A form letter for ISPs to use when sending a “three strikes” letter

One of the things that the Digital Economy Act includes is a requirement for ISPs to email or write to their customers when instructed to do so by copyright owners – the so-called “three strikes” warnings. Here’s what the text has to say:

(6) A notification under subsection (4) must include—

(a) a statement that it is sent under this section in response to a copyright infringement report made by a copyright owner;

(b) the name of the copyright owner who made the report;

(c) a description of the apparent infringement;

(d) evidence of the apparent infringement that shows the subscriber’s IP address and the time at which the evidence was gathered;

(e) information about subscriber appeals and the grounds on which they may be made;

(f) information about copyright and its purpose;

(g) advice, or information enabling the subscriber to obtain advice, about how to obtain lawful access to copyright works;

(h) advice, or information enabling the subscriber to obtain advice, about steps that a subscriber can take to protect an internet access service from unauthorised use; and

(i) anything else that the initial obligations code requires it to include.

(8) The things that may be required under subsection (6)(i), whether in general or in a particular case, include in particular—

(a) a statement that information about the apparent infringement may be kept by the internet service provider;

(b)  statement that the copyright owner may require the provider to disclose which copyright infringement reports made by the owner to the provider relate to the subscriber;

(c) a statement that, following such a disclosure, the copyright owner may apply to a court to learn the subscriber’s identity and may bring proceedings against the subscriber for copyright infringement; and

(d) where the requirement for the provider to send the notification arises partly because of a report that has already been the subject of a notification under subsection (4), a statement that the number of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures.

As a public service, I’ve written a form letter that ISPs can use when emailing their customers. Here’s my suggested text:

Dear [insert customer name],

This email is sent under section 124A.6 of The Communications Act 2003 as amended by The Digital Economy Act 2010, in response to a copyright infringement report made by a copyright owner.

The name of the copyright owner is:

[insert name here]

The apparent infringement reported by the copyright owner is:

[insert statement of infringement here]

The evidence supplied by the copyright owner is:

[insert evidence here]

The purpose of copyright is to encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public. In the UK, copyright is governed by the Copyright, Designs and Patents Act 1988.

You may obtain lawful access to copyright material in a number of ways. These include, but are not limited to, purchasing physical media containing the material from an authorised seller or reseller, viewing or listening to the material on free-to-air or subscription broadcasters, borrowing it either from a library or from any other individual, downloading it from authorised distributors or creating it yourself.

You can obtain advice on how to secure your network against unauthorised use by contacting the manufacturers or suppliers of your networking equipment.

The copyright owner has also required us to include the following information:

* Information about the apparent infringement may be kept by us.

* The copyright owner may require us to disclose which copyright infringement reports made by the owner to us relate to you.

* Following such a disclosure, the copyright owner may apply to a court to learn your identity and may bring proceedings against you for copyright infringement.

* The number and nature of copyright infringement reports relating to you may be taken into account for the purposes of any technical measures.

The above text fulfils our legal obligations under the Digital Economy Bill 2010. However, as a valued customer of [insert ISP name], we would like to draw your attention to our data protection and privacy policy, available at [insert URL], as well as the terms and conditions applicable to your service, available at [insert URL]. In particular, please note that clause [insert paragraph number] of your contract does not provide for unilateral termination or restriction of your service by us without notice other than where you are in breach of the contract or where we are instructed to do so by a court. Should we be required by a court to terminate or restrict your existing service, this will not be treated as a breach on your part and you will be allowed to transfer any existing credit balance on your account to any new service that you subsequently purchase from us.

Regards

[insert ISP name]

How does that sound to you? Any suggested improvements?

Sharing isn’t stealing

I wonder how many people supporting the Digital Economy Bill have ever borrowed a book from one of their friends? For that matter, have any of them ever bought a second-hand book? How many of them have sat in a doctor’s waiting room and read magazines in the rack to pass the time?

