ISPs agreement on illegal file sharing could roll out across other sectors

An agreement by six UK ISPs to work with the entertainment industry and government to reduce illegal...

An agreement by six UK ISPs to work with the entertainment industry and government to reduce illegal file-sharing, could become a model used across other sectors, according to an intellectual property lawyer.

BT, Virgin, Orange, Tiscali, BSkyB and Carphone Warehouse have agreed to collaborate on a voluntary code of practice on handling illegal file-sharing.

Paul Tomlinson, associate at law firm Berg Legal, said although the agreement, which is in the form of a Memorandum of Understanding (MoU), is an unusual approach, the government could introduce it to achieve compliance on issues it identifies in other industry sectors.

He said if the MoU works by addressing the problems and eliminating illegal activities, the government will use this approach as a template.

"This approach saves the government the time, trouble and hassle of pushing legislation through parliament," he said.

In February, the government said in a report on supporting creative industries stemming from the Gowers review into intellectual property that if ISPs could not reach a voluntary arrangement on curbing file-sharing by April next year, the government would push through legislation.

The benefit of this "carrot and stick" approach for the ISPs, said Tomlinson, was that the industry would have some influence on how it is to be regulated in future.

While embracing the chance to be involved in the process, ISPs have been quick to say they will not be monitoring the way customers use connections.

A Virgin Media spokewoman said, "We share the government's desire to address the issue of online copyright infringement without infringing our customers' rights," which echoed statements by other signatories of the MoU.

Charles Dunstone, chief executive at the The Carphone Warehouse Group, said, "We will not divulge a customer's details or disconnect them on the say-so of the content industry."

He said the ISP would work with rights holders to develop a "sensible and legal approach" founded on protecting consumer rights and privacy."

Kim Walker, partner at law firm Pinsent Masons said, "It is interesting that it is the rights holders that are policing the content."

She said ISPs were unlikely to want to get involved in policing for technical as well as legal reasons.

"It was never going to be easy for ISPs to do it because they always sheltered behind the 'mere conduit' safe harbour defence," she said.

According to European e-commerce regulations enacted in 2002, ISPs are not liable for copyright infringement if they act as 'mere conduits' for illegally shared content.

Walker added that Ofcom's involvement means that the problem of sanctions is taken out of the hands of ISPs.

"It would rather indicate to me that Ofcom might end up having to advocate some kind of change in the law to make it easier for everybody to take action without ISPs violating their terms and conditions," she said.

As part of the agreement, ISPs will take part in a test to write to customers to tell them that rights holders such as music or film companies are alleging that their broadband connection has been used to illegally offer content for upload.

Rights holders will identify the IP addresses of offenders that are visible on file-sharing sites or that are collected through honeypot sites set up by the industry. The IP addresses will be passed on to the ISPs who will connect them with users and send out letters.

The ISPs will now meet with government to draw up a code of practice and agree on ways of dealing with repeat infringers such as blocking content to certain users or limiting the download speed of their internet connection.

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