After immense effort and with a background of controversy, in 2010 the then Labour government rushed through the Digital Economy Act (DEA) in the UK. That legislation contained provisions which would allow rightsholders to monitor alleged file-sharers and send them warning letters via their Internet service providers. But three years on and the implementation of the law is still well over a year (maybe two) away.

In the meantime the music business has concentrated on legal action to have file-sharing sites such as The Pirate Bay and KickassTorrents blocked at the ISP level. But despite their claims that this is an effective anti-piracy technique (and in the face of reports to the contrary), the labels have grown weary of waiting for the additional powers allocated to them by the DEA.

According to a Guardian report, the labels are currently in talks with Virgin Media, BSkyB and TalkTalk in an effort to have the ISPs implement a voluntary graduated response scheme for dealing with errant subscribers.

And the music biz, headed by the BPI, aren’t on their own. The negotiations have also included the British Video Association, an organization which represents a wide range of Hollywood studios and local broadcasters including the BBC and Channel 4.

So what do the labels and Hollywood want?

At the core is a three-strikes or graduated response-style scheme, which will see rightsholders monitor networks such as BitTorrent for infringements and send warning notifications to Internet subscribers via their ISPs. It appears a US-style ‘Copyright Alert’ model would be desirable but it’s almost certain that there will be calls for a tougher regime with harsher punishments such as throttling and disconnections. But industry dreams aside, there are issues with introducing a system like this on a voluntary basis in the UK.

In order to create an escalating response to serial offenders, someone will need to keep track of which subscribers have had letters in the past. It’s pretty much a certainty that on privacy grounds the ISPs would not freely share this information with rightsholders, but even holding onto this data themselves as part of a voluntary scheme could get them into trouble under the Data Protection Act.

And as far as negotiations go, already there appears to be problems. TalkTalk, a company that previously ran a campaign in direct opposition to any kind of anti-piracy punishment that includes subscriber disconnection, told the Guardian that while talks are indeed underway, the company would “never agree to anything” that would compromise their customers.

Virgin Media went further still, describing the industry’s demands as “unworkable.”

As Prime Minister David Cameron invites key UK music figures to Number 10 to have a chat about government support for their industry, the BPI have confirmed that anti-piracy proposals are on the agenda.

“We expect a range of issues to be covered, including encouraging the growth of legal digital music services in the UK and overseas exports,” a BPI spokesperson said.

“As concerns the Digital Economy Act, we will discuss with Government the need for swifter action to reduce online copyright theft, improve consumer awareness of legal services and make the UK the leading digital economy in Europe.”

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The providers were responding to a High Court injunction which orders the country’s major ISPs to block subscriber access to the infamous torrent site.

Users trying to access the site are dealt with in a variety of ways. Some ISPs are directing users to an information page explaining why the site is blocked, while others are simply ‘black-holing’ the domain. TalkTalk have taken a slightly different approach by referring visitors to the website of the BPI.

But while the action in the UK is almost over (the only major ISP yet to block TPB is BT), there have been further blocking developments elsewhere in Europe.

Today the Helsinki District Court ordered yet more ISPs to begin blocking their customers’ access to The Pirate Bay.

This legal action to have the site blocked in Finland dates back to May 2011 when the Copyright Information and Anti-Piracy Centre (CIAPC) and the Finnish branch of the music industry group IFPI filed a lawsuit at the District Court.

Initially the groups demanded that local ISP Elisa should start blocking The Pirate Bay in order to protect the copyrights of their members. While Elisa initially refused, a subsequent court order in October 2011 forced them to comply and in January 2012 it was initiated.

A month after the first court order in November 2011, applications were filed to force two further ISPs – TeliaSonera and DNA – to take the same action as Elisa. According to IFPI, the subscribers of all three ISPs make up 80% of the total broadband market in Finland.

“The results for Elisa and Europe are encouraging,” said CIAPC chief Antti Kotilainen in a comment.

Although unblocking sites is easily achieved, Kotilainen feels that the measures put in place will be enough to deter the all but the most determined internet users.

“The average user will not be able to circumvent the blockade. In addition, the court order will have an impact on overall attitudes [towards infringement],” he added.

In other action against the site in Finland, the IFPI are suing the current administrators of The Pirate Bay. The lawsuit, also filed in the Helsinki District Court, demands that the operators of TPB stop facilitating the unauthorized distribution of music and pay compensation to rightsholders.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

In April the High Court’s Justice Kenneth Parker sided with the government and “upheld the principle of taking measures to tackle the unlawful downloading of music, films, books and other copyright material.”

In October, BT and TalkTalk were given permission to appeal, with Lord Justice Lewison stating that the ISPs should be allowed to argue that the Act “was enacted without following proper procedures and that it may breach the EU’s E-Commerce Directive, Privacy and Electronic Communications Directive, Data Protection Directive, Authorization Directive.”

As long as certain conditions are met, under EU law Internet service providers are not liable for the data carried over their networks, a situation known as the “mere conduit” defense. But today it’s being claimed that staff from both BT and TalkTalk gave advice to customers that they knew had intentions of breaching copyright.

