Filesharing legislation and why it's unworkable

Seal of HM UK GovernmentAccording to leaked documents obtained by The Times, the UK government is planning a green (discussion/consultation) paper proposing strong action against “illegal file-sharing.” According to the leaked documents they want ISPs to take the primary responsibility for monitoring usage and to ban any of their users who continually share copyrighted materials without permission. Whatever your position on copyright enforcement in a digital age, this is a ludicrous idea.

Logistically such proposals will be almost impossible to enforce effectively. Setting aside the issue that many of us encrypt as much as possible of the data going out from our computers, it will effectively require ISPs to monitor all traffic going through their networks in a far more intrusive way than they currently do.

Most ISPs watch traffic and do some work to “shape” it to make sure that, say, email takes priority over bittorrent, but they can do that at a high-level without looking closely at the content of that traffic. Under these proposals they would have to track all the data moving between your computer and the internet, and piece it all together to detect any material that could conceivably be copyrighted. The privacy issues around that are startling, but the technical issues are only starting.

Once the ISPs have that data, they then need to work out if it is indeed copyrighted and have a mechanism for working out if their users have the rights to distribute it. If I rip the new Ratatouille DVD and stick it on bittorrent it’s fairly easy for them to identify that, and there’s a good chance I’m infringing copyright. But what if I’m a Pixar employee uploading it to an online storage site so that I can pass it along to selected technical or media contacts? Or how’s about an event like Greenbelt were to ask a group of us to make a new promotional video available? That would probably contain multiple copyrighted items under an appropriate license, but torrents may be the most appropriate distribution mechanism and volunteers (rather than staff) may be the best people to get it out there.

In either case, there’s the hassle for me in having to provide a paper trail to my ISP each and every time I want to do something that might appear slightly suspicious, and of course there are the ISPs who will have to be able to process that paper trail, check its veracity, and potentially then provide an audit trail on up to whoever manages the regulations. They’re going to have to charge me more in order to cover those costs, and I’m going to have to put in a lot more effort to perform tasks that are currently simple and will remain entirely legitimate.

TechCrunch UK is among the commentators wading in to criticise the plans. Their technical argument is similar to mine, but the economic one is quite different. Whether or not music ends up mostly being available for “free” there are numerous issues we’ll need to address, particularly that while the cost of distribution may come down that is only part of the cost of production.

Regardless, this issue stretches well beyond music, and the point stands that this is an example of government’s response to new challenges being driven by the desires of companies about to go out of business, and not by a real desire to engage with the future of the creative industries.

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