BMI/ISP agreement; costs in the PCC

What have the BMI and ISPs agreed?

Yesterday the IPKat (in slightly sleepy state) was greeted with the news that British Music Rights (BMI) and the 6 leading UK ISPs (Tiscali, Virgin Media, BT, Orange, Carphone Warehouse and Sky) had reached an agreement on tackling illegal downloaders of copyright content. The IPKat thought it was a little odd that no one really seemed to be saying much on what the parties were actually agreeing to do, and then he went about his business.

It seems that the IPKat wasn't the only one who was confused. Today PC Pro reports that Carphone Warehouse has said that it will neither cut off their customers' internet access, nor will it divulge customer details without a court order. Instead, a Carphone Warehouse spokesman said:

"What we have agreed to do is to write to our customers and advise them there's been an alleged infringement. We're very clear that we don't know if that's the case or not, we've just been told there has been and we want to advise them of that".

The IPKat is rather suspicious of voluntary codes of practice like this one. It's one thing if an industry is agreeing to self-regulate. It's quite another if an industry is agreeing to self-regulate for the benefit of another industry, but the people who are really bearing the brunt of this are the ultimate consumers. The IPKat also wonders, what's in it for the ISPs here?


The desk drawer worth £100,000

Over to a costs cases in the Patents County Court. Anglia Autoflow Ltd v Wrightfield Ltd was a copyright case concerning ownership of a bespoke piece of software. The case was eventually abandoned by the claimant after a DVD came to light which showed early development stages of the defendant's software which indicated that it had been independently created. The said DVD was found by an employee of the defendant well into the litigation in his desk while he was looking for something else.

HHJ Fysh QC SC found that the defendant had failed to make a reasonable search since 'his material was where one would expect it to be; it was not hidden away in some unexpected place. Moreover the file suffix ('.cxp') is the suffix for an Omron programme and the earlier version could I think, have been found in response to a search under 'Okeford', 'Faccenda', 'Easyload' or '.cxp'. The file name itself, I would have thought, would have been indicative of potentially relevant material for disclosure.' Additionally, the defendant had been rather 'cavalier' in preparing for the litigation, and had made (possibly by inadvertence) a number of misleading statements. Both of these factors justified a reduction in costs payable by the claimant of 20% (a claimant that abandons a case would normally be liable for 100%).

The thing that struck the IPKat though was the quantum of costs involved. Although the program cost the claimant £10k, the costs incurred in this case were almost £1million. The IPKat (perhaps naively) thought that the PCC was meant to be a less costly venue for IP litigation.

BPI, Virgin to pilot "warning" scheme for downloaders

According to today's Telegraph, internet service provider and telecom company Virgin Media looks set to become the first UK internet company to crack down on subscribers who download music illegally. While record labels are lobbying for a "three strikes" regime that would see those who collect pirated material disconnected from the internet, Virgin has been working with music trade body BPI on a pilot project which could see "dozens of customers" sent warning letters.

Right: Virgin's Richard Branson -- is he pleading not to be cut off?

This trial will go live within months, with the threat (or "option") of disconnecting customers who ignore the warnings. The trial is also open to film and television studios. Says the Telegraph:

"This would be the first time a British internet company has publicly moved to share responsibility for curbing piracy. Two years of negotiations between record labels and internet service providers (ISPs) have so far failed to produce an industry-wide agreement.

A spokesman for Virgin Media said: "We have been in discussions with rights holders organisations about how a voluntary scheme could work. We are taking this problem seriously and would favour a sensible voluntary solution."

The BPI has teams of technicians to trace illegal music downloading to individual accounts. It will hand these account numbers over to Virgin Media, which will match them to names and addresses".

In February the UK government said it would implement legislation by April 2009 unless ISPs came to a voluntary agreement with the music and film industries. According to industry sources, the Department for Business, Enterprise and Regulatory Reform is due to publish a consultation paper next month, outlining legal measures.

Says the IPKat, getting in with a consensual arrangement ahead of any legislative initiative will keep Virgin in the recording industries' good books, but is unlikely to stave off pressure for legislative intervention unless (i) the pilot works, (ii) it is adopted as a sectoral norm by all the other ISPs and (iii) does not raise suspicions within the European Commission that there exists any hidden market-sensitive agenda that will distort or reduce competition between ISPs or upstream or downstream of them. Merpel adds: Virgin's own slightly risquee, devil-may-care, young-and-attractive image may the main victim of this initiative -- it all depends on how carefully Virgin's publicity people spin it.

ISPs to cut off illegal downloaders?

Just in from the BBC is news that internet users in the UK who illegally download music and films may have their internet access cut under plans the government is considering. This is according to a draft consultation paper that suggests that internet service providers would be required to take action over users who access pirated material. The government stresses that the plans, which appear to have been leaked to The Times newspaper, are at an early stage and that it is still working on final proposals.

Right: Kats maintain an ambivalent attitude towards leaks ...

Says the Department for Culture, Media and Sport: "We will not comment on the content of the leaked document". The IPKat looks forward to further leaks in the interest of the furthering of the democratic process of lawmaking. Merpel wonders whether, once unlawful downloaders are cut off, there will be enough people left online to make the internet worthwhile. Or will an alternative internet develop, to cater for those who seek out the forbidden fruits of copyright infringement, pornography, unregulated gambling and so on?