The final Digital Britain report has put forward several new legislative measures to help curb unlawful P2P (Peer 2 Peer) file-sharing downloads among UK broadband ISP users. These include notification of unlawful activity (ISP warning letters) and, for repeat-infringers, a court-based process of identity release and civil action. ISPs will also be required to enforce technical measures upon users, such as "bandwidth reduction or protocol blocking", but only as a last resort.
The Report States: "These obligations will need to be underpinned by a detailed code of practice. We hope that an industry body (the 'rights agency' envisaged in the Interim Report or 'rights authority' as some now term it) will come into being to draft these codes for Ofcom to approve and we would encourage all rights holders and ISPs to play a role in this.
However, the Government also believes, and the evidence suggests, that most people, given a reasonable choice would much prefer not to do wrong or break the law. "
The move follows last year's new 'Memorandum of Understanding' (MoU) agreement between the creative industry and six of the UK's largest ISPs (original news), which set out the principal of sending warning letters to those accused of downloading illegal music or movies. It was hoped that this would be followed by a voluntary method for tackling repeat offenders, although no solution was ever reached.
It's understood that the new technical measures will only be used "if the two main obligations have been reasonably tried but, against expectations, shown not to have worked within a reasonable but also reasonably brisk period." Mercifully, for some, there is no mention of the dreaded "Three-Strikes" style ISP disconnection as a punishment. The report lists the following technical measures as options:
The Government will also provide for backstop powers for Ofcom to place additional conditions on ISPs aimed at reducing or preventing online copyright infringement by the application of various technical measures. In order to provide greater certainty for the development of commercial agreements, the Government proposes to specify in the legislation what these further measures might be; namely:
* Blocking (Site, IP, URL)
* Protocol blocking
* Port blocking
* Bandwidth capping (capping the speed of a subscriber's Internet connection and/or capping the volume of data traffic which a subscriber can access);
* Bandwidth shaping (limiting the speed of a subscriber's access to selected protocols/services and/or capping the volume of data to selected protocols/services);
* Content identification and filtering- or a combination of these measures.
The UK Internet Service Providers Association (ISPA) once said: "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." So it's a catch 22; ISPs cannot detect illegal traffic unless they know exactly what traffic is illegal.
Media firms currently track suspected illegal P2P activity by monitoring IP addresses, which are assigned to every computer when you go online, yet IP's can easily be spoofed, redirected, shared over big networks or even hijacked (open Wi-Fi networks etc.). The download itself could also be encrypted, making it nearly impossible for the ISP to verify.
The only true way to tell if somebody has done something illegal is to analyse their computers hard disk drive, otherwise you could just as easily end up targeting innocent users, which has already happened on a number of occasions. Ultimately ISPs are not a police force and do not own content on the Internet. Sadly today's report does not appear to address this conflict.
It can also be difficult to assess the scale of piracy, with Rights Holders frequently highlighting statistics that put big figures next to estimated losses. This often fails to recognise that somebody who downloads 500 movies illegally wouldn't have cost the economy as much because the number of illegal downloads is NOT equal to the number of lost sales. To put it another way, they wouldn't have bought that many movies if they hadn't been available online as illegal downloads.
Finally, there is a serious need for the creative industry to provide more DRM free and fair priced content distribution methods, such as for recent film releases. Content is about giving people what they want and if the industry can't deliver then consumers will look elsewhere. This is another issue that remains largely unaddressed, although some ISPs ( Virgin Media , Sky Broadband ) are already developing new legal download services.
In the end it appears as if the government has opted to take the middle ground by avoiding the controversial issue of disconnection and focusing on warnings and service restrictions instead. The courts will also play a role but that can be expensive and is only likely to be used against the most prolific abuses. Meanwhile the pirates will always stay one step ahead and find ways around such measures, regardless of what those might be.
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