Graduated response

Graduated response (or three strikes, six strikes in the US) is proposed method of punishing unauthorised file sharing.

It is included, but not yet implemented, in the Digital Economy Act 2010. Following implementation delays, the BPI have requested in 2013 that ISPs sign up to a voluntary scheme.[1]

See: wikipedia: Graduated response

(information on this page may not be current).

Executive Summary

What's happening in the UK

For years the British Phonographic Industry (BPI) has sought to engage Internet Service Providers (ISPs) in negotiations aimed at achieving a collaborative and coordinated prevention of unlawful file-sharing on the internet. Since 2006, the BPI has been encouraging ISPs to implement a three-step procedure that would mean account holders would receive a notice from their ISP informing them if their account has been used to distribute music unlawfully, with further action (account suspension followed by account termination) being taken if the notice is ignored. The BPI's proposal has been dubbed the "Three Strikes Procedure", alternatively known as the "Graduated Response Scheme" or the "Copyright Enforcement Process".

Negotiations between the BPI and ISPs were prompted by the UK government's Gowers Review, published in December 2006, which called for ISPs to reach agreement with the music industry over preventing peer-to-peer piracy. The "deadline" for ISP agreement was set as the end of 2007 - after which the government would be forced to consider putting forth legislative proposals. ISPs operating in the UK have so far been very reluctant to agree to the BPI's proposals and, as a result, this deadline was not met.

In February 2008 The Times reported that Britain's four biggest providers – BT, Tiscali, Orange and Virgin Media – were still in talks with the BPI, and that the Internet Service Providers Association (ISPA UK) - the UK's Trade Association for providers of Internet services - remained hopeful that consensus over a voluntary agreement could be reached, with one spokesperson for ISPA UK commenting: "Every right-thinking body knows that self-regulation is much the better option in these areas."[1]

Whilst this may be true, other indications show that there is very little hope of ISPs unanimously agreeing to the BPI’s current proposals: ISPA UK has on its website clearly stated its resistance to the responsibilities which a graduated response arrangement would necessarily confer upon its members.[2] [3] The group's position is that "ISPs are not qualified, sufficiently authorised or resourced to decide on the legality of all the material on the Internet".[4]

TalkTalk (the home telecommunications branch of the Carphone Warehouse) have come out in strong opposition to the proposals: in April 2008 Talk Talk wrote to the BPI to reject the graduated response scheme outright, describing it as "unreasonable and unworkable"[5]; Carphone Warehouse chief executive Charles Dunstone has accused the music industry of "consistently failing to adapt to changes in technology and of seeking to foist their problems on someone else", adding that he could "not foresee any circumstances in which we would voluntarily disconnect a customer's account on the basis of a third party alleging a wrongdoing."[6]

So far only one ISP has agreed to take any action: on 6 June 2008 the BPI announced[7] that Virgin Media have agreed to send two warning letters to infringing customers (one in Virgin’s own name[8] and one sent by Virgin on behalf of the BPI[9]). Virgin have not agreed to the other aspects of the BPI’s proposals (account suspension followed by termination if the warning is ignored).

In light of the general absence of agreement between the BPI and the ISPs, and in response to the Gowers Review, the government issued the following commitment on 22 February 2008:

"We will consult on legislation that would require internet service providers and rights holders to co-operate in taking action on illegal file sharing – with a view to implementing legislation by April 2009"[10]

The consultation paper (which will seek to gather opinion on how, and indeed on whether, the government should legislate in this area) was expected from the Department of Business, Enterprise and Regulatory Reform in April this year, but as yet it has not been published.

--Raph 00:27, 28 April 2008 (BST)

What's happening around the world

Issues

The music industry wants this blanket policy on illegal file-sharing because the current state of affairs makes it very difficult, time-consuming and potentially very costly to bring an action against each and every infringing user.

First of all the BPI doesn’t know who is committing the offence. The BPI can, just by logging onto the peer-to-peer websites, see which IP addresses are unlawfully downloading what, but it does not know the identity of the users behind those IP addresses. That information is known only to the internet user and the internet user’s service provider. There are two ways in which the BPI can obtain this information: by asking the ISPs to give it to them or by obtaining a court order.