According to a ThisIsMoney report, ‘mystery shoppers’ were asked to call ISPs asking questions about using file-sharing sites.

Perhaps conveniently considering developments due in court today, the allegations focus on advice given by BT and TalkTalk staff. However, based on the information given in the article, first impressions suggest that only one call is worthy of immediate attention and the rest seem potentially overblown.

During that call, made to BT, the ‘customer’ says they want to use Pirate Bay or isoHunt to download movies such as Harry Potter or Cars 2. The BT staff member allegedly noted that the films could be downloaded from those sites “in less time than it would take to watch the film”.

In another call to TalkTalk, the investigators claim that the customer services operator admits to using BitTorrent himself and says that The Pirate Bay would perform best with an ‘unlimited’ broadband package. But there are millions of items on The Pirate Bay, plenty of them legal, and the advice is good, piracy hasn’t been condoned and certainly no laws have been broken.

The report goes on to state that “a string of similar calls elicited no warnings about the potential illegality of such activity” and in every call “the use of such sites is mentioned clearly by the caller as a reason for signing up to a faster broadband package.”

While the initial item which references specific copyright works might be problematic, it is not up to an ISP to attempt to police customer activity or predict which content someone might access on The Pirate Bay. It is certainly not up to telesales operators to try and understand the intricacies of copyright law and then give impromptu advice in response to casual comments by ‘customers’.

Both BT and TalkTalk say that they only want customers to use the Internet for legal activities but Geoff Taylor, chief executive of the BPI who have been critical of the ISPs’ opposition to the Digital Economy Act, says what has happened is unacceptable.

“It is shocking if broadband providers have been boosting their revenues selling broadband to customers who make it clear they intend to break the law,” he said. “This is not the behavior we should expect from responsible companies.”

As highlighted earlier, the information provided in the report is not exactly detailed, so it will be interesting to read the full transcripts of the calls – we’ve asked for copies from the editor and we’ll report back should we received them.

Later today, appeal judges Lady Justice Arden, Lord Justice Richards and Lord Justice Patten will give their decision on the future of the Digital Economy Act and announce whether BT and TalkTalk have been successful.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

As soon as the new service went live TalkTalk subscribers were noticing some strange behavior. During the day they were able to play games just fine, but after 6 in the evening, they were all of a sudden unable to connect. Then, after midnight the connection problems suddenly disappeared and games were loading just fine.

Initially some thought it could be that OnLive couldn’t keep up with the demand, but when the same pattern repeated during the following days it became apparent that something was seriously wrong. This was confirmed by OnLive’s support desk, who observed that the users with problems were facing excessive packet loss on their connections.

So what’s going on here?

Based on the systematic problems between 6 PM and 12 AM, it appears that TalkTalk’s P2P throttling application is also cutting off OnLive. TalkTalk are very open about their traffic management practices, and they do indeed limit P2P traffic during the exact times OnLive users are facing problems.

OnLive uses UDP connections to transfer game data, and it seems that TalkTalk’s traffic shaping equipment mistakes this for P2P traffic.

TorrentFreak reached out to TalkTalk to find out more about the issue, as users in the ISP’s support forums were unable to find out more. Yesterday we got a response and TalkTalk acknowledged the problem, but a fix is yet to be found.

“This has been raised with our network team and we are currently investigating,” a TalkTalk spokesperson informed us. Meanwhile, TalkTalk subscribers are growing impatient as they feel that they are being ignored.

“I basically feel that my money spent on OnLive is being wasted. Working from 8:00 till 16.30 I have no use for this service as I would have wait until midnight to have access. Which is unrealistic, people need to have a good sleep, right?” OnLive user and TalkTalk subscriber Dawid told TorrentFreak.

And somehow we feel that OnLive is not very happy with the issue either, as they may lose customers who think that the cloud gaming platform is simply offering a bad service. A few users of other ISPs have been reporting issues as well, but only at TalkTalk are they still persisting more than a week after OnLive launched.

While we understand that problems can always occur, the above clearly illustrates the dangers of traffic shaping. There’s always going to be collateral damage. In the case of OnLive it is significant enough to be noticed and (hopefully) fixed, but what happens if a smaller company is affected? Hopefully TalkTalk will come forward with an official apology and more details on their UDP throttling, so this debacle can be prevented in the future.

Update (October 3, 2011): TalkTalk gave the following comment to TorrentFreak

“Unfortunately the recently launched OnLive gaming service was incorrectly identified as a peer-to-peer application. We’ve changed this and are currently testing with customers. We apologise for the inconvenience this has caused.”

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Firstly it offers ‘Virus Alerts’ which blocks sites (or even individual sections of sites) known to be infected with malware before they can even reach a customer’s browser.

Next up is ‘Homework Time’, a feature which allows parents to grant kids access to the Internet for educational purposes, but stops them in their tracks should they attempt to become distracted by social networking sites such as Facebook.

The third category, known as KidsSafe, offers parents a set of controls to stop their kids (or indeed anyone else using a TalkTalk Internet connection) from accessing violent, pornographic or gambling content.

HomeSafe goes about its business transparently by scanning the websites accessed by TalkTalk customers, assessing the security risk and applying filtering according to customer preferences. The company is assuring its subscribers that it stores no personal information such as IP addresses.

