Three strikes could be out

A UN report into legislation, such as the HADOPI law in France or the DEA in the UK, which allows suspension of internet connection, says that the measure may be contrary to human rights principles. The Telegraph says:

“The Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access,” says [Frank] La Rue’s report, which will be presented to the UN’s human rights council today.

The UK government have mumbled something about how they think there are "balancing rights" of intellectual property, which suggests that Cameron and Clegg don't quite understand what a fundamental human right is.

France freezes Three Strikes activity

Things getting worse for the French copyright farmers - the operation of the Hadopi (three strikes) organisation has been frozen after the company charged with doing the snooping part, Trident Media Guard, turned out to not have adequate security. The French authorities say they won't work with TMG until this is sorted, and TMG are the only company doing the work.

Making it worth for TMG, TorrentFreak is reporting this morning that not only has TMG lost control of its own data, but also the data it had picked up through its spying activities. Let's hope, for TMG's sake, that there was nothing in the data that shouldn't have been there.

French anti-filesharing company hacked wide open

Torrent Freak is reporting that Trident Media Guard, the company employed by the French copyright industry to spy on peer-to-peer networks, has been hacked:

“A virtual machine leaked a lot of information like scripts, p2p clients to generate fake peers, local physical addresses in the datacenter and even a password that could lead to a major global TMG security breach,” French security researcher Olivier Laurelli, aka Bluetouff, just informed TorrentFreak.

You'd think that a company which sells its services protecting other online would be a bit better with its own digital security; it's a bit like discovering the front door of the Yale factory blowing open in the wind.

Breaking News: BT & TalkTalk call for DEA judical review rejected

BT and TalkTalk have had their call for a judicial review of the Digital Economy Act rejected by the High Court.

The ISPs have indicated they will appeal.

Gennaro Castaldo Watch: Hanging is too good for them

It's understandable that Gennaro Castaldo might be grasping at any straws right now, but even bearing that in mind, his rant calling for people to be thrown off the internet is surprising:

Gennaro Castaldo, HMV's spokesman for the UK and Ireland, believes government legislation must be in place to compel internet service providers to adopt the so-called 'three-strikes-and-you're-out' policy in order to deter would-be bootleggers.

"It's ironic that the very people who often engage in piracy are those who love the creative industries, be it film or music," he says. "They wouldn't dream about going into a shop and stealing a DVD, but they just don't realise that by downloading a film or TV show illegally they are doing exactly the same thing.

"It's all well and good to educate people about the damage their actions are doing, but maybe the only way to tackle it is to really crack down on illegal downloaders. The problem is people feel they can continue to download because they won't be sanctioned."

Nobody would dream of stealing a DVD from HMV, it's true, as that would mean you'd have to go into a branch of HMV in the first place.

Gennaro: it won't work, it's too expensive and too restrictive. What you're asking for is for the government to make laws compelling the communications industry to try and make up for the entertainment industry's failings. You might as well campaign to insist that newsagents be forced to give you ten pence every time someone whistles while buying tobacco.

Judge points out DEA probably won't work

Judge Birss has issued a ruling in the Patents County Court which effectively makes the DEA copyright rules unworkable when based on an IP address:

In a ruling in the Patents county court, Birss asked: "Does the process of identifying an IP address in this way establish that any infringement of copyright has taken place by anyone related to that IP address at all?"

He said that the assertion did not hold up: "Even if it is proof of infringement by somebody, merely identifying that an IP address has been involved with infringement [does not make it] clear to me that the person identified must be infringing one way or another. The fact that someone may have infringed does not mean the particular named defendant has done so."

Birss doesn't say that it can't be proved, but that there is no case law which means the owner of a connection can automatically be held responsible for all the activity on that connection. That, though, should be enough to make anyone think twice before embarking on action - any legal adventure is likely to be long, drawn-out, expensive and lacking any certainty of success.

Hunt suddenly realises DEA won't work

To be fair, it's not entirely Jeremy Hunt's fault that the Digital Economy Bill is pointless and unworkable, what with it having been rushed through in the dying days of the last government, but I'm still not entirely sure why he stood up at the time and said 'this bill is riddled with holes, but, oh, go on, let's make it law'.

Having got the DEA onto the statute book, Hunt is now looking at easing it off by asking Ofcom to review if the powers it's been given and plans to somehow chase file sharers off the internet can work:

"I have no problem with the principle of blocking access to websites used exclusively for facilitating illegal downloading of content," Mr Hunt said. "But it is not clear whether the site-blocking provisions in the Act could work in practice so I have asked Ofcom to address this question."

