A different shade of Orange

As their response to the government's Digital Britain report, Orange have offered to build a lovely broadband network and, more interestingly, shouted "oi, no" in the face of proposals for a rights agency to police intellectual property online:

[L]ike many ISPs, it stresses that "the real key to combating unlawful file-sharing and copyright infringement online is (a) education and (b) the development and popularisation of legitimate and compelling content distribution business models."

As James P pointed out, this is the same Orange who sends out those terse letters to alleged unlicensed file-sharers at the request of the big record companies.

Indeed, it seems that even this, Orange is now feeling queasy about:

"This proposed solution, which is still strongly advocated by the music industry despite public statements to the contrary, cuts across basic principles of common law, user rights and ISPs' legitimate commercial interests and would fail a straightforward cost-benefit analysis," Orange said.

To be fair to Orange, the ISPA did push back fairly hard on some of the demands from the BPI, even if in the end it accommodated some of the less wild-eyed ones.

And they're clearly not about to take a digital cop scheme without a fight, either:

As for the idea of a rights agency funded by industry, which would be backed by legislation against persistent illegal file-sharers, the company told Carter it "does not think it is appropriate for it to fund a rights agency that would only be to the benefit of the rights-holders. This would ultimately become an 'anti-piracy tax' on all consumers, whether or not they infringe. Orange does not understand why one industry should be asked to fund the protection of another industry's commercial interests."

Unless by sending out warning letters, of course. But that's more about keeping the record industry quiet than policing their rights.

Fergal Sharkey: Music industry dove

Into the conference of the ISP Assocation at the weekend strode Feargal Sharkey, in his current iteration as head of British Music Rights. After the BPI's 'three-strikes' bad cop, Feargal came in with a cup of tea and kind words:

He offered an olive branch to the embattled British ISP industry in his speech: let's make lots of money.

"For me, the business model of the future is one where music is bundled into an ISP or other subscription service and the revenues are shared between the distributor and the content owners," he told the audience.

"This is the debate we need to get back on track: how to unlock [the] insatiable demand for music, and in a way that grows both of our businesses. Surely the bright and brilliant minds in this room can help figure this out?"

Sharkey is a lovely man, isn't he? And you've got give him kudos for attempting to recast the situation in a more positive glow - they're trying to "unlock" the insatiable demand for music, rather than the more honest description of current activities, which are attempting to put locks and constraints on that desire; holding out the prospect of everyone making some money off music, turning the role of the ISPs from protecting other people's revenue streams to protecting their own.

It doesn't make the idea of private corporations having people thrown off the internet on their say-so any more attractive or acceptable, but you've got to admire Sharkey's attempts to make it more pleasing for the ISPs.

Petition against 'three strikes'

Reporting on one of those valueless Number 10 epetitions appearing, calling for a rejection of legislation to codify the three strikes and you're off the web demands of the BPI, Chris Williams at The Register points out that the other option - a deal struck in private between ISPs and the BPI - might actually be worse. At least legislation would be debated in public and exist in a proper legal framework, he says.

Which is a fair point.

Less encouragingly, Williams then waves his IT fist at coverage of the story so far:

Since the plans made a splash in the mainstream two weeks ago, the public debate has been awash with technological tosh. Tinfoil hat fantasies about ISPs being forced to inspect every packet have been bounced around with little regard for the truth.

The funny thing is, though, the mention of "inspecting every packet" comes not from Williams' comically depicted of "tinfoil hats" (because thinking BT and EMI shouldn't be arbiters of who gets to use the internet is exactly the same as believing the CIA was behind 9/11) but from, erm, the organisation representing the ISPs (the ISPA quoted by the BBC, for example, saying "ISPs are no more able to inspect and filter every single packet passing across their network than the Post Office is able to open every envelope." Interestingly, the ISPAs are privy to the negotiations between the BPI and the broadband providers - something which isn't true of Williams.

