back to article Lords mull Hail Mary penance for file sharers

The Lords this week discussed new compensation for copyright holders this week - including a voluntary 'Hail Mary fine' payable by file sharers, instead of suspension - but nobody noticed. It was late on Wednesday night, and the Lords were six hours into their fourth session this month discussing the Digital Economy bill. Lord …


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@ Lord Lucas

"the important thing is that the copyright holder gets paid, not that the copyright holder absolutely controls the timing and means by which the copyright material is acquired,"

Hit the nail square on the head with that one.

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This reminds me of the medieval Catholic church's sale of 'indulgences' - which were essentially permits-to-sin.

Not only did they invent the sins, they sold the penance. A nuce little earner.



My concern is about the rights holders being able to find the identity of infringers directly.

Seeing how these "entertainment" cartels usually operate, I won't find it surprising if we start hearing about how they're kicking doors in and breaking people's kneecaps with a baseball bat.



>>"Seeing how these "entertainment" cartels usually operate, I won't find it surprising if we start hearing about how they're kicking doors in and breaking people's kneecaps with a baseball bat."

I think that probably says rather more about you than about the music industry.

Black Helicopters

Lords vs Commons

Isn't it bizarre that I have more faith in the unelected Lords not to send us down a short-term reactionary path than I do the elected Commons?

Isn't it just pure coincidence Tony Bliar [sic] spent much time limiting the powers of the former with a series of populist measures?

The answer, to both, is no.

Anonymous Coward


That's becouse the Lords arn't elected - they don't need to look good in the various media outlets, so they can get on with silly things like making sure laws passed up from the commons arn't insane.

Sadly there are too many career politicos in there nowdays (put there to keep the hereditaries in line) and the commons has put restrictions on the Lords debating time to make sure they don't upset their plans by debating it too much,


@AC 13:49

So should I take it that you reckon that if it wasn't for the Evil Media Companies demonising filesharing that most people would think it should be allowed without any sanctions?

If not, what do you think the public would think was a suitable way of dealing with it that a government could actually implement?

Anonymous Coward


What does that have to do with the make up of the house of lords and their good work checking that there are proper Checks and balances in place on the use of various (proposed) laws?

Is it better that another badly put together law gets through that allows various organisations to get their hands on data without substantial evidence (an ip address on a bit torrent tracker for instance - you know those lists can have fake addresses added to them right?) so they can solicite money from people.

I have no problem with rights holders protecting their property (and it also doesn't matter to me as I buy all mine from Japan) however I have a problem when it becomes possible for a group to have far too much power. There needs to be sensible balanced powers, that require evidence. At the moment they can take people to court, which seems like a mighty fine route to me, if you think you've been wronged, prove it. The bar shouldn't be lowered just becouse it's convenient.

As to other things the media companies need to pull their finger out and create a decent way for people to get media free of drm with ease, and share their likes with one another, until they do do that then they're going to be plagued by downloaders.

Also often your problem isn't "Evil Media Companies" (not sure where that came from, but hey whatever) but their paid attack dogs (remember the old lady hounded for apparently downloading hard core gay porn?) Also I remember a singapore enforcment company getting too big for its boots and releasing 10's of thousands of mails to US citizens. The company did get canned after that though.

You, I suspect, would support a walled garden internet plus 24 hour surveliance and filtering from past evidence.


@AC 16:21

>>"What does that have to do with the make up of the house of lords"

You were talking about elected politicians wanting to look good in various media outlets by cracking down on filesharing copyright content.


That implies either that the people who read those outlets have either been deceived against their better judgement into thinking unconstrained filesharing is bad, or that they would think it was bad even without significant media prompting.

Unless you're suggesting that the papers/TV would be *generally* rather more negative about a given politician if they weren't doing anything about filesharing.

>>"At the moment they can take people to court, which seems like a mighty fine route to me, if you think you've been wronged, prove it."

That's certainly be one way, though a lot depends where a line is drawn on acceptable evidence-gathering.

