Ofcom and its Code of Practice

Ofcom's got some "great" plans for the code of practice and letters for the suspected filesharer on a three strikes policy. Its going to be a big job, its going to be costly. Guess who will end up paying?

It’s been a busy few months here in the (now) sunny UK.  Not only did we see the Digital Economy Bill rushed through parliament but also a coalition government with allegedly the liberal democrats wanting to get rid of it with the conservatives seemingly quite happy with it.

It is now being reported that Ofcom is drawing up plans for a code of practice to create logs of users who are alleged to infringe copyright which will include when, where and what was being downloaded.  Now apparently it will take three written warnings before the companies concerned can take action in regards to the list, although is this as well as or instead of a out of court settlement warning letter?

The consultation process that Ofcom has started is allegedly due to end on June 30th and the new “code” of practice expected to be in place by 2011.

Jim Killock of Open Rights Group has reservations and makes very valid points.  Taken from his article:

ORG and other groups have been willing to accept the principle of letter writing, but this current consultation shows the weaknesses in the legislation that was rammed through in the dying hours of the last Parliament. Already the Act threatens to punish innocent people with additional, unwarranted costs and bars to clearing their name.

Going back though to the matter at hand, it is reported by the BBC that Ofcom said the warning letters would be:

….easy to understand information on the nature of the allegations made against the subscriber and on what actions a subscriber can take, both to challenge the allegation and to protect their network from being hijacked for the purposes of infringement.

Which seems fine until you read rumors that internet users may be footing the bill for these warning letters.

Allegedly its only the “big” ISP’s to be running this “scheme”, that being BT, Talk Talk, Virgin Media, Sky, Orange, O2.  I wonder, when Virgin Media is pimping its super-fast broadband, what it considers its end users intentions with it?  It seems to me that the ISP’s are quite happy to sell you superfast broadband without a care what you do with it….afterall its you not them on the end of a court case should you be accused wrongly or not.

So now I consider the following questions which are not clear, as is always the case when government tries to get involved in IT.  Firstly, What counts as your first strike? is it against a company or infringement in general?  For example does something get 2 strikes at Warner Brothers material and another 2 at EMI before further action is taken?   What technology is being targeted here? is it bittorrent, p2p in general or are the binaries fair game too? What about IRC?  Thats one hell of a list and one hell of a piece of monitoring software.  How will they validate that a download is actually infringing copyright?  and what about a downloader of an album? would they be counted per track or per album?  Thats hardly fair if another user has a “strike” against them for downloading a single track.  But most importantly of all, who is going to be footing the bill for this logistical nightmare? – I think its an easy guess who.

In respect of this new “scheme” the BBC is reporting that this will also involve:

promotion of legal alternatives to file-sharing networks and targeted action against the most persistent offenders.

Although maybe consideration should be given to also promoting FOSS too? Of course Im sure the very companies now making noises about piracy (looking to Microsoft here) might not be very happy if people are told that there are legal free alternatives to their product range…..so maybe this code will just forget about the mentioning FOSS part.

I’ve said all along the DEB will be trouble.  Unfortunately while some worry about wrongful accusations and the ideology that you can’t steal data, I worry about who is going to pay for all this logging/detecting and letter writing. I wonder who?

I’ll tell you who, you and me.

One thing though this news must be good news for FACT, because P2P tech threatens to take away the pirate DVD market stall if the new “code of practice” makes it “too hot” for P2P users then I would expect those not frightened to take the risk will be raking in profit as they sell the copied titles on the street.  So for FACT the revitalised industry of pirate DVD sales will make the work flood in….happy times ahead Im sure.

I get fed up with saying it,  copyright infringement can be greatly reduced.  This is not the way to do it.  But who cares if it doesn’t work? You are paying for the experiment….theres always next year.

Goblin – bytes4free@googlemail.com

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20 Comments Add yours

  1. moomin says:

    Screw the digital economy bill, they wont stop piracy we iz the biz they wont sell stuff if it wasnt for piracy.

