p2pnet news view P2P | Freedom:- As a major new stage in their plan to gain total and exclusive control of how music is distributed online, and by whom, Vivendi Universal, EMI, Warner Music and Sony BMG have successfully  enlisted British government departments as agents.

And the Big 4 labels are, by default, using UK taxpayers to fund the operation.

It looked like a done deal, p2pnet posted last week, going on:”BT, Virgin, Orange, Tiscali, BSkyB and Carphone Warehouse have all signed up for a deal negotiated by the government to spam hundreds of thousands of people on behalf of the Big 4.”

With the BPI  calling the shots, “Britain’s six leading ISPs, the British Phonographic Institute and the Government signed a Memorandum of Understanding [MOU] in which they pledged to ’significantly reduce illegal file sharing’,” said the BBC.

But Carphone Warehouse insisted it was, “prepared to walk away from the table if draconian measures” were introduced,” said PC Pro, quoting a spokesman as stating unequivocally: “Our priority is always to protect our customer. We will look at any sensible suggestion…. We haven’t got any plans to adopt any of those other measures at the moment.”

“Other measures” includes bandwidth throttling, an action which is causing serious disruption between ISPs and their customers in North America, and non-stop corporate attacks on music lovers, including very young children.

Now, Britain’s department for business enterprise and regulatory reform (BERR) is calling for “Consultation on legislative options to address illicit P2P file-sharing”.

Says BERR »»»

This consultation is intended to set out and gather views on a proposal for a co-regulatory approach that could be adopted in order to facilitate and ensure co-operation between Internet Service Providers (ISPs) and rights holders to address the problem of illicit use of Peer-to-Peer (P2P) file-sharing technology to exchange unlawful copies of copyright material. This takes forward Recommendation 39 of the Gowers Review of Intellectual Property which addressed the issue of illicit use of P2P. The consultation also identifies and seeks views on other potential options and calls for evidence on issues related to illicit use of P2P.”

Under Consultation document on legislative options to address illicit P2P filesharing, “Copyright owners (rights holders) have struggled to develop effective business models in the digital world against a backdrop of pervasive and illicit P2P copying of copyright material,” it states unblushingly.

“Existing remedies are slow, expensive and have proved largely ineffective. That being the case they have sought to engage with ISPs to agree ways in which they can co-operate to reduce illicit P2P traffic. Increasingly this is in the interests of ISPs as well, since high users of illicit P2P are not the most profitable customers, and are taking up bandwidth that could be utilised for more commercial uses to the benefit of ISPs and potential partners.”

Then, “We would like to thank the following organisations for their time and efforts in helping us produce this consultation,” says BERR.

There is, of course, absolutely no mention of the hundreds of millions of online music lovers who are central to all issues, or of any of the many organisations which represent them.

Instead, ‘thanks’ go to vested interest groups including, believe it or not, a French outfit and Reputation Inc, a corporation boasting it was created in 2002 to “assist organisations in the strategic management and enhancement of their reputations”.

However, the response address, contact names, emails and phone numbers are at the end of this and there’s nothing to stop you from inserting yourself directly into this “discussion”.

For the moment, here’s the list

• British Music Rights (BMR)
• British Phonographic Industry (BPI)
• BSkyB
• BT
• EMI
• Federation against software theft (FAST)
• Fédération nationale d’achats des cadres (FNAC)
• Internet Service Providers’ Association (ISPA)
• Motion Picture Association (MPA)
• NBC Universal
• National Consumer Council (NCC)
• O2
• Orange
• Reputation Inc
• Sony BMG
• Thus
• Tiscali
• Warner Bros
• Virgin Media

States the executive summary »»»

Because there would appear to be common interest between ISPs and rights holders to come to a voluntary solution the Government has been keen to give the different parties the time and opportunity to develop such an agreement, though we would wish to be assured that it was legal, effective and fair. More recently we have worked closely with ISPs and rights holders to arrive at a set of principles encapsulated in a memorandum of understanding (MOU) that would provide an agreed industry framework for action. This approach has garnered a good deal of support from industry but it has not been possible to arrive quickly at an agreement that covers the whole industry. As such we need to consider what regulatory action might be appropriate.

1.3 No regulatory option is straight forward. There is a complex legislative environment already in place here including privacy, eCommerce and copyright laws.

We are therefore keen to hear from all stakeholders their views on the pros and cons of the options put forward, bearing in mind the existing legal framework within which such solutions need to work, and would welcome responses that are able to put a value on both the benefits and the costs.

