New illegal download rules: four strikes and, um, that's it

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The new deal appears to be a big climb down on the part of anti piracy lobbyists: IP addresses identified by rights holders as infringing will be sent to broadband providers, who will send out warnings to their customers.

From next year, households will receive up to four warnings but no other action will be taken against them.

That a compromise has been reached at all is a victory for rights holders, however: negotiations have been going on for years now and as recently as September ISPs called industry demands "unworkable".

In addition, while it's true that the plan is pretty toothless now, buried inside it is a threat to, eventually, bring the full force of the UK's much maligned Digital Economy Act down on those accused of downloading copyrighted material.

Watered down measures

The deal was negotiated between BT, Virgin Media, TalkTalk, Sky Broadband and representatives of the music and film industries, the British Phonographic Industry (BPI) and Motion Pictures Association (MPA).

Rights holders had wanted access to a database of repeat copyright infringers and for warning letters to include threats of punitive action. Neither of these measures were adopted.

Instead, under the Voluntary Copyright Alert Programme (VCAP), subscribers to participating ISPs identified as downloading copyrighted material will receive up to four warning letters.

The letters will be "educational" in tone and will not accuse the account holder nor contain any threats to take punitive measures against their service, like cutting download speeds, or disconnection.

After the fourth letter is sent, no further action will be taken.

Likely letter recipients

The people most likely to receive a warning letter are those using (or someone connected to their service using) torrent sites to download copyrighted music, TV shows and films.

One technique rights holders have previously used to identify IP addresses is software that monitors activity on torrent networks, logging any IP it sees uploading or downloading a particular piece of copyrighted material.

How likely you are to be identified also depends on which ISP you are subscribed to.

Broadband providers with less than 400,000 subscribers (for example, Zen and Eclipse) are not included in the scheme at present.

The Internet Service Providers Association (ISPA) which represents smaller ISPs were excluded from the discussions and it remains unclear whether smaller ISPs will be made to join in the letter writing party in future.

Punitive measures on the way?

In some senses then, this deal brings us to business as usual: rights holders are still scouring the internet for IP addresses, but rather than use this information to get a court order to find out a customer's identity, they are giving it to the ISPs.

But, under the new agreement, ISPs won't identify their customers to rights holders and neither will those suspected of infringement face punitive measures.

It's a far cry from the heady days of ACS Law when rights holders could try to obtain a court order forcing ISPs to hand over the identity of individuals behind an IP address, or send out letters themselves.

IP addresses have been judged by the High Court to be a poor means of identifying infringement, a decision that strengthened the hand of ISPs in these negotiations.

While it seems like another frustrating defeat for rights holders, details of the leaked agreement seen by the BBC indicate that if the VCAP policy of sending out educational letters has none or little effect, the rights holders lobby will seek a "rapid implementation" of the punitive measures mandated by the Digital Economy Act.

This could mean potentially forcing ISPs to disconnect customers repeatedly identified as downloading copyrighted material.

In effect, then, rights holders are agreeing to weaker measures in the hope that the evidence collected will strengthen the case for even more enforcement.

That's what we've seen over the blocking of filesharing sites like The Pirate Bay by ISP: we started with one site block and then the number grew and grew again.

The process was accelerated on the basis that the earlier blocks had been effective, even though there is some doubt as to whether that is actually the case.

While broadband providers are less than thrilled at being tasked with blocking an ever-growing list of P2P sites, however, they are even less enamoured with the idea of punitive enforcement action being taken against their own customers.

Since the law, for now, is on their side, rights holders will still have to fight hard to push home this latest advantage.