    Long live the Pirate Bay!

    1. Zoolook says:

      I am surprised by the statement that it is unfair if you download a single track and get a “strike” but someone else downloads a whole album will also only get one “strike”.

      If your caught downloading (or in possession of) such material, tough… Each case is wholly independent to every other case (surely a requirement under law anyway), and as such, a minimum strike of 1 is the only fair penalty.

      If you want to stand up in a court of law and fight a case saying that “such and such got a full albums and only has 1 strike, so I should only get 0.15 of a strike.” I think you’ll be sadly disappointed! If your not happy to accept a one strike per court appearance/letter/whatever, then simply don’t engage in the criminal act!

      1. openbytes says:

        I think you either misunderstood or it was my mistake for not making it clear. What I meant by the statement was to highlight the many facets of this code which further muddy the waters…is the “strike” based on a per file basis, per title basis…what about a collection of several movies contained in a single zip and lets say that zip contained movies from several companies? How many strikes is that worth?

        As I said many time before in previous articles it seems to me this “code” and the DEB are over complicating an issue which is being discussed and drawn up by people who really are not the right people to do so. Technology is accelerating, but it seems the way of dealing with the file sharing issue is not considering properly what is happening and the scope of dealing with it…worse than that though as someone who does not infringe copyright its probably going to hit me in the pocket.

        Quote “don’t engage in the criminal act!”

        I would dispute the criminal part in the case of the average file sharer since that why we see civil cases brought against them. I would rather use the term “unlawful”

        Please re-read my article again. I think you are under the impression that I in someway support copyright infringement. I don’t and my previous articles on the subject reflect that. What however I do think is that due to pressure from industry the general populas are led to believe that the route of all ills is piracy.

        Firstly its not, since there are more pressing issues in society and I don’t remember seeing anyone give a TV interview about being frightened about piracy in their area and secondly the campaign of “buy a pirate DVD and fund a criminal” has sort of backfired since now filesharing is so popular, they have mostly removed the pirate DVD seller from the scene. That campaign, in my opinion was a very bad way to try and demonize piracy and as Ive said countless times before, if you have people involved in trying to curb piracy that don’t really understand, then what do you expect?

        I predicted a few years back on this blog that the aggressive and badly planned attack of filesharing on p2p networks would drive people to Usenet and/or IRC again. Looks like I was right and since you want to mention law, maybe you can tell me how you build a civil case of copyright infringement against a downloader who merely takes material for themselves from Usenet?

      2. Zoolook says:

        My bad, I never meant to imply you were advocating file-sharing, so I appoligise for that. Its just that whenever you read thing relating to “he gets away with it, why shouldn’t I” its normally always from advocates of the act in question.

        Isn’t it a one case one strike basis, that was my understanding. Either way, if person is hauled to court with one file or 100, the case would be judged on the files stated in the lawsuit as I beleive it would.

        Whether the RIAA/MPAA et all decide to prosecute all 100 tracks, or bring cases for one “publisher” at a time, or even 1 track at a time… thats anyones guess I understand. But regardless, one court appearence guilty verdict = one strike! It cant be any other way really… (can it?)

        I suppose the moral of the story is:
        a) dont pirate… full stop
        b) if you do, pirate from one publisher in case they DO prosecute one publisher one case

  2. openbytes says:

    I’ve always had an anti-piracy stance although this is not about the rights or wrongs of piracy or indeed if data should be free or not, what I dislike is that its users like me who choose not to infringe a copyrighted product who end up having to foot the bill chasing people that do.

    I also think these idea’s will bring back the market for the street DVD seller and if (as we were led to believe) by the anti-piracy adverts, criminals will receive the extra funding from users who want the materials but don’t want to download it themselves.

    I personally would have thought the government would have secretly liked the sharing of copyrighted works since if (as they tell us) that is funds criminals, then surely Mr Average getting his material off the net for free is preferable to him funding the criminals? Or maybe Ive got that wrong?