Here's a clue, Jeremy: They won't. You might remember people telling you this back when you were helping make this act law less than a year ago.

Tory-Lib Dems tell copyright industry to pay costs of pursuing unlicensed files

Ah, if only David Geffen had thought to invite a couple of Lib Dems onto his yacht, maybe things would have been different. The coalition have told the copyright industries they'll have to bear most of the costs for pursuing unlicensed filesharers.

ISPs will only be made to pay the costs of notifying their customers; 75% of the bill will be passed to the people who care about the copyright.

However, the government's decision today, based on a consultation on the cost-sharing proposal, said that the argument to split detection costs had been rejected as a "business as usual" bill for copyright holders.

"This argument was rejected as the initial proposal to share costs 75/25 was made in the full knowledge that copyright owners did have these separate costs to bear," said the government. "At the level of the individual copyright owner the level of detection activity (and any legal action) is a matter for them. It was considered these were largely 'business as usual' costs that copyright owners would face as part of protecting their own copyright material."

In a related decision, citizens won't be forced to pay a fee to appeal against one of these proceedings:

"As a free system risks the possibility of large numbers of unnecessary appeals, the government will monitor the situation closely, and reserves the right to introduce a small fee at a later stage," the government added.

This puts me in a horrible position of thinking that the coalition have made a good decision. Better if they'd scrapped the whole idea of snooping and letters, but it's a start.

You can tell its a good decision, because the copyright industry is squealing about how it's soooooo unfair:

"We continue to believe that ISPs should bear a greater proportion of the costs of communicating with their customers about illegal peer-to-peer use on their networks," said a spokesman for the British Recorded Music Industry (BPI), which represents the UK's music companies.

"We will work closely with the government and Ofcom to ensure that the costs framework overall is workable and affordable, in particular for small labels, and that the Code can be swiftly implemented."

Won't it cost what it costs?

Government dumps plans to cut internet from file sharers

Almost as if every single vote counted, the government has announced that it won't be bringing forward plans to disconnect filesharers found to be using unlicensed files:

In a response to a petition on the Number 10 website that petitioned Gordon Brown "to abandon Lord Mandelson's plans to ban individuals from the internet based on their use of 'peer to peer' file sharing", the government says: "We will not terminate the accounts of infringers – it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal – cases."

It's not totally withdrawn the threat, though:

"We added account suspension to the list of possible technical measures which might be considered if our measures to tackle unlawful file-sharing through notifications and legal action are not as successful as we hope. This is but one of a number of possible options on which we would seek advice from Ofcom – and others – if we decided to consider a third obligation on technical measures. However what is clear is that we would need a rapid and robust route of appeal available to all consumers if we decided technical measures were needed."

So they're saying they won't buy the big dog, but might still visit the kennel if Ofcom says they should.

It's not like Brown wants to come off like some sort of bully.

Stacking the cards in the labels' favour

As the Digital Economy Bill makes its way through parliament, it attracts amendments and its shape clarifies itself.

For example: if you get accused of listening to music without a licence, and your internet connection hangs in the balance, you have a right of appeal, yes?

Well... sort of. Only if you can afford it:

People wrongly accused of illegal downloading would be able to appeal the disconnection before it happened and could be charged by Ofcom, the media regulator, to cover the administrative costs of the appeals process run by the Tribunals Service.

So, to clarify what Mandelson's bill is proposing: if you're unjustly accused of sharing material without the correct licence, you're still going to have to pay a levy to a government body to keep your internet connection.

The whole concept of copyright has gone so far from being about fairness, it's perhaps not surprising that those innocent of all charges will end up out of pocket just to keep access to their blameless connection. The record labels want this; they should fund this.

BPI suggests we'll be happy to pay for their copyright policing

A couple of weeks back, the ISPs attempted to fight proposals forcing them to police other companies' copyright on the grounds of the massive costs they'd (i.e. we'd) have to pay.

Well, the BPI wasn't going to take that laying down:

However, the BPI commissioned a report from technical consultancy Sweet Consulting, which shows that introducing measures to identify and notify copyright infringers would cost £13.85 million ($22.5 million) in the first year, £9 million ($14.6 million) in the second, and £3.45 million ($5.6 million) in the third. This is a long way from the £25 a year figure - as low as 24 pence (39 pence) per individual ISP subscriber when costs reach £3.45 million.