However, TorrentFreak has learned that it also has another trick up its sleeve – the option to block BitTorrent and other file-sharing related sites. We spoke with TalkTalk’s (always helpful) PR company in order to try and obtain a list of sites currently under blockade but we were told that one isn’t available. Of course one does exist, we just aren’t being given access to it.

What we have discovered is that HomeSafe only filters web browsing. This means that while, for example, The Pirate Bay might be blocked, if users can access the torrents from elsewhere (from a non-blocked site or via email or IM using a friend as a proxy) then the actual BitTorrent transfers will complete just fine.

Nevertheless, getting this far could be tricky for new followers of the file-sharing craze since sites where users can download file-sharing software are also being blocked when HomeSafe is asked to do so.

TalkTalk are stressing that HomeSafe is completely optional and is disabled by default and of course that is the right approach. However, while there is a clear need not to further publicize the URLs of certain sexually abusive sites which have no other purpose than to exploit, the same cannot be said about file-sharing sites and services.

TalkTalk admits that HomeSafe isn’t an all-in-one silver bullet and as we have seen, its BitTorrent blocks can be circumvented with relative ease. But as it stands we don’t know which sites are blocked, or why, or who made that decision. If parents are being trusted to know what to censor for the benefit of their children, they need to make an informed decision and in order to do that there needs to be a level of transparency from TalkTalk.

From our enquiries, that does not appear to be forthcoming, at least for now. So, if you’re a TalkTalk customer, head over to your control panel, turn the file-sharing ban controls up to 11 and start testing the big BitTorrent sites, uTorrent.com, Vuze.com, and others like RapidShare and MegaUpload. We’d love to hear about the results of your tests, backed up with screenshots if at all possible.

Update: Well, well. It seems that our call for transparency fell a little closer to home than we expected. According to a kind TorrentFreak reader who just sent us in some screenshots, not only is isohunt.com, thepiratebay.org and newzbin.com blocked by HomeSafe but also……

…..TorrentFreak.com.

We’ll speak to TalkTalk about this and post an update.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Both ISPs accused the former government of pushing through the legislation without due process and questioned whether the Act is enforceable under current EU legislation. They also challenged the statutory order, currently in draft, designed to apportion the costs of meeting the requirements of the DEA.

Under the law, service providers are required to take action against subscribers flagged as illicit file-sharers and could be required to block domains associated with infringement.

Just under an hour ago, that decision arrived.

“The High Court today ruled in favour of the Government in a judicial review of measures to tackle online copyright infringement in the Digital Economy Act,” said the Department for Culture, Media and Sport (DCMS) in an announcement.

“Mr Justice Kenneth Parker upheld the principle of taking measures to tackle the unlawful downloading of music, films, books and other copyright material. BT and TalkTalk had brought the judicial review, claiming that the measures in the Act were not compliant with EU law and were not proportionate. The judge rejected the challenge.”

On the statutory order dealing with the costs of implementing the DEA, the government indicated that the ISPs could avoid some, but not all costs.

“The judicial review also considered the statutory instrument that splits the cost of the Act’s mass notification system between rights holders and internet service providers.

“The judge ruled ISPs could be made to pay a share of the cost of operating the system and the appeals process but not Ofcom’s costs from setting up, monitoring and enforcing it. The Government will now consider changes to the statutory instrument.”

In a statement responding to the judgement, a DCMS spokesperson said the government is pleased that the court has decided in favor of the DEA.

“We are pleased that the Court has recognised these measures as both lawful and proportionate. The Government remains committed to tackling online piracy and so will set out the next steps for implementation of the Digital Economy Act shortly.”

Both BT and TalkTalk say they are “disappointed” with the outcome and are considering their options. They could include going to the Court of Appeal and the European Court of Justice.

Regulatory body OFCOM is currently considering if site blocking under the DEA is a workable practice. They will report to government shortly.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

“It’s our belief that this haste meant the Digital Economy Bill, as it then was, became law without being properly scrutinised and without its impact being properly assessed,” writes TalkTalk boss Charles Dunstone today.

TalkTalk, which has been speaking out against both the Bill and Act from the beginning, intends to carry on its opposition by hopefully taking its argument to the High Court with the support of a rival ISP.

“Today, in conjunction with BT, we’ve filed papers with the High Court asking for a judicial review of the Digital Economy Act,” says Dunstone. “We’ve asked the High Court to look at whether the Act was passed into law without going through the correct parliamentary procedures.”

TalkTalk also believes that there could be incompatibilities between provisions in the Act and the E-Commerce Directive which restricts the obligations of ISPs. Other areas concerning subscriber privacy could also be problematic, with Dunstone noting that the measures in the Act designed to prevent file-sharing could undermine “the basic rights and freedoms of citizens.”

“As a result, we’re seeking clarity from the Court before we and other industry players are asked to implement the Act,” says Dunstone. “We want to avoid a situation where we invest tens of millions of pounds in new systems and processes only to find that the Act is unenforceable and the money wasted.”

In recent times, TalkTalk has sought to protect its subscribers from outside interference and