UK govt: disconnection not 'proportionate'

Local copyright activists pump UK approach

A UK government report dealing with illegal internet file sharing is considering a range of sanctions — but disconnection is not one of them.

The report, issued on June 16 by the UK government’s Department for Business Innovation and Skills (BIS), considers a number of possible sanctions to discourage repeat offending but does not mention disconnection, as was legislated in New Zealand last year.

A BIS spokesperson has now confirmed to Computerworld New Zealand by email what the report did not state explicitly: “We currently have no intention of legislating to terminate the accounts of persistent copyright offenders,” BIS says. “We don't consider this to be a proportionate response, especially given the importance of internet access in today's society, where many services including banking, health and education are increasingly delivered online. Disconnection is even less fair in situations where a number of people in a household may share one broadband account.”

Some New Zealand followers of the debate surrounding New Zealand’s Copyright Act Section 92A have seized on this as evidence that disconnection is falling out of favour internationally and have been reporting it enthusiastically in online forums.

New Zealand is about to embark on a further review of the law after the failure of S92A. Earlier this month, commerce minister Simon Power asked the Ministry of Economic Development to outline the process for the review.

Meanwhile, organisations representing many rights holders, such as NZFACT, say they still want to see an "ultimate sanction" and have not backed away from that being disconnection.

“We are also concerned about co-called '3 strikes' models, where account termination occurs automatically rather than being imposed by a court,” says the UK BIS in its email. “It's important to remember that until proved these are cases of alleged copyright infringement” [their emphasis].

“You should note that we have been considering how to tackle P2P file sharing for several years and at no time has disconnection been a preferred policy proposal,” the spokesperson writes.

The UK report discusses other methods of dealing with offenders who appear to be downloading or uploading a large amount of copyright material; these include protocol and port blocking, blocking of access to particular sites, bandwidth and cap restrictions and traffic shaping to make downloads less efficient for offenders.

BIS makes the point, however, that preliminary warning letters appear to have an effect in deterring less hardened offenders. Results from a 2008 survey on digital entertainment say 70% of offenders are deterred by one warning notice from their ISP, while another source reports practical experience of a further 16% having stopped after a second notice.

However, BIS admits, other surveys cite figures as low as 33% for first-warning effectiveness.

Like s92A, the BIS analysis suggests ISPs are best placed to keep track of the warnings their customers receive, but concedes small providers could be inconvenienced by the workload and expense of such tracking. BIS admits that exempting small ISPs is fraught with difficulties, not least that pirates could migrate to those providers. It invites public comment on how undue financial pressure on such companies might be avoided.

The report suggests more might be achieved by deterring those who first upload copyright material onto the P2P service, since every uploader stopped would make it impossible for a large number of other users to download the file in question. However, BIS acknowledges this is open to the defence that someone legally in possession of the file, obtained, for example, through a paid download, had accidentally left it in their P2P folder and not intentionally uploaded it.

BIS notes that a majority of users who download illegally suggest they are motivated by a lack of musical range in the paid services that have emerged, rather than an unwillingness to pay; so the piracy problem may lesson as services improve, it suggests.

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