Following recent comments by a government official suggesting that legislation may be needed to force internet service providers into a crackdown on unauthorised file-sharing, the Federation Against Software Theft contacted ZDNet.co.uk to put its case across.
In an interview on Monday — based largely on readers' submitted questions — Fast chief John Lovelock denied that he wanted to target small-time file-sharers of copyrighted material, but insisted that it should be possible to ban serious offenders from any internet usage without having to go through the courts.
Q: What is Fast's reaction to Lord Triesman's comments?
A: Before Lord Triesman got involved with it, there was Andrew Gowers. In his recommendations last year [he called for] an industry agreement on protocols regarding sharing data between ISPs [internet service providers] and rights holders. He said that, if this had not proved successful by the end of 2007, then the government should be prepared to legislate.
We've run a couple of operations where we've gone out to the P2P file-share networks, looking for our members' software being made available. In the first operation we found about 135 people making our members' software available to share for free. From there we had to go to court and get a court order because they were individuals. Obviously the court had to be satisfied that we had evidence to prove the full file was available. We had to download screen-grabs and use an atomic clock to demonstrate the time of day, so we could go to the ISP with the IP address, so they could search their logs and tell us it was "Joe Soap".
Then we wrote to these people saying: "You've been found guilty" — sorry — "Evidence has been found of you file-sharing software which you don't have the right to do in terms of the licence agreement. So we'd like you to pay up for the software, contribute to the costs and say you won't do it again." Some [agreed], some didn't — so we gave them another opportunity to do so. Eventually we took one person to court and got a summary judgement. They just didn't turn up [in court], so they were found guilty in absentia and the judge awarded us £3,500.
To go to so much trouble, go through the courts and get a court order against the ISPs to give information on people performing illegal activities is an awfully long-winded, archaic and very expensive way of protecting people's intellectual property. So what Gowers said is that the ISPs should work closer with the rights holders to make a simpler methodology to track down people using the networks for illegal activity and either bargain or give details to agencies and stop them doing it.
As one of our readers pointed out, copyright infringement is a civil issue rather than criminal — surely you should have to go through the courts?
If we want to take action against individuals, you are right. But we would prefer to collaborate with ISPs. I think where it can be demonstrated to the ISPs that there is evidence which would be admissible in a court of law, but [rights holders' representatives] are happy to provide it to you as a service provider to demonstrate that Joe Soap is using your network for illegal activity, we would ask you to ban him from using your internet connections.
If there's evidence of that person then joining another ISP and then taking up again, we would go to that ISP and say: "Here's the evidence and we don't think they should be allowed to use your network."
Are you arguing that Fast should be legislated to have a right to ban?
Not us at all. We would provide the same evidence we'd have to provide the courts. We would provide that evidence through bona fide forensics experts who would normally stand up in court. That evidence would be provided to the ISP's legal department. If it were child pornography, there would be no question at all about that person being barred…
But you are now talking about a criminal activity.
We wouldn't be taking legal action. All we'd be doing is providing evidence to the service provider that people are providing illegal activity, the same as with a car boot sale where Trading Standards might go to the organisers [to make them aware of illegal goods being sold there].
Is it actually practicable to ban someone from using the internet?
I don't know. That's a proposal or thought that I'm sure can be built on, like anything you brainstorm. The whole of...
If you are not saying you want to ban people from the internet completely, then what are you saying?
We're not saying we're not trying to ban people completely. If they are serial file rippers, they are clearly not just people doing it to be mischievous. This is an industry out there and people are using it as a livelihood to rip off people's genuine livelihood.
If we have the evidence, then I do say ban them from any internet use and let them be black sheep. We're not talking about the 14-year-old or the student who makes a couple of copies — we don't have the resources for that — but the serious people. Then we'd be going some way towards protecting an industry that's very important to the economy.
What is your opinion on the recent case in Belgium where a judge ordered an ISP to actively monitor its users' P2P activity?
I'm not sure that is possible. We're not advocating that the ISPs have to monitor what's going across their networks. We're asking them to co-operate with us and ban people from using their networks, and make a register amongst themselves of people where they have been [found out]. If [rights holders] all reported [such activities] to ISPs and they get the same names [recurring] at the top, and you take away the vehicle they're using, then they can't go robbing banks.
What's to stop them reregistering under a false name or using a proxy?
That's a difficult one — I'm not sure about the technology. On some auction sites they have a paying mechanism where users can't provide the wrong information, so they can always track back to bank accounts — although I'm not sure that would work with ISPs.
What about where people are sharing an IP address?
This has not been totally fleshed out. There are questions all the way down the line. Like any legislation, it would have to evolve. We haven't sat down at a roundtable and aired these kinds of views. We're just saying: "What about if you did this?"
If someone was banned without having been found guilty by a court, wouldn't they have a strong argument that their civil liberties were being infringed upon?
How do people in the insurance industry have difficulty getting insurance? Because they are proven to be a bad risk. And, if this person is a risk to your particular business, although they haven't been found guilty, are you wanting to associate with them? Yes, they haven't been found guilty, but evidence shows that they have been using it for illegal activity, civil though it may be.
The same evidence could be used in court and we could get the lawyers together and they would discern that evidence could be held up in court. We don't want to go to court, we don't want to take every single individual that is caught to court, but we want to try and nip it in the bud without having to resort to legislation and court costs.
We don't want to know who the subscriber is. We just want to say: "If we provide enough evidence to the ISP, will you take action against these people? We don't want you to divulge personal details, because the Data Protection Act says you can't do that anyway without a court order. We want you to take action and deny them the use of your networks and then they have no business left." We're never going to eliminate it, only chip away at it.
What is your opinion on the tactics used by the Recording Industry Association of America (RIAA), which has become, some would say, notorious for going after individuals to make examples of them?
I couldn't comment at all — what goes on in American law is totally different to what happens here. Fast is inward-facing and all we want to do is what is right for our members and the economy.
Does Fast have any quantifiable data on the damage inflicted on the UK software industry by unauthorised file-sharing?
I don't think we separate it in terms of whether it takes place over the internet or in business, but the loss is around £1bn per annum just in the UK because of people not paying for the software they are using. In terms of the IP industry in general… the loss is £9bn per annum.
But does that take into account the fact that some people who illegally download material might not otherwise buy it anyway?
There is no empirical evidence that says that, because they've downloaded, they would have bought the original. That's a very difficult question to answer.