Andrew explained TalkTalk’s views and made clear how the Bill’s proposals will affect consumers’ fundamental rights.

You can listen to the interview here: iPlayer (1:55 in).

So we were surprised – to put it mildly – to hear Geoff quote “a TalkTalk survey” to support his arguments. The problem is we don’t recognise the figure Geoff mentioned. Having checked with him, it seems he has been rather misleading in selecting one figure from a press release we issued last autumn. But more of that later.

First, the context. The relevant passage of the Today programme interview focused on the security of people’s wireless internet connections. The Digital Economy Bill will place the onus on broadband customers to secure their WiFi connection. So if anyone hacks the connection and uses it to illegally download copyrighted material, the blame lies with the innocent owner, not the hacker, unless they can prove they took ‘reasonable steps’ to protect their connection. If they cannot do so then they could be disconnected.

We think this is utterly wrong in principle and doomed to failure in practice. In fact, only a few days ago we issued a piece of research which estimated that the cost to consumers of making sure their wireless connections were secure with the latest technology could run to several hundred million pounds. Geoff Taylor said that “most people on residential connections using wireless already have their connections secured – it’s something like 95% of connections, according to a TalkTalk survey, are already secured.”

In other words, only 5% are unsecured. (If you want to listen to the relevant passage of the interview, you can do so here – from 6mins in.) This is incorrect and hugely misleading. Last autumn we undertook a survey of over 1,000 wireless connections in a series of residential streets in Ealing.

We found that 41% of the connections were vulnerable to unauthorised use, and actually the true number may be much higher. Under the terms of the Digital Economy Bill, these people could be disconnected if someone downloads copyrighted material via their connection.

When we announced the results of this survey, we also undertook a demonstration in Stanmore, where we checked 68 local wireless connections. Using this much smaller sample we found that 34% were vulnerable to hacking. Six per cent had no security at all and 28% had only WEP technology, which – as we pointed out – many people think is secure but is actually easily hackable by anyone with a laptop. Only one connection out of those 68 used WPA2, the highest form of wireless security protection and the only type which has so far not been hacked.

The BPI appears to have taken the 6% figure and claimed it accurately represents the number of unsecured wireless connections in the UK. You can judge for yourself whether you think they or we are more accurate in portraying the threat of unauthorised downloading. At any rate, we think the Digital Economy Bill presents a major threat to Britain’s internet users. It is a dangerous and misguided piece of legislation, which we believe does not deserve to become law.

If, like me, you remember the 80s, you may also recall recording the Top 40 on Sunday nights. Up and down the country, people were hovering over their cassette players with their fingers over the pause button, trying to get the perfect recording before Tony Blackburn spoke and ruined it. Back then the music industry told us that home taping would signal the end of the music industry and that it must be stamped out. There are clear parallels with today’s debate about filesharing and the Digital Economy Bill.

That’s why we teamed up with Dan Bull, the musician behind Dear Lily and Dear Mandy, to create our very own music video. ‘Home Taping is Killing Music’ is a tongue-in-cheek video that features 80s legends Madonna, George Michael and Adam Ant (well, actually it’s just a trio of look-alikes) lip-synching to the song Top of the Pops style.

The song’s release coincides with the results of some research we conducted which found that the majority of music fans would simply switch to alternative ways of accessing copyright-protected content for free, if using peer-to-peer (P2P) services leaves them vulnerable to disconnection. In fact, 80% of 18-34 year olds questioned in our survey said that if new legislation made it dangerous to use P2P services they would switch to using methods which are undetectable.

We’ve consistently made it clear that we don’t encourage illegal filesharing. But in our view, the government’s filesharing proposals won’t change a thing – persistent filesharers will find another way of getting songs, movies and software illegally. It’s a never-ending game of cat and mouse.

Home taping didn’t kill music in the 1980s – it survived. The same will happen now in the internet age – illegal filesharing won’t kill music. And if you read the comments on the Have your Say page on www.dontdisconnect.us you’ll see that most people agree and suggest that the answer to bands making money out of their tunes lies in adopting new business models, not record companies trying to clamp down on suspected filesharers.

Only Idiots Assume  written by Londoner Liam Mullone and sung by his friend Hils Barker, is a stinging attack on the Government’s plans to disconnect people suspected of watching films and music online without paying for the privilege.

