[Commons-Law] Agreement between British ISPs and BPI: Not a big deal (yet)

[Pranesh Prakash]

Dear All,
British newspapers have been reporting a new agreement between a bunch of
large ISPs and the BPI.  In the agreement, the ISPs have promised to help in
significantly reducing illegal P2P traffic, though how they will go about
this is not mentioned.  They have also agreed to forward all complaints from
the BPI regarding particular users to their customers.  A means of dealing
with repeat offenders (the three-times-yer-out idea) has not been decided
yet.  (Cory Doctorow's take on that proposal, in the Guardian, is in the
best traditions of satire: completely illogical, yet (or perhaps, thus)
making the point effectively.)

Cheers,
Pranesh

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http://arstechnica.com/news.ars/post/20080724-whats-right-with-the-groundbreaking-uk-p2p-compromise.html
What's right with the "groundbreaking" UK P2P compromise
By Nate Anderson | Published: July 24, 2008 - 11:48AM CT

Major music labels in the UK are crowing about a "groundbreaking" new
agreement <http://bpi.co.uk/> with the six largest ISPs in the country.
Under the terms of the deal, negotiated with the help of the UK government,
the ISPs will send sternly-worded warning letters to suspected illegal
file-swappers. While any such deal will generate the predictable outrage in
the usual quarters, this is actually a fair approach to the issue, and one
that could have been a lot worse. Let's have a look.
Just keep swinging, you can't strike out

The memorandum of understanding between BPI, which represents the UK's
largest labels, and the six ISPs (BSkyB, Virgin, Orange, Tiscali, Carphone
Warehouse, and BT) is a far cry from some of the more radical ideas floated
by the content industry over the years. ISPs will forward letters received
from BPI investigators on to customers suspected of illegal file-sharing,
and the ISPs have pledged to work toward a "significant reduction" in such
downloading. Telecoms regulator Ofcom will work with the parties to come up
with some method of dealing with repeat offenders, as the memo includes no
enforcement mechanism.

Note what's missing from the deal: a three-strikes rule. In fact, the deal
contains *no* *enforcement mechanisms of any kind*. There have always been
worries about such proposals, which would eventually cut off Internet access
to repeat copyright offenders. What sort of evidence would be required? Who
would decide guilt or innocence? Would there be judicial oversight or a
method of appeal? Given the significance of 'Net access to people's lives,
did the punishment truly fit the crime?

The European Parliament earlier this year expressed opposition to such
plans. According to the
*Guardian*<http://blogs.guardian.co.uk/technology/2008/07/24/bpi_and_isps_scramble_for_upper_hand_in_publicity_battle_over_filesharing_deal.html>,
the UK government has already taken such measures off the table, as well as
part of this initiative. So what we're left with is simple notification. If
you get a letter forwarded on from BPI, but weren't actually sharing the
files in question, no worries.

Previous studies have shown that UK file-swappers will generally stop
illegal activity once the veil of anonymity is stripped away. Toothless
notification letters won't eliminate the issue, of course, but they should
put a significant dent in it—especially when a letter shows up and mum finds
out what little Ian has been up
to<http://weblogs.jupiterresearch.com/analysts/mulligan/archives/2008/07/bpi_and_isps_ta.html>.

No ISP spying

The second exemplary part of the deal is that it preserves 1) the ISP
relation with its customers 2) the principle that ISPs are not responsible
for monitoring and filtering content flowing over their networks. Once an
ISP starts spying on its users, all sense of trust is gone (see the
controversy surrounding
Phorm<http://arstechnica.com/news.ars/post/20080309-bad-phorm-uk-isps-to-sell-clickstream-data-to-advertisers.html>and
NebuAd<http://arstechnica.com/news.ars/post/20080625-charter-delays-nebuad-rollout-after-outcry.html>,
which use ISP data to sell more targeted ads). And making ISPs directly
responsible for illicit content passing over their wires is horribly bad
precedent that could be extended to thousands of illegal activities
conducted every day over the web, by e-mail, or through Skype.

This deal preserves that situation, since the notifications come from BPI,
which will essentially adopt the tactics of groups like the RIAA as it seeks
to identify file-sharers by looking at BitTorrent seeding addresses or
shared folders. The fact that ISPs will not be burdened with installing deep
packet inspection gear or other filtering solutions is a hugely important
part of the current deal, and is something worth fighting for in any future
negotiations.
Keeping the government at bay—and a big caveat

The entire deal was done under the looming shadow of legislation. The
government has been threatening for months that if a deal was not worked out
by next spring, it would pass a law, and it looked to be a three-strikes
law. Assuming the deal proves even modestly effective, it should remove the
burning impetus for more severe government regulation in favor of content
owners.

This is where the caveat to the whole deal comes in, though. Rightsholders
have long shown an almost insatiable appetite for more control, longer
copyright terms, etc. The music industry certainly won't rest on its laurels
here, but will use the deal first to rope smaller ISPs into signing on,
after which it will likely try to force the whole group of them to step up
the pressure. If they don't comply, BPI appears to have the ear of the UK
government, which makes an effective bully stick.

As a more-or-less final compromise on the issue, it sounds like a good one
to us (or, at least, not a fully bad one, which is about all one can hope
for in these matters); as just the first stop in a continued ISP squeeze
play, though, it takes on a less-appealing cast.
A note on license fees

The *Independent* has
reported<http://www.independent.co.uk/arts-entertainment/music/news/music-industry-to-tax-downloaders-875757.html>that
the government is considering a (voluntary) £30 license pay for those
users who want to download music. BPI boss Geoff Taylor said today in a
conference call<http://blogs.guardian.co.uk/technology/2008/07/24/transcript_from_bpi_call_with_journalists_this_morning.html>that
no such idea had ever been mentioned in negotiations he had been a
part
of, and that nothing like it was on the table, underneath the table, or
located in any room in which the table might be found.
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