By Bruce Gain for Intellectual Property Watch
The decision by Virgin recording company to send warning letters to alleged music pirates earlier this month appears out of sync with the approach internet service providers in the United Kingdom and elsewhere in Europe might take as a means to thwart piracy.

ISPs have implemented the warning letter approach in the United States, and French service providers are likely to follow suit, but the role of ISPs in the illegal file-sharing battle remains a subject of negotiation in the UK. Parties in the UK with a vested interest in protecting their intellectual property rights, ranging from music interests to the software industry, continue to discuss possible solutions without agreement yet on a unified approach.

Virgin’s initiative, which is part of an alliance with the British Phonographic Institute (BPI), is but one of a number of possible measures the rest of the ISPs in the UK might take.

“I would not draw any conclusions about how this is going to shake out in the UK or in Europe. This is just one part of how a voluntary code might look between an ISP and a right holder,” Matt Phillips, director of communications for the BPI told Intellectual Property Watch. “This isn’t any acceptance of any ongoing policy between the BPI and Virgin, and this is not going to solve the problem about how people are able to download and upload music illegally. But it is a step in the right direction.”

Under the Virgin and BPI alliance, the BPI communicates the IP addresses used for what it says are illegal file sharing. Virgin then matches the IP addresses to its customers to whom separate “informative letters” are sent. The letters, available here (Doc 1, Doc 2) [pdf], inform the Virgin customer, among other things, about possible suspended service and legal claims relating to the customer’s alleged illegal file sharing if the activity were to continue.

The letters also communicate ways a user can uninstall and deactivate software used for illegal file-sharing (such as securing wireless access points so that a neighbour cannot upload and download files by using an unwitting customer’s IP address). Virgin Media distributes both letters without disclosing customer names and addresses to the BPI, the company said.

“If you look at it as a position to advise customers what is the best way to enjoy music online without the risks of unauthorised sources, then that is a responsible attitude instead of looking at it as a way to police the internet,” Asam Ahmad, head of media relations of the consumer division of Virgin Media, told Intellectual Property Watch.

The Virgin and BPI alliance follows the release earlier this year of the UK government’s “Creative Britain” report, which offered a tentative look at anti-piracy policy there. The main purpose of “Creative Britain” is to establish a voluntary framework agreement to thwart illegal file-sharing before more heavy handed legislative mandates are written into UK law by April 2009. Those involved in the negotiations, beside government officials, include internet service providers, media groups, software industry representatives, and other interested parties.

The UK government also said in “Creative Britain” that ISPs, which control the so-called Internet pipes to and from customers’ PCs, should play a major role in mitigating illegal file sharing.

Divided We Fall

Yet, despite a major role that ISPs are expected to play in the war against illegal file-sharing in the UK, the Virgin-BPI initiative reflects a unilateral approach that does not reflect an industry consensus, according to some parties, including associations with the mission to protect their members’ IP policies.

“I have said ‘Guys, as long as we are not cohesive, then I don’t think [a viable solution] is ever going to happen,’” John Lovelock, chief executive officer of the Federation Against Software Theft, told Intellectual Property Watch. “It’s the old adage, ‘United we stand, divided we fall.’”

In Europe, ISPs have traditionally voiced a reluctance to monitor and filter their customers’ connections to thwart piracy. However, Virgin is not seen as necessarily representative of pure-play service providers since its Virgin Megastore outlets sell music through both brick-and-mortar and online retail outlets. Pure player ISPs, for example, have maintained that it is not feasible for them to monitor and filter the Internet usage of their customers for illegal activity while they face pressures from the government and industry interests in Europe to support their efforts to crack down on illegal file-sharing (IPW, Internet and Communications Technology, 7 December 2007).

But in the long term, it is in the ISPs interest to mitigate illegal file-sharing along with IP rights holders, Lovelock said.

“All digital content will eventually be bought online, including music, films, games, and books. Everything will be available so that you will be able to download it to your device,” Lovelock said. “So the initiative should be [for the ISPs], ‘Let’s secure our revenue stream of the future, in particular the digital content section of the creative industries, and let’s see if there is a compromise that can be worked out.’”

Not coming up with a voluntary solution advocated by all interested parties in the UK will likely turn into a lose-lose situation if the government attempts to solve the problem through legislation, Lovelock said.

“What the Federation Against Software Theft has been advocating is we, the creative industries, should sit down with you, the ISPs, before the government comes up with a legislation that doesn’t work, gets contested; and no settlements ever get taken out or made,” Lovelock said.

Instead, the UK government might broker formal discussions between so-called creative industries with IP protection concerns and the ISPs before resorting to forced mandates that might force ISPs to play a role in protecting IP rights, Lovelock said.

“If there isn’t someone who represents the ISP, then we as an alliance should go to the government and say we would like you to call a meeting with the ISPs and ourselves, and they can maybe even facilitate that meeting,” Lovelock said. “That way, we can have roundtable discussions to come up with some solutions so that the government does not have to legislate and we don’t end up in a battle.”

Bruce Gain may be reached at info@ip-watch.ch.