Guest Comment: Piracy- Three strikes and you’re out?

Virgin Media and the BPI are after the file sharers, of which there are almost a million online in the UK at any one time. Consumers are worried about the risk of being disconnected for something many now see as a routine part of their online life. Content owners are encouraged by the new, tentative relationships between their trade bodies and the ISPs that have been their major target over the last year. While the government is hoping voluntary agreements will avoid the need for unpopular regulation, ISPs are watching subscriber reactions and hoping their users will reluctantly accept what may be an inevitable reality.

Whatever the correct solution may be, something has to change fast, as the government has already rattled its sabre and said it will bring in new laws if there is no voluntary agreement by next April.

The current agreement between the BPI and Virgin is just a toe dipped in the ocean that separates the music industry and the broadband suppliers. Virgin has 3.8 million UK broadband users, and a few thousand warning letters will touch only a tiny part of its user base. Yet this first, wary relationship could lead further, depending on the response from the media, subscribers, the music industry, ISPs and government.

Virgin and other ISPs may consider working voluntarily with the music industry, if action against piracy can be paired with legitimate access to the full music catalogue that is available now through iTunes and Napster. But the looming threat of legislation may make the music industry feel it has the upper hand and encourage it to push ISPs further.

Content owners would ideally like a 'three strikes' policy – often known as ‘graduated response’ –  where subscribers are eventually disconnected if enough complaints about piracy are received. 

Three strikes could benefit ISPs by letting them lose bandwidth-hungry file sharers and improve their service for other subscribers. But it would be unpopular with many users, so this is not a stance ISPs can publicly adopt. While they may see this kind of approach as inevitable, it may suit ISPs to wait to be forced into action by the government.

In any three strikes system, the devil is in the detail. Big questions need to be answered, and any one of them could make or break the system.

Who would be responsible for identifying piracy? Will the onus remain on the music industry or will ISPs have to install systems to police their own network traffic? What types of legitimate distribution will be offered to ISPs by content owners pacified by a new warning and disconnection process? Will file sharers shift to other download methods, such as Usenet, where identification is far harder, or to Japanese-style sharing systems, which pass files through other computers? What appeal processes will be available for subscribers accused of piracy? Will a three strikes system mean the end of legal action against individual file sharers by the music industry?

None of the actors in this fascinating and important play can yet be sure how the final act will end. On the other hand, nor can anyone know whether those watching from the judicial benches in the UK and Europe will have any opinions that could scupper the resolution.