Bill Thompson believes Virgin Media has decided it likes record companies more than its customers.
The chances are that I’ll be getting a letter from my internet service provider (ISP) in the next few weeks telling me that they’ve been watching my network activity closely and think I’ve been breaking the law.
Virgin Media, who used to be called NTL before they acquired Virgin Mobile and turned themselves into a “four-play” media company, has announced that it is working with record industry lobby group, the British Phonographic Industry, to write to customers whose network connection seems to have been used to download unlicensed content.
Like almost every technically-competent internet user of my acquaintance I’ve used BitTorrent to get my hands on a copy of a TV show that I missed, taking advantage of the kindness of strangers who bothered to record and upload the shows for fans because the companies that make and broadcast them choose not to.
However I also go out and buy the DVD box sets as soon as I can.
And I don’t feel like a criminal, because I don’t see why downloading a copy of a show that someone else has recorded should be seen as a breach of copyright while recording it myself onto a DVD is not.
According to the BPI’s press release the letters are part of a “new education campaign to help Virgin Media’s broadband customers safely download music from the internet and avoid the risk of legal action”.
But from the outside it seems more like a softening up move to get Virgin customers used to the fact that they are being observed by their ISP. And I predict Virgin will be happy to help the BPI identify individual account holders so that they can be threatened with prosecution over their downloading activities later on.
The move follows a campaign by the BPI to persuade UK ISPs to adopt a “three strikes and you’re out” approach to downloaders, where they would have their network connection terminated if they were found to be downloading unlicensed material after two warnings.
This hasn’t happened, not least because the two sides can’t agree who would pay the costs of monitoring or sending letters, or who would be liable for the inevitable lawsuits when innocent users decided that arbitrary disconnection without due process was likely to prove unpopular in the courts.
They should be careful who they sue. Researchers at the University of Washington recently announced that they had managed to fool US film industry body the MPAA into sending formal legal notices to three laser printers, claiming that they had been downloading copies of Iron Man and Indiana Jones.
Fake IP addresses
They had set up their network to fake the relevant internet addresses and the software used by the MPAA was unable to spot this.
Virgin will be on slightly firmer ground because it’s their network, and although some users may claim that they have open wireless networks that could have been used by anyone the buck will stop with the account holder.
There continues to be concerted pressure from established content providers in film, television and music, hoping that aggressive enforcement of copyright law will ensure that their 20th Century business models survive against the onslaught of the network society.
I believe it’s a doomed enterprise, as the growth of a fast internet coupled with the ability to make perfect copies of digital content means that all of the assumptions that underpin film studios, TV broadcasters and record companies have been stripped away, leaving them flailing around, threatening and suing the people who should be their best customers and hoping to persuade politicians to pass new laws to give them special privileges online.
As more licensed download services become available, many offering songs without usage restrictions enforced by digital rights management technologies, the wholesale copying of unlicensed copies becomes a lot less defensible.
But the habits that grew up when the music industry was simply unwilling to accept that downloading was the way forward – and the technologies that support those habits – will be hard to break.
Evidence that heavy downloaders are also heavy music purchasers doesn’t seem to have made any difference to the BPI’s approach either, and instead of finding new business models they hold on to the old ways of working.
It gets more complicated because the larger ISPs in the UK, Virgin, Sky and BT, are also content providers with their own interests in shoring up the current copyright regime.
Virgin don’t want programmes they have paid to distribute ending up on the internet for people like me to download, but by acting in concert with trade bodies they can appear socially responsible rather than simply serving their own broader interests.
The spaces within which we can live unobserved are constantly diminishing, as both public and private sector agencies link their databases together or co-operate to ensure that nothing we do goes unremarked.
We need a space for experimentation, where we can test the limits of old laws and explore how they might be altered in future, but once ISPs decide that they are no longer neutral carriers of bits and choose to ally themselves with the content industry then we lose another sliver of freedom.
At the moment it’s hard to use BitTorrent anonymously, although since the service itself is entirely legal and legitimate there should be no need to do so.
The moves by Virgin and other ISPs will simply spur the development of new ways of sharing files, just as the clampdown on Napster lead directly to the development of the current generation of peer to peer networks.
Virgin has just given its thousands of users an incentive to explore these new tools in order to confuse their administrators. After all, we pay them to move my bits around, not to go running to the record company if they suspect us of downloading unlicensed music.
Bill Thompson is an independent journalist and regular commentator on the BBC World Service programme Digital Planet.
Hard cases make bad law, especially online, argues Bill Thompson
It has always been difficult to stay completely on the right side of the law, however law-abiding one tries to be.
I try to check the copyright status of every picture I use in my presentations, but may sometimes slip up.
Copying CDs I own to my iPod may – or may not be – illegal, and copying DVDs I own certainly is.
And like all drivers I sometimes see the speedometer creep up above the speed limit when I’m not paying attention to it on a quiet motorway.
