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 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

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.

The Bill proposes that the Government can introduce new measures to punish people they think are infringing copyright without having to prove their case in court. This so-called secondary legislation side-steps any debate, oversight or public scrutiny.

“We don’t support copyright infringement in any way but we live in the real world and understand that no amount of policing and censorship will solve the problem,” said Charles Dunstone, CEO of TalkTalk Group. “It doesn’t matter how many websites are blocked, how many services are shut down or how many individuals are pursued, people will always find ways to access copyrighted content for free.

“There is an army of ‘Robin Hoods’ out there developing tools which allow completely undetectable access to content. No amount of monitoring can spot it. Shut one service down and twenty will pop up in its place.

“As things stand, victims of Wi-Fi hijacking will be caught in the cross-hairs while the most persistent offenders will remain undetected.

“Until now the proposed legislation could be best described as unwieldy and ill-conceived. In addition it now looks to deny people freedom of speech and infringe their basic human rights. Current legislation allows for people to be taken to court and a case proved against them before action is taken and that must be maintained. ’’

TalkTalk believes that to reduce illegal filesharing, music and film fans must be encouraged back to legal services through education and by making content available in a form and at a price that people find acceptable. TalkTalk’s research shows that over 85% of people think there is not enough legal music and film content available on the Internet at a fair price.

In the meantime TalkTalk makes these pledges to its customers:

• Unless we are served with a court order we will not surrender your details to rightsholders. We are the only major ISP to have taken this stance and we will maintain it.
• We will continue to fight this draconian legislation as it makes its way through Parliament.
• If we are instructed to disconnect your account due to alleged copyright infringement we will refuse to do so and tell the rightsholders we’ll see them in court.

TalkTalk’s petition against the legislation and details of how you can make you voice heard can be accessed at www.dontdisconnect.us

The Government has used the Queen’s speech to confirm that it will press ahead with plans to disconnect illegal file-sharers.

The measures will be passed as part of the Digital Economy Bill, which will force ISPs to penalise persistent file-sharers.

PC Pro has the full story.

File-sharing site The Pirate Bay has shut down its tracker technology and replaced it with a new form of peer-to-peer network. The group claimed that the move was not down to a court order but because the technology is out of date.

The Pirate Bay will now move to a decentralised system to allow users to find peers. Tracking will be handled using Distributed Hash Table (DHT) or Peer Exchange (PEX) nodes, and torrent files will be distributed using ‘Magnet Links’.

V3 has the full article.

Forthcoming laws to reduce the level of peer-to-peer copyright infringement with threats of disconnection will affect “hardly anybody, other than the most serious and egregious recidivistic offenders”, according to culture minister Sion Simon.

The Digital Economy Bill, to be announced in the Queen’s Speech next week, will mandate a regime of notifications warning against illegal filesharing, followed by restrictions on bandwidth and possible suspension of the broadband accounts of those who do not stop.

The plans have attracted claims by consumer groups and ISPs that innocent people could lose internet access, an increasingly vital service. Mistakes are inevitable given many poorly secured Wi-Fi networks and flawed infringement detection procedures, they argue.

The Register has the story.

That is the view of telecoms and copyright lawyers contacted by TalkTalk, the UK’s biggest broadband provider to homes and a consistent critic of the Government’s plans to tackle internet piracy.

Their interpretation of the new EU Telecoms rules, agreed in Brussels on Thursday, deals a serious blow to the Government’s proposed anti-filesharing measures which allow disconnection without a proper legal process.

Scott Fairbairn, a specialist in telecoms and intellectual property law at CMS Cameron McKenna, said: “The recently agreed wording in the draft EU Telecoms Package is clear. Rights holders cannot act as judge and jury in these matters.

“They cannot simply instruct ISPs to disconnect their customers or restrict their internet connections. In no way can that be considered to be a ‘fair and impartial’ procedure as article 1(3)a of the new Framework Directive demands.

“At the very least there would need to be some kind of independent and impartial tribunal to consider the merits of each case. If such an essential safeguard is not part of the UK measures then BIS would be in contravention of the new European law.”

The EU agreement states that restricting a user’s internet access may only be imposed “with due respect for the principle of presumption of innocence and the right to privacy“, and as the result of “a prior, fair and impartial procedure…”

“I am extremely concerned that much of the UK government’s proposals as they stand would be illegal,” said Paul Brisby, a leading telecoms lawyer at Towerhouse Consulting. “For the UK to impose a requirement to cut off end-users without a prior hearing would not be permissible.”

Andrew Heaney, director of strategy and regulation at TalkTalk, said: “These European rules have now put into legal language what fair-minded people instinctively knew was right and just.

“No one should be disconnected from the internet unless it is established whether they broke the law through an impartial legal process starting with a presumption of innocence. The accuser has to prove guilt and if guilt is established then any penalty must be tailored to fit the individual circumstances.

“The need for a fair process is critical because the evidence that rightsholders use can only identify the broadband connection not the individual filesharer. This means that millions of account holders are at risk of being wrongly punished due, for instance, to unauthorised wi-fi hijackers using their connections.

“Although the new rules are not yet UK law, we call on the government to respect the spirit of what is intended and to drop its draconian plans to disconnect users without a proper judicial process.”

TalkTalk’s campaign against the proposed measures – www.dontdisconnect.us – has gathered considerable momentum. To date 1,615 people have signed the campaign’s petition on the No. 10 website.