UK ISPs Want Copyright Holders to Pay if Users Sue

I Don't Believe in Imaginary Property writes "After the recent draft legislation in the UK, which would create a 'three strikes' policy to cut off anyone accused of online piracy, the ISPs are asking for liability protection when users are wrongly identified. They're worried that when users are wrongly blamed for piracy, as has happened in several widely-reported investigations already, they will turn around and sue their ISP. The ISPs, of course, think that the record companies — or whoever else wrongly identified the file sharers — should be the ones to pay out any such judgments. The British Phonographic Industry, however, disagrees and wants the ISPs to simply use their Terms of Service to disconnect people. Apparently, that means they think that the ToS should be able to remove any legal recourse people might otherwise have against being misidentified."

Comments

Simple enough solution

[KublaiKhan]

If that's the way they want to play it, then it's quite simple.

Find out what ISP the Phonographic Institute uses, and file a complaint that they're violating my copyright. According to that logic, the ISP must then disconnect them.

Continue until they figure out why that's not such a good idea.

Re:Simple enough solution

[jhantin]

Find out what ISP the Phonographic Institute uses, and file a complaint that they're violating my copyright. According to that logic, the ISP must then disconnect them.

You really expect that to work? Individuals will be presumed guilty, while corporations will be presumed innocent because unlike those pesky humans they have Policies and Procedures to Prevent This Sort of Thing.

Re:Simple enough solution

[KublaiKhan]

Oh, easy enough to fix that as well. File a DBA as, say..."The Copyright Association Foundation For English and International Network Egress" or something official-sounding. File the complaint as your company.

If it's incorporated (a trifle expensive, but worth it, potentially) then even if they countersue it won't do anything to you.

There you go, you're playing at the same level they are, and you can have official CAFFEINE letterhead to play with to boot.

Re:Simple enough solution

[Telvin_3d]

Actually, it would be easy enough to do. Just keep track of everything they post or host as well as the source code of all their web pages. Three strikes right? I suspect it would take all of 6 months to find three instances where an intern has used a chunk of code from someone else's template or a designer uses a bit of a CC image in an advertisement.

Re:Simple enough solution

[Mr. Underbridge]

Find out what ISP the Phonographic Institute uses, and file a complaint that they're violating my copyright. According to that logic, the ISP must then disconnect them.

Not quite. The ability to disconnect is still up to the discretion of the ISP. However, the ISP rightly fears that the record companies won't be doing a whole lot of due diligence in eliminating false alarms, and that with the crapflood of requests the ISP won't be able to either. But I don't think you'll have success in calling the Phono group's ISP and getting them disconnected, as satisfying as it may be.

The ISPs' request is a fair one. Basicaly, they're saying that if you want us to do your dirty work, you better indemnify us against the results. Otherwise, you assholes can get a court order before we do anything.

Re:Simple enough solution

[nickj6282]

I think you're missing the point. The IFPI need only be accused of piracy instead of actually having committed it. That's kind of the point of this article: wrongfully disconnecting users who are only accused of piracy, regardless if the accusation is valid or not.

Re:Simple enough solution

[jasen666]

It's not copyright infringement to download a copy of a public website.
It would be infringement to host that copy as your own.

Sounds like a great idea

[dingbatdr]

A nice old-fashioned three-way Mexican standoff. Reminds me of the gunfight scene in "The Good, The Bad, and the Ugly."

This idea might have two very nice consequences. First, it might make the RIAA et al much more careful about throwing lawsuits around. Second, it might protect ISP for paying the price for their lawlessness.

how do you join?

[SoupGuru]

How does one join the British Pornographic Industry? Because that sounds like a pretty awesome industry to be a part of.

Another concern is

[Z00L00K]

that more and more people are using IP telephony as their landline.

What will happen if that service is unavailable for an innocent that needs emergency service? Who is to blame then?

I for sure would want to hold someone personally responsible. The internet connection is more than just an amusement that can be turned off today - it has changed into something much more important.

So cutting off people shall be an alternative that really has to be considered a last resort.

Re:Another concern is

[asuffield]

So cutting off people shall be an alternative that really has to be considered a last resort.

It should be something that only happens if (a) you don't pay, or (b) a court orders it - exactly the same as with a telephone line.

This is all about the media cartel trying to get out of having to prove their cases in court, because their little scam doesn't make a profit when they have to do that.

Re:Another concern is

[etu]

I have thought this in Finland where I live - I am sure that this applies to UK as well:

In the criminal law it states (section 38 paragraph 5 and 6) that disturbing communications is a criminal offense.

If you disturb communications and either you work for an operator (ISP) OR if the communications is an emergency call, you will go to jail for at least (!) 4 months but up to 4 years!

If I would work for an ISP, I'd think twice.

On One Condition:

[Penguinisto]

So long as you do not filter, monitor, or read any of your customer's packets, provide due diligence in identification of a customer by records, and only provide info the industry cartels under subpoena (and not just because they ask), then okay - you can be free from liability.

