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UK ISPs Want Copyright Holders to Pay if Users Sue

Posted by Zonk on Thu Feb 14, 2008 01:52 PM
from the that-road-goes-both-ways dept.
Government The Courts The Almighty Buck The Internet Media Music News
I Don't Believe in Imaginary Property writes "After the recent draft legislation in the UK, which would create a 'three strikes' policy to cut off anyone accused of online piracy, the ISPs are asking for liability protection when users are wrongly identified. They're worried that when users are wrongly blamed for piracy, as has happened in several widely-reported investigations already, they will turn around and sue their ISP. The ISPs, of course, think that the record companies — or whoever else wrongly identified the file sharers — should be the ones to pay out any such judgments. The British Phonographic Industry, however, disagrees and wants the ISPs to simply use their Terms of Service to disconnect people. Apparently, that means they think that the ToS should be able to remove any legal recourse people might otherwise have against being misidentified."
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[+] Technology: UK Government To Terminate File Sharers' Net Access 411 comments
An anonymous reader writes "New plans published by the UK Govt show that they hope to terminate internet access for people suspected of breaching copyright by file sharing. Under the proposed new laws ISPs who fail to enforce the policy will face prosecution in the courts. Users falling foul of the new law will be subject to a three strike policy: First suspected instance of illegal file sharing they would receive a warning, at the second — a suspension, and at the third they will have their Internet connection terminated. It isn't clear whether users will be prevented from ever using the internet again, or whether simply subscribing to a new ISP will reset the process."
Submission: ISPs Want Copyright Holders to Pay if Users Sue by Anonymous Coward
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  • Simple enough solution (Score:5, Funny)

    by KublaiKhan (522918) on Thursday February 14 2008, @01:54PM (#22423776) Homepage Journal
    If that's the way they want to play it, then it's quite simple.

    Find out what ISP the Phonographic Institute uses, and file a complaint that they're violating my copyright. According to that logic, the ISP must then disconnect them.

    Continue until they figure out why that's not such a good idea.

    • Find out what ISP the Phonographic Institute uses, and file a complaint that they're violating my copyright. According to that logic, the ISP must then disconnect them.

      You really expect that to work? Individuals will be presumed guilty, while corporations will be presumed innocent because unlike those pesky humans they have Policies and Procedures to Prevent This Sort of Thing.

      • Re:Simple enough solution (Score:5, Funny)

        by KublaiKhan (522918) on Thursday February 14 2008, @02:03PM (#22423904) Homepage Journal
        Oh, easy enough to fix that as well. File a DBA as, say..."The Copyright Association Foundation For English and International Network Egress" or something official-sounding. File the complaint as your company.

        If it's incorporated (a trifle expensive, but worth it, potentially) then even if they countersue it won't do anything to you.

        There you go, you're playing at the same level they are, and you can have official CAFFEINE letterhead to play with to boot.

        • Re:Simple enough solution (Score:5, Interesting)

          by Telvin_3d (855514) on Thursday February 14 2008, @02:13PM (#22424024)
          Actually, it would be easy enough to do. Just keep track of everything they post or host as well as the source code of all their web pages. Three strikes right? I suspect it would take all of 6 months to find three instances where an intern has used a chunk of code from someone else's template or a designer uses a bit of a CC image in an advertisement.

          • Re:Simple enough solution (Score:5, Informative)

            by nickj6282 (896871) * <nickj6282@nospAm.yahoo.com> on Thursday February 14 2008, @02:22PM (#22424178)
            I think you're missing the point. The IFPI need only be accused of piracy instead of actually having committed it. That's kind of the point of this article: wrongfully disconnecting users who are only accused of piracy, regardless if the accusation is valid or not.

          • Just keep track of everything they post or host as well as the source code of all their web pages.
            Excuse my asking, but how do you do that without copying their webpage and thus breaking their copyright, (and having your internet cut-off?)

              • Are you suggesting that visiting Slashdot and viewing the html source is breaking their copyright?
                not at all. But copying all of slashdot to keep a record, is that not bordering on it? - well at least they'd try and accuse you of it....

                either way, the other reply to my post (GP) answered it. - you don't need to. You just accuse them, and file for discovery afterward. .. or somesuch. (IANAL-AIDEPOOTV)

                • Re: (Score:3, Informative)

                  by jasen666 (88727)
                  It's not copyright infringement to download a copy of a public website.
                  It would be infringement to host that copy as your own.

          • I suspect it would take all of 6 months to find three instances where an intern has used a chunk of code from someone else's template or a designer uses a bit of a CC image in an advertisement.

            More like six minutes...
            • Yessshhh my precioussssssshhh...

              But that is likely to be treated as one offence...