Fry selected the song to win a competition organised by TalkTalk, Britain’s biggest provider of broadband to homes.

“I am insanely in love with Only Idiots Assume,” said Stephen Fry. “It’s got the anger, the wit, the musical skill – all in a wonderful package that reminds me of the high days of my youth when punk roamed the land and the young were angry and funny and spunky and spiky.”

Liam Mullone, who, along with Hils Barker, is carving out a successful career on the comedy circuit, described the entry as a “ska-punk reply to Peter Mandelson”. Lord Mandelson is the minister behind the Digital Economy Bill which contains the controversial copyright protection clauses. The Bill is making its way through Parliament and may become law before the election.

“I’m used to having my material taken because you can’t protect a joke,” said Liam. “I sympathise with any artist who gets discouraged at the thought of not making a living. But just because a problem is bigger than the government’s imagination, it isn’t bigger than the Magna Carta or the principle of due process.

“Assuming that people with high download volumes are stealing stuff is like calling someone a witch because they have a black cat. It’s a medieval premise.”

TalkTalk’s petition against the Government’s plans has so far received over 32,000 signatures on the Number 10 website.

The company has been an outspoken critic of the Government’s plans to disconnect people suspected of copyright infringement, arguing that such a penalty should only be imposed if guilt has been proved in a court

Andrew Heaney, TalkTalk’s executive director of strategy and regulation, said: “We launched this competition (called Sing Our Petition) to show the depth of public feeling about the Government’s misguided proposals.

“We wanted to tap into the outstanding creativity of the Great British public to send a clear message to the Government – these laws won’t work and people don’t want them.”

Fry continued: “I’m no defender of systematic deliberate criminal downloading but in my estimation the government’s proposed ‘Three-Strike’ Copyright Protection Law is ill-conceived, constitutionally outrageous, morally unfair and epically foolish. This is not the way to protect and strengthen the creative music, film and TV industries – it is a way further to alienate and antagonise the very people on whom those industries depend.

“Aside from the skewed psychology and hilarious inappropriateness of major labels and studios leading a crusade for artistic freedom and independence, the planned legislation reveals a deep misunderstanding of the online world. Large scale criminal P2P downloaders will certainly be smart enough to avoid attention while the innocent or small-time (most of whom are good customers) will be penalised without recourse to the due process of law. I shake my head in sad disbelief that Britain could seriously be contemplating going down a path like this.”

Last week TalkTalk held an event for MPs and Peers designed to demonstrate the futility of the proposals, specifically why the system designed to spot copyright infringement will entrap completely innocent customers while persistent offenders will remain undetected.

About Hils and Liam aka ‘Broken Dongles’

Liam Mullone and Hils Barker are stand-up comedians and libertarians.

Liam was previously a gravedigger, a restaurant critic and a journalist for the Times, and has written for ITV1, Radio 1 and Radio 4, with credits including The Now Show, the Arthur Smith Lectures and 28 Acts in 28 Minutes.

Hils is also an actress and a writer. She gigs up and down the country, including recently at the Hammersmith Apollo as part of the LIVEstock gig to raise funds for Friends Of The Earth. You can catch her soon on Radio 4’s comedy panel game Act Your Age.

Both have created work on the theme of civil liberties. Liam’s 2007 show Health + Safety explored the dehumanising effect of “beneficial” H&S legislation, and Hils’ 2008 show Exhibitionist! looked at the nightmare scenario of the Government knowing as much about us as Facebook – or even running it. The duo are turning this idea into a sitcom for the producer Paul Jackson.

The Digital Economy Bill will have precisely the opposite of its desired effect. The Bill will ignite the development of tools that make it easier for people to access music, films and other copyright-protected material for free and undetected, defeating any attempt to protect copyright.

That was the message to MPs and Peers today at a briefing in Westminster organised by TalkTalk, the UK’s largest provider of broadband to homes.

Already there are dozens of such tools available, developed by latter day Robin Hoods who in many cases are not motivated by money.

It is not known what proportion of copyright-protected content is accessed using these new tools but research by the BPI suggests people are migrating away from traditional P2P (which can be monitored, albeit at great expense) and using these other tools instead (1).

