A recurring theme of today’s DEAct conference is the fact that this whole exercise is seen by government and Rights Holders as a process of education. They are trying to influence behaviour (target is 70% reduction in file sharing) and not specifically going after individuals.
The issuing of Copyright Infringement Reports and notices to ISP customers suspected of unlawful activity is intended to be a shot across the bows. A message to say “this is not a good thing that is going on”.
The problem that RHs have historically had is that the cost of taking suspected infringers to court has not only been prohibitive but also fraught with risk in that the chances of them losing the case are quite high. Proving certainty of wrongdoing is very difficult – an IP address associated with a torrent stream does not prove that the broadband subscriber himself is the file sharer.
The DEAct sets out to try and make it easier and cheaper for RHs to pursue perceived infringers so correlation of an IP address with an event showing file sharing at a given point in time is proposed as being adequate proof. If this is in reality so difficult to prove how can it be right for a government to pursue individuals on this basis?
An appeals process is provided for in case mistakes are made. The details of this Appeals process have not yet been worked out. The initial guidelines for suitable grounds for appeal were along the lines of “that wasn’t my IP address”. It is highly unlikely that the ordinary man in the street would be able to prove this or that the IP address recording method used by an ISP was flawed.
RH representatives at the meeting frequently came back to the point that they were trying to educate and not pursue.
The point is that the process of sending letters to consumers suggesting that someone is using their broadband connection to share copyrighted material is pointing an accusing finger. The ultimate outcome could well be that their broadband connection is disconnected. The fact that we keep being told that nobody wants it to go that far and there is much to do before it happens is neither here nor there.
Individuals will want the right to prove themselves innocent from the point of issuing of the first notice. I’m not sure that this option is yet on the table for this first phase. Certainly is seems clear that Ofcom realises it is an issue but government and RH organisations are trying to minimise the cost of this process. Going to court is what they are trying to avoid.
However in my view this needs to be an option from the outset and it seems to me that once the whole exercise of sending out infringement notices has started we could very quickly get into a situation of deep litigation and expense – from the first letter being sent.
And why should someone who says they are innocent have to prove their innocence here and incur any expense in doing so?