But now it seems I could face prosecution for the wide range of user accounts I’ve created on MySpace, Facebook, Googlemail, Flickr and Bebo to support the various projects I’m involved with.
The Norfolk and Norwich Festival, Tyneside 100 and Wysing Arts Centre identities I have lovingly crafted may well fall foul of a US decision that breaking the terms and conditions of a social network site can count as unauthorised access, turning what would seem to be at most a civil offence into a criminal act under computer misuse laws.
The concern arises because prosecutors in California have just charged 47-year-old Lori Drew under the Computer Fraud and Abuse Act for creating a fictitious MySpace account, something which many of us have done in the past and which I do all the time when projects I’m working on require a MySpace profile.
The prosecution raises wider issues that should concern any computer user
Drew allegedly used the account to pretend to be a 16-year-old boy, befriending and then rejecting 13- year-old Megan Meier, a friend of her daughter’s, and – it is claimed – provoking Meier to commit suicide.
However state officials could find no basis on which to prosecute her in the 18 months since Meier’s death, until the imaginative use of the computer crime law lead to charges last week.
If the case against Drew is proved then she deserves our complete condemnation for bullying a young and vulnerable girl, and I can’t imagine anyone would defend this behaviour or argue that a right to anonymity or pseudonymity extends to adults who abuse young people in this way.
But the prosecution raises wider issues that should concern any computer user, especially those who neither read nor take much notice of the terms and conditions of the sites and services they visit, since it opens up the possibility that acts which we thought were insignificant could be used against us in unexpected ways.
As always, we need to be careful about jumping to the conclusion that this is the death of the web as we know it, that every social network site will start prosecuting its users or that we are all under risk of investigation.
All we have is an indictment, which may be thrown out by the court, claiming that an offence has been committed.
The Computer Fraud and Misuse Act is being used because the false identity was used to do something much more serious, and the legal argument is that it can form the basis of a prosecution because it constitutes a “tortious act”, but this has yet to be accepted by a judge.
Even if it went all the way through to successful prosecution it doesn’t mean that MySpace could throw recalcitrant users in gaol for signing up with false names. And in most cases, like that of Lori Drew, there would be another law under which to prosecute anyone who used their online identity for something dodgy.
And yet it is a worrying development, because it creates a degree of uncertainty and may, because of that, have a chilling effect on what we do online.
I’ve created new profiles and identities with wild abandon, secure in the knowledge that if Facebook or Bebo or whoever didn’t like what I was doing the most they could do was close my account and perhaps try to stop me opening a new one.
But just as new laws on anti-social behaviour in the UK have created uncertainty about what is acceptable, with tales of people being fined for dropping two crisps that would be eaten by a bird within minutes promoting an atmosphere of careful restraint, any sense that online activity could get someone into serious trouble may limit playfulness and creativity.
In Nineteen Eighty-Four Winston Smith is afraid of the telescreen not because he is being watched constantly but because he might be being watched at any particular moment.
As a result he controls himself far more carefully than the Party could ever manage.
We need to be careful that the US legal system, desperate to prosecute someone over the tragic death of a young girl, does not end up establishing a precedent that leads us all to censor ourselves online, just in case.
Bill Thompson is an independent journalist and regular commentator on the BBC World Service programme Digital Planet.
I am MAJORLY concerned with the way our liberties are currently being erroded in the UK. There are plenty of really good blogs around from people with a like mind, but I have decided to start one up over the next few weeks too. Look out for the link soon. I shall be using an RSS feed application for subscription, but the link will on this site. In the mean time please go an see this film:
One by one many of the liberties that we as UK subjects have taken for granted were shown to be no longer reliable. Right to protest, Free speech, Privacy, Inocent until proven guilty, Extradition and Torture were all highlighted and real cases were examined.
The premise of this film is that we are turning in to a police state, if a rather badly organsied one. That somehow police and politicians had become our masters and we their servants. On it’s own that statement can be easily scoffed at. But the evidence was there on screen to see, and it was unnerving and slightly sinister. Using a mixture of police footage and protestor’s footage, a rather peculiar picture began to emerge: police with unprecedented powers unable to control the itch to use these powers.
It was like watching Teineman Square in minature, or a communist state in operation. The comparison to the Nazzi’s was startling, but there was no denying the similarities of method, even if the motive was slightly different.
The laws that have been passed that allow these things to go on, political will and control enacted by the police, may not be used against the innocent so much at this time. But if there comes a day when there are leaders or governments who like the taste of power too much, now there is no stopping them and we are all under suspicion.
Many refer to the erosion of our liberties, and what a great metaphor. Like a cliff face, once the process of erosion starts, it is very difficult to protect further and the land becomes more vulnerable piece by piece until it is swallowed up. For good.
At two hours this film may be too much for many to take, but I really urge you to try it, see it and witness what our country really is like today. And if you think, “nothing to hide, nothing to fear” – then just tread carefully as it might just be your turn next…
What do you think? Leave your comments here.