He then goes on to detail how, actually, the proposals are much simpler than that:

So let's all run through the notes together once more, this time with feeling:

* The rights holder body (BPI/MPAA/whoever) will act as the "policeman". Its job is to catch you.
* It will provide your ISP with easily-obtained (see video here) screenshot evidence showing your IP address participating in a copyright infringing BitTorrent swarm.
* The ISP will act as the "magistrate". Its job is to punish you.
* It will issue warnings to you to stop illegally filesharing, effectively putting you on probation.
* After an agreed number of warnings - probably two, maybe more - if the rights holder supplies further evidence you are still involved in infringement, you will be disconnected.
* Consider yourself digitally ASBO'd. We don't know yet whether you'll appear on a shared naughty list.

All very reasonable.

Of course, in a desperate bid to paint anyone who might have described the ISP as being forced to "police" their users, Williams has mangled his analogy to the criminal justice system.

The BPI will not be acting as policeman. It's going to find IP addresses it claims is responsible for file-sharing, and pass them to the ISP to investigate the ownership of that IP address. That's more like a complaint - going to the authorities and claiming you've seen evidence of a crime - although, of course, victims of crime generally don't instruct the courts in the punishment to be meted out.

It's possible the ISP will act like a magistrate - although since they'll have to also investigate the 'crime', they will be like the police, won't they? And they'll also adminster the punishment, which makes them the prison service. And, apparently, the probation service, too.

That Williams has trouble with the way the justice system works is shown from the off, when he suggests that the BPI - as the police - turn up with their evidence, shows it to the magistrate "and it's their job to punish you". Now, I know that we've had our rights chipped away a bit in the past couple of decades, but I thought we still worked on the basis that the magistrates come to hear evidence with the job of weighing if it supports the claims of the prosecution or the defence, and only then imposes a sentence if they find the accused guilty. A magistrate who turns up with the belief that it's his job to punish those accused of crime would be a bad magistrate indeed.

More seriously, Williams' admirable attention to the fine detail of the BPI's requests misses the broader point - that this proposal fundamentally changes the relationship between the ISP and their customer. It might not call for them to "inspect every package", but it does make the ISPs liable for the content they carry. The point is that this is seeking to codify ISP compliance, and it's a nonsense to suggest that ISPs can be made responsible for the use of their networks while not being able to know what is being done upon them.

Remember: the proposal in Burnham's document is not that there should a law banning illegal filesharing - that prohibition already exists. The punishment would be for ISPs not policing - sorry, magistrating - the system to the record companies' satsifaction.

As another part of the Register points out, the likely upshot of all this would be a clause on filesharing slid into ISP terms and conditions, a clause which would require some form of investigation before it could be safely invoked.

Yes, Chris, there's nothing in the BPI's position which calls explicitly for the ISPs to "inspect every packet", but in order for the system to have any effect, the ISPs would have to retain the right to do so. Even if just to defend themselves in the first legal action brought against one by an unjustly disconnected customer.

Williams also suggests that the BPI aren't trying to actually beat filesharing:

Everyone who cares about this needs to realise that telling the record industry "three strikes" won't restore its 1980s business model or that it is in an unwinnable arms race is pointless. That side-argument is boring, often childish, and in 2008 is best left to the pages of Digg.

Rights holders' successful Westminster lobbying has not been about stamping out illegal filesharing. The BPI et al are not stupid enough to dream that would ever be possible. Their aim is to change the mainstream perception of it as a normal online activity with no consequences.

Oh, yeah? But if the BPI aren't stupid - and an industry which took so long to wake up to the implications of the changes taking place under its noses, an industry which required a wake-up call from one of Metallica to even start slumbering its way forward does look pretty dumb from where we're sitting - then it would realise that the only way the legislation was going to have an effect would be if the public felt that illegal filesharing had a probability of getting you cut off from the web, rather than a possibility. Which would imply an awful lot of people getting cut off. Does the BPI really have the funds to carry out that level of investigation? Or is it just hoping to shift the costs to someone else?