Understanding the Memorandum of Understanding

As British ISPs enter into a Memorandum of Understanding with the recording industry to deliver warning letters to file sharers, it seems there is as yet no real understanding of what will take place in the event that these are not effective in deterring the illegal sharing of music.

What began as something along the lines of a three strikes policy now appears to be something altogether different.

British Music Rights, who represent music artists in Britain, have categorically stated in recent days that they do not intend to disconnect file sharers from the internet. Whilst from the outside this looks to be an act based on an understanding of the wider implications for the youth of the country who are dependent on internet access for many everyday activities including research and study, the head of BMR Feargal Sharkey, has noted that it is very difficult to sell digital music at all when the industry’s core consumers are disconnected. So while many worthy arguments have been made as to the likely impact and need to avoid a three strikes policy, in doing so the music industry have simply acted based on self interest.

The question remains as to what will happen once the warning letter process has been exhausted. With an estimated 6.5 million illegal file sharers in Britain it is inconceivable that a mass litigation campaign will work or raise music industry profits.

A more likely approach at this stage appears to be a throttling of users accounts to restrict their downloading and uploading capacity – but I question whether this will simply mean that users change ISPs or in family/share house situations, simply cycle their accounts to another household member. It seems many have overlooked the fact that only six of Britain’s ISPs have actually agreed to take part to date.

Interestingly, it was only a month or so ago that research conducted by the BMR demonstrated that the vast majority of users (80%) would prefer to pay a monthly fee for access to music. Despite this, BMR have stated that a blanket licensing option is not being considered, indicating that the pool of money and the need to negotiate raises in the fee payable were inconsistent with the needs of the music industry.

According to BMR, the more plausible third attribute of this process will be content filtering. This is something that has been discussed a number of times in the past, and more recently in Australia with respect to content deemed inappropriate for minors.

The Australian Media and Communications Authority released a report yesterday detailing the results of their closed content filtering trials with six products being tested for their ability to block file sharing protocols altogether and to block web pages. The products tested were not able to identify the content of the material being shared on file sharing networks which begs the question as to whether file sharing networks will simply be blocked in their entirety.

As has been pointed out repeatedly, file sharing networks have many lawful uses. Were the Australian or British governments to insist on the complete blocking of file sharing at an IPS level, there would be numerous consequences for many industries particularly the software and film industries.

It seems at this stage that there is actually very little understanding of what the memorandum of understanding in the UK actually means or what the next steps will be from here. When one considers the likely impact of these policies as alternatives to a blanket or voluntary licensing scheme, whilst imperfect in its own right, in context it seems the much better option than what has been proposed here.

To date all the British ISPs have agreed to is to forward on warning letters but is seems only a matter of time before BMR and others argue the case for further action.

Further Reading
ZeroPaid, Leaked British Government Letter - P2p Will be Cut by 80% (27 July 2008) <http://www.zeropaid.com/news/9652/Leaked+British+Government+Letter+-+P2P+Will+be+Cut+by+80%25> at 28 July 2008

ZeroPaid, UK ISPs Surrender, Agree to Fight P2p Piracy (24 July 2008) <http://www.zeropaid.com/news/9649/UK+ISPs+Surrender%2C+Agree+to+Fight+P2P+Piracy> at 28 July 2008

TimesOnline, Parents to be punished for children’s net piracy (24 July 2008) <http://technology.timesonline.co.uk/tol/news/tech_and_web/article4387283.ece> at 25 July 2008

The Register, Feargal Sharkey on the ISP filesharer MoU (24 July 2008) <http://www.theregister.co.uk/2008/07/24/feargal_music_isp_mou/> at 28 July 2008

Digital Music News, British MoU Starts Rolling; Sharkey Says No ISP-Level Blanket (28 July 2008) <http://www.digitalmusicnews.com/stories/072708uk> at 29 July 2008

ZeroPaid, UK ISPs Threat Against File-Sharers - Will B&P Be the Way of the Future (28 July 2008) <http://www.zeropaid.com/news/9654/UK+ISPs+Threat+Against+File-sharers+-+Will+B%26P+Be+the+Way+of+the+Future%3F> at 29 July 2008

Slyck, BPI and ISPs Agree to challenge P2P Piracy in the UK (24 July 2008) <http://www.slyck.com/story1720_BPI_and_ISPs_Agree_to_challenge_P2P_Piracy_in_the_UK> at 28 July 2008

ZeroPaid, UK ISPs Surrender, Agree to Fight P2p Piracy (24 July 2008) <http://www.zeropaid.com/news/9649/UK+ISPs+Surrender%2C+Agree+to+Fight+P2P+Piracy> at 28 July 2008

TechDirt, UK ISPs Move Down The Slippery Slope Of Becoming Copyright Cops (24 July 2008) <http://www.techdirt.com/articles/20080724/0413391778.shtml> at 28 July 2008

Digital Music News, British ISPs Agree to Massive Letter-Writing Campaign (24 July 2008) <http://www.digitalmusicnews.com/stories/072308bpi> at 25 July 2008

ArsTechnica, Survey: young people happy to pay for music—on their terms (16 June 2008) <http://arstechnica.com/news.ars/post/20080616-survey-young-adults-willing-to-pay-for-musicon-their-terms.html> at 18 June 2008

The Register, 80% want legal P2P - survey (16 June 2008) <http://www.theregister.co.uk/2008/06/16/bmr_music_survey/> at 17 June 2008

ZeroPaid, Music Industry Study: 80% of UK Youth Want Legal P2p (17 June 2008) <http://www.zeropaid.com/news/9560/Music+Industry+Study%3A+80%25+of+UK+Youth+Want+Legal+P2P> at 19 June 2008

Public Knowledge, RIAA wants content filters and proposes spyware too (6 February 2008) <http://www.publicknowledge.org/node/1388> at 8 February 2008

TechDirt, RIAA Says Copyright Filters Could Be Put In Anti-Virus Software (7 February 2008) <http://www.techdirt.com/articles/20080207/131223199.shtml> at 8 February 2008

Australian Communications and Media Authority, Closed Environment Testing of ISP-level Interent Content Filtering (28 July 2008) <http://www.acma.gov.au/webwr/_assets/main/lib310554/isp-level_internet_content_filtering_trial-report.pdf>at 29 July 2008

ZDNet, BitTorrent hole in ISP filter tests (28 July 2008) <http://www.zdnet.com.au/news/communications/soa/BitTorrent-hole-in-ISP-filter-tests/0,130061791,339290888,00.htm> at 29 July 2008

ZeroPaid, P2p ISP Filtering Test Published, Labels Deny Ensuing Criticism (17 April 2008) <http://www.zeropaid.com/news/9409/P2P+ISP+Filtering+Test+Published%2C+Labels+Deny+Ensuing+Criticism> at 26 April 2008

TechDirt, Turns Out P2P Filters Don't Actually Work (1 April 2008) <http://www.techdirt.com/articles/20080328/135304687.shtml> at 3 April 2008

ArsTechnica, "Year of filters" turning into year of lawsuits against ISPs (11 March 2008) <http://arstechnica.com/news.ars/post/20080311-year-of-filters-turning-into-year-of-lawsuits-against-isps.html> at 18 March 2008