    As I say, I think FACT will be happy. They don’t seem to do much work in regards to p2p sharing with the “average user” so maybe when the market picks up for the DVD street seller they will be able to justify their existence better?

    Can someone tell me, What is the benefit of a company subscribing to FACT? Since the vast “loss” of revenue allegedly comes from average users sharing files, where is the value for say Warner Brothers paying FACT so that they can stick its logo on their DVD boxes? Especially since, Im not aware of FACT engaging on the tackling of users sharing material.

    Maybe someone can answer that?

    1. Zoolook says:

      You’ll probably hate me then… I NEVER buy from stores unless I have downloaded and watched my films. Though to my credit, if I like it, I invariably buy it.

      I adopt this method because I am quite appaled at how hard it is to have a film advertised as “The best film ever made in the history of the entire universe” only to go and spend an afternoon thinking “Avatar, more like Avalaff”… have you ever tried to take a DVD back to HMV, or the “best computer game of the year 2010, even though its only 2009 still), or contacted the advertising standards authority citing misleading advertising? Yeah, good luck with that!

      Until the producers of these “quality titles” stop trying to steal my money off me under such preposterous claims, I will not buy original without seeing for myself. Though I realise this is the wrong way to go about it, I don’t see how they can effectively steal my money for such turd-fodder!

      Piracy is a double edged sword, but then, so is the unlawful behaviour being exhibited!

      1. openbytes says:

        Sorry, the replies are a little out of sync…the one below is a response to your previous comment.

        Quote “Avatar, more like Avalaff”

        I like that!!!! I too hated Avatar and spent nearly £40 at the cinema to find that out. I may have to “steal” the word “avalaff” off you for future damnation of that awful film!

        Your choices about download/purchase are not something I would seek to make judgement on. I only speak for my own opinions. What I would say though in a light hearted way is that it seems your ethos (unlike mine) saved you from throwing away £40…..the only good thing about that trip to the cinema was the popcorn.

  3. openbytes says:

    @Zoolook

    No probs. The general opinion on the blogs Ive read is a pro-piracy one. Whilst I don’t agree with that myself, I think the fault here is on both sides, with extreme badly planned measures brought in with the hope to fix a problem which to be fair has been going on for many years.

    Quote “Either way, if person is hauled to court with one file or 100, the case would be judged on the files stated in the lawsuit as I beleive it would.”

    I agree, although the “strikes” policy (according to whats been reported) is going to be pre-court and pre-throttling/disconnection so in theory, you could get away with alot more than three titles before sanctions are imposed. Another ambiguity is will the strikes policy be instead of or as well as filesharers being chased by law firms contracted by the entertainment industry? Could someone in theory receive a first strike letter through the post and one from ACS:Law asking for a settlement?
    Another problem I have with the debating/deployment of this “code” at the expense of mine and your pocket.

    In addition its not clear how they want to impliment the monitoring itself. Are they to sit in a swarm harvesting IP’s or is the data collection going to come from each of the ISP’s sifting through all the data through their servers, deciding what infringes copyright then recording the details of the person doing it? If the later is the case then this whole code may find itself embroiled in a case of breaching human rights, the part where it says “Right to a a private life” since not everyone infringes copyright.

    We also have to consider the governments great plan to have open WiFi around London, how is that going to work with the three strikes policy when allegedly anyone can login?

    The sensible suggestion (which I have posed many times) is to make the ISP’s responsible. Look at the pirate bay, I’d say the vast majority of the infringement occurs from the non-tech savvy computer user. Block The Pirate Bay at an ISP level and I think you would wipe out a massive majority of infringement overnight. The average file sharer does not have the knowledge in my opinion to know how to circumvent it.

