The government risks opening a can of worms...
Politicians are threatening ISPs with penalties if illegal downloading doesn't stop. But legal liability cannot rest solely on ISPs' shoulders, argues lawyer Simon Levine. To do so would undermine a central tenet of ecommerce law.
The government today told ISPs to crack down on online piracy or face legal sanctions. But the proposals outlined in the creative industries green paper raise more questions than they answer.
ISPs and piracy: Key issues
1. Protecting privacy: can the internet be policed without impinging on the rights of legitimate users?
2. Mere conduits versus active arbitrators: what is the liability of ISPs in relation to illegal activity.
3. A catalyst for crime? A Draconian approach could increase the sophistication of illegal downloading.
Culture secretary Andy Burnham clearly thinks the spread of online piracy dangerously undermines the entertainment industries and dilutes the value of copyright law.
His thinking is ISPs ought not to escape some level of liability given they ultimately reap the financial benefits of such internet traffic.
But an attempt to turn ISPs into gamekeepers, whether via a three-strikes system or other block-and-stop methods, is not the full answer.
Quite apart from posing a potential contradiction to wider privacy and data protection law, these proposals will be very hard to implement and enforce.
Any legislation to enforce these proposals would require an inordinate level of potentially indiscriminate digital surveillance and policing from ISPs. Not all aspects of file-sharing are illegal and distinguishing the legitimate from the malicious will not be easy.
To avoid branding all file-sharers as criminals, blocking techniques will need to become more sophisticated and closely regulated.
In particular, if the government adopts a three-strikes system, where a warning is followed by temporary suspension and ultimately full termination of internet access, it would need to be very carefully targeted at each stage to avoid wrongful persecution.
Certainly, ISPs should discourage illegal activities - and indeed should face financial penalties or other sanctions for letting piracy occur. But the full weight of moral responsibility, technical investment and legal liability cannot lie solely on their shoulders.
To do so would undermine a central tenet of current ecommerce law and turn ISPs from conduits into active arbitrators, opening a can of worms that digital lawyers may never be able to close.
Such negotiations have been underway between the music and film industries and individual ISPs for a few years now but the practicalities of the process are still far from formalised.
While data can be made available to prosecute transgressors in court, representatives have yet to determine just how - and how much - information would be shared among ISPs.
Perhaps most concerning is the potentially energising effect full-on coercion may have on the pirates themselves. Clamping down on accessibility may simply force illegal file-sharers to find subtler and more sophisticated ways to distribute and share copyrighted material.
It may lead, for example, to more unsuspecting surfers having their unsecured networks infiltrated by enterprising wi-fi piggy-backers.
French president Sarkozy's early moves to introduce a three-strikes system set a potentially interesting precedent but surely we should learn from the experiment rather than immediately follow suit. The dust needs to settle.
The prospect of monitoring and blocking internet usage that this consultation ushers in presents a significant shift in the very ethos of the web. As it stands, neither the rights' owners nor the ISPs are ready for this watershed - or are likely to be able to cope in its aftermath.
What is clear is that wholesale solutions are not the answer; a combination of stick and carrot is required. Only when the industry is acting unilaterally and accepts a shared responsibility for piracy will it have any hope of enduring against it.
Simon Levine is joint global head of the Technology, Media and Commercial Group at DLA Piper. DLA Piper is the world's largest global legal services organisation with more than 3,600 lawyers across 64 offices and 25 countries. Its award-winning technology, media and commercial practice employs 70 partners specialising in IT, telecomms, media, sport and IP law. Experts in convergence between the technology, communications and media sectors, it advises some of the world's leading multinational sport, media, technology and entertainment companies.