Examples of these tools include:

• Applications which scan thousands of internet radio stations, and in a few hours download tracks from selected artists and then catalogue them
• Services which effectively conceal users’ IP addresses, allowing them to download material without detection
• Websites which stream “pay to view” sporting events broadcast outside the UK
• Tools which allow users to ‘rip’ content from on demand TV and music services such as iPlayer

MPs and Peers were today (Tuesday 26^th January) given a chance to see some of these tools and applications in action at a briefing entitled Principles and Practicalities of Copyright Protection, held in Westminster today (Tuesday). They also had the chance to hear from four organisations – Which?, Liberty, Consumer Focus and Open Rights Group – about the damaging effect of the Digital Economy Bill on human and consumer rights.

“The measures in the Digital Economy Bill will hasten the migration away from P2P, ignite the development of new tools and popularise the notion that stealing content is socially acceptable, akin to breaking the speed limit by one or two miles per hour,” said Charles Dunstone, chief executive of TalkTalk. “The inevitable consequence of persisting with this legislation will be to increase the moral chasm between labels and fans and between government and citizens.”

TalkTalk has published a series of case studies which show that people who develop tools which can be used to access content illegally are frequently not motivated by money. Rather, they are irritated by digital rights management (DRM) restrictions placed on content by labels and studios.

“Content owners really frustrate music and film fans by allowing material to be downloaded only to one device or used in only one format,” said Dunstone.

“Most fans grudgingly put up with it but some are smart enough to develop applications which allow content to be copied from one format or device to another. And that is the genesis of many of the tools which are currently out there. If the Digital Economy Bill becomes law, more tools will emerge and they will be simple enough for anyone to use.

“Copyright infringement is illegal. We do not encourage or condone it. But we live in the real world and it is clear that the Digital Economy Bill is futile and will only hasten the development of more beneath-the-radar tools and applications.

“The old model just cannot work in the digital age. Once content is digitised it effectively becomes freely and easily available to anyone who wants it. That is the stark reality the content industry has to confront.

“Record labels and film studios need to find new ways of persuading fans to pay for their content.  Those that can’t find new ways of making money in the digital age won’t survive. They will be replaced by new ventures which see the online environment as an opportunity rather than a problem.”

While some high profile artists such as Bono and Lily Allen have spoken in favour of disconnecting people accused of copyright infringement, other celebrities have registered their vehement opposition.

Stephen Fry has used Twitter to urge his followers to sign TalkTalk’s petition on the Number 10 website. At the time of writing the petition has been signed by almost 32,000 people.(2)

“I’m no defender of systematic deliberate criminal downloading,” said Stephen Fry, “but in my estimation the government’s proposed Copyright Protection Law is ill-conceived, constitutionally outrageous, morally unfair and epically foolish.

“This is not the way to protect and strengthen the creative music, film and TV industries – it is a way further to alienate and antagonise the very people on whom those industries depend.

“Large scale criminal P2P downloaders will certainly be smart enough to avoid attention while the innocent or small-time (most of whom are good customers) will be penalised without recourse to the due process of the law. I shake my head in sad disbelief that Britain could seriously be contemplating going down a path like this.”

Ends

For more information please contact

Steve Marinker

Citigate Dewe Rogerson

0207 282 2841

07779 031 936

Editors’ notes

1)       Harris Interactive for the BPI, February 2009

2)       TalkTalk has also run a competition, judged by Stephen Fry, calling for individuals to create content opposing the Digital Economy Bill. Entries can be found out:

www.dontdisconnect.us/category/competition

Paul Sanders doesn’t pull any punches when explaining how the current status quo doesn’t exactly help smaller artists:

“The market, despite all the hot air about Long Tails, has spent the last decade relatively over-rewarding the hits. If ISPs have been leeching cash out of the record business, as Bono contends in another piece of sophistry (”rich service providers, whose swollen profits perfectly mirror the lost receipts of the music business”), then the studies are showing that it is the middle that is being slimmed, leaving a longer thinner tail and almost as fat a head as ever. 

“….big companies have every reason to keep things just as they are. That means trying to make sure that consumers spend as much money as possible on as few tracks as possible. So while in the best value deals the wholesale rate per track is hovering around 20p, you are not allowed to buy more at the same price – in fact with Sky Songs the price goes up if you want more than 20 tracks per month. 

“So perversely, if the pain of filesharing is felt disproportionately outside of the hits market, then the biggest companies have no reason to swap what they have now for a market that would give the smaller labels more chances to get paid.”

