Page last updated at 12:59 GMT, Monday, 7 July 2008 13:59 UK

Making punishment fit the crime

Cable being disconnected, Eyewire
Some suspected copyright pirates could have their net connection pulled
Regular columnist Bill Thompson asks how severely we should punish those who infringe copyright.

Making laws in the European Union is a long, complicated and often tedious process that involves a delicate ballet featuring the Council of Ministers, the Parliament and the Commission.

Before a Directive is passed there will be numerous committees, occasional votes, multitudinous amendments and many, many occasions for lobbyists, campaigning groups and special interests to try to influence things in their favour.

So it shouldn't surprise us that a package of amendments to telecoms laws currently making its way through the European Parliament's committee system has received careful scrutiny from those who worry that the interests of the music and film industry are being placed before freedom of expression or civil liberties.

Several amendments from British MEP Syed Kamall, a member of the Conservative group, have been criticised by those campaigning for a more open net.

Mr Kamall has proposed a change to Article 21 (4a) that asks member states to oblige them to "distribute public interest information to existing and new subscribers when appropriate. Such information shall be produced by the relevant public authorities in a standardised format" and may include "Illegal uses of electronic communications networks… including infringement of copyright and related rights".

This reads like a call for a public information campaign, but observers like the UK-based Open Rights Group and the French-based La Quadrature du Net believe it would oblige ISPs to contact subscribers when they are accused of transmitting licensed content without permission, for example when using file-sharing networks or downloading from unauthorised sources.

Bill Thompson
Perhaps the twenty-first century industrial giants might like to have a quiet word with the record industry and tell them to give up trying to stop the digital tide coming up the beach.
Bill Thompson

Another amendment put forward by Mr Kamall allows that "traffic data may be processed… to ensure the security of a public electronic communication service", which the campaigners read as giving carte blanche to the content providers to monitor and control what happens on the network on the grounds that copying files or breaking digital rights management counts as a "security" breach.

I'm not so sure.

Mr Kamall is an expert on telecommunications and has a strong libertarian approach to global trade. In 2005 he spoke about "The Dilemmas of a Free Trade Liberal in the European Parliament" at the Libertarian Alliance conference, and he features photos of himself with Brian Micklethwait of the Libertarian Alliance.

It seems unlikely that he would put forward amendments designed to support the old-fashioned business models of the film and music industries.

One of the other amendments he is proposing seems to stop the music industry from putting blocks and filters in place, as it calls for "no mandatory requirements for specific technical features including, without limitation, for the purpose of detecting, intercepting or preventing infringement of intellectual property rights by users" on the grounds that they might damage the free market for goods and services.

So I don't think his proposals are as dangerous or as supportive of the music industry's viewpoint as other commentators and campaigners argue.

However, the fact that they are being read as such shows how twitchy the digital rights movement is at the moment, and even a cursory glance at current practice and proposed laws will show why.

In the UK Virgin Media is sending out letters to subscribers on behalf of the BPI, accusing people of downloading unlicensed music, while proposed laws in Canada would make it a criminal offense to load your iPod with music from CDs you have bought.

Ipod nano, PA/Apple
A proposed Canadian anti-piracy law could make ripping CDs illegal
Around the world content industries are lobbying hard to get laws passed that will help them support their 20th Century business models in the networked world.

They want legal protection from the winds of change that are blowing through the music, film and other creative industries and allowing them to threaten, sue and even imprison those who challenge their ability to make a profit.

The clearest example of this is the Anti-Counterfeiting Trade Agreement, or Acta, a proposed international treaty that would rigidly impose current copyright laws on online activities and give those who own intellectual property rights immense legal authority over anyone they accused of infringement.

The whistle-blowers site Wikileaks revealed a draft of the agreement in May, and recently it published what it claims is a memo prepared by the Recording Industry Association of America outlining what it would like to see in the final version.

It includes a call to make net firms liable for material copied over their networks, and a request to "make deterrence against piracy and counterfeiting a priority legal matter". It seems that profits of the music industry are at least as important as counter-terrorism and investigations of child slavery.

The RIAA also wants "internet service providers or other intermediaries to restrict or terminate access to their systems with respect to repeat infringers".

This is an idea that has grown in importance over the last year or two, often expressed as a "three strikes and you're out" rule, where anyone who downloads or shares unlicensed material gets two warnings and is then cut off from the network.

It is the equivalent in the network world of hanging someone for stealing a sheep - or perhaps hanging them for daring to look at your sheep in a way that makes you believe they might be thinking about stealing it.

As author and blogger Cory Doctorow put it in The Guardian: "The internet is only that wire that delivers freedom of speech, freedom of assembly, and freedom of the press in a single connection. It's only vital to the livelihood, social lives, health, civic engagement, education and leisure of hundreds of millions of people".

European Parliament building, BBC
MEPs are voting on laws some fear will be used to punish suspected pirates
Yet EMI, Warner, V2, Sony BMG and the other four hundred or so members of the BPI want to cut people off from that network for copyright infringement.

Imagine if you had a child who was excluded from school for cheating in an exam, and you were told that they weren't allowed to watch TV, listen to music, read books, talk to their friends or go into any shop during the exclusion.

Oh, and you and your entire family were subject to the same restrictions.

That's what the music industry wants at the moment - if you dare to damage their economic viability then you have to be excluded from everything the internet has to offer.

Of course you're also then cut off from buying from Amazon or Sainsbury's, clicking on Google adverts, sending campaign donations to your favourite candidate or taking part in a great deal of economic activity that benefits other organisations.

Perhaps the 21st Century industrial giants might like to have a quiet word with the record industry and tell them to give up trying to stop the digital tide coming up the beach.

Cnut knew it was impossible but had to show his sycophantic advisors that the sea was no respecter of monarchy.

Clearly the BPI needs to be taught the same lesson when it comes to the internet.

Bill Thompson is an independent journalist and regular commentator on the BBC World Service programme Digital Planet.



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