*Some* people might argue that a disputed court case needs access to good evidence, but that pretty much means access to the machine with the content on, to make sure the relevant software was there, the content was obviously noticeable to the owner, and whatever.

But that really requires some kind of enforced/unannounced access to premises, examination of machines, etc, otherwise there'd generally be no way of being absolutely sure.

It'd be fairly pointless having a civil offence for which it was never possible to collect evidence in practice, but if that ended up being the situation, it doesn't seem likely that the rights holders would just give up and ignore it, they'd just push for having a way of collecting evidence.

A string of failed court cases where it seemed likely that people seemed very likely to have been doing loads of filesharing but where they just denied it, and where it wasn't possible to gather the evidence would be pretty good ammunition for an aggressive rights-holder.

I'd have thought that many people would prefer having warning letters that allowed them to stop if they were doing it themselves, find the responsible person if it was someone else in the household, secure their network if it was insecure, or say "There's a problem with your information" if they knew it was wrong.

>>"As to other things the media companies need to pull their finger out and create a decent way for people to get media free of drm with ease, and share their likes with one another"

Isn't it already possible to buy/download MP3s of a lot of music?

When you say 'sharing likes with one another', what do you mean - that could be anything from giving a Real World friend the odd track to someone opening up their whole collection for everyone they know on Facebook.?

>>"You, I suspect, would support a walled garden internet plus 24 hour surveliance and filtering from past evidence."

You can suspect what you want.

Personally, if there are things people shouldn't be doing, and some people are completely taking the piss by the extent they're doing those things, there needs to be some way to control them.

Ideally a way that affects other people as little as possible and isn't disproportionate to the people who are taking the piss.

That said, I recognise the reality that the harder it is to nail someone down, the greater the tendency for some people to want to make an example of them when they do get caught.

if people think they have a small chance of consequences *and* the consequences are trivial, they likely won't end up being deterred. Small chance+big consequences might work as a deterrent, but can be unfair for the ones who do get caught.

Can be rather fairer if the chances of consequences are high, but the consequences aren't too punitive, which does seem more the way a three strikes system would work *if *detection was fairly efficient, though a three strikes system should have a good mechanism to reasonably assist people who were (or thought they were) being wrongly suspected. Not sure who'd foot the bill for that mechanism, though.

With the expense of court cases, it seems likelier that penalties will generally be large, and cases rarer, which is possibly a lot less fair when it comes to something that a lot of people are doing where many have clearly convinced themselves that they're not really doing anything wrong. Some people would be encouraged by the thought getting caught is unlikely to happen to them, and then get a nasty surprise if it does.

That's bad enough if it's an adult, but if it's little Johnny obsessively filesharing in his bedroom, and then him/his parents getting landed with a sizeable fine+costs, is likely rather worse.

Also, personally, I'd really rather *not* have a system where if I was sharing a net connection with someone who was filesharing, the first thing I knew were people knocking on the door with a warrant to look at (or even take away) all the computers in the house.

Big Brother

Government chess moves...

"If they are caught red-handed, let them voluntarily - with a little bit of persuasion - provide a remedy to the people harmed," he said"

voluntarily != persuasion (but as usual, a good example of their nauseatingly sly political doubletalk).

So force people to pay ... now if only we the government, had a way to catch all you loathsome pesky red-handed thieving plebeian great unwashed minions. Then we the right honorable caring government could be onto a wonderful new money spinning scheme.

But what to do, questions, questions ... ah ha! ... Eureka! ... how about we the caring government of the people, your caring benevolent government, prepare the legislation to dove tail neatly onto the copyright policing system the Anti-Counterfeiting Trade Agreement (ACTA) are dreaming up in secret. That way we have the fines and fine managment infrastructure (and more rich paying top jobs) all lined up, ready and waiting for the ACTA to pull their coup de grace master stroke, then we the benevolent caring government of the people can all sit back and get even richer. :)

Oh joy, yet more law changes I can't wait for. :(


I bet...