It’s generally accepted that sharing printed material is entirely normal, despite the fact that every shared copy is, in theory, a lost sale. Even more so, in many cases, given that, unlike with music, people don’t normally read books and magazines over and over again – the book that I read while at my parents’ house last week really is a lost sale, because, even though I enjoyed reading it, I’m not ever going to buy it now.

The argument that sequential sharing of this nature is somehow different to the simultaneous sharing that takes place when a music file is copied is disingenuous. Ultimately what’s happened in both cases is that two or more people have the benefit of something that just one of them has paid for. And there are only two options here: Either that is fundamentally wrong or it isn’t. And I think nearly everyone would agree that, in fact, it isn’t fundamentally wrong.

If it’s not wrong in principle on a small scale, then still it isn’t wrong in principle on a large scale. It only becomes wrong in practice if you add in another principle: that the creator has an absolute right to an income independent of whether or not people are willing to purchase his or her material. In some socialist utopia, that might be the case (to each according to his needs, etc), but it surely doesn’t apply in anything resembling a free market economy.

Of course, it may be true that if too few of us are willing to pay for music, then creators will become few and far between and we’ll end up with less music to share. And I’d agree that that’s an undesirable prospect. But who suffers most in such a scenario? We, the consumers, do. If making music is no longer profitable, the music makers can find another job. But if the music makers stop making music, the consumers can’t get it anywhere else. If that’s the case, though, why legislate to prevent it happening? If the consumers kill their own golden goose, that’s their problem. Lack of popular music or the latest movies never hurt anyone; it’s not like health care or food or shelter or anything else that really matters. But if anyone is worried about a possible shortage of new music, then the remedy is in their own hands: they can pay creators to create it.

Technological change has always threatened jobs. The introduction of the printing press put the scribes out of work. The railways made stage coaches redundant. Motorised vehicles in turn ended the golden age of the railways. You can’t legislate against the forward march of technology, and you can’t legislate against humanity. We are inherently social animals, and sharing is fundamental to our nature. If technology now makes sharing much easier, then that is a good thing. It’s still a good thing even if it causes short-term loss to those who previously built a business model on it being difficult. In the long run, the benefits to society as a whole outweigh the loss to those who are made redundant by progress.

Sharing isn’t stealing. It never has been, and it never will be. But denying people the right to share is an assault on humanity itself.

An empty chamber is not an empty mind

One of the things that has been a repeated meme in various blog posts and tweets related to the Digital Economy Bill over the past couple of days has been the seemingly low numbers of MPs in the chamber of the House of Commons when it was being debated. Typical comments include this one:

There are 646 MPs. About 40 turned up for the second reading. About 16 made it to the end.

The third reading has been just as bad. Almost Empty. 2 hours given to debate amendments to 50 clauses.

The first clause took 1hr. The last 49 were glossed over in the last hour.

Ten minutes before the vote labour MPs put down their drinks, pulled themselves out of the bar and stumbled in to vote for the Bill. Having listened to nothing.

Disgusting.

The problem with this is that it’s simply wrong. Other than the big set-piece occasions such as PMQs, MPs don’t – and don’t need to – attend the chamber unless they’re planning to speak in the debate. And no more than a small proportion of the total number of MPs will ever get to speak in a debate anyway, due to time constraints, so what that means is that the chamber is normally near-empty. But that doesn’t mean the rest aren’t following the debate, or haven’t taken part in discussions elsewhere in the house. Like the rest of us, MPs themselves follow most chamber debates on TV.

When televising parliament was first mooted, this was actually one of the objections raised – viewers would see a near-empty chamber most of the time, and wrongly assume that most MPs were doing nothing or weren’t interested in the subject under debate. In the early days of parliament broadcasting, therefore, the broadcasters were at pains to point out to their viewers that the chamber is just a small part of what goes on, and attendance in the chamber is a relatively small proportion of an MP’s time. But they’ve stopped doing that now, presumably because they assume that most regular viewers are aware of the fact.

