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.

BT hit delete, tell Ministry Of Sound these are not the customers they're looking for

That stamping of feet? That'd be coming from Ministry Of Sound, enraged that BT have deleted private data the MOS were demanding to pursue unlicensed filesharers. MediaGuardian explains:

BT had agreed to retain the personal details of 20,000 of its customers earlier this year, so that Ministry of Sound could pursue them once an injunction on the court order was lifted. However, the record label today said that BT had "failed to preserve" the details.

The telecoms company was granted an injunction on the original court order, submitted by law firm Gallant Macmillan on behalf of Ministry of Sound, on 4 October. The broadband provider argued that it would continue to challenge such orders – known as "Norwich Pharmacal orders" – until the rights holder and law firm can prove that accusations of illegal filesharing have "some basis".

It almost makes you forgive BT for those Kris Marshall ads, right?

Ministry Of Sound likes to think of itself as a record label, although grouping a bunch of other people's tracks together and slapping a picture of a foxtrelle in a bikini on the sleeve isn't really being a record label, is it? Still, it has copyrights and it's going to protect them, dammit:

The Ministry of Sound chief executive, Lohan Presencer, said: "It is very disappointing that BT decided not to preserve the identities of the illegal uploaders."

Alleged illegal uploaders, surely, Lohan. You claim they were "illegally" uploading, but BT suggested that you hadn't shown these claims had any basis.

"Given that less than 20% of the names remain and BT costs have soared from a few thousand pounds to several hundred thousand pounds, it makes no economic sense to continue with this application."

Again, there's that whining sense from the copyright industry that they shouldn't be expected to pay the costs of their own security - like the bloke from the corner shop wanting the council to pay for his CCTV as the kids who steal Mars bars use the street to get there.

It's a bit surprising, though - let's say everyone on the MOS list was somehow stealing from them. 20% of a list of 150,000 is still 30,000 chummies making off with Carl Cox remixes.

And, surely, the people on the list must have been serial abusers to have made it worthwhile pursuing them in the first place, so shrugging about 30,000 bad, bad people seems a bit strange.

"We are more determined than ever to go after internet users who illegally upload our copyrighted material."

Except, oddly, not for the 20% of names for whom BT still hold the details. Not really determined about them any more.

"We will be making further applications for information from all ISPs. Every time that a track or album is uploaded to the web it is depriving artists of royalties and reducing the money which we can invest in new British talent."

Ah, yes. New British talent. Those '15 years of anthems' or 'Dave Pearce: 1995' albums don't just create themselves, you know.

Look, I could go through the whole 'an unlicensed download is not the same thing as a lost sale' argument, but I think even Ministry Of Sound know that nobody really believes in the old 'every time a track is downloaded, an angel loses its wings' saw. In fact, lets just pretend that Lohan said "everytime someone goes out in the sunshine for free vitamins, it means the loss of a sale of an orange and reduces our ability to invest in Florida."

The sudden decision to drop the pursuit of 30,000 alleged infringers might look a little like Ministry Of Sound not really wanting to have to explain the quality of their data in a court. BT sweetly points out they're more than happy to help. With safeguards:

"The safeguards we aim to establish via the court are on the security of data handling, a threshold for providing a customer's details based on a minimum number of separate incidents, the tone of contact with broadband subscribers and a reasonable approach to financial compensation sought."

All of that seems reasonable enough. You'd have thought that Ministry Of Sound, determined to pursue these villains, would have been happy to give those assurances, and give them quickly. Strange that - despite this sapping their ability to invest in another Housesexy collection - they chose not to.

[Thanks to Michael M]

Talk Talk shout shout at Mandelson

That didn't take long, did it? Less than 24 hours after Mandelson had grimly announced his intention to allow the intellectual property industry to have people thrown off the internet, and the plan is already heading for court. Talk Talk are threatening legal action:

"The approach is based on the principle of 'guilty until proven innocent' and substitutes proper judicial process for a kangaroo court," said Andrew Heaney, the executive director of strategy and regulation at TalkTalk. "We know this approach will lead to wrongful accusations."

"If the government moves to stage two we would consider that extra-judicial technical measures and would look to appeal the decision [to the courts] because it infringes human rights," Heaney said. "TalkTalk will continue to resist any attempts to make it impose technical measures on its customers unless directed to do so by a court or recognised tribunal."

BT has been less strident, but aren't exactly delighted, either, saying they are:

"interested to hear whether or not customers will have some form of fair legal hearing before their broadband supplier is required to take any action against them".

One lawyer claims that there is no human rights worry about Mandy's plans:

Tony Ballard, partner at media and entertainment law firm Harbottle & Lewis, said that Mandelson's plan to suspend internet connections did not breach human rights regulations.

"This issue over whether removing someone's internet access breaches some fundamental right has been quite clearly settled by the European court of justice," Ballard added. "It ruled in a Spanish filesharing case last year that a user's fundamental rights are not absolute but have to be weighed against the rights of others, including copyright owners."

Maybe - although the same court has ruled that ISPs can't be compelled to hand over details of customers in file-sharing cases, too. Let's just pause a moment, though, and consider a lawyer saying that somebody's fundamental rights are not absolute. It's not clear if absolute rights would be fundamental.

Ballard said that it is for the "individual states and their courts to hold the balance". He added that Mandelson clearly had an eye on France where a tough "three strikes" cut-off policy has been implemented and approved by the French legislature.