    Having said all that though, to some they have the opinion that there should not be a problem with infringing copyright and its certainly not my place to say they are wrong and I am right, its up to the individual to make their own judgement. What I will say though is that as the law stands at the moment there is an issue with infringing copyright and until that changes law should not be something which you “cherry pick” the bits you like and ignore the rest.

    And whatever the outcome of all this, lets just hope that the wrong people don’t get accused and children don’t get criminalized.

    Nice talking with you Zoolook, coincidently you share the same name as my favorite Jean Michel Jarre album!

  4. Agent_Smith says:

    We had politicians trying to do the same thing here in Brazil. But the public backlash was so loud, the politicians backed off. And we still have free internet here. But, as the world monopolies rush to suppress our freedom, I don’t know until when will it last. But, I agree with Zoolook, regular customers must try before buying. This is what the industry doesn’t want you to: Take a peek of the “Turkey” before buying it. Movies like 2010’s Clash of Titans is a nice example of this, an awful movie in a shiny package… If you don’t look inside, you’ll be fooled by its nice package…

    1. Zoolook says:

      I don’t mind if films are bad (which is always an opinion anyway), but I DO mind that returning (for example) a vacuum cleaner, sofa, black and decker drill, anything else, is a trivial thing if you tell the retailer “its not as good as what I thought it was”… most stores will ask why, but will offer a refund or store credit since they can return the goods to the manufacturer.

      This is not the case with media such as DVD and CD, PC games etc… and this coupled with the stores default suspicion that you copied it and are simply a pirate is, in my opinion, criminal.

      Said vacuum cleaner, sofa, whatever, manufacturer is under a specific requirement to not mislead potential purchasers and only state factual data, but the digital industry appear immune to this law!

      AND THAT is where the pirates come into the equation in my opinion. I dare say if most people could confidently buy the games and films that they KNEW they would like (and why should one need to fork out money going to a cinema to find it out?), most of them would not feel the need to download! I certainly would rather pay for a quality product then waste my time and bandwidth on something that I may not like, but I would much less want to pay “hard” cash for the privilege.

      I agree that the host providers should be the ones accountable, but even then, the open-ness of the internet makes it difficult since various countries (if I read correctly on other sites) allow varying rigidity to international copyright law. Unless the individual provider screened which IPs were connecting, which could also be construed as a privacy issue, what would stop someone in a copyright rigid country downloading from another countries within-the-law-but-less-rigid web host. The only way I can see at the moment is to block all connections from outside each individuals country. But then this opens up the whole issue of internet open-ness for places like China (which even now has crippled internet access). And I really don’t want to see that happen, no matter what the cost!


      Another ambiguity is will the strikes policy be instead of or as well as filesharers being chased by law firms contracted by the entertainment industry?

      I’m not a lawyer, but unless I am mistaken, the CPS cannot sanction a case unless a complaint has been made by the plaintiff. The authorities will inform the copyright holder there may be a case, and it is up to the copyright holder to initiate the proceedings. IF this is right, then there would only be one case per charge! Again, I don’t make claims to be a lawyer on this though :o)

      As for my name, Thats exactly where I got it, at the time (1985) it was my newest album, and I have always liked the letter Z !

  5. openbytes says:

    Quote “We had politicians trying to do the same thing here in Brazil. But the public backlash was so loud, the politicians backed off.”

    I get the feeling that when this draft code gets released, the same may happen here. If it works in the way I think it will I would guess there will be allegations of violations of human rights…however….

    IF the ISP was to monitor all data, in my humble opinion it could be done without a human rights case certainly in the case of my ISP they can monitor my traffic and data. Ive effectively signed away my right to privacy and their monitoring of my data becomes a “condition of entry”.

    Now in my view should all ISP’s sign up to the same ethos, then there can hardly be a human rights complaint when, if the user disagrees they simply don’t join the service and since they have no alternative ISP to choice from its “like it or lump it”

    A rather simplistic view of what could be a rather messy situation should this “code” come out next year.

    Quote “I agree with Zoolook, regular customers must try before buying.”