That none of them are thinking off adding any amendments that any money taken from people is to be accountable and can be tracked all the way to the artists and how much was given.

Unless clear and total transparency is given in relation to where the money is given this will simply be a way of legalising robbery.


ORG? Pirates Party please

The ORG is useless, it is just another promotion channel for Cory Doctorow to plug his books. How hard is it to actually do some campaigning? The worst copyright bill in living memory and they can't be bothered.

Give up ORG and let the Pirate Party do the talking, at least they make the effort.


ORG - more going on than you might think

Disclosure: I volunteer for ORG. (Which is, apart from a couple of staff, a volunteer organisation.)

We've been doing quite a bit actually - we're running training days on how to constructively lobby your MP, we've been drafting and commenting on amendments for supportive members of the Lords to submit and discuss, and we've been Tweeting regular updates on the progress of the bill.

Yes, we could do nothing but blog about it, but we feel it more useful to actually do something useful. Not that this is stopping us from blogging - there is in fact an update today.



Falling down...

And yet it all comes tumbling down in one word/abbreviation....


If they just got good technically minded people, with a public interest at heart hopefully, and the lords in a room, they might actually be able to come up with a bill that would actually enforce copyright properly, providing working models in which the music and film industries can operate without people taking the piss too much or them fleecing some one for a ridiculous amount they'll never actually be able to pay. Ever.

Or maybe I should move to Canada.....


@AC 12:51

>>"And yet it all comes tumbling down in one word/abbreviation...."


You reckon that if someone was found to have downloaded stuff using a 'secure method', that no-one would dream of arguing that use of that method shows they must have *known* what they were doing was wrong, and thus press for a harsher penalty?

Or that there wouldn't maybe be pressure put on net companies to put the dampers on secure traffic a little?

After all, for the *average* person, a fairly small amount of their traffic would normally be secure, and they wouldn't much care if it took a second or two longer for them to buy something from Amazon.

Even people who might have larger amounts of secure traffic for home-working, etc are often only going to have a handful of destinations, which could fairly easily be allowed fo?

On the other hand, someone with secure connections to all kinds of other people is flagging themselves up as being a bit different

Does using secure communication actually stop the BPI or whoever from sharing some files in order to see who downloads them, or downloading files to see who is hosting them?

Is there any way of keeping source/destination addresses secret apart from having all the traffic going through proxies (which would themselves be a *prime* target for some kind of throttling action)?

Anonymous Coward

true for now,

That's the case at the moment, however as time moves on and companies and individuals become more security minded we may find a whole lot more of our traffic goes over secure channels.

Also there is quite the proliferations of vpns. Who knows what tommorow holds?

There is of course technology at the moment that use onion routers and encrypted caches to make it almost impossible to track what people have downloaded (without being on their machine.)

The point you made was pointed out by someone I used to work with, the fact that all your communications are encrypted is itself a cause for suspicion (a lot like the people (I forget the country) who were rounded up for not taking their mobile phones with them)

Personally I don't believe in net neutrality, why shouldn't people that want a high speed connection with limitless media access be allowed to have it for a price. Whilst people that want to send email pay next to nothing for their tied down pipes. But I doubt that'll come about any time soon.

And nowdays with iplayer, 4od, 5demand, crunchyroll, and 20/20 cricket on youtube who really needs to pirate? Unless something isn't available in your region ever (fansubs.) But that goes back to the old, if they can't be bothered selling it to people then it's a bit shady being upset when someone yoniks it.


@AC 22/1/10 18:50

>>"And nowdays with iplayer, 4od, 5demand, crunchyroll, and 20/20 cricket on youtube who really needs to pirate? "

Possibly that's the case for [some] video, but there are still people pirating shedloads of music and films.

There are also people who just can't bear to wait for a foreign TV programme to arrive in their country, though in the that case, if they couldn't have bought it, *and* would have ended up watching it without paying eventually, any loss to the rights-holder is debatable (maybe no more than a potential [fraction of a] lost advert-viewer on eventual release).

