Fighting piracy - the wrong way

From The Times 12.02.08:

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.

Broadband companies who fail to enforce the “three-strikes” regime would be prosecuted and suspected customers’ details could be made available to the courts. The Government has yet to decide if information on offenders should be shared between ISPs.

My initial reaction to this news was far from positive. I just didn’t ‘get’ the logic in operation here – if indeed there is any - and to me, it merely smacked of absolute desperation. When trying to combat illegal activity where there is a supply/demand equation in operation, logic and experience says you target the source. Not only is that approach much more achievable, effective and in line with common sense but it prevents the need to clumsily wade in and target the end users who, whilst indirectly culpable in their own way, never gets to the root problem. A good analogy could be drawn with this and an illegal drug supply/taker situation.

So it’s come to this? After years of chasing the big bad pirates, the authorities have recognised that such an approach is failing. And failing miserably. But at least that target was a manageable one. Under these plans, instead of crime-fighting the perpetrators of the crime – the pirates themselves – the idea seems is based on simply palming the responsibility onto ISPs who are to take up the slack instead.

I appreciate, of course, that piracy is a big problem and that equally something must be done. But this? If the scheme was for ISPs to monitor users’ access and activities on known file-sharing sites per se – I can at least see a grain of logic behind it. But if large, infamous file sharing sites are the problem – and not the much vaster number of sites from which music and other files can be downloaded - why not tackle the problem directly and cut them off at the knees? Why not impose more stringent scrutiny of the management of such sites and the type of content it can host? Monitoring each internet user’s downloads in the UK seems to be the entirely wrong way of going about it. After all, supervising and scrutinising every single download is not only a verging on a logistical impossibility but poses a privacy nightmare as well.

Educating the public is also crucial. Download sites are always changing, new services and ideas are always being churned out. Clearly establishing to internet users exactly what constitutes an illegal download is an essential starting place.

Perhaps at a push, a scheme such as the one proposed could work for known black-listed file sharing sites and, say, peer to peer file sharing clients. But even here it would make more sense to target the hosts of the service, not the visitors. Failing that, you could argue that it would be more effective to go after the uploaders of illegal content; they are the more tech-savvy party after all and more aware of what they are doing. And what’s more, there are fewer of them. But targeting the visitors? That’s just wrong.

But, of course, it would never be as simple as that: file-sharing clients such as bit torrent and the like are used by many for the legitimate sharing of content which in no way represents an infringement of intellectual property rights nor does it constitute piracy.  A hard and fast banning of file-sharing clients is, therefore, absolutely the wrong way to tackle the problem .  After all, such clients represent an important technology and one that has been available online since the early days.  Banning the facility for all because of the illegitimate actions of a few is grossly unfair.  Fairly policing the use of such clients, then, would result in having to filter out the legal and legitimate files shares from the illegal ones.  And what a nightmare that would be.

In addition to having a fractured and illogical foundation, this proposed legislation is further fraught with difficulties, possible caveats and uncertainties. To name a few:

Can ISPs truly be trusted to keep users’ download information secure? What if someone moves ISPs – does their record move with them?

What about wireless piggy-backing – who is responsible? If there’s someone sat in your front garden with a laptop downloading music illegally, say, are the ISPs to hold the bill-payer responsible? Is it time to start criminalising the act of failing to secure your wireless network or just relying on low level, easily breakable WEP protection for instance.

If people sign up for telephone, internet, TV package etc. will they lose all their services if they were found guilty? That really is cutting them off at the knees.

Who will arbitrate disputed allegations – what is the appropriate body to do that?

In family situations where several people use the internet connection, is it fair to prohibit them all for the actions of one?

As the internet is becoming an increasingly essential utility, is it right to ban users entirely? If someone is found guilty of breaking a hosepipe restriction, their water is not turned off at the mains.

Will users seek to take advantage of the Wi-Fi hotspots for their downloading-fests instead?

With so much vagueness and ambiguity over the issue, I’m eager to see the proposed Green Paper when it’s unveiled next week.