Unfortunately, a lot of viewers watching the DEBill debates aren’t regulars, and aren’t aware that numbers in the chamber are relatively meaningless. Yes, the fact that the LibDems could only manage one contributor to the debate on Tuesday night is pretty pathetic – I’m not expecting a full chamber, but I’d have expected at least a handful of contributors from all the main parties. And, yes, the whole wash-up process is pretty disreputable and the way that both government and opposition front benches colluded to let the bill go through is unseemly. But complaining about a low turnout overall in the chamber is missing the point. And not only is it missing the point, but it places the bill’s critics in exactly the same position as many of those they are criticising.

One of the main objections to the bill is that it seems to have been drafted by people with little or no knowledge of either the Internet or the fact that there’s far more to the music industry than the old-fashioned record companies. And those criticisms are entirely valid – as someone who has worked in both media, music and the Internet I can honestly say that the bill’s proponents don’t represent me in the slightest. But making specious complaints about the lack of numbers in the chamber is exactly the same error – it’s demonstrating a fundamental ignorance about how the system works.

People who live in glass houses should not, as the saying goes, throw stones, and it doesn’t help the anti-DEBill case if those making it demonstrate the same kind of naivete as the bill’s supporters.

The reality is that, with the wash-up process as it is, the bill was never in any significant danger of being dropped or lost unless the Conservatives decided to formally oppose it. And, apart from a few clauses, they didn’t. So it’s time to move on from this argument, and start again in the next parliament. The Conservatives and LibDems have both said that they think the bill should be revisited after the election and altered as necessary, so the next stage of the campaign is to make sure that their promise is kept and that the bill is amended to get rid of the most egregious aspects (and ensure that subsequent legislation doesn’t bring back the bits that did get dropped, such as the original clause 43).

The best thing that the campaigners can do now is to focus on the election in their own constituencies, and make sure that all the candidates are aware that support for the unamended bill is a vote-loser. Extract, where possible, a promise from the candidates to vote for changes in the next parliament, and then make sure that they’re publicly shamed if they don’t keep them when elected.

A battle has been lost. But it’s a battle we expected to lose. The good news is that the election means we still have a chance to win the war.

You wouldn’t steal a book – but you might borrow one

Sad political (and Internet) nerd that I am, I watched most of the House of Commons debate on the Digital Economy Bill last night on BBC parliament rather than following Arsenal’s single-handed defeat by Lionel Messi at the Nou Camp. Some of the MPs contributing to the debate made more sense than others – I was impressed with the contributions of Tom Watson, Fiona MacTaggart and John Redwood, whereas on the other hand Sion Simon really didn’t seem to be willing or able to grasp the difference between a court and a tribunal. Peter Wishart’s self-centred contribution was all the more galling given that, as I own several Runrig albums and have seen them play live on a couple of occasions, he’s probably the only current MP to have actually earned any money from me that I’ve paid voluntarily. I was also a bit disappointed with my own MP, Peter Luff – after damning the bill as unworkable and badly managed he then said he’d support it, which, unless I’m missing some bizarre piece of underhand political machination here (and, given the way in which parliament works, I can’t entirely rule that out), is a bit like being served an inedible dish at a restaurant, calling for the manager to complain but then saying you’ll eat it anyway rather than insist on your money back. Stephen Timms, summing up for the government, showed himself to be more than a little gullible by parroting music industry propaganda as if it was fact and then claiming that the Bill will be the answer to the problem – he probably believes he’ll still have a job after 6th May, as well!

In the middle of all the arguments on both sides, though, some of the most telling comments came from MPs who had no hard and fast position one way or the other but contributed from a position which can best be described as man-in-the-street neutrality. One of those was Neil Gerrard, who made some good points about complex subjects requiring plenty of scrutiny, but also brought up the “you wouldn’t steal a car” argument. This is what he had to say at that point:

Some of the arguments put by those who sent e-mails and lobbied about the Bill seem completely spurious. For instance, to suggest that a little research somewhere that says that people who illegally download also spend more, and that that somehow justifies the illegal downloading, seems total nonsense. If I went into a book shop or record shop and stole a CD or book, it would hardly be acceptable for me to say in my defence, “Well, actually I spend more than average in this shop.” I would be laughed out of court. It is theft to do that, and it is theft knowingly to download something illegally.