An ISP is not going to give out such information willy-nilly. An ISP’s primary duty is to its customers. Furthermore, there are several formal constraints preventing an ISP from giving out such information. The provisions of its contracts with its customers are likely to state that they will not pass personally identifiable information on to third parties unless the law requires it. Furthermore the Data Protection Act 1998[11] prevents ISPs from giving out such information, again unless the law requires it.

In spite of the Data Protection Act 1998, the case of Totalise v Motley Fool[12] made it possible for the BPI to obtain a court order in certain circumstances, to compel ISPs to disclose the identity of a user to enable subsequent legal action against the user to be brought. However, the BPI still have to fight their corner in each individual case: the Sheffield Wednesday case[13] ensured that obtaining the identity of an internet user in this way was not merely a process of “rubber-stamping” (as, arguably, it is in the United States).

Obtaining the user’s identity is just the first step; after that, the hard work of fighting the substantive case on its merits is still to come, and this is by no means be an easy process: establishing who has been responsible for the unlawful acts is often very difficult to prove especially given the prevalence of open-access wireless connections; in addition to this, the BPI are faced with the potential costs, time and resources involved in bringing an action, the sheer number of individual cases, the negative publicity, and the feeling that they're fighting a losing battle.

All this has led the music industry to work with ISPs to try and achieve a voluntary agreement, one which avoids third-party disclosure orders and suing users, so that the issue becomes one between the ISP and its customers. Under the arrangement that has been reached with Virgin Media, the BPI do not themselves acquire knowledge of the identity of the infringing account holder. Instead, the BPI provides Virgin with the information needed to enable Virgin to identify the user and the user’s unlawful activity, and then Virgin proceeds to send out the two letters (the one on behalf of itself and the one on behalf of the BPI) to the infringing user.

But of course, Virgin have only agreed to “step 1” of the BPI’s Graduated Response Plan. It will be harder to convince ISPs to cut off their own customers: no ISP is going to want to cut off its own customers unless there is something in it for them. Virgin and Sky are content providers as well as ISPs so one can see how these companies could benefit from an agreement to the proposals. But what about the other ISPs? Why would they voluntarily agree to losing out on business just to keep the record industry happy - unless there were a law compelling them to do so? Of course the BPI could provide financial ‘compensation’ but that still doesn’t prevent other ISPs attracting vast numbers of customers who want to file-share unlawfully with impunity.

Therefore, in order to be workable, a voluntary agreement that encompasses all of the BPI’s proposals as they currently stand, would have to involve all existing (and future) ISPs. In reality, this is simply not going to happen unless the government intervenes.

And the consequences of the government legislating to force the BPI’s proposals into effect would be both unwanted and unworkable. The result would be to replace the current judicial process with an administrative one: ISPs could surely not be expected to carry out reviews of such cases on their merits – they would neither be qualified to do so, nor would they have the resources to do so. It is hard to imagine anything other than a rubber-stamping process, by which users would be cut off at the drop of a hat.

Furthermore, whole families and shared households of internet users would be cut off from the internet as a result of one person’s unlawful activity. Which raises the question, who receives the sanction? The account holder? If so, what if it’s not the account holder carrying out the unlawful activity?

If it is not the BPI’s intention to replace the current judicial process with a more administrative one that cuts corners, why replace the current judicial process at all? Any new system would surely be the subject of so many appeals that we’d soon arrive back to where we are now anyway (on the hopeful assumption that the interests of justice and fairness would be given due regard). Article 6 of the European Convention on Human Rights[14] (to which the UK is a party by virtue of the Human Rights Act 1998) requires that all citizens be given access to a fair trial in situations where the rights and freedoms of the individual are threatened with sanctions. If the government legislates in this area, there is a serious danger that justice, and access to justice, will be undermined.

