'This is not three strikes and you're out. It is a letter.'
24th Jul 2008 | 16:42
Industry reaction: Analyst puts BPI letters in perspective, legal expert thinks ISPs also to blame
A leading analyst believes that the primary upshot of the BPI's letter-sending will be to cut file sharing amongst children as a result of making their parents aware, while a legal expert we've spoken to believes that ISPs should get at least some of the blame.
Mark Mulligan, VP and Research Director, JupiterResearch, warns the letter may not have the same impact among young adults while Simon Levine, joint global head of the technology, media and commercial group at DLA Piper thinks today's deal could also be "a step too far."
However, Mulligan doesn't see the move as quite that serious. "It is not 'three strikes and you're out'. It is a letter," he muses, adding that it has "a quite specific primary target group: families. 69 percent of UK music file sharers are aged under 35 and 51 percent are aged under 25." He adds that these can be broken down into three categories; children at home, students away from home and young adults.
Of these, Mulligan says that many are perfectly well aware of what they're doing and "only the more nervous and conscientious can be expected to stop after receiving a letter."
All about the kids
Mulligan thinks the letters will have some success though – particularly among children living at home. As recipients of ISP bills, parents will be the ones to receive the letters. "It can be expected that a decent chunk of those will chastise their children and work on changing their ways."
However, many children are more tech savvy than their parents, so Mulligan says there is a risk that file sharing might continue without parental knowledge. "A follow up letter here would probably bring the issue to a head," adds Mulligan.
"If the BPI could get a sizeable chunk of file sharing kids of the network that will be quantifiable success for what is a significantly more palatable approach to the problem than the RIAA has pursued and France is pursuing."
As we talked about earlier, Mulligan also believes that the legal download offerings are another integrated part of this complex puzzle.
ISPs should shoulder some of the blame
Levine also feels that ISPs should get at least some of the blame. "given they ultimately reap the financial benefits of such internet traffic."
"Clearly, the spread of illegal downloading dangerously undermines the entertainment industries and dilutes the value of copyright law," he says, adding that "an attempt to turn ISPs from gamekeepers to poachers, whether via a 'three strikes' system or other 'block and stop' methods, is not the full answer.
"Quite apart from posing a potential contradiction to wider privacy and data protection law, the feasibility of implementing and enforcing such proposals is far from certain."
He feels that any future legislation in this area would be unworkable and "would require an inordinate, and potentially indiscriminate, level of digital surveillance and policing from ISPs." For one thing, telling the legal from the illegal will have to rely on much more reliable methods than those that abound at present. "To avoid a broad brush criminalisation of all file-sharers, blocking techniques will need to become more sophisticated and closely regulated," adds Levine.
And as such, ISPs would need support from legal agencies in order to do this and note be solely responsible. If responsibility was to lie solely with them, Levine points out that they would turn from "'mere conduits' into active arbitrators, opening a can of worms us digital lawyers may never be able to close."
"What is clear is that wholesale solutions are not the answer; a combination of stick and carrot is required. Only when the industry is acting unilaterally and accepts a shared responsibility for piracy, will it have any hope of enduring against it," adds Levine, somewhat finally. But that's only the beginning of the story, isn't it?