So, then, the detail on those filesharing proposals contained in Digital Britain. The proposals are up for consultation, through the Bis department. The Bis department is, of course, the one where Dame Manda Rin is minister of state.
Seriously, though, it's not clear why the Department for Culture, Media and Sport throws up the idea of three-strikes (or something like it) and then passes it over the Business, Innovation and Skills to do the dirty work. Joined-up government or fractured thinking?
The consultation document talks often of "illegal" filesharing, although the title of the consultation itself is a little more conciliatory:
Consultation on Legislation to Address Illicit P2P File-Sharing
Illicit rather than illegal.
Action 13 sets out two obligations which will apply to ISPs. ISPs will be required to send notifications to subscribers who have been identified in relation to alleged infringements of copyright.
Action 13 itself suggests that there will be some sort of level of proof required, albeit vaguely: there's lots of talk about how there will be a certain level of evidence, but that's going to be thought about later on, somewhere down the line. When, presumably, someone else can deal with the problem of just how this 'evidence' will be gathered without private companies snooping on individuals.
The second obligation is for ISPs to maintain (anonymised) records of the number of times an individual subscriber has been so identified and to maintain lists of those most frequently identified.
So, let's get this straight: If, for example, Warners say I'm file sharing - offering some sort of evidence which is apparently enough to satisfy Ofcom but not good enough for Warners to actually bring their own court action, my ISP will start to compile a list.
Then, the mere fact of having been on the list frequently can be used to build a case against you in court.
It all seems a bit extreme for a futile attempt to try and impose 1970s music pricing structures on music sales in the 2010s.
There's to be an injunction on Ofcom to "reduce" filesharing by 70% in a year - the year is yet to be specified - through the sending of stiff letters (the government seems to believe they work; perhaps they view a 'you have downloaded' letter as being a civilian equivalent of a 9pm call from the Daily Telegraph that starts 'just been looking at your expenses...'). If they don't hit this target, then the more strict rules will be brought in - throwing people offline, a bit, but gently, for a while, or - hilariously - blocking their access to certain sites "or protocols".
How? How will you do that when, if you tell BT to not let me go on piratebay, I'll just go out and buy a pay-as-you-go dongle from 3 instead? Does anyone really believe this sort of thing even makes any coherent sense? Or are the government merely responding to letters from the BPI and chums in the way an uncle might indulge a child by awkwardly playing fairy tea-parties with them?
And how would you go about "measuring" filesharing anyway? How on earth could you establish a regime for doing a benchmark study and then a comparison a year later? Especially with a degree of accuracy that's going to trigger a round of legislation?
Are we to take the rights-holder's word for it - even when their ability to provide straight numbers has been proved somewhat unreliable in the past? Or will Ofcom be given the power to inspect people's internet traffic? But, frankly, why should they?
The numbers at the back of the report reckon that the costs of the measures will be £35million to set-up, with up to £50million a year; the benefits are estimated at £200m annually. If those figures are correct, then why not invite the rights holders - who will benefit - to pay the costs of the ISPs, who will be paying out? Rights holders would surely be quids in - unless their claims of how much they're losing, and could expect to claw back, are just fantastic.
The acknowledgments are interesting:
We would like to thank the following organisations for their time and efforts in helping us produce this consultation:
• British Phonographic Industry
Business Software Alliance
• Carphone Warehouse
• Channel 4
• Consumer Focus
• Federation against software theft (FAST)
• Internet Service Providers’ Association (ISPA)
PRS for Music
• Motion Picture Association (MPA)
• NBC Universal
• John Newbigin
• Premier Rugby Ltd
• Rugby Football Union
• T Mobile
• Warner Bros
• Universal Music
• Virgin Media
Somehow, it's almost as if nobody thought to ask people who use telephony services, or internet, or listen to music or go to films. The only apparent 'voice of the consumer' is Consumer Focus, the gnats-weak body that has subsumed the fail-corpses of organisations like Postwatch and Energywatch. And that's the government. Apparently you can only help shape the direction of the discussion if you have a financial, not a cultural, interest; if it leans towards the status quo, so much the better.