1.4 The regulatory options identified in the consultation are: Government’s preferred option:
A co-regulatory approach consisting of:

A self-regulatory industry approach, designing codes of practice under principles such as those set out in Annex D, covering both rights holders and ISPs and dealing with education and awareness; making content available to consumers in a choice of formats at a range of prices; and notifications to alleged infringers. The selfregulatory approach would be overseen by a regulator who would have the responsibility for approving codes of practice;

The regulator will invite stakeholders, including ISPs and rights holders to join a group to explore effective mechanisms to deal with repeat infringers. Members of the group will look at solutions including technical measures such as traffic management or filtering and marking of legitimate content to facilitate identification, as well as ways in which rights holders can take action against the most serious infringers.

The group will report within 4 months and the Government and Ofcom will consider the findings of the group, leading to a Code of Practice on mechanisms to deal with repeat infringers; and

An obligation on ISPs to take action against subscribers to their network who are identified (by the rights holder) as infringing copyright through P2P. This obligation could be fulfilled by compliance with the codes of practice mentioned above, including on mechanisms to deal with repeat infringers.

1.5 Alternative regulatory options considered:

Option A1: Streamlining the existing process by requiring ISPs to provide personal data relating to a given IP address to rights holders on request without them needing to go to Court

Option A2: Requiring ISPs to take direct action against users who are identified (by the rights holder) as infringing copyright through P2P (this is essentially the same legal obligation as in the preferred option in section 8, but without any selfregulatory element).

Option A3: Allocating a third party body to consider evidence provided by rights holders and to direct ISPs to take action against individual users as required, or to take action directly against individual users

Option A4: Requiring that ISPs allow the installation of filtering equipment that will block infringing content (to reduce the level of copyright infringement taking place over the internet) or requiring ISPs themselves to install filtering equipment that will block infringing content.

When responding please state whether you are responding as an individual or whether you are representing the views of an organisation. If responding on behalf of an organisation, please make it clear who the organisation represents and, where applicable, how the views of members were assembled.

In terms of regulatory oversight, “it is proposed that Ofcom [the UK regulator] will have an oversight role and will approve codes of practice agreed between the two industries,” says the document, noting, “both the rights holders and the ISPs have been in discussion over a voluntary agreement for some time”.

It goes on

These discussions have been multi-layered with bilateral talks between individual rights holder organisations and individual ISPs, as well as between industry-wide representative bodies of both sides.

The trial by Virgin Media and the BPI to see the effect of letters of caution is an example of where these are beginning to be seriously examined. The Government has been observing these, and has recently become directly involved in facilitating discussions and seeking the grounds for a brokered agreement. Some significant progress has been made. Indeed, as indicated in Section 6 above, a draft Memorandum of Understanding (MOU) has been produced which has a good degree of support among both rights holders and ISPs … The MOU sets out the objective of significantly reducing the volume of copyright infringing filesharing and identifies three areas where action both by rights holders and ISPs is needed and would form the basic framework for this option.

The three areas are »»»

Education and awareness – a key necessity if this problem is to be solved is to change the minds of the vast number of, predominantly young, people who think that downloading content without paying for it is OK. This is no easy task and rights holders and Government already engage in a variety of activities to develop a proper understanding among consumers of the value of creativity and the creative process and the importance of remunerating the creative act in order to secure future streams of creative content. The MOU envisages a high profile campaign, building on current activities and using the creativity available to rights holders to deliver a message designed to appeal to the target audiences.

Commercial models – one of the reasons often cited for consumers choosing to access illicit content is that they cannot legally access the content in the way in which they want it – it may not be available in download form, on a timescale that they want to experience it, or in a format or package that meets their needs, and at a reasonable cost. If we are to convince consumers that they need to respect copyright laws, then it is vital that industry competes to make available suitable products and offers which allow them to enjoy this content legitimately. The MOU recognises this. Action on education and awareness without the development of legal offers will do little to reduce infringement through P2P. It is also in the interests of ISPs to be able to offer value added content services to their subscribers. This is not to say however that the development of new models should be solely limited to ISP linked offerings – rights holders must consider much more broadly how they will enable consumers to access content more flexibly – including through more traditional online retailing.

Sanctions – in order to persuade people to stop using illicit P2P services some kind of appropriate sanction must be found. The MOU envisages ISPs committing to a trial of writing to infringing users pointing out that the infringement has occurred, has been detected and is unlawful. However, we recognise that there is likely to be a hard core that will not respond positively to this approach. Some form of effective sanction is needed to ensure that the more serious infringers can be stopped. To that end Ofcom will invite stakeholders, including ISPs and rights holders to join a group to explore effective mechanisms to deal with repeat infringers. Members of the group will look at solutions including technical measures such as traffic management or filtering and marking of legitimate content to facilitate identification, as well as ways in which rights holders can take action against the most serious infringers. The group will report within 4 months and the Government and Ofcom will consider the findings of the group, leading to a Code of Practice on mechanisms to deal with repeat infringers.

