UK ISPs to warn file-sharers, but then what?

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Let’s see how many acronyms I can squeeze into this lede. In a deal brokered by the BERR, BPI (the UK version of the RIAA) announced that six leading ISPs had agreed to send warning letters on behalf of the labels and the MPAA to people suspected of illegal p2p downloading. BERR is the UK government’s Department for Business, Enterprise and Regulatory Reform, which is analogous to the U.S. Department of Commerce. Essentially, pressure from BERR and the threat of legislation motivated the ISPs to stop stiffing the BPI and start compromising. But today’s deal involved a relatively painless concession for ISPs. A more interesting question is what enforcement mechanisms, if any, the ISPs will put in place to give the warning letters teeth.

Judging from a study earlier this year by the UK firm Entertainment Media Research, simply sending letters should have a measurable impact on piracy. A survey of 1,600 Brits found that 70% would stop unauthorized downloads if they received a warning from their ISPs. And 66% said they’d stop completely if they had a better chance of being caught, which is the kind of caution that a warning note could bring. (A sample letter from Virgin Media, which had already agreed to work with BPI, is here. You can read the BPI’s preferred version here.)

But as much as the ISPs would like their work to end with letters, the labels want more. In particular, they want accounts that appear to infringe repeatedly, in spite of an initial warning or two, to be suspended or have their bandwidth reduced. The UK telecom regulator Ofcom will work with the copyright holders and ISPs over the coming months to try to bridge that (very wide) gap on enforcement procedures.

Once the system involves more than just warning letters, however, the imprecision of the methods used to identify infringers becomes much more troublesome. The only thing the contractors used by the BPI and the MPAA can identify with reasonable certainty is the IP address supplying files for downloading. They can’t say who was using the computer at the time, or even where the computer was located (with WiFi routers, it could have been in a neighboring house or apartment). And the IP address could prove to be inaccurate, too. The deal announced today doesn’t include any provisions for contesting warning letters, so that’s probably a good place to start the next round of discussions.

The labels and Hollywood studios have been trying to enlist the ISPs for years in their campaign against illegal file-sharing, to little avail. I think it’s fair to say the ISPs’ stance has contributed to the RIAA’s sue-first, ask-questions-later approach to individual infringers. The labels can’t identify the people whose accounts show signs of infringing activity without filing a John Doe lawsuit against them. As a consequence, the first notice many people get of suspected infringement on their accounts is a letter telling them the RIAA was poised to sue and demanding thousands of dollars in settlement. The exception is college ISPs, many of which send warnings to students after receiving take-down notices from copyright holders. That’s not intended as a defense of the RIAA’s tactics, just some perspective on the environment the labels have been operating in.