Legislative Options for Illicit Peer-to-Peer Filesharing
Over the summer the government has carried out the latest in a series of consultations on what to do about sharing of copyright files on peer-to-peer networks. Under the current law, sharing copyright files without permission is a civil offence and rights-holders can sue those who do it. However the criminal offence of copyright breach only occurs when copyright is broken either as part of a business (e.g. selling bootleg DVDs) or in sufficient quantity to affect the business of the rights-holder. So far no one in the UK has been prosecuted for copyright breach on peer-to-peer networks, but many people have been sued.
Unfortunately for those who create digital material, the process of taking action is long and expensive, since it first involves a court hearing on whether it is proportionate to order an ISP to disclose the identity of their customer (known as a Norwich Pharmacal order), and then potentially a full civil hearing against that customer. The Government has therefore been consulting on three possible areas for improvement: better notification of those accused of breaching copyright, making civil action more efficient, and requiring ISPs to modify the service they provide to those accused of copyright misuse.
On notification, it is suggested that ISPs might be required to pass on to the relevant customers complaints that they receive from rights-holders. Some surveys have suggested that as many as 70% of file-sharers would stop if notified that they were breaking the law. This would not involve any breach of privacy, since the rights-holder would not discover the identity of the user, but since rights-holder reporting systems are largely automated it could involve ISPs handling a large volume of allegations and thereby increase their costs.
On improved civil process, it is suggested that ISPs be required to keep a record of how many complaints have been received about each user. These counts might somehow be made available to rights-holders in an anonymised form so that they could know when they begin the existing two-stage legal process that the target was someone who is a repeat infringer. At the moment rights-holders have no way to know this, since all they have is an IP address and dynamic address allocation means that counting IP addresses is not equivalent to counting users or infringements. If not implemented properly, such a process could result in privacy disclosures (for example if a complaint related to an individual's personal page), but there does appear to be some scope for better targeting of the existing legal process.
Finally, the consultation suggests that ISPs might be compelled to impose various technical sanctions - including port blocking, traffic shaping, bandwidth limiting and disconnection - at some stage of the complaints process. No court would be involved in this to assess the strength of the evidence either that an infringement had taken place or that a particular individual was responsible for it. This seems much more problematic, indeed the French Constitutional Court has recently ruled that a similar law passed earlier in the year in France breached the constitution and could not be brought into force. Technical measures also seem bound to block innocent actions as well as illicit, since peer-to-peer protocols are used for both lawful and unlawful purposes and measures taken against a particular subscriber will also affect others, such as family members, who share the same ISP connection.
Public reactions from ISPs have generally been hostile to these proposals, on the grounds of cost and practicality, and that they should not be forced to act as Internet policemen.
It is not clear whether JANET and its customers would be affected by these proposals. The consultation uses the common term "ISP", which would not usually include JANET, but then defines that in a way that would in fact include every network connecting two computers, even those in individual homes! In fact, the JANET Acceptable Use Policy already requires connected organisations to deal effectively with complaints of copyright breach, and our factsheet on dealing with copyright complaints already goes beyond the suggested notification requirements. JANET sites report very few instances of 'second offences', so the provisions on repeat infringers and technical measures may, in any case, be moot.
JANET has made a submission to the consultation; we now await the Government's summary and response.