Otherwise, you're rightfully just as culpable and should eat the consequences.

/P

What British Pornography Association needs is

[unity100]

a good whipping in the ass

Poetic...

[TripMaster Monkey]

The ISPs, of course, think that the record companies -- or whoever else wrongly identified the file sharers -- should be the ones to pay out any such judgments. The British Phonographic Industry, however, disagrees and wants the ISPs to simply use their Terms of Service to disconnect people. Apparently, that means they think that the ToS should be able to remove any legal recourse people might otherwise have against being misidentified."

The BPI MIght think that, but that does not make it true. The ISPs have their collective asses hanging out in the wind, and they know it. It's too bad they didn't see this coming, when they started agreeing to take sides in this mess in the first place.

If you exercise authority, you incur liability. Pure and simple.

How is this already not covered

[alan_dershowitz]

I don't see how there isn't already some kind of law covering this. The ISP is being deputized as an agent of the Phonographic Industry when it comes to identifying and cutting off file-sharers. While it may be disputable that the ISP is not liable, I definitely don't see how the Phonographic Industry can absolve liability when its them doing the accusation. The ISP at least initially has to take it on face value that their accusation has some merit, which in my mind at least, absolves them of liability. It would seem to me to be a really bad precedent if you can accuse someone of something, legally force a third-party to take action against the accused, and then use that third-party as a shield against liability for your false accusation.

Re:How is this already not covered

[ray-auch]

The BPI may indeed be eventually (jointly) liable, however there is the question as to how you would sue them. The user has a contract with the ISP, and not with the BPI, and in addition the ISPs relationship with the user is under all the consumer protection legislation etc.

So the user has plenty of (relatively easy) ways to take action against the ISP, but not against the BPI. You would probably have to sue the BPI for libel or malicious falsehood - and in the UK that is much _much_ more expensive - requiring you to sue in the high court and with no prospect of legal aid.

Suing the ISP for breach of contract could be done in small claims court, for a _lot_ less money. And they know it. Costs are not awardable in small claims so it would cost the ISP in legal fees to fight any claim (win or lose), and they know they might be advised to just pay up instead. The ISPs may also not want the courts to start examining their TOSs too hard - in case they get ruled unfair. UK banks have been being sued a lot recently over penalty charges and settling many cases - totalling many millions - for just these sort of reasons (that one is now all on-hold pending a high-court test case). The ISPs don't have the deep pockets of the banks and they, quite rightly, don't trust that the BPI will be there to help when the crap hits the fan. They want a back-to-back contract to ensure they get reimbursed, before they take any action. So would I if I was in their position.

So....

[whisper_jeff]

So, let's see. Record company accuses user of copyright infringement and their ISP is required to terminate their service. It turns out the accusation was "in error". The user has not recourse against their accuser for the false accusation _AND_ no internet service because their ISP cut them off. Yeah, that sounds like a recipe for a ton of frivolous accusations by the copyright holders. Heck, if they could accuse the entire country and force ISPs to cut them off, that would get all the pirates, even though it would be throwing a bunch of babies out with the bath water. And, hey, there's virtually no downside because they can't be counter-sued for the false accusations!

It seriously boggles my mind that people think garbage like this up and think that it makes a hint of sense. If you accuse someone of a crime and are proven wrong, the accused should have every right under the sun to come back at you. Hard.

Bah!

They could learn from the Canadians

[Midnight Thunder]

I am not sure whether I should be more scared of US or UK Canadian copyright laws. Canada on the other hand, while peeving off some US senators about our independent thinking, is actually thinking about something more reasonable: see here

Request to all Uk Slashdotters

[neverutterwhen]

Please write to your MP if you disagree with these proposals. There are a lot of us, and it might just make them think twice before blindly pushing this legislation through.

Re:Request to all Uk Slashdotters

[alva_edison]

Please keep this in mind as it is good advice for any letter-writing campaign:
Most politicians are busy people (or at least consider themsleves to be), so they will generally only make time for those that put in an effort.

In general, a form email is least effort and will generally be ignored.
A non-form email is still low effort and will also be ignored.
A phone call is moderate effort, but will usually be intercepeted.
A form letter (paper, envelope, stamp) without a signature is also somewhat moderate, but will still be ignored.
A form letter with a signature will usually get a response, but along the lines that they don't listen to from letters.
An original typed letter will usually get a somewhat favorable response; although you may just receive a lecture on policy ppositions.
An original hand-written letter will get you attention -- assuming you have neat and legible hand-writing.
A personal visit as a constituent will also get you attention, but should be followed up by some form of traceable communication.

Re:Request to all Uk Slashdotters

[Bob The Magic Camel]

Don't be silly, this is the UK. A large Campaign contribution gets you a Peerage.

But can the ISPs sue the copyright holders?