There's certainly an argument that copyright protection for things that someone is just too idle to sell is a debatable area, at least for things which were at one point generally available. However, if law was going to intervene there and say the works *should* be available, it could be better to have those works made officially available, with the proceeds ready to give to the appropriate people, if they wanted them, or to some other generally acceptable beneficiaries.

However, it might be a different issue with things that are *intentionally* limited editions - if someone decides from the start to only make 100 prints of an artwork, would their unwillingness to do a wider release justify anyone else giving away (or selling) copies?

For someone who thought it did, then what about one-off artworks?

It'd seem a bit odd if someone argued that the only way such a work could be legally protected from being copied was for copies to be made available at what someone decided was a fair price.

Anonymous Coward


Artwork's an interesting point - as in fine art, museums will create prints of an image. The oringinal piece of art may be worse millions, but the additional prints just pounds. Althoug it isn't the same as the artists have long since died. To be honest if there's more then one copy of a piece of art (painting that is) I would be dubious about paying a premium for it (if it can be replicated 100 times to a level of detail that's worth money then is it worth the money.)

As to limited presses, the most sort after component is the physical aspect and not the easily duplicated material. It's how it works with the groups I collect, sure I can download it, but if I want the bonus poster, collectors card, insert, etc, I have to purchase the dvd/cd/etc.

It's a hard area to operate in, how much could you convert to sale if good systems were in place, how many people are converted after downloading, how many people still watch on tv having downloaded. In my case I've bought a lot of things related to downloads I have stolen (figures, dvds, magazines, subsctiptions, blah blah blah)

I was thinking about this on the way home today, as an artist (writer etc) you're happy if people like the work that you make that you think is good, even if you're broke working a rubbish job you're happy if a few people say "hey this guy writes some good sci fi." So that makes you happy (I know this having received such praise.)

Now maybe you write/sing/produce something that is just supposed to make money, you don't really like it, you didn't put all your effort into it, but you made it to be popular (think friends or avatar - rubbish stories but will make money) do you really deserve to get rich off it? That's' more of a philisophical question. Who knows. I'd rather get rich off of something I thought was good rather then something I made for money, but you're more likely to get paid for the later.

Ahh well, that's life I suppose, I wonder if I can get some stuff submitted to pyramid this year.


@AC 23/1/10 03:56

>>"Now maybe you write/sing/produce something that is just supposed to make money, you don't really like it, you didn't put all your effort into it, but you made it to be popular (think friends or avatar - rubbish stories but will make money) do you really deserve to get rich off it?"

Morally, I'm not sure where commercial artworks are separable from other products, even if the end product may often be more amenable to easy cheap duplication.

Let's say I design a practically useful product, but it's a bit of a pot boiler - done significantly with the aim of making money, and (to me) not as 'good' as other things I make, but some people really like it and think it's worth buying.

Does the fact that I didn't find the circuitry inside aesthetically pleasing mean I should be less pissed-off if someone starts copying and selling the design, or people start doing identical home-build devices, even if I might also be slightly flattered?

Surely, it isn't really anyone else's business what my ongoing or instantaneous emotional attachment to the product is, or how much effort they (or I) feel I put into it?

Should I profit *more* if I happen to be a sickeningly positive person who thinks everything (including their own work) is great than if I'm a cynic who sees flaws wherever they look?

Surely, the extent to which I *deserve* to get rich depends how much people like the product, and how much it was my own work.

There's certainly an argument that it's unfair in *some* ways for someone to make more money than they could ever reasonably spend by making something that happened to be very popular, since there's still a limited amount of effort they could have put into it, but that seems maybe better addressed through the tax system than copyright or other IP mechanisms.


I think there Lordships almost have it right

The idea of having a carrot and stick approach to copyright infringement is fine in principle but it is still weight in the favour of business at the minute.