On the face of it, this seems a reasonable argument – the fact that you do a lot of something legal is no justification for doing even a small amount of something illegal. And you would be laughed out of court if you used your genuine purchases as a defence against a shoplifting charge. But this is an example of the Fallacy of the Inappropriate Analogy – an argument which works in one scenario can’t automatically be transplanted to another where different rules apply and still have the same validity. There are two reasons why his analogy doesn’t work here. Firstly, it’s true that most people would agree that theft is bad. But why is theft bad? The reason it’s bad is because it causes direct, tangible loss to the owner. That’s a good reason to legislate against it. But copyright infringement doesn’t cause direct, tangible loss to the copyright holder. At best, it causes no loss at all. At worst, it can cause indirect loss due to the loss of a sale that might otherwise have been made. At worst, though, that’s still a loss of some form, so it is still bad. But the point of the research referred to here is that copyright infringement – at least, in this type of situation – doesn’t cause loss. And if it doesn’t cause loss, then why is it bad?

The second reason this analogy fails is that the research points up the difference between shoplifting and copyright infringement. In the real world, most shoplifters don’t also spend more at the stores they steal from. If they did, then stores might actually not care so much about shoplifting. If allowing people to have things for free increased the overall take, then shops would be falling over themselves to encourage people to take free stuff and then come back to buy later. Tesco, Sainsbury’s et al may not exactly be paragons of corporate virtue, but they do compete – fiercely – with each other and they’d be quick to exploit anything which increased sales.

Finally, of course, Neil Gerrard’s final remark in that paragraph is simply false. It is not theft knowingly to download something illegally, and there is no legal sense in which it can be. Theft is a well-defined legal term, and, while it may be acceptable for the man in the street to use it by analogy to apply to other scenarios, it isn’t acceptable for a legislator to make the same basic error. You wouldn’t steal a book – but you might borrow one if you weren’t sure that you would like it enough to spend money on it (or if you couldn’t afford to buy one). Or you might buy a second hand copy – in which case none of the money you spend on it goes to the publisher or author. So what’s so wrong with lending and borrowing music?

At least the Sion Simons and Peter Wisharts of this world are knowingly arguing in favour of a law which favours vested interests over consumers. But the likes of Neil Gerrard are being deceived into doing so because of their failure to understand the principles involved. That, to me, seems to be the bigger failure of democracy.

Real

I had a slightly odd moment in Morrisons earlier today.  Browsing in search of vegetables, my attention was caught by a song starting to play on the in-store music system. In the back of my mind, I was thinking “this song rings a bell”. Which is a bit daft really since, like all supermarkets, the background music in Morrisons is popular ex-chart stuff and it would be unusual if they played a song which I didn’t recognise. (Although, having said that, different supermarkets do seem to have different preferences in music – “Rotterdam” by The Beautiful South will always remind me of Sainsbury’s in Stoke). But, in this case, it sounded both strangely familar and yet out of place. So my brain immediately clicked into gear and I found myself playing “Name that Tune” as a challenge to myself to identify the artist and title before the lyrics kicked in.

It only took a couple of bars before I had twigged to what it was (and yes, I did win my internal challenge), but it still felt a bit out of place. And the reason it felt out of place was because I’m used to hearing it in an entirely different context. The song was “Real“, by Plumb, which used to be (and, for all I know, still is) a staple on Cross Rhythms Radio when I worked there. I know that Plumb has had some airplay on Radio 2, so it’s not entirely unexpected that at least one of her songs should crop up on a supermarket compilation, but it was still unexpected enough for me to think it incongruous.