In the last 10 years we’ve seen an unprecedented shift in the way that people listen to, and access, music. But is it really fair to place responsibility for monitoring illegal downloads on internet service providers? asks Browne Jacobson’s Nick McDonald

Fifteen per cent of music purchased globally is now bought digitally and downloaded, according to a recent IFPI Digital Music Report. It estimates that global digital music sales in 2007 totalled £2.9bn, an incredible figure given that digital music only became widely available for purchase in 2004. This shift in behaviour creates problems for rights holders; particularly as the rise in legal downloads is set against a sharp decline in CD sales and an exponential rise in illegal downloads. That these illegal downloads often take place via peer-to-peer protocols, which allow individuals to connect to each other and share content, rather than download content from a central source, makes the process much more difficult to regulate.

Frustrated by failed attempts to control and prosecute illegal downloaders, and concerned by drops in legitimate revenue, major record labels are now looking to shift legal responsibility for the activities of their customers on to internet service providers (ISPs). The idea is that, since ISPs ultimately control internet access, making them liable for infringement will result in more effective policing.

Initiatives for change
The law is already developing in line with this school of thought. The EU’s Copyright Directive, implemented in the UK through the Copyright and Related Rights Regulations 2003, gives the High Court the power to grant injunctions against ISPs where there is actual knowledge of a third party using its services to commit a copyright infringement offence. Such knowledge can be effected through a notice to the ISP from the copyright owner. The Electronic Commerce (EC Directive) Regulations 2002 require ISPs to provide such contact details so that notices can be served.

However, many music industry lobbyists are calling for the law to be changed further and it seems that governments are listening. In 2007 France began to take firm action in relation to ISPs. A commission led by Denis Olivennes, the CEO of FNAC, France’s largest retailer, has developed a scheme that has received the backing of the French President Nicolas Sarkozy. The ‘Sarkozy Agreement’ essentially involves a three-way pact between ISPs, the French government and rights holders, under which illegal downloaders will be warned by email for illegally downloading music, and ultimately have their accounts suspended or terminated.

Meanwhile, in February 2008 the UK government launched a Green Paper on the Creative Industries, which advocates a similar ‘three strikes and you’re out’ policy, in which identified illegal downloaders are first warned, then suspended and then ultimately banned from using the internet by their ISPs. Similar initiatives are also being launched at a European level. The EU Telecommunications Package, agreed by MEPs last July, requires national regulators such as Ofcom to promote ‘cooperation’ between ISPs and parties ‘interested in the protection and promotion of lawful content’, which arguably requires such regulatory bodies to force ISPs to become regulators of consumer behaviour.

It is unclear just how ISPs would monitor illegal downloads. Certainly they would have to implement robust and complex structures of administration to effectively track all illegal downloaders of music.

It seems that, in the UK at least, ISPs are getting the message. The British Photographic Industry (BPI) has lobbied hard over the last year for ISPs to be given more responsibility for customer behaviour. The BPI recently teamed up with Virgin Media to send hundreds of letters to Virgin’s customers identified as allowing their internet connections to be used for file-sharing. In July, it also announced that it had come to a ‘groundbreaking’ agreement with Tiscali, Virgin Media, BT, Orange, Carphone Warehouse and Sky, in which the major ISPs will cooperate to write to customers indulging in infringing behaviour.

Although it would seem that the agreement has not come about without some serious pressure from the BPI (Carphone Warehouse has allegedly been threatened with court action by the BPI), it clearly has its limits: Carphone Warehouse has publicly stated that it will not cut off internet access nor divulge customers’ information without a court order.

And while there is no doubt that the internet has been something of a ‘Wild West’ since its creation, and greater regulation is both desirable and inevitable, it is questionable whether ISPs can actually solve the problem. Firstly, the sheer volume of illegal downloading could mean that ISPs could be forced to suspend or terminate the accounts of millions of people. Presumably, the hope is that such harsh penalties would result in an immediate and drastic change in consumer behaviour. Certainly it would need to, or a dramatically high percentage of internet users could find themselves suspended or banned from internet access.

It is also unclear just how ISPs would monitor illegal downloads. Certainly they would have to implement robust and complex structures of administration to effectively track all illegal downloaders of music. The exercise would be neither cheap, nor simple, and clear parameters would have to be given to the extent of enforcement. Even once tracked, it is not always certain that the identified party is to blame, with users now able to ‘WiFi piggyback’ on other users’ pre-paid wireless networks.

Another issue is how infringers can be prevented from simply registering with a new ISP. A system of data exchange would need to be implemented, which has precedents in the insurance industry, but would require unparalleled cooperation between competitors and exchange of customer lists.

A viable solution?
But this move also sets up a potentially vigorous debate as to just what the legitimate interests of consumers are: Do they extend to a right of access to free music? And why is music commoditised at all in an age where it can be freely distributed?
Rightly or wrongly, customers have gotten used to getting their music for free. Removing that access will create an almighty brouhaha, in which the legal basis for action will be tested to its limit. Given the necessarily invasive strategies that ISP-related action will require, that legal basis cannot be put forward with absolute confidence.

Clearly, the only way to genuinely tackle illegal downloading is to change the culture of illegal downloading, and that means persuading customers to see copyright infringement as what it is: theft. That a whole generation of music listeners has now grown up expecting to access music for free makes that a difficult proposition; particularly when you consider that many top artists share that view and give their music away freely.

It is undeniable that compulsion as well as persuasion is required to change this culture. However, the use of ISPs to enforce the law seems flawed on a number of levels. It is likely that this is the first skirmish in what may be a very long war.


This article first appeared in IP Review, issue 23

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