Response to Government P2P Consultation

Dear Sir,

This is my response to your consultation "Consultation on Legislation to Address Illicit P2P File-Sharing". I believe that the paper "GOVERNMENT STATEMENT ON THE PROPOSED P2P FILE-SHARING LEGISLATION" is dangerously flawed.

In this response, I shall outline four general areas of concern. Practical, Philosophical, Technical and Cultural. I also will provide a series of solutions which I believe will have a positive impact for the creative industries of the UK.

Practical

There are several aspects of this proposed legislation which need to be considered carefully if they are to make any impact.

Justice

In this country we believe that the accused should be able to see the evidence presented against her and be able to challenge it. As it stands, your proposed legislation enables an alleged copyright holder to accuse an alleged sharer without giving the alleged sharer the ability to see or challenge the accusation.

I say "alleged copyright holder" because your proposal contains no method to verify whether the complaint originates from the correct copyright holder.

Proof

What standard of proof will a copyright holder have to produce? In conversation with your department you indicated that the proof presented to an ISP would be to the same standard as would be presented in court. This raises some very important questions:

1. How is an ISP to judge if a complaint made against one of its customers is valid? Are ISPs expected to interpret legal documents and make judgements in law?
2. If a copyright holder believes that they have proof which would stand up in court - why don't they go to court?
3. How will an ISP or their customer be able to verify that the complaint has come from the genuine copyright holder?

Mistakes

Inevitably, there will be mistakes in this process. What redress does a user have if falsely accused?

What punishment will there be for those who accuse falsely - knowingly or unknowingly? The way the proposal is written, it would only take three complaints from Political Party X to knock a competing Parliamentary candidate off the Internet. A handful of bogus requests would be enough to cripple any business.

Without a strong disincentive against false or malicious accusations, this proposal could result in large scale problems for honest citizens, businesses and organisations.

Will a false accusation be considered libellous? What options will a customer have against an ISP who responds to a bogus request?

Responsibility

Many people make their wireless Internet connections (WiFi) freely available to anyone who passes. I see sharing my WiFi as a civic duty as do many others. Are WiFi sharers expected to police everyone who uses their connection? If so, how would this work given that WiFi networks are very difficult to secure? Will a WiFi sharer be liable if they do not know that their Internet connection is being used illicitly?

If a user is kicked off from an ISP, the proposals are unclear as to whether they will have to pay for the remainder of their contract. If the user is not required to pay for the remainder of their contract, who will compensate the ISP for lack of custom? Given that ISPs subsidise their hardware and connection fees - will we see British businesses forced to close because they are forced to cut off their paying customers?

Mobile

(In the interests of fairness, I should point out that I work for, and own shares in, Vodafone Group. These views are my own and do not represent those of my employer)

All mobile telephone networks now offer 3G data across the country. 3G networks currently offer speeds of up to 14Mbps - much faster than the 2Mbps minimum mandated by the Digital Britain report.

Anyone can buy an unregistered SIM card, plug it into their laptop and have an instant, high speed connection to the Internet. Assuming that your proposed legislation covers mobile ISPs (again this is not clear in the proposals) how do you suggest that a mobile ISP contacts a customer who does not give her address? If the user is cut off with no warning (ignoring the legal and contractual issues resulting from this) what is to stop her buying another SIM from that, or any other, network provider?

Technical

Everyone's connection to the Internet is assigned an IP (Internet Protocol) Address. This is the globally unique number that defines them on the Internet.

Most ISPs assign Dynamic IP Addresses. This means that a user's IP Address may change several times a day.

At the point when an accusation is made, an error of a few milliseconds could mean the difference between targetting one user and another. How would it be determined that an IP address was assigned to any particular user? What level of accuracy will be used to make an accusation?

Every item connected to the Internet provides a unique MAC (Media Access Control).

Given that most home computers allow a user to change the hardware's MAC on demand, how is a copyright holder able to prove that the computer they allege was involved in the possession of a particular user?

It is reasonably easy for any Internet user to pass their traffic through a Proxy. This allows a user to route their entire internet connection via another user's computer. This Proxy may be located anywhere in the world. How would a copyright holder determine whether the illicit P2P traffic they see is or is not via a proxy. This proposed legislation would only cover the UK - what is to stop a user proxying their traffic through Europe?

Given that the traffic between P2P users can be encrypted, how will a copyright holder be able to intercept and analyse the contents of the traffic? Assuming that they have the ability to break the encryption (which is highly unlikely) would this not be a breach of RIPA?

This legislation specifically discusses P2P traffic. Many forms of downloading copyrighted content do not use P2P protocols. How does this legislation address people who share copyrighted works via Email, FTP, or sneakernet?

Philosophical

I do not believe that downloading a DVD without the copyright holders' permission is the same as stealing it from a shop.

• Copyright infringement is defined separately from theft. They are very different crimes as their position in statute makes clear.
• In the case of theft, the owner of the goods loses them. Downloading merely makes a copy, it does not destroy or remove the original.
• There is no difference between reading a book in a shop before deciding to purchase it, than there is watching clips on YouTube before deciding whether to purchase a film. Many larger bookshops have coffee shops and other reading spaces specifically to encourage customers to read the material prior to purchase.

There are many activities that millions of citizens do which deprives a copyright holder of potential revenue - yet we don't criminalise them.

• Lending a book or DVD to an acquaintance. Just because the way we lend now involves computers, does not mean it needs to be treated differently from our traditional methods of sharing culture.
• Selling a second-hand DVD, CD or book. P2P sharing does not have any profit element for the sharers - yet selling second hand does.
• Church fêtes and school jumble sales rely on the donation of copyrighted works in order to raise money. Given the amounts of money these generate without returning anything to the copyright holders - why are they exempt from this proposed legislation while the sharing that does not generate any revenue is so punitively targeted?
• Donating second-hand DVD, CD or book to a charity shop. In this case, the charity shop is given copyrighted work for free and then sells them at an inflated price. Yet charity shops are seen as an important lifeline for those unable to afford retail priced works - not to mention the sums raised for worthy causes.

Cultural

Studies have consistently shown that those who download the most also buy the most. There has been no correlation shown between increasing number of file-sharers and decreasing profits made by the creative industries. What we are seeing is a new way for people to express their enjoyment and involvement with popular culture.

With an estimated 7 million file sharers in the UK, it is obvious to me that there has been a massive failure in the marketplace to provide people with what they want. Businesses are faced with the unenviable task of changing their decades-old business models. Rather than having buggy-whip manufacturers petition the Government to ban Horseless-Carriages, the Government should be assisting businesses to adapt to this new world.

To this end, the Government needs to consider what changes it can bring about to the culture of the country which makes it more attractive to copy than to pay.

• The most common cause for British shows like Doctor Who, Top Gear and Coronation Street being copied from abroad is the fact that they are shown months or years after their UK transmission. The Government should work with British content producers to ensure that they are able to quickly sell their content abroad at a fair price.
• The same is true of television copied in the UK - if fans did not have to wait, they would not have to illicitly copy. The Government can liberalise television market and the available transmission spectrum to allow allow overseas shows to be cheaply and legally broadcast.
• British cinema is enormously popular throughout the world. Delays in distribution encourage people to download rather than wait and pay. The Government should encourage co-production and simultaneous release of British works shown abroad.
• Subsidise the conversion of cinemas to fully digital projection. Digital cinemas are cheaper to run, do not require pollution producing lorries to deliver heavy rolls of quickly degrading film and provide a more pleasant experience for the customer.
• Broadcast TV is giving way to IP television. The Government and Ofcom should ensure that ventures like Project Kangaroo get the backing they need to provide a legal alternative to P2P file sharing.
• If an artist - independent or otherwise - wishes to release their work in Europe, they have to deal with separate licensing bodies. The Internet ignores geographic boundaries. The Government should spearhead the creation of a pan-European licensing body to allow artists and companies to market their works easily and without excessive cost. We live in a large trading block - there is no reason why a digital download should cost more in one EU state than another.
• VAT on cultural products. Books and printed music are exempt from VAT as are cultural performances. Are DVDs and video games any less culturally worthy? Cutting VAT on creative works produced in this country would encourage cheaper prices.
• Live performances. The Government should make it easier for venues to get licences for live music. Many artists and venues have complained about the difficulty of obtaining the permission necessary to stage live music. The experience of live music cannot be replicated via file sharing.
• Encourage the Metropolitan Police to drop Form 696. Barriers to live performances discourage artists and dent the ticket and album sales they need to thrive.
• Encourage the production and manufacturing of creative works in this country. There is a growing sense that businesses are able to outsource their manufacturing to countries with lax labour laws - why then shouldn't a citizen purchase music from a country with lax copyright laws?
• Increase funding for libraries and extend their remit to cover CDs, DVD and the digital distribution of books.

Finally, if the Government wants to increase the penalties for copyright infringement, it must reduce the length of copyright terms.

The Statute of Anne originally set copyright to a length of 14 years. This has subsequently been increased to the extent that we may never have the same access to the work of The Beatles as we do Beethoven. The popular song "Happy Birthday To You" cannot be sung in public without paying a fee to Warner Chappell Music. This is despite the fact that the music was originally composed in 1893 and the lyrics in 1912.

A short copyright term encourages artists to create new work. With a potentially infinite Government backed monopoly, what incentive is there to create new art? A popular image or song only need be created once to provide a lifetime of revenue - including revenue for the creators' descendants. What incentive does copyright give to the creation of new art?

A short copyright also allows works to fall into the public domain. Think of the amount of new art which has been created on the basis of Dickens or Shakespeare. Hugely profitable - and copyrightable - derivative works have been created without having to pay anything to their respective estates.

Copyright provides specific protection in return for their eventual return to the public domain. This is an incredibly important part of the copyright equation which is often forgotten. Unless works are eventually placed into the public domain, they are effectively stolen from us. Our culture thrives on sharing stories freely. Laws which prevent us from freely enjoying our culture robs us and future generations of their heritage. Imagine a United Kingdom that forbade people from performing Romeo and Juliet, or from singing Handel's Messiah.

With copyright being such a poor deal for the public, it's easy to see why it gets so little respect.

Conclusion

The Internet provides citizens with many opportunities and business with many challenges. It is an enormous, technically complicated organism - perhaps the largest creation humans have ever assembled. The Government should not attempt to regulate the use of this new marketplace without first fully understanding it. From the proposals given, it seems clear that the Government is out of step with technology and with the culture of many of its citizens.

The Prime Minister recently stated that "The internet is as vital as water and gas". In this context, it's hard to see what can be gained from cutting off a vital service on the basis of unchallenged accusations.

It has been nearly 10 years since A&M Records, Inc. v. Napster, Inc. Yet the creative industries have prefered to bury their heads in the sand and refused to innovate while people have grown used to the idea that they can download what they want, when they want it, without having to remunerate the copyright holders.

The Government must help business explore this new frontier and help business find new models which are profitable. It must do this without criminalising customers.

The proposed legislation is the equivalent of gas companies threatening citizens who dare light their homes via electricity. I oppose it and hope you take my response under consideration.

Many thanks

Terence Eden

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