The closing date for responses, which can be can be submitted by letter, fax or email, is 30 October.

Contact:

Michael Klym/Adrian Brazier
Communications & Content Industries
Department for Business, Enterprise & Regulatory Reform UG28-30
1 Victoria Street
London SW1H 0ET
Tel: 0207 215 4165/1295
Fax: 0207 215 5442
Email:
mike.klym@berr.gsi.gov.uk
adrian.brazier@berr.gsi.gov.uk

And here’s the much-vaunted MOU »»»

JOINT MEMORANDUM OF UNDERSTANDING ON AN APPROACH TO REDUCE UNLAWFUL FILE-SHARING

This voluntary MOU between key stakeholders from the ISP industry, the content industries, OFCOM and the Government lays the foundations for a self-regulatory regime to address the issue of unlawful P2P file-sharing.

OBJECTIVE

All parties agree that the objective of this MOU is to achieve within 2 to 3 years a significant reduction in the incidence of copyright infringement as a result of peer to peer file-sharing and a change in popular attitude towards infringement.

PRINCIPLES

This MOU establishes five principles under which action will be taken, and it is accepted that further work will be undertaken on individual issues:

1 Signatories believe that a joint industry solution to this problem represents the best way forward. This will enable progress to be made rapidly on an industry solution as back-up regulatory provisions are implemented and will ensure a light touch and flexible regime. Signatories agree to work together with each other and with Ofcom to agree codes of practice.

2 Signatories, led by the creative industries, will work together to ensure that consumers are educated to respect the value of the creative process, and the importance of supporting creators to invest time and resource in developing new work, and understand that unlicensed sharing of others’ work is wrong.

3 Many legal online content services already exist as an alternative to unlawful copying and sharing but signatories agree on the importance of competing to make available to consumers commercially available and attractively packaged content in a wide range of user-friendly formats as an alternative to unlawful file-sharing, for example subscription, on demand, or sharing services.

4 Signatories will work together on a process whereby internet service customers are informed when their accounts are being used unlawfully to share copyright material and pointed towards legal alternatives.
In the first instance ISP signatories will each put in place a 3 month trial to send notifications to 1000 subscribers per week identified to them by music rights holders, to agreed levels of evidence, as having been engaged in illicit uploading or downloading. Based on evidence from the trial, which will be analysed and assessed by all Signatories, Ofcom will agree with Signatories an escalation in numbers, widening of content coverage, and a process for agreeing a cap.

5 Signatories will be invited by Ofcom to a group to identify effective mechanisms to deal with repeat infringers. The group will report in 4 months and look at solutions including technical measures such as traffic management or filtering, and marking of content to facilitate its identification. In addition, rights holders will consider prosecuting particularly serious infringers in appropriate cases.

CODES OF PRACTICE

Signatories will draw up codes of practice to cover:

• standards of evidence;
• actions against alleged infringers;
• actions against repeat or criminal infringers;
• indemnity resulting from incorrect allegations of file sharing; and
• routes of appeal for consumers.

All codes would require the approval of Ofcom.

The presumption would be that wherever possible the codes should encourage bilateral commercial arrangements between parties.

Engagement in this process would be open [to ISPs and rights holders], but would not be compulsory. The costs incurred in any action against alleged infringers would be shared between parties; the apportionment to be agreed. The intention would be that members would work together to produce standard processes designed to minimise costs whenever possible and appropriate.

COMPLIANCE WITH LEGAL REQUIREMENTS

For the avoidance of doubt this MOU does not affect any of the existing legal rights, remedies or protections of the Signatories, nor does it prevent the Signatories from entering into any agreement, outside the MOU, that they may wish to enter into.

Implementation of the MOU will be in compliance with the provisions of the e- Commerce Directive as it affects ISPs and their liability, including mere conduit status, as well as the Copyright Design and Patents Act 1988 and competition legislation.

Signed
British Phonographic Industry
BSkyB
BT
Carphone Warehouse
Motion Picture Association
Orange
Tiscali
Virgin Media
Department for Business, Enterprise & Regulatory Reform
Department for Innovations, Universities and Science
Department for Culture, Media and Sport

Please click here to read Consultation document on legislative options to address illicit P2P filesharing in its entirety.

Jon Newton – p2pnet

. .Stumble It!

New York Times – New worm transcodes MP3s to try to infect PCs, July xx, 2008

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This entry was posted on Tuesday, July 29th, 2008 at 7:33 am and is filed under Freedom, P2P. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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