"Our evidence shows that ISPs are trying to pull off a massive con job on the British public with their back-of-fag-packet figures - the true costs to them of dealing with piracy will be a tiny fraction of their ridiculous guestimates.

"It's time for Britain's ISPs to stop spreading scare stories and face up to their responsibility to help tackle illegal filesharing."

That quote comes from the Billboard report and, presumably, is drawn from the BPI but they haven't actually said who at the BPI said it. Perhaps they were ashamed at trying to keep a straight-face when saying 'just because the ISPs know their business, why should we accept their estimates of costs - our figures from a consultant we've employed are much more likely to be correct'.

Sweet Consulting, by the way, don't only work for the BPI - they did work for Phorm as well.

So, let's just look at those figures, shall we? Interesting they decide to focus on how little per user it would cost in year three, isn't it? And why would the cost come down so sharply? Presumably because the BPI believes that by year three, all that nasty old illegal downloading will have disappeared in the face of three strikes letters. Unlikely, but let's take that as a real figure. Thing is, though, even on 2009 broadband account numbers, and ignoring the likelihood that commercial operations would also have to carry some of the costs, £3.45million divided 16.5million accounts actually comes out at closer to 20p than 25p. Do the BPI's consultants not know how many people are online, or were they deliberately trying to make the costs seem 25% greater?

I suppose that 20pence might not sound much. Reasonable, even. Until you remember that this is everyone being made to pay to police the copyrights held by a handful of mainly overseas corporations. It's like saying "who could possibly object to only paying 12p a year in order for staff at Deloitte to have cream cakes every day?" It's not very much, but why should everyone be paying it?

This isn't money going to artists, or even to people who've got artists to sign their copyrights over to them. It's not even money going to the labels. That money they've still got to start issuing demands for.

France can't wait to start slapping down there three strikes

The CNIL - the French equivalent of the Data Commissioner's Office - have yet to approve the French 'three strikes' legislation, but that hasn't bothered newly-minted intellectual property agency Hadopi from setting up things; indeed, Hadopi is getting to ready to send out its first letters sometime between "April and July".

Not that there's any way that they're jumping the gun by organising themselves before getting CNIL approval. Not at all.

Bono wants protection

Bono is calling for the internet to be much, much more tightly controlled. Because, you know, we need to protect the creatives, you know:

"The only thing protecting the movie and TV industries from the fate that has befallen music and indeed the newspaper business is the size of the files," the lead singer of the band U2 wrote in an op-ed piece in The New York Times.
[...]
"Perhaps movie moguls will succeed where musicians and their moguls have failed so far, and rally America to defend the most creative economy in the world, where music, film, TV and video games help to account for nearly four percent of gross domestic product," Bono said.

Not that it really matters, but if you measure "most creative economy" by the share of GDP, America isn't the most creative economy. If you take Bono's figure of "just under 4 per cent", that puts it behind, just at random, Brazil - where the figure is over six percent; Uruguay, six per cent; and Mexico and Jamiaca, both well over four per cent. [source: Caricom.org]. Indeed, the global figure for the Creative Industries is seven per cent of GDP. So America is quite a laggard. I don't think it really matters, though, beyond proving that Bono, once again, doesn't really know anything that he's honking on about and the New York Times has given a platform to someone happy to build an argument on made-up fact.

Still, Bono's call for copyright control being imposed on the internet itself is worth a bit of a consideration. What sort of model does he see as being called for?

The singer pointed out that the US effort to stop child pornography and China's effort to suppress online dissent indicate that it is "perfectly possible to track" Internet content.

Right. Let's get this straight. Bono, the champion of the underdog (self-appointed), thinks that the risk of the odd person watching Mall Cop or an episode of House without paying for it should be treated as a crime on a par with raping a child and putting the footage online; he believes that the crime of not slipping a couple of cents to Guy Ritchie if you stream Holmes on your laptop calls for the entertainment industry multinationals to be handed powers to make them like the Chinese Government.

And people still pretend that Bono is on our side.

Government scuppers own initiative

It's a brilliant idea: the government is going to subsidise computers for the poorest families in Britain, acknowledging that access to the internet is a vital part of modern education and citizenship.

What a pity that Mandelson is busily undermining this initiative from the other end, colluding with the music industry in pretending that internet access is a luxury and promotes a plan which will make it impossible for the families receiving the computers to afford to be online.