    And I agree too although in the case of the movie scenario, I personally watch a film once, even if I loved it. I find it rather difficult now to sit through a film a second time. I may go back to the film years later, but most often than not I don’t, so in my case a free view of a film would prevent me from buying it. Of course conversely if I buy a film and hate it, I would consider myself cheated out of my hard earned cash…

    1. Zoolook says:


      I personally watch a film once, even if I loved it. I find it rather difficult now to sit through a film a second time. I may go back to the film years later, but most often than not I don’t, so in my case a free view of a film would prevent me from buying it.

      I never actually considered this, and it is interesting. My preference is to watch a good film MANY times rather then a bad film once.

      I guess the question now is, if you had a legitimate copy of a film, and genuinely hated it… Now that you had theoretically watched it the same number of times (once) that you would watch a film you loved, would you actually ask for a refund if they were freely accepted? (just out of curiosity of course)

  6. Agent_Smith says:

    And besides, these kind of laws only do damage the average joe’s. Not the criminal pirates, since criminal pirates (the ones who make profit from copyrighted material) always have alternatives to keep their business.
    The average joe’s (me included) are the guys who would copy a music CD from a friend, or to xerox copy a book, or get a borrowed DVD and copy it. Not the ones who are selling bootlegs versions in the streets…(the criminal ones)

  7. openbytes says:

    @Zoolook

    Quote “would you actually ask for a refund if they were freely accepted?”

    Yep, I think thats certainly the issue within the movie world. I think for Software/Music it may not be so much of one, but certainly for movies it does question if the tactic would be employed by some.

    Talking of refunds though, picture the scene, a lad of 12 buys a movie and then watches it. His mother discovers after the event that its an 18 and he should not have it….she takes it back to the shop for a refund…..I wonder if one would be forthcoming? If the shop refused then in theory they would be allowing an 18 movie to be provided to a minor, which is an offense in itself….It would be an interesting scenario to see how the shop played it……Assuming the shop gave a refund I think the whole refund on movies is not set in stone and I think there may (in the UK anyway) be some relevant consumer rights issues…..although since civil law is not as much my comfort zone, I’d have to check!

    @Agent_Smith

    Quote “these kind of laws only do damage the average joe’s”

    I hope my article (whilst being of an anti-piracy view) still reflects this concern.

    1. Zoolook says:

      Additionally, by giving the refund on the basis of it was provided unlawfully to a minor, they would also be admitting they did not enforce the required age checks, they would be setting themselves up for a fine in the process (which if memory serves are getting pretty hefty now). Not that I would care for them, so much as care that the fine would PROBABLY be offset by a further increase in prices at that particular shop. Not really a problem for smaller stores, but imagine if HMV did that (though hopefully a chain as large as them DO check all restricted sales correctly). In one fell swoop, another increase in DVD prices, another excuse to pirate.

  8. Curiously many artists love piracy. Here’s writer Joe Kornath, and writer Corey Doctorow, the incomparable Janis Ian, writer Paul Coelho, and on, and on, and on…

    1. Zoolook says:

      Indeed, alot artists prefer to get a strong fan-base by allowing the free exchange of their music, and only after that will they enforce their copyright (or actually be noted as commercially viable and get a contract with the big studios).

      Then there are those that genuinely produce music as a pass-time, with no commercial aspirations whatsoever. I know of one particular artist who I have been following for a while now who flatly refuses to sign to any studio and prefers to occasionally sell CDs that he himself produces at home. This is the kind of music I would prefer to support rather then the drivel that gets churned out and hyped in the charts!

      1. openbytes says:

        Quote ” flatly refuses to sign to any studio and prefers to occasionally sell CDs that he himself produces at home. This is the kind of music I would prefer to support rather then the drivel that gets churned out and hyped in the charts!”

        Completely agree. Its how the demoscene operates and why we have such great works of the past as:

        Rise up by Romeo Knight: http://amp.dascene.net/downmod.php?index=82389

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