--Raph 01:37, 30 June 2008 (BST)

Links

Resources

News

2008-04-23 - The Star - A swing and a miss for 'three strikes' policy
Author: Michael Geist
Summary: The new baseball season is in full swing, yet in recent months the phrase "three strikes and you're out" has taken on an entirely different meaning on the Internet. Prodded by content lobby groups, a handful of governments have moved toward requiring Internet service providers to terminate subscribers if they engage in file-sharing activities on three occasions.... In recent weeks, it would appear that governments are beginning to have sober second thoughts. After a Swedish judge recommended adopting the three strikes policy, that country's ministers of justice and culture wrote a public opinion piece setting out their forthcoming policy that explicitly excluded the three strikes model. Earlier this month, the European Parliament delivered an even stronger rejection ...
2008-04-17 - The Guardian - Online music sellers look beyond DRM
Summary: ERA Digital, which represents companies including HMV, Orange and Play.com, on Thursday set out a five-point plan to drive digital music sales which includes addressing the problem of illegal filesharing by commercial means, rather than using legislation to force internet service providers (ISPs) to "police" their customer's internet activities. After intense lobbying from the music and film industries the government recently warned that it will introduce legislation in an attempt to curb illegal filesharing, if the ISP industry cannot come up with a solution. But ERA Digital, part of the Entertainment Retailers Association, believes "illegal filesharing and the unwitting role played in facilitating it by internet service providers are best addressed commercially".
2008-04-10 - EFF - European Parliament to Sarkozy: No "Three Strikes" Here
Author: Danny O'Brien
Summary: Despite last minute attempts by the French government to divide them, European< MEPs today voted decisively against "three strikes", the IFPI-promoted plan to create a class of digital outcasts, forbidden from accessing the Net if repeatedly accused by music companies of downloading infringing content. In a vote held today, hundreds of MEPs supported language which declared termination of Internet access to be in conflict with "civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness", all core values of the European Union.
2008-04-10 - BEUC The European Consumers' Organisation - Both MEPs and BEUC reject the Graduated Response
Summary: This morning the European Parliament voted in plenary session on the report by Mr Guy Bono (French Socialist MEP) on cultural industries in Europe. Although the report recognises the need to ensure that cultural industries and artists receive a fair remuneration for their work, particularly in the digital environment, it clarifies that "criminalising consumers who are not seeking to make a profit is not the right solution to combat digital piracy" and expresses the wish to "avoid the adoption of measures running counter to human rights, civic rights and the principles of proportionality, effectiveness and deterrent effect, such as interruption of access to the internet". The European Parliament has thus spoken out against the idea of the "Graduated Response" advocated notably in France by the Oliviennes Report, which aims at cutting off the internet access of people suspected of illegal downloading. This measure is disproportionate, inefficient and, which is more serious, violates some fundamental rights such as the right of presumption of innocence and of data protection. This option is contrary to all the procedural safeguards foreseen at European level in the European Convention for the Protection of Human Rights, and notably the right of every person who is accused of a crime to a fair trial. According to Monique Goyens, Director General of BEUC, "The Graduated Response goes against some of consumers’ fundamental rights and we applaud the European Parliament and its MEPs for rejecting today the idea of its diffusion in Europe".
2008-04-04 - ars technica - Fight brewing between UK ISPs, labels on disconnecting users
Author: Nate Anderson
Summary: With the lone exception of AT&T in the US, ISPs in North America and Europe appear uninterested in filtering their content on behalf of specific industries, or in booting users after receiving unconfirmed reports of copyright infringement. The UK's Talk Talk is only the latest ISP to come out against playing the role of the content cop, with boss Charles Dunstone saying today that "our position is very clear. We are the conduit that gives users access to the Internet. We do not control the Internet, nor do we control what our users do on the Internet. I cannot forsee any circumstances in which we would voluntarily disconnect a customer's account on the basis of a third party alleging wrongdoing."
2008-04-04 - The Register - Carphone Warehouse stares down BPI and UK.gov on three strikes
Author: Chris Williams
Summary: Carphone Warehouse has called the government's bluff by stating that it will not cooperate with the record industry to clamp down on copyright infringement over peer-to-peer networks. In a statement today, CEO Charles Dunstone said: "Our position is very clear, we are the conduit* that gives users access to the Internet, we do not control the Internet nor do we control what our users do on the Internet."
2008-04-04 - The Guardian - Internet provider fires shot across bows of music industry on piracy
Author: Richard Wray