And it’s not just Paul Sanders who disagrees with Bono. We spoke to musician/blogger/teacher Steve Lawson about Paul’s Register piece, who said:

“I think the piece in The Register was a fairly typical piece by someone in his position – rightly calling Bono up on the nonsense he’s talking, but still buying into the idea that the ideal endgame is a subscription model that would ultimately still lead to a gross inequity in the distribution of that money (how on earth is ‘usage’ going to be tracked in order to distribute the money fairly?). 

“I find the lack of foresight in the thinking of the record industry baffling – I guess it’s because they are resolutely thinking of themselves as the ‘record industry’ not the ‘music industry’ and even more so as an ‘industry’ rather than as some kind of conduit for culture.”

I’m not very well qualified to propose solutions to helping the music industry’s business model – our views are entirely based around seeing that our customers’ interests are looked after – but it’s clear that not all musicians feel the same way about filesharing. For example, Canadian singer-songwriter Dan Mangan has joined the likes of Shakira, Norah Jones and Nelly Furtado in saying that filesharing isn’t necessarily evil:

“I don’t mind people sharing my music, if downloading or pirating a digital format of a song brings someone to a gig and then they have a real face to face, human interaction, maybe they bring a friend, maybe they buy a t-shirt, that’s great for me. “Even though the music industry has changed so much and people are buying less CD’s, I refuse to believe that people don’t want to support art that they believe in.”

Like I say, we’re not here to propose how musicians can earn a fair crust (and we don’t condone illegal filesharing), but with the Digital Economy Bill ignoring the realities of the situation, it’s clear to me that trying to disconnect alleged filesharers simply isn’t a solution for the music industry’s wider problems.

Others seem to agree with me – in fact, some have come up with some pretty creative ways of getting the message across as part of our Sing Our Petition competition.

The U2 frontman is seriously misguided. ISPs generate no additional revenue or profit from customers sharing files. In fact we incur some marginal cost due to the extra bandwidth required.

It is outrageous to equate the need to protect minors from the evils of child pornography with the need to protect copyright owners. As a society we have accepted that it is appropriate and proportionate to intrude on people’s Internet use by blocking access to sites that host child abuse images. To suggest that sharing a music file is every bit as evil as child abuse beggars belief.

Incredibly, if the Digital Economy Bill as it is currently framed becomes law, it will become legal to summarily disconnect someone for alleged copyright abuse but if you want to disconnect them for accessing child abuse images then you will have to get a court order first.

The French have now abandoned plans to disconnect alleged illegal filesharers without a court order. This is a major victory for human rights campaigners and we trust Lord Mandelson will take note.

Most people think that blocking access to sites that host child abuse images is a good thing. Conversely, less than 10 per cent of us think that disconnecting alleged filesharers without a court hearing is a good idea.

Bono obviously does not understand how simple it is to access copyright protected content without being detected. P2P filesharing can be spotted (albeit at great cost) but there are dozens of applications and tools out there which allow people to view content for free and no amount of snooping can detect it.

If you think Bono is wrong then you can sign our petition.

And if you can put your opposition to the Digital Economy Bill into song or verse, then enter our competition.

Andrew Heaney

Stephen Fry has agreed to judge a competition to create a protest song, poem or other form of artistic expression against the proposed ‘Three Strikes’ law.

The law is designed to protect the music and film industry against copyright infringement but in doing so it threatens basic human rights, overturns the principle of presumed innocence and is likely only to ensnare innocent broadband customers whose Wi-Fi connections have been hijacked.

TalkTalk, the UK’s largest provider of broadband to homes, has run a vigorous campaign (www.dondisconnect.us) against the proposals, which are part of the Digital Economy Bill. The Bill has received its second reading in the House of Lords and will move to the Commons in the New Year.

More than 30,000 people have registered their opposition to the draft law by signing the petition on the No.10 website.

Now TalkTalk is offering a prize of £3,000 for the most creative piece of protest content. The competition is called Sing Our Petition but any form of artistic expression will be considered: mime, dance, song, sculpture, haiku… anything you like so long as it can be accessed online.

The competition is open to anyone via www.dontdisconnect.us/sing-our-petition and closes on 22nd January 2010.

Last month the singer Dan Bull posted a protest song on YouTube in the form of an ‘open letter’ to Lord Mandelson, the Secretary of State responsible for the legislation. This followed Bull’s hugely popular ‘letter’ to Lily Allen, an outspoken supporter of the Three Strikes law.