Yes, Mr. Ballard - although you seem to have got confused along the line; the tough legislation was dumped, and replaced with a watered-down version because, erm, the original plan was considered too much of an infringement of human rights.

BPI claims 2% of BT customers are unlicensed file-sharers

The BPI has started moaning. They say they gave BT details of 100,000 customers they claim are file-sharing without permission, and BT haven't done anything with the information.

100,000? BT only has 4.8 million customers, which means the BPI is claiming 2% of their customers are filesharing to a point where something must be done. (You'll recall there's been suggestions that the music industry would only be interested in pursuing "heavy" uploaders rather than light users.)

BT have said that, much as they'd like to help, that many IP numbers are quite expensive to deal with:

Petter said he fears that the anti-piracy process could cost ISPs a staggering £365m a year – £165m a year more than the £200m the BPI says the industry will lose to online music piracy in 2009. The BT boss went on to label the BPI’s losses assessment as “melodramatic.”

Well, if the BPI are going to send so many demands, the figure of £365million isn't too extravagant - presumably Carphone Warehouse and Virgin customers would be roughly as evil, so we'd be expecting around a third of a million contacts to have to be made. That implies quite a few full-time jobs, and a lot of administration. The BPI isn't having a bit of it:

Geoff Taylor, chief executive of BPI, is now hitting back, claiming that Petter has exaggerated his figures too.[...]
“It’s shameful for a company like BT to know that a high percentage of the traffic it carries is illegal material but do nothing,” Taylor told The Mirror. “If you operate a commercial service and know it is being used to break the law, taking steps to ensure it is used legally is a cost of doing business.”

Is it? Really? Or is that rubbish? Is there any other business which expects someone else to fund the cost of its own security measures?

[Thanks to Michael M for the link]

Irish ISPs face legal action from majors

With Eircom having folded and told the big record labels that it would do whatever they asked of it, if you're looking for an ISP in Ireland and want one which puts your privacy ahead of the interests of international companies, you've still got a choice.

For now. Because the lawyer-happy music industry is now dragging BT Ireland and UPC to court to try and force them to introduce a 'three strikes' rule. To be fair, the majors have no choice but to behave in this manner, as part of their agreement with Eircom was that they'd try to ensure their competitors also had a three strikes rule so as not to put them at a competitive disadvantage.

Funny that, isn't it? The record companies try to tell us that three strikes is in everyone's interests, and that most people would welcome this sort of rule, and yet Eircom clearly feel that being the only company with three strikes on the book would cause customers to shun it to a worrying degree.

IRMA - which is the RIAA pretending to be interested in Ireland - are pressing ahead despite increasing evidence that throwing people off the internet is going to fall foul of European human rights legislation. It's not often I feel sorry for BT, but having to go to court to try and argue why it doesn't really want to find itself in court in Strasbourg seems a little unfair.

Music industry's pyrrhic victory might not even be that

The deal cut for the music industry in the UK - whereby ISPs will reluctantly send out tut-tuts to people record companies believe are sucking down great piles of unpaid music from the internet, and in return ISPs get to build their own legitimate stores - hasn't gone down too well in some places. David Pakman of eMusic has suggested that the music industry has, effectively, created a system that could ruin itself:

"Our concern is that in order to obtain the co-operation of the ISPs, there seems to be a quid pro quo," Mr Pakman told the FT. "This is qualitatively different from licensing another half a dozen digital music businesses." The likes of Apple, eMusic, Amazon and Rhapsody were attracting the same customers to legitimate music sites - "you're penalising the good guys, not the bad guys", he said.

One of Pakman's main concerns is that the ISPs are now not only distributors, but also potentially retailers, of online music, and that they could manipulate their position to divert customers to their stores. The ISPs are shocked at the very suggestion:

"We have no plans to inhibit in any way the traffic of other legitimate music or content services, irrespective of whether we eventually offer our own," said BT.

BSkyB said it was talking to several music companies, but had yet to launch its planned service: "It seems premature in the extreme to be warning of the consequences of something that doesn't even exist."

Exactly. You shouldn't object if your drunken neighbour applies for a gun licence - after all, his weapon, at this stage, doesn't even exist. Wait until he's shooting your car tyres out at three am in a few months.

And BT's reassurance isn't exactly reassuring: not a firm, clear, we would never do that, just a "we have no plans to" at the moment. And it's not just a case of making it harder to download a song from iTunes by throttling connections to the servers, as BT seem to be suggesting - many people, through inertia, are using browsers whose home page is that supplied by their ISP. A big, splashy, "buy Coldplay for sixpence" on launch pages could turn a young music lover's head and seize their pennies without the need to mess about with traffic to Apple or eMusic. It's like Tesco's new online cheat, where they don't actually restrict brands access to their website's customers, if you try and buy a branded product, it automatically suggests a replacement from own brand products instead. You can understand why eMusic might be concerned at the gatekeepers flogging their own produce by the gate.

BT tickles the BPI belly

According to letters seen by the Register, BT has followed Virgin in sending warning letters to customers the record companies claim are file-sharing.

BT didn't like The Register suggest they'd joined the BPI's side:

BT has not changed its policy for dealing with copyright infringement and we have not joined any "crusades". We do ask that our customers adhere to our terms and conditions which state that they must comply with all relevant laws and not infringe the rights of others.

Although given that the BPI clearly is on a crusade, and that BT has decided to help them police content on the web, it's hard to see how they can feel they've not joined in. It's a bit like a weapons manufacturer denying they're joining in the war.