Cost of stopping 'piracy' double the cost of piracy

If you take the most extreme measure of how much unlicensed file sharing "costs" the UK music industry - the one-download-is-one-lost-sale model - it's £200million a year, according to the BPI.

So how much will the music industry's favoured measures to stop unlicensed filesharing cost to implement? Erm, £500million, says the Government.

The difference being, of course, that this is a real half a billion pounds, that we'll have to find, in order to fund a bunch of repressive security measures that will, at best, save a few private corporations less than half of the cost of that security.

How does that make sense?

Obviously, some sort of figures have to be made up to justify the move:

Impact assessments published alongside the Bill predict that the measures will generate £1.7 billion in extra sales for the film and music industries over the next ten years, as well as £350 million for the Government in extra VAT.

So we're paying half a billion now in order to let a few international companies eventually make that back? Possibly?

More worryingly, the report says that just the very first stage of the plans - the stiff warning letter - is going to wipe the equivalent of a town the size of Leeds off the web:

Ministers have not estimated the cost of the measures but say that the cost of the initial letter-writing campaign, estimated at an extra £1.40 per subscription, will lead to 40,000 households giving up their internet connections.

That's people who've not done anything wrong at all, the people who struggle to make ends meet, losing their web connections because the management of Sony Music are afraid that someone might be listening to Alicia Keys without paying. If Labour really want us to believe - in an election year - they're the party of social justice, can this legislation really go ahead?

BPI lament rise in unlicensed downloading

The BPI has just unveiled a big survey which - let's be honest - is just intended to try and push the case for ISPs being made to police copyright law in the UK.

They claim the nation is pretty much planning to download more and more unlicensed tunes, until even Simon Cowell is forced to get a proper job:

BPI chief executive Geoff Taylor said the findings were "disappointing" and expressed concern at a rise in illegal downloads from blogs and newsgroups.

More than 3,000 people aged between 16 and 54 took part in the online poll.

When questioned about their future plans, current users of unauthorised services reported that they actually intended to increase their illegal activities in the coming six months.

Really? That's how people phrased it, was it? "I intend to increase my illegal activities, at least until the summer"?

Given that the BPI have found that the law isn't working, and people don't actually consider what they're doing to be wrong, the labels have thrown in the towel and said they're going to concentrate their efforts on building the myriad of new revenue streams that exist in the new reality.

No, of course they haven't:

Mr Taylor said: "There are now more than 35 legal digital music services in the UK, offering music fans a great choice of ways to get music legally.

"It's disappointing that levels of illegal peer-to-peer use remain high despite this and the publicity surrounding imminent measures to address the problem. It's vital that those measures come into force as quickly as possible.

"The growth in other, non-peer-to-peer methods of downloading music illegally is a concern, and highlights the importance of including a mechanism in the Digital Economy Bill to deal with threats other than peer-to-peer."

"Our failure to stop the water flowing in through the floorboards and cascading through the ceiling doesn't mean that it's time to abandon the house; instead, it is a signal that we must buy larger pails and bail faster and faster."

Bookmarks: Some stuff to read on the internet - Cory Doctrow

Cory Doctrow takes to The Times to patiently explain to Peter Mandelson why it won't work:

Fifteen years of draconian copyright regimes show that when you create powerful enforcement tools without any consequence for misuse, they get misused. And half a century’s worth of evidence on digital technology shows that no amount of enforcement will make computers and the internet worse at copying. Hard drives won’t get magically bulkier and more expensive. Networks won’t get less accessible, slower and harder to use. General technological literacy won’t decline. If you want copying to stop, physics is not on your side.

Mandy plans the cut-off

Speaking at C&binet, Peter Mandelson has announced his intention to press on with plans to let media companies have people thrown off the internet. In an act of craven cowardice, though, it won't happen until Labour are likely to be out of power:

The effectiveness of the warning letters to persistent illegal filesharers will be monitored for the first 12 months. If illegal filesharing has not dropped by 70% by April 2011, then cutting off people's internet connections could be introduced three months later, from the summer of that year.

Enough to have Dick Geffen invite him back to the yacht, but without the nasty having-to-face-the-European-Court-ruling attached.

Mandy, of course, is convinced he's being reasonable:

"If we reach the point of suspension for an individual, they will be informed in advance, having previously received two notifications – and will have the opportunity to appeal," Mandelson added. "The British government's view is that taking people's work without due payment is wrong and that, as an economy based on creativity, we cannot sit back and do nothing as this happens."