“Bull’s letters were inspired,” says Andrew Heaney, strategy and regulation director of TalkTalk. “Now we want to encourage others to express their opposition to the legislation. The intensity of support for our campaign has been impressive but we need to crank it up a gear or two if we are to stop these crazy measures from becoming law.”

Stephen Fry is a high profile opponent of the proposed three strikes law and has tweeted about it on several occasions. Stephen Fry says: “I’m no defender of systematic deliberate criminal downloading but in my estimation the government’s proposed ‘Three-Strike’ Copyright Protection Law is ill-conceived, constitutionally outrageous, morally unfair and epically foolish. This is not the way to protect and strengthen the creative music, film and TV industries – it is a way further to alienate and antagonise the very people on whom those industries depend.

“Aside from the skewed psychology and hilarious inappropriateness of major labels and studios leading a crusade for artistic freedom and independence, the planned legislation reveals a deep misunderstanding of the online world. Large scale criminal P2P downloaders will certainly be smart enough to avoid attention while the innocent or small-time (most of whom are good customers) will be penalised without recourse to the due process of law. I shake my head in sad disbelief that Britain could seriously be contemplating going down a path like this. I couldn’t be more pleased to be asked to judge this competition.”

TalkTalk’s main concern that have is the lack of any proper justification of the ‘technical measures’ such as disconnection of alleged infringers or filtering of traffic.  We think the measures are, in fact, unjustifiable.

To date there has been no proper analysis by the Government of whether such technical measures would be:

• proportionate and objectively justifiable – we think there are more appropriate penalties such as fines which are more suitable given the nature of the offence
• cost-effective – there has been no assessment of the likely costs (including harm to innocent people, reduced uptake and how it will discourage legitimate Internet usage) and the incremental benefits (that takes account of the efficacy and particularly the ease of avoid detection/’capture’).  To date there has been no cost benefit analysis of any technical measure
• compatible with the new Telecoms Package that access should only be cut off if it is “appropriate, proportionate and necessary within a democratic society” and other legislation such as ECHR

According to the process outlined in the Bill there is no requirement for any such proper assessment or analysis to take place.  The Secretary of State can decide to impose an order to introduce these measures based on whatever criteria they wish to use – this process is also particularly susceptible to ‘special pleading’ and lobbying by vocal interest groups.  We believe that the potential introduction of any technical measures is simply too profoundly important not to be subject to full, proper and transparent analysis and Parliamentary and public scrutiny.

The same lack of justification is even more true of the s17 clause.  It is such a broad ‘carte blanche’ that full, proper and transparent analysis and scrutiny is absolutely critical and must be based on primary legislation and full consultation.

The second concern is around the lack of sufficient due judicial process.  At the moment the Bill defines a process of appeals with no presumption of innocence (appeals are based on a presumption of guilt).  For such a severe sanction as disconnection and given the inability to accurately identify the actual offender (due to wi-fi hijacking) it is critical that there are proper protections against false punishment of innocent citizens.  The proposals are also inconsistent with the intent of the new ‘Internet Freedom’ clause and probably the letter of the clause as well.  For example, the text itself says “… measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed”.

The third concern is the absence of incentives (i.e. measures by copyright owners to encourage users to not infringe).  They argue that the only way that there will be a sustainable creative sector is if it adapts to the new realities of the Internet.  Given how easy it is to avoid detection the central pillar in any counter-infringement policy must be to encourage people to want to pay for content by offering attractive services and providing education on the impact of not paying.

The last concern is costs.  When deciding who should bear costs the most important principle is beneficiary pays.  The current approach where ISPs and by implication their customer pay some of the costs is inherently fair since innocent broadband customers are taxed to pay to protect the copyright of music labels.

• Click here for the Open Rights Group briefing.
• Click here for Liberty’s briefing.

Within 24 hours of Fry’s tweet on Sunday morning the petition, originally lodged by Andrew Heaney of broadband company TalkTalk, had passed 8,000 – more than the number of people who signed a petition to give Gurkhas the right to stay in the UK.

Fry claims to have introduced Lord Mandelson – whose Digital Economy Bill contains the anti-piracy measures – to the internet when he showed him his first website in 1997.

You can sign the petition against the filesharing proposals on the Number 10 website.