              So 6 months sound about right... My precioussshhh... web sources... Nasty hobbitsessssss
        • For a better acronym, considering the industry we're talking about and its insane policy of suing customers, would be the Copy Right Association Cartel of Kalamazoo.

    • Re:Simple enough solution (Score:5, Insightful)

      by Mr. Underbridge (666784) on Thursday February 14 2008, @02:14PM (#22424046)


      Find out what ISP the Phonographic Institute uses, and file a complaint that they're violating my copyright. According to that logic, the ISP must then disconnect them.

      Not quite. The ability to disconnect is still up to the discretion of the ISP. However, the ISP rightly fears that the record companies won't be doing a whole lot of due diligence in eliminating false alarms, and that with the crapflood of requests the ISP won't be able to either. But I don't think you'll have success in calling the Phono group's ISP and getting them disconnected, as satisfying as it may be.

      The ISPs' request is a fair one. Basicaly, they're saying that if you want us to do your dirty work, you better indemnify us against the results. Otherwise, you assholes can get a court order before we do anything.

        • And I think the ISPs would be very happy to do that, too--after all, if the Phonographers have no internet connection, they can't go searching for people to cut the connections of--and if they can't find anyone to cut off, the ISP can't be sued if the Phonographers are wrong.

          Now that's funny. You know, there's always the possibility that you call up there and get a BOFH that's just *really* pissed at his client at that particular time. ;)

          I'd love to read a "BOFH works at the record company's ISP" entry.

    • The law of unintended consequences;

      If I was a pirate (I am not, and have the invoices to prove it.) then;

      #1) I will not P2P from my own connection, but from that of a Internet Cafe (shut them down too?) or a so called friends home.
      #2) I will do this from open WIFI networks, such as my neighbors. They will get shut down, not me.
      #3) I will put TOR, Apache with Proxy module, Wingate, or some other program onto many computers so the P2P traffic is coming from their computers, even though I'm at home.

      What wi
      • #1) What makes you think that the Internet Cafe service allows P2P on their network? "Allows" of course meaning in the technical sense. You would probably want to spoof your MAC address and pay in cash only so they won't ban you from the cafe if/when the MAFIAA comes knocking.
        #2) One word: Wireshark.
        #3) Tor=slow.
  • A nice old-fashioned three-way Mexican standoff. Reminds me of the gunfight scene in "The Good, The Bad, and the Ugly."

    This idea might have two very nice consequences. First, it might make the RIAA et al much more careful about throwing lawsuits around. Second, it might protect ISP for paying the price for their lawlessness.
    • I don't know. I'm a bit skeptical. I remember a story about how the RIAA is afraid to take on Harvard and the like, you know entities that could actually litigate and fight back. For a defendant to be able to countersue they would have to understand what legal recourse was available and be able to act on it. So, this doesn't alleviate the practice of railroading, where the RIAA sues someone who a) doesn't know how to fight back, b) doesn't have the economic means to fight back, or c) both.

      It seems a no-br
      • Please write to your MP if you disagree with these proposals. There are a lot of us, and it might just make them think twice before blindly pushing this legislation through.
        • Please keep this in mind as it is good advice for any letter-writing campaign:
          Most politicians are busy people (or at least consider themsleves to be), so they will generally only make time for those that put in an effort.

          In general, a form email is least effort and will generally be ignored.
          A non-form email is still low effort and will also be ignored.
          A phone call is moderate effort, but will usually be intercepeted.
          A form letter (paper, envelope, stamp) without a signature is also somewhat moderate, but will still be ignored.
          A form letter with a signature will usually get a response, but along the lines that they don't listen to from letters.
          An original typed letter will usually get a somewhat favorable response; although you may just receive a lecture on policy ppositions.
          An original hand-written letter will get you attention -- assuming you have neat and legible hand-writing.
          A personal visit as a constituent will also get you attention, but should be followed up by some form of traceable communication.
  • How does one join the British Pornographic Industry? Because that sounds like a pretty awesome industry to be a part of.

  • Another concern is (Score:5, Insightful)

    by Z00L00K (682162) on Thursday February 14 2008, @02:04PM (#22423910) Homepage
    that more and more people are using IP telephony as their landline.

    What will happen if that service is unavailable for an innocent that needs emergency service? Who is to blame then?

    I for sure would want to hold someone personally responsible. The internet connection is more than just an amusement that can be turned off today - it has changed into something much more important.

    So cutting off people shall be an alternative that really has to be considered a last resort.

    • Re:Another concern is (Score:5, Insightful)

      by asuffield (111848) <asuffield@suffields.me.uk> on Thursday February 14 2008, @02:17PM (#22424092)

      So cutting off people shall be an alternative that really has to be considered a last resort.


