISPs wouldn’t stand to gain by sharing it.
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