Summary: TalkTalk, the internet service-provider owned by Carphone Warehouse, has flatly rejected demands from the music and film industries that it should "police" the internet and cut off some broadband customers in an attempt to stem the flood of illegal file-sharing. ... TalkTalk's letter is the most vigorous rejection of the music and film industries' plans so far. Virgin Media is in talks with the music and film industries about the issue, although it denies reports that it has accepted the "three strikes" scheme. Orange has proposed sending illegal file-sharers a letter warning them that unless they curb their actions it could be forced by the courts to hand their details to bodies such as the BPI.
2008-02-12 - The Times - Internet users could be banned over illegal downloads
Author: Francis Eliot
Summary: People who illegally download films and music will be cut off from the internet under new legislative proposals to be unveiled next week. Internet service providers (ISPs) will be legally required to take action against users who access pirated material, The Times has learnt. Users suspected of wrongly downloading films or music will receive a warning e-mail for the first offence, a suspension for the second infringement and the termination of their internet contract if caught a third time, under the most likely option to emerge from discussions about the new law.
2008-02-12 - Internet Services Providers' Association - Content Liability
Summary: ISPs have faced accusations of liability for illegal content held on their servers for some time. Such accusations arise from a misunderstanding of their role, how ISPs work and the technology that makes the Internet possible. To address this, ISPA has maintained a sustained and effective campaign against ISP liability for illegal third party Internet content that the ISP is not aware of. The ISPA position received significant support from a report into defamation on the Internet by the Law Commission for England and Wales in December 2002. ISPs are "mere conduits", carriers of information somewhat like the postal service. An ISP is not a publisher: it does not have editorial control over content posted on its servers by a third-party. Thanks to ISPA's co-ordinated lobbying with EuroISPA and others, the E-Commerce Directive recognises that ISPs are 'mere conduits' and sets out legal exemptions for hosted and cached material. ...
2008-02-12 - BPI Press Release - Internet service providers must partner with the music business to grow our creative economy
Author: BPI Chief Executive Geoff Taylor
Summary: For well over a year, the BPI has been trying to encourage ISPs to introduce reasonable measures that could remove the need to bring legal action against the 6-million British broadband customers that regularly use peer-to-peer networks to download music unlawfully. This is the number one issue for the creative industries in the digital age, and the government's willingness to tackle it should be applauded. Now is not the time for ISPs to hide behind bogus privacy arguments, or claim the problem is too complicated or difficult to tackle. It is time they started showing some corporate responsibility and partner with us to allow our digital creative economy to grow.
2008-02-12 - ifpi Press Release - UK Government to push for ISP cooperation
Summary: The international recording industry today welcomed the news that the UK government plans to ensure that ISPs play a far bigger role in combating online music piracy. The move is a boost for the campaign for ISPs to cooperate with the music and film industries to protect creative content. It follows the Olivennes Agreement of late 2007, when French President Sarkozy worked with ISPs and the recording industry on a plan that will lead to the disconnection of persistent copyright infringers. Last year also saw the SABAM v Tiscali case in Belgium, when a court ruled that it was feasible and reasonable for the ISP to take measures to prevent illegal file-sharing on peer-to-peer networks. John Kennedy, Chairman and Chief Executive of IFPI, says: "The tide of opinion is flowing in favour of ISP responsibility. News of the UK government’s proposed consultation paper is very welcome and we hope for swift action from ISPs to disconnect persistent serious copyright infringers." "The UK joins France in providing international leadership on this issue. ISP cooperation has been the top priority for the recording industry for the last three years. ISPs are the gatekeepers of the internet and it is feasible and reasonable for them to take steps against widespread copyright infringement." IFPI's recent Digital Music Report highlighted the drag that mass copyright infringement is having on the growth of the digital music sector. It is estimated that worldwide there are 20 illegal music downloads for each legitimate track sold. At the recent Midem music conference Paul McGuinness, the manager of U2, made a powerful speech calling for the telecommunications industry to partner with the creative sector rather than build a business based on copyright abuse.
2007-11-25 - ars technica - The insanity of France's anti-file-sharing plan
Author: Eric Bangeman
Summary: It's hard to engage in file-sharing if you don't have any Internet access. That's the threat behind a new memorandum of understanding between the government, ISPs, and Big Content in France that would see repeat P2P infringers lose their Internet connections. In exchange, the French music industry would make its French-language archive freely available available sans DRM. In addition, DVDs would be on store shelves within six months of a film's theatrical release, instead of the current seven and a half months.

References

  1. Record labels ask broadband providers to collect data on illegal downloads, Guardian, 2013-09-01