[oneiros27]

I don't work for an ISP currently (I did in the past), but let's consider the situation --

Someone sends a list of 100+ users to the ISP. Those customers pay $20-100 per month for connectivity, depending on the service and area. It might take 2 years before the trials find if the customer is or isn't guilty.

So, if we assume 2 years, $20/month -- that's $480 per user ... at 100 users, that's $48k. Can the ISPs sue for lost revenue?

For big ticket users, it might be even more ... and that doesn't even run into the issues of loss of reputation for disconnecting an innocent party, which might impact other people's decision to use them or not.

Re:But can the ISPs sue the copyright holders?

[Cathoderoytube]

On top of that what would happen if an ISP wrongfully disconnect an entire company from the internet? Are they going to be immune to the wrath of a company that loses $10 000 a day from being offline?

Re:Digital fascism

[Stanislav_J]

It's getting to the point where it isn't worth leaving *any* trails on the Inet.

More like getting to the point where I don't want to be on the Net at all. Thinking of living the simple life.....move to a little cabin in Montana....I'd have plenty of time and quiet to start writing my manifesto.....

Unfair contracts?

[M-RES]

I'm sure under UK law there are provisions to fight 'unfair contracts'. So even if you do sign an agreement to a company's T's & C's you can later take that company to court to overturn the contract if it's patently unfair (and the ISP would then be liable for all legal costs and possibly compensation to the tune of the cost of your service for the whole contractual term plus any losses you may have incurred if, for instance, you use the service for business purposes). In a situation where you have been disconnected for no legal infraction, I'm sure a court would agree that the Terms and Conditions of the contract were unfair (you have no way of knowing what legally downloadable material might be misconstrued as a breach of copyright beforehand) and you'd win the case. I'm not a legal expert in this field, but if anyone knows someone who is it might be interesting to hear their point of view.

Termination at will

[shentino]

Actually, there's a thing called "probable cause"

While "proof beyond a reasonable doubt" is required for a conviction, it is not required for an arrest, where the standard is merely "probable cause".

If the cop has probable cause, you cannot sue the police for false arrest. If the "probable cause" was based on evidence that turned out to be false, you can only sue the guy who gave it if it was known to be false.

Witness honestly believes you've done something wrong, and tells the cops. They arrest you on probable cause, but since they don't actually have enough to convict, you get let go. Since both the police and the witness acted in good faith, nobody is liable for false arrest. All you can do is pick up your marbles and go back to your life. Nobody screwed up, so tough shit no soup for you.

Witness has grudge against you, and makes up a vicious lie to get you arrested by the police, who as far as *they* know, have reason to believe you are guilty. You spend time in jail, but since you aren't guilty, you get let go once the evidence fails to pile up. The police are faultless and were simply doing their jobs. However, it is foreseeable that the arrest would be made, so you get to sue the witness for false arrest.

Honest witness tells the cops something's fishy about you, and the cops, looking for an excuse to cause trouble for you, pounce on you with cuffs, and you spend the night in jail. Your PD bails you out after showing the lack of probable cause, and you get out. The cops were way out of line to arrest you, so you can sue the police for false arrest. The witness, however, is innocent, because they could not reasonably foresee an arrest based on their mere "suspicions".

Of course, if you get a witness with an axe to grid with a police department waiting for an excuse to pounce, then you can sue both of them.

Thank god for habeas corpus.

However, since ISP's these days usually have "termination at will" clauses in their TOS, it probably doesn't apply. Simply screaming "copyright infringement" could merely provoke such an "at will" termination (against which no user has recourse), and even if the termination was erroneous, if the ISP simply doesn't want the hassle of reinstating your account, they can squat and tell you to go screw yourself. "It's our network and we'll terminate whoever we damn please" is quite relevant when it comes to proprietary hardware and a dictatorial TOS.

Unlike labor law, AFAIK there is legally nothing that will stop an ISP from going texas sharpshooter and unplugging whoever they feel like. You're only "due process" is whatever the ISP felt like including in your service agreement, which is likely to be entirely in their favor.

Re:Termination at will

[DrSkwid]

UK Law != US law

The law of unintended consequences;

[ACMENEWSLLC]

The law of unintended consequences;

If I was a pirate (I am not, and have the invoices to prove it.) then;

#1) I will not P2P from my own connection, but from that of a Internet Cafe (shut them down too?) or a so called friends home.
#2) I will do this from open WIFI networks, such as my neighbors. They will get shut down, not me.
#3) I will put TOR, Apache with Proxy module, Wingate, or some other program onto many computers so the P2P traffic is coming from their computers, even though I'm at home.

What will be next? Microsoft will include an antipirate service in Vista? Then the law will be made so that only Vista is a legal OS for home use?

Come on folks, get a clue - vote these suckers out. Makes me not want to visit the UK.

An Analogy

[labnet]

An ISP should be given common carrier rights.
For example, if you order illegal items through the postal service, (lets say pirated DVD's), then there is no way your postal service will be cut off. Its up to either the Police, or copyright holder to form a case against you. The ISP is merely the conduit, not an interested party.