Now if the law was such that there were new penalties for online copyright infringement, but they were only applicable if the copyright holder had made the material easily available. That way it would force all media industries to get there house in order before they started coming after Joe Public.

So if a record company can't be bothered to make older cd\vinyl recordings available in a digital format at a reasonable price, why should they make money in fines from someone else doing distribution work on thier behalf?

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"[It] requires the payment of an additional fee by the subscriber for the maintenance of unrestricted internet access, which is to be remitted to a licensing body established under the Copyright, Designs and Patents Act 1988."

Well I really like death, black and thrash metal, I only like watching 70s and 80s comedy shows. I occasionally play the odd videogame, but most of the time I spend with my kids, out and about taking photos or going to metal gigs.

Why the **** should I compensate people playing music I detest and actors in TV shows and movies I have no time for?! It's my fricking money, don't I get a say in what it's spent on? Obviously not! I now have to live with the knowledge that my money is being given to over-rated pop-pap drivel, funding extravagent lifestyles of nobodies! I spend my money on music that I like, knowing that the artists who write and play it are getting it straight in their pockets.

What's more, I do NOT download music or movies, EVER! Fact! So why do I have to pay for the other lazy, tight-fisted, freeloading scumbags, who don't know right from wrong?!



@The Fuzzy Wotnot

Here's an idea, why not read the whole article and not just the bits in bold before ranting?

The additional 'fee' is only for those "tight-fisted, freeloading scumbags, who don't know right from wrong" in place of being cut off from the interwebs.

Not just a FAIL but an EPIC FAIL

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Right and wrong are highly subjective

And the methods used by copyright enforces are highly error prone.

These two things in combination ought to be taken into account before railing against freeloading scumbags.

Not that I have any problem with them getting their due, but lets not make pronouncements about moral absolutes where there's an awful lot of grey territory.


Oh lordy !

Some jumped in-bred up stuffed shirts badgering on about subjects that have no idea of.


English Please?

Whereas you are absolute master both an of the hand at subject as the as well English language?


Have you met any of them?

I've had the pleasure (and, yes, it genuinely was a pleasure) of discussing issues relating to technology, law, and social policy etc. with the Earl of Errol on a number of occasions, and would suggest that he is very switched on, understands the issues from the point of view of a customer and a business owner, and appreciates that copyright infringement should be a civil, not a criminal, matter. The fact that he inherited a title should not come into it, to my mind - other than being grateful for the fact that it at least gives him a greater voice in this debate.

(We ended up running through Vauxhall, to the tube station, a few months back, and, once on the train, we had an enjoyable conversation about ereaders, and their scope for revolutionsing reading habits, and making information accessible and available, and of how to keep track of broadband usage if on a capped subscription - an independent peer, so no party affiliation, just looking after the interests of businesses and consumers, to my mind.)



I still don't see how this will benefit me as a music producer not signed up to EMI/Sony/etc.

I won't be on the "database" yet my stuff will be downloaded for free.

Oh wait ...


couldn't give a stuff

if I were a musician, in all honesty I wouldn't give a crap about all this downloading malarky ... unless I were a superhuge star/band

the, never contested, fact is that most musicians in fact make most of their monies from touring

from actually performing.

Unless they have the power to negotiate with the labels for a huge slice of the royalties, thats how they make their £$€

having downloaders out there gives rise to allowing more people to actually hear the music and the chance of getting them along to gigs rather than into town to buy a CD from Tesco's, HMV or WHSmiths

I've always advocated downloading, for myself it has been because I have gone on to listen to more music than I would have normally and then gone on to BUY the music that I like.

thanks to downloading the record companies have gained more cash from me than they ever would have if I hadn't had that opportunity !



"...the, never contested, fact is that most musicians in fact make most of their monies from touring

from actually performing...."

They really, really don't, touring is very hard work, very expensive and keeps you away from home for months at a time. Small bands make sod all money, if any, out of a tour. Mostly touring is to promote the current CD.

Oh, and your statement is fairly regularly questioned.



