The story starts with a press release from the BPI announcing that it had begun an education campaign working jointly with Virgin Media:
‘As part of the campaign, customers whose accounts appear to have been used to distribute music in breach of copyright will receive informative letters, one from Virgin Media and one from the BPI. Accounts will be identified to Virgin Media on the basis of information supplied by the BPI. Both letters will be distributed by Virgin Media, without the need to disclose customer names and addresses to the BPI.’
According to Outlaw, the letters have now ‘begun to go out’. Outlaw reports that the letters do not threaten to disconnect the recipient (but that does not seem accurate), but do use a BPI-produced report of alleged illegal file sharing as the basis of the warning to customers to stop the activity. It all seems quite gentle:
‘We understand you may be concerned about this, and you might be unsure how it happened, One possible answer is that other people in your household have used your computer and/or internet connection, and they might have shared these files with others by using unauthorised ‘peer-to-peer/P2P’ filesharing networks like “BitTorrent” or “Limewire”. However, you need to make sure that these files aren’t downloaded or shared from your Virgin Media internet connection in future’.
But recipients of the letter report that there is an iron fist beneath the velvet glove: the top-left corner of the envelope states in a red rectangle ‘Important: If you don’t read this, your broadband could be disconnected’.
The debate is about the proper role of Virgin and was led by Bill Thompson on the BBC site (http://news.bbc.co.uk/1/hi/technology/7444390.stm). In a lengthy piece he stated that ‘from the outside it seems … like a softening up move to get Virgin customers used to the fact that they are being observed by their ISP. And I predict Virgin will be happy to help the BPI identify individual account holders so that they can be threatened with prosecution over their downloading activities later on’. The normally reliable Bill Thompson seems to me to have got his radar on defence of Internet freedoms somewhat out of sync for once. Virgin actually told customers that the move would not change its policy of only identifying allegedly offending customers when ordered to by a court.
The Bill Thompson piece essentially suggested that Virgin were straying beyond their remit – their job being to move his bits around and not police him. Many bloggers have rushed to agree. There was a predictably trenchant and lengthy response from the BPI’s chief executive Geoff Taylor (http://news.bbc.co.uk/1/hi/technology/7452621.stm):
‘Bill Thompson’s critique of the new education campaign we have launched with Virgin Media was a good illustration of why such a campaign is needed: in drawing misleading analogies between illegal file sharing and taping programmes off the TV he shows that even “experts” get it wrong sometimes. It’s good that he recognises that the future for consumers, internet service providers (ISPs), and the music community is in developing even more new licensed download services. But it’s naive at best to think licensed music services can prosper without action being taken against illegal downloading. Indeed it’s Mr Thompson, rather than music companies, who is stuck in the past. … Mr Thompson’s digital utopianism clings to an implausible and dated belief that the internet will be an endless free lunch.’
All good knockabout stuff between anoraks and suits, you may say, remarkable only for the suit winning the exchange for once. But what intrigues me is:
• What effect will this have on Virgin Media’s business as an ISP?
• What is the upshot of the growing tendency for ISP providers to be branches of content providers – a commercial and technological convergence that needs serious thought?
• Will we see a new twist to the net neutrality debate with suspect content being forced into the bus lane?
I think the answer to the first question is easy. Some present and potential customers will walk because they want to act illegally and there are other ISPs who will strike a less co-operative stance when approached by the BPI and similar organisations. For as long as the ‘mere conduit’ defence lives, the only costs of turning a blind eye to such use is that the ISP may be faced with court proceedings to reveal names and addresses. All the other commercial pressures favour quasi-complicity. Dust off your Norwich Pharmacal file and prepare for lots of action if you act for ISPs.
The answer to the second question would seem to be that more and more often we will see content providers realising that it is mad for them to provide the means for one set of customers to ‘steal’ their content when another set of their customers is paying for it. Lawyers are going to have to work hard to find a publicly and commercially acceptable answer to that one.
The answer to the third question? I think that’s what will happen where ISPs actually want to obstruct illegal downloads – and it will work for the 10-minutes it takes the next generation of file-sharers to encrypt and adapt their way round it.
I would very much like to hear from SCL members with views on this: lseastham@aol.com.