      It should be something that only happens if (a) you don't pay, or (b) a court orders it - exactly the same as with a telephone line.

      This is all about the media cartel trying to get out of having to prove their cases in court, because their little scam doesn't make a profit when they have to do that.
    • So we'll just have to do what we do with cellphones.

      If you stop paying your cellphone bill, you can't make phone calls. Except to the phone company (to give them your credit card number), and to emergency services, because it's mandated by Canadian law. I think it's the same in the states. I have no idea about anywhere else.

  • On One Condition: (Score:4, Interesting)

    by Penguinisto (415985) on Thursday February 14 2008, @02:06PM (#22423938) Journal
    So long as you do not filter, monitor, or read any of your customer's packets, provide due diligence in identification of a customer by records, and only provide info the industry cartels under subpoena (and not just because they ask), then okay - you can be free from liability.

    Otherwise, you're rightfully just as culpable and should eat the consequences.

    /P

    • Re: (Score:2, Insightful)

      by Rolgar (556636)
      Insiteful? He didn't get the group name right. Funny I suppose since Pornography and Phonographic look similar, and spanking can be a fetish and Pornographic . . .

      AWW screw it.

  • Poetic... (Score:3)

    by TripMaster Monkey (862126) on Thursday February 14 2008, @02:08PM (#22423962)

    The ISPs, of course, think that the record companies -- or whoever else wrongly identified the file sharers -- should be the ones to pay out any such judgments. The British Phonographic Industry, however, disagrees and wants the ISPs to simply use their Terms of Service to disconnect people. Apparently, that means they think that the ToS should be able to remove any legal recourse people might otherwise have against being misidentified."


    The BPI MIght think that, but that does not make it true. The ISPs have their collective asses hanging out in the wind, and they know it. It's too bad they didn't see this coming, when they started agreeing to take sides in this mess in the first place.

    If you exercise authority, you incur liability. Pure and simple.
    • What's really intriguing here is that the ISPs took sides against their customers. I'm not sure about in the UK, but I'd assume they have some sort of Common Carrier equivalent that already gets them out of being liable for what their customers do. Assuming this is the case, how on earth is it in their best interest to get their customers sued?
    • Blighty legal system does not have the idea of "innocent until proven guilty" (it is really true, do not jump, ask a lawyer). None the less, it has some residual integrity checks and as with most legal systems you cannot sign-off your fundamental rights. T&C are governed by contractual law. Contractual law cannot override a fundamental right like the right not to incriminate yourself in most legislations. So the moment T&Cs go beyond T&C and become a law enforcement tool the ISPs will find thems

  • How is this already not covered (Score:5, Insightful)

    by alan_dershowitz (586542) on Thursday February 14 2008, @02:08PM (#22423976)
    I don't see how there isn't already some kind of law covering this. The ISP is being deputized as an agent of the Phonographic Industry when it comes to identifying and cutting off file-sharers. While it may be disputable that the ISP is not liable, I definitely don't see how the Phonographic Industry can absolve liability when its them doing the accusation. The ISP at least initially has to take it on face value that their accusation has some merit, which in my mind at least, absolves them of liability. It would seem to me to be a really bad precedent if you can accuse someone of something, legally force a third-party to take action against the accused, and then use that third-party as a shield against liability for your false accusation.

    • That is at EU. I think (not sure) they homogenized their law in a way that all involved parts are to blame, and you can sue any of them. If there is anything that makes one party not to blame, it can later sue the others to recouple the lost money.

      At least, Brazil copyied them that way. Maybe we missinterpreted something :)

    • Re: (Score:3, Interesting)

      by ray-auch (454705)
      The BPI may indeed be eventually (jointly) liable, however there is the question as to how you would sue them. The user has a contract with the ISP, and not with the BPI, and in addition the ISPs relationship with the user is under all the consumer protection legislation etc.

      So the user has plenty of (relatively easy) ways to take action against the ISP, but not against the BPI. You would probably have to sue the BPI for libel or malicious falsehood - and in the UK that is much _much_ more expensive - req

  • So.... (Score:5, Interesting)

    by whisper_jeff (680366) on Thursday February 14 2008, @02:10PM (#22423988)
    So, let's see. Record company accuses user of copyright infringement and their ISP is required to terminate their service. It turns out the accusation was "in error". The user has not recourse against their accuser for the false accusation _AND_ no internet service because their ISP cut them off. Yeah, that sounds like a recipe for a ton of frivolous accusations by the copyright holders. Heck, if they could accuse the entire country and force ISPs to cut them off, that would get all the pirates, even though it would be throwing a bunch of babies out with the bath water. And, hey, there's virtually no downside because they can't be counter-sued for the false accusations!