Sorry, I wasn't actually referring to most of the people you see on X Factor or pop idol., or whatever program is it you are watching this week.

musicians with talent, musicians with creativity, you know, the ones who actually make their music ... you will find that my statement holds up as true ... and i must not visit the same pop music forums that you do to see that statement questioned ... oh wait, i don;t visit pop music forums at all


Mandy's mandible.

You failed to say whether that was the upper or lower Mandybill which is a startling omission in terms of ornithological accuracy. Please put your ducks in a row so that we can distinguish between honest birds scratching for sustenance and a bunch of knuckle-dragging corporate cocksuckers in Westminster.


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Think of the children

I've never seen the "think-of-the-children" line used as an analogy in such a startlingly blatant and unexpected manner. Certainly caught me napping anyway. Er, well done, I think.


Couldn't agree more

and I'd just like to add:

"Young also said it would also harm the market"

GOOD! My first thought whenever I hear someone bleating about "The Market" is "Fuck the market!" It's also usually my second and third thoughts.

And further to the burden of proof: WTB list of known exploits in the most common brand of wireless router in my street.

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He made the right emphasis.... he gets it...

"Overall Lucas summed up the criticism of the Bill when he described a ratcheting process: "...a cumulative effect - all kinds of little ways in which Ofcom will not set out to help the consumer and all kinds of little ways in which someone accused under the Bill will find their life made difficult and tiresome, with a great deal of effort and uncertainty imposed on them in dealing with the allegation. "

Note that Lucas deliberately includes emphasis on the unreliable nature of the beast.

"...in which someone ACCUSED..."

"...in dealing with the ALLEGATION..."

I have no idea who he is, but I already have more faith in him than in any of our elected body.


Relatively old music singles...

"A pre-release film, for example, would cause a very different amount of damage from a number of relatively old music singles."

But what if some relatively old music singles are used in a pre-release film? If the film takes off then those old singles will be temporarily big bucks. Think of Quentin Tarantino's choices, for instance.

Or the use of Spike Jones's version (the white guy) of "Cocktails for Two" in a prominent advert.

I dunno if "Inglorious Bastards" (fixed it for ya) had room for "Der Fuehrer's Face" (not sure Spike spelled that right either, it was a long time ago and he probably wasn't very particular).

Anonymous Coward


"It goes to even the most severe crimes- is an IP address attached to some infringement enough to search the computer of everyone in that house hold, let alone punish the entire household? In the latter case the answer is a resounding no, because punishing an entire household for the crime of one member is actually a breach of fundamental human rights legislation, and yet, this is exactly what is still being proposed."

If there is sufficient evidence that an offense has been committed then searches are allowed throughout a household and associated properties (garages, lock-ups etc) - otherwise the way to avoid prosecutions is to store your contraband / stolen goods / drugs etc. in your children's rooms and then plod could never look there for them.

As for punishing the whole house (I assume wrt cutting off the interweb access) then technically it is only the broadband subscriber who is being punished directly. I assume that should Mr. Smith be cut off for infringements then Mrs. Smith is free to apply for interweb access. She may well be refused but ISPs are not obliged to provide service in the same way that shops are not obliged to sell you stuff.

I agree that some checks and balances are needed to make sure that ISPs etc. treat fairly with people however you need to consider that cutting off etc. will only be done after a number of warnings so it shouldn't come as a shock to anyone. Consequently if the broadband subscriber is the infringer then it is he/she that is depriving the rest of the family and if it is someone else in the family then they need to find out who and stop them.

Finally, comparing cutting someone's internet access (after at least 3 letters and much discussions) to the IDF murdering innocents is a bit lame and just re-inforces your lack of both situational awareness and niceties of scale.

Silver badge

@ tanoki

"Not only did they invent the sins,"

No they did not invent the sins.

A good definition of sins is that it is something you do against your better knowledge.

This definition was not invented, perhaps, bye the church, but it certainly proves that you cannot invent a sin.

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