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).

As usual, Twitter provided an interesting barometer for views:

MikeKevan: The one sidedness of last nights panorama was dissapointing, felt more like scaremongering than reporting. BBC I am dissapoint.

@PiratePartyUK: #FALSE: “bittorrent means piracy” – bittorrent is an entirely legal protocol, like ftp. #debill #panorama

Growkin: the people on the panorama show are idiots “the kids take our work laptop and do what they want” IT IS YOUR WORK LAPTOP!!!
RossHaffenden: #Panorama “why don’t your go on Itunes ?” “because it costs too much”. Illegal downloaders spend twice as much on music etc SURPRISE? NOT!

The Open Rights Group’s Jim Killock felt that a lot of the programme missed the essential point: people’s rights not to be disconnected. On the ORG’s blog, he said:

This perspective was curiously underplayed in the Panorama broadcast yesterday. Instead, we mostly listened to a discussion between different musicians worrying about the future of their industry.

While that’s a concern – and the central concern of the BPI – our concern is our rights, democracy, and the future of our society, which is being built on the internet. We do not withdraw the basic tool of society without the most extreme reason. We certainly do not do such a thing without a massive public and democratic debate.

For close followers of the filesharing/music rights debate, there wasn’t anything new in the Panorama episode. Most users interviewed said they regularly used download services, although it was pointed out that filesharers spend more on music than non-filesharers. Andrew Heaney was clear about TalkTalk’s position on filesharing: “If the Secretary of State requires us to cut someone off, we will refuse to cut them off, unless a court has taken the decision that that subscriber did something wrong and they are guilty.”

Check out Panorama on iPlayer and make your own mind up. In the meantime, here’s our song: “Home Taping Is Killing Music”.

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.

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.