Does the British Government have a view on using unfair legislation in order to artificially inflate the price of online sales?

Deutschland Liebe Copyright

The new German coalition government has issued a 124 document, part of which explains the nation's plans for copyright. Like most governments, they're planning to make copyright "tighter":

Among them is the promise to mount a strong defence of copyright. The government says it wants to "achieve a high level of protection and an effective assertion of the copyright-law."

There's an almost theological flaw here - the belief that copyright law is primarily about protecting ownership of things, rather than designed to encourage creativity. If you work from that misconception, the copyright law you're going to create has to be bad for the general health of the nation.

Still, even the German government know when a idea is a bad one:

However, the prospect of removing Internet access for repeat infringers appears to be out of the question. "We want to promote the possibilities of an internal regulation with the participation of the right-owners and the Internet-providers," says the document. "We will not take initiatives for legal possibilities to block Internet access in cases of copyright infringements."

You'd have to be insane to propose doing so. Or French.

French Record Label boss suggests that UK does like France

The government is hosting an event called, I'm afraid, C&binet today. (Creativity & Business International Network is the reversed-out long form of the not-quite-an-acronym there.)

One of the speakers was Jean Bernard-Levy, head of Vivendi, taking the opportunity to push three strikes onto the agenda. After all, that's how it's done back home in France:

Levy [...] said that while it was too soon to gauge the results of the introduction of the "three-strikes" policy in France, it was a necessary step to protect content owners.

Righto. Let's just consider that.

There's not been any time to judge if it works, but it's necessary. Whether it works or not.

"Britain should be more in favour of developing the media industries and even if France is ahead in legislation it should be obvious [that the UK should] be doing something like three strikes," he added.

Why "obvious"? And where does the idea that throwing people off the internet will lead to a developed media industry actually come from?

Levy said Vivendi, despite owning one of France's largest internet service providers (ISPs), telecoms operator SFR, was convinced the tough legislative strategy would not harm internet use. He added that he expected no real reduction in legal web traffic.

Really? There's all these pirates who need to be chased off the net, and yet chasing them off won't actually make a difference to the levels of web traffic? Does Levy believe that people who make unlicensed copies only use their computers for evil? Or is it just that there are such a very small number of people who would be affected by the law as to make no significant difference to anything?

Vivendi owns an ISP as well as a record label:

"There is no way at Vivendi that there is an internal debate – the priority is to reward and monetise content. The priority is not to grow traffic on ISPs," Levy said.

Well, that's good news for Vivendi. If you were a company whose main business was in telecommunications rather than content, you might wonder why a person with a foot in two camps is being allowed to make the running with deciding that content is more important than connectivity. It's like a person who runs a grocery deciding that cheese is going to be produced at the expense of beef, and expecting the butchers to agree with him because he has a meat counter himself.

And didn't you just say Levy that this wasn't going to affect traffic on the web? Why, all of a sudden, does three strikes have a priority?

Come to that, while you can see why Vivendi might decide this should be a priority, is it societally better for people who own the means of communication to decide they should be used primarily for enriching record companies instead of driving upwards the number of people using the internet? Wouldn't it be better for all industries if ISPs were trying to make getting online as easy and convenient as possible for the largest numbers, instead of focusing their efforts on trying to squeeze a few extra quid out of an old Peter Gabriel album?

Levy, naturally, doesn't worry about the human rights questions of disconnecting people from a source of democratic and civil engagement:

"When you send warning letters to people then they can't say they did not know [they were breaking the law]. It is a short-term view to say 'I don't want to hurt the public'."

Good lord, imagine taking such a short-term view as not wanting to hurt actual people, instead of the long-term view of Vivendi's share price. Do you think Vivendi would ever have been involved in bribing politicians in Milan if they'd ever stopped to worry about such short-term views? Or having a go at price-fixing.

He added that for the music industry, models such as Spotify's "freemium" strategy, where users can choose between free streamed songs with advertising or paying a subscription to avoid ads, had "yet to be proven profitable" despite the mass hype.

Ah, so we've not seen any proof that three strikes work, but we must just accept that it does; however, we've not seen any proof that freemium delivers profits, so we should assume that it doesn't. That seems fair.

Incidentally, how can the music industry not be making a profit from Spotify? It's not like every record is having to be re-recorded or re-promoted? Levy seems to be arguing that if you eat yesterday's leftover pizza for lunch, you're not saving any money.