‘Three strikes and out’ is silently dropped. But what next for piracy?

The BPI has confirmed to SamKnows that although there has been no official statement, it has ditched its call on ISPs to warn, warn again and then disconnect illegal file shares – the so called ‘three strikes and out’ approach.

Whilst it claims to have never used the phrase associated with the practice, a spokesperson for the record industry’s right holders group revealed it now sees the way forward as working with the record industry to instigate a ‘graduated warning’ system. In this throttling a connection should be a consideration and, despite the past policy of trying to enforce ‘three strikes and out’ on ISPs being dropped, disconnection should still be considered in discussions as “a final sanction”, the BPI insists.

The partially placatory move towards agreeing a common solution comes after the Digital Britain interim report by Stephen Carter made no reference to ‘three strikes and out’ as a workable means of dealing with piracy and instead suggested a Rights Agency is set up so rights holders, distributors and ISPs can thrash out a solution that is amenable to all.

Hence the BPI spokesperson revealed its focus is now on forming this body and suggesting how piracy can be dealt with against the startling backdrop of illegal downloads outnumbering legal purchases by twenty to one.

“Skin in the game”

 For intellectual property lawyer, Alexander Brown, who represents both rights holders and several ISPs as a partner at law firm Simmons and Simmons, the ditching of ‘three strikes and out’ is a welcome move but, he concedes, the record industry still has to realise it is asking ISPs to risk a lot for no reward.

“I think Carter’s suggestion of the Rights Agency is basically him suggesting to the right holders that they’ve got to give the ISPs some skin in the game,” he says.

“You can’t expect to release unprotected material and then have the ISPs who don’t profit from its sale round up suspects for you. They’ve quite rightly been thinking what’s in it for them? All they’re being asked to do is increase the risk of churn and alienate their users and they get nothing in return at a time when they’re desperate to hold on to their customers.”

For the time being the BPI is content with nearly all the major ISPs issuing educational letters to subscribers whose accounts have been linked to illegal file sharing. However, the body is adamant that this is just an initial testing of waters to see if it does hold back sharing; ultimately, a ‘graduated warning’ is needed.

It believes the process of rights holders going to the courts to enforce ISPs to reveal contact details for people suspected of file sharing is fine in principle but it becomes difficult when the numbers are so high. Hence, the need for a joint new initiative.

ISPs happy with court orders

However, the feedback from the ISP community is that they prefer the court order approach. Certainly Felix Geyr, Managing Director of Be Broadband recently summed up the situation to SamKnows as ISPs not wanting to accuse their users of illegal activity, preferring right holders to take the legal route which gives an ISP no alternative other than to provider a user’s details. It mitigates any concern over data protection and demonstrates that the information was not volunteered but was supplied in accordance with a court order.

According to Alexander Brown this attitude will prevail until the rights holders find some way of cutting the ISPs in on the proceeds of online distribution. Although the BPI is adamant that the Digital Britain report was right in suggesting all parties should contribute financially to the setting up of a Rights Agency, Brown believes this will be unworkable unless the ISPs are incentivised by either rights holders funding the protection of their material or setting up music shops in which ISPs are stakeholders.

“It’s one thing to sue Pirate Bay or, back in the day, Napster because there is clearly a case to answer, the sites are there to allow illegal downloads,” he says.

“To involve ISPs whose pipes are used for these downloads is just crazy and they’re not going to do what the record industry wants unless they’re incentivised by rights holders funding the potential Rights Agency or the record labels cutting them in on distribution. They basically need to do broadband equivalents of the Nokia Comes With Music phone. It’s the only way it’s going to work. Otherwise the ISPs will just say they’re happy to receive court orders and let the rights holders continue to pick up the expense of the legal action.”

In the meantime, as discussions over the make-up of a potential Rights Agency are discussed, attention will turn to the record labels suing the founders of Pirate Bay in Sweden. The founders face large fines if the notorious file sharing site is found guilty of helping web users share, what the defence claims as, millions of pounds worth of copyrighted material.

Although a guilty verdict would shut the site down the fear is that many sites would simply spring up in its place, as was the case when the illegal version of Napster was shut down nine years ago.

Tags: Be Broadband, BPI, Felix Geyr, file sharing, illegal downloads, Napster, piracy, Pirate Bay, Rights Agency