    It seriously boggles my mind that people think garbage like this up and think that it makes a hint of sense. If you accuse someone of a crime and are proven wrong, the accused should have every right under the sun to come back at you. Hard.

    Bah!
    • Put music for illegal downloading under BPI servers.
      Complain to their ISP that server_xxx.yzb.hyw.ghu is storing pirated music.

      That's it! BPI gets disconnected from internet permanently!
      Profit!
    • Actually, there's a thing called "probable cause"

      While "proof beyond a reasonable doubt" is required for a conviction, it is not required for an arrest, where the standard is merely "probable cause".

      If the cop has probable cause, you cannot sue the police for false arrest. If the "probable cause" was based on evidence that turned out to be false, you can only sue the guy who gave it if it was known to be false.

      Witness honestly believes you've done something wrong, and tells the cops. They arrest you on pr
  • That's all it is, the prosecution, investigation should all be on the media owners desk not the ISP's, because it is being set this way it opens the door (already open actually) to completely monitor and prosecute all traffic and I wouldn't be surprised if we saw a move to make it retroactive....so those mp3's you got in your college years catch up with you down the road whiel you're working.
    It's getting to the point where it isn't worth leaving *any* trails on the Inet.
    Scary stuff.

    • Re:Digital fascism (Score:4, Interesting)

      by Stanislav_J (947290) on Thursday February 14 2008, @02:30PM (#22424262)

      It's getting to the point where it isn't worth leaving *any* trails on the Inet.

      More like getting to the point where I don't want to be on the Net at all. Thinking of living the simple life.....move to a little cabin in Montana....I'd have plenty of time and quiet to start writing my manifesto.....

  • They could learn from the Canadians (Score:3, Interesting)

    by Midnight Thunder (17205) on Thursday February 14 2008, @02:14PM (#22424042) Homepage Journal
    I am not sure whether I should be more scared of US or UK Canadian copyright laws. Canada on the other hand, while peeving off some US senators about our independent thinking, is actually thinking about something more reasonable: see here [arstechnica.com]

    • I am not sure whether I should be more scared of US or UK Canadian copyright laws.
      Well that's an easy one. Do you live in the UK, or Canada?

  • But can the ISPs sue the copyright holders? (Score:5, Insightful)

    by oneiros27 (46144) on Thursday February 14 2008, @02:17PM (#22424084) Homepage
    I don't work for an ISP currently (I did in the past), but let's consider the situation --

    Someone sends a list of 100+ users to the ISP. Those customers pay $20-100 per month for connectivity, depending on the service and area. It might take 2 years before the trials find if the customer is or isn't guilty.

    So, if we assume 2 years, $20/month -- that's $480 per user ... at 100 users, that's $48k. Can the ISPs sue for lost revenue?

    For big ticket users, it might be even more ... and that doesn't even run into the issues of loss of reputation for disconnecting an innocent party, which might impact other people's decision to use them or not.
  • Customer X is identified as a copyright violator. The British Phonographic Industry attempts to sue customer X but finds out mid-course that customer X is innocent, but has since been disconnected by their ISP for violating its TOS. Customer wants ISP held accountable for violating their own TOS. ISP says "I'm sorry but if you read our TOS we aren't responsible for anything that we do to you." BPI points at ISP. ISP points at BPI.
    /head asplodes
  • I'm sure under UK law there are provisions to fight 'unfair contracts'. So even if you do sign an agreement to a company's T's & C's you can later take that company to court to overturn the contract if it's patently unfair (and the ISP would then be liable for all legal costs and possibly compensation to the tune of the cost of your service for the whole contractual term plus any losses you may have incurred if, for instance, you use the service for business purposes). In a situation where you have been
  • In far more ways than this, it is clear to see how ridiculously unbalanced British legislators are when it comes to creating laws against its citizenry and for industry and commercial interests. This imbalance has cursed the British empire for a very long time and they never learn their lesson. So every time the U.S. takes another step in the wrong direction, it's really VERY easy to see where it leads because it seems the British are a step or two ahead of us.

  • An Analogy (Score:5, Insightful)

    by labnet (457441) on Thursday February 14 2008, @03:46PM (#22425452)
    An ISP should be given common carrier rights.
    For example, if you order illegal items through the postal service, (lets say pirated DVD's), then there is no way your postal service will be cut off. Its up to either the Police, or copyright holder to form a case against you. The ISP is merely the conduit, not an interested party.
    • I don't think blanket licensing will work. For one, the original problem comes into place in doing so: you're saying that every single person who is put into blanket licensing is an illegal file sharer. That is not ever necessarily the case. Additionally, they don't deserve money for that either.

      It is for this reason if they ever tried to do that blanket licensing in the US, people would sue pretty quickly. Just being put into a "Blanket license" doesn't imply legal indemnification. In fact, its literally l

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