The tide may have turned against online piracy in the UK. In its Digital Britain final report, published on 16 June, the government outlined proposals to legislate to achieve a reduction of 70-80% in the incidence of unlawful peer to peer file-sharing.
Unlawful file- sharing is not the only form of online piracy but it is arguably the most damaging to rights holders because of the nature of the technology. Peer -to-peer file-sharing software allows files to be downloaded and disseminated across the file sharing community very quickly and its decentralised nature means that there is no central server which can be held liable for hosting or authorising the downloading of infringing material. Rights holders therefore have had to seek redress against individuals in respect of their unlawful uploading and downloading although in other jurisdictions cases have successfully focused on the operators of sites facilitating access to torrents hosted elsewhere – most recently in The Pirate Bay trial in Sweden, in which the four founders of the site were earlier this year sentenced to a year in prison and given a £2.4m fine.
The government has been forced to legislate to resolve the issue of illegal file-sharing because the voluntary memorandum of understanding between ISPs and rights holders, which it brokered in 2008, has not been effective in reducing the incidence of such activity. This is hardly surprising given the disparity of interests between the rights holders whose rights are being infringed and the ISPs, which are being asked to take action against their own customers. But this means that the carrot of self-regulation through a voluntary agreement will now be replaced with the stick of legislation.
The government proposes to place the media and telecommunications regulator, Ofcom, under a duty to take steps to reduce online copyright infringement. Specifically, it will be required to place obligations on ISPs to:
notify alleged infringers of rights (subject to reasonable levels of proof from rights holders) that their conduct is unlawful; and
collect anonymised information on serious repeat infringers (derived from the ISPs’ notification activities), to be made available to rights holders together with personal details on receipt of a court order.
The government is hopeful that most people who receive a notification will cease unlawful file-sharing. It has stated that existing evidence to this effect has been backed up by survey results, which found that significant numbers of people say they would stop or significantly reduce their file sharing activity upon receipt of a notification. The second limb of the obligation is intended to facilitate targeted court action against the “serious repeat infringers”.
The proposals have been given a lukewarm reception by many rights holders and their representatives, for whom they do not go far enough. They argue that file-sharing and the expectation of accessing free content has become so embedded in online culture, particularly among the young, that the mere act of notification, unless backed up by sanctions to prevent continued infringement, will not prove to be a sufficient deterrent. There are also concerns that, given the scale of unlawful file sharing, court action against individual 'serious repeat infringers' is impracticable in terms of time and costs and unlikely to have a significant impact on reducing the incidence of illegal file-sharing by the desired 70-80%.
Given that the majority of the individuals engaging in such activity are probably already aware that it is unlawful, the government’s optimism that notification will be effective does appear naïve. In addition, the proposals place the onus on rights holders to inform the ISPs in an agreed format and to provide 'reasonable levels of proof' of infringing activity. It may be that it will be relatively straightforward for rights holders to track downloads and obtain IP addresses from 'torrent swarms'to provide ISPs with the desired level of proof; but will they have the incentive to devote resources to doing s, if notification cannot be backed up by technical measures to restrict future infringement?
The government acknowledges that more draconian measures may be required, and proposes to take the unusual step of providing 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'.
Ofcom will be given the power to specify, by statutory instrument, these additional conditions which may include blocking access to subscribers through various means, capping the speed of a subscriber’s internet connection and/or the volume of data traffic which the subscriber can access (bandwidth capping), limiting the speed of a subscriber’s access to selected protocols/services and/or capping the volume of data to such services (bandwidth shaping), and/or content identification and filtering.
Ofcom’s backstop powers will be triggered only if, at the end of a period of 12 months from the date at which a code covering notifications and identification of serious repeat offenders became operational, there has not been a significant reduction in unlawful file sharing. The Government is consulting on the so-called 'trigger mechanism' but it is currently suggesting that it should be calculated by '(a) taking the number of unique individuals notified and (b) assessing what percentage of those notified have stopped unlawful file sharing ,either voluntarily or due to prosecution. If that percentage does not exceed or is not significantly close to 70% the mechanism will be triggered.'
Rights holders will no doubt be quick to respond on this but it does seem incongruous that, having expressed its belief that measures to address the problem of unlawful file sharing need to result in a reduction of 70-80% in its incidence, the government has set the benchmark by reference to the percentage of those notified who have ceased file sharing. As the government itself points out in its illustration: 'If the baseline unlawful peer- to- peer universe identified by Ofcom was 100, and notifications were sent to 50% of that universe with prosecutions against serial repeat offenders, the benchmark would be met if there was a 35% reduction in unlawful file sharing i.e. 70% of 50%'. In fact, given the onus on rights holders to identify infringers and provide evidence to ISPs of infringement, it seems highly unlikely that notifications would be sent to 50% of the file-sharing universe. The number of notifications is therefore likely to be much lower with the result that a comparatively small overall percentage reduction in the incidence of unlawful file- sharing may look like a large one - and the 'trigger mechanism' for additional technical measures will not be activated.
In addition, 12 months is surely an unrealistically short timescale in which to expect to see an impact from court action against serious repeat offenders? Some rights holders have accused the government of 'digital dithering' arguing that it will have to put in place technical measures in any event and should do so now rather than lose another 12 months.
The proposed backstop powers pose a dilemma for rights holders. The government has signalled clearly that the backstop powers should be used only if notification by ISPs and the execution of legal action by the rights holders have been fully implemented, alongside other tasks the government considers to be the responsibility of rights holders. These tasks include educating consumers to respect copyright and evolving business models that provide attractive alternatives to unlawful file sharing. This is a considerable burden to place on rights holders who, to the extent that they are not represented by collective organisations, will vary in their ability to take court action against piracy and put in place the other expected measures. But if they do not, the government will hold back from imposing on ISPs the technical measures to address unlawful file-sharing for which many rights holders have been lobbying.
The tide may have turned against online piracy, but rights holders will still have a difficult course to steer in the year ahead.
Pamela Forte
Forte Law
The above article was first published by and is reproduced here by kind permission of the Law Society Gazette. It reflects the situation as at June 2009 and has not been updated to reflect subsequent developments.
Copyright (c) Law Society Gazette 2009.
