Digital Britain On P2P: More Warning Letters, More DRM, Enforcement Issue Fudged

Lord Carter’s interim Digital Britain report allows ISPs and record labels to write more warning letters to illegal P2P downloaders – but shirks the thorny issue of how to enforce the warnings. Instead, the industry is asked to reconsider DRM, of all things, and to develop vague “incentives” for buying legal content – something content producers have been trying for years…

P2P legislation: Govt will legislate “to make it significantly easier for rights-holders to take targeted legal action against the most significant infringers“. But there’s little mention of legal sanction – instead, this is about writing warning letters. ISPs will be asked to collect anonymised data on repeat offenders and, after obtaining a court order, hand it to rights holders like record labels. On this point, the industry will be largely left to police itself under a “code on unlawful file-sharing”, overseen by Ofcom and including rules on customers’ right to appeal.

This would essentially formalise last year’s trial under which ISPs sent warning letters to customers at the behest of the BPI. Carter has clearly been informed by two recent pieces of research that found a majority of freeloaders would stop upon receiving a letter. But much will depend on what gets written in to that “code”

Unclear on sanctions: But what happens to repeat offenders? Carter is unclear. After the industry failed to agree either on govt’s proposed co-regulatory approach or on any of its four alternative solutions, there’s no concrete mention of disconnection or traffic throttling – it’s back to the drawing board. Govt now plans to ask content rights holders and distributors to fund “a new approach to civil enforcement of copyright” – but there’s no new legislation; this framework would depend on existing laws.

So the issue of how to really tackle P2P freeloaders in a legal sense has been kicked in to the long grass. Carter may have mandated ISPs to continue writing letters, but, with no body created to oversee disconnection of customers after three strikes like in France, such actions could for now be toothless. The main legal sanctions will continue to come only against the biggest of file sharers.

New Rights Agency, a DRM renaissance: Carter says govt will explore creating a new “Rights Agency”, in which all rights holders and distributors would “agree how to provide incentives for legal use of copyright material” and would “work together to develop ways of making this kind of piracy more difficult to do and easier to trace and prevent”. “DRM (like ACAP), properly applied, also has a role (and) can work when they … go with the grain of the market and legitimate consumer demand.”

This is wishy-washy wishful thinking. Carter writes in admiration of iTunes dropping “device limits”, but sections of the industry seem way ahead of Carter, having already decided DRM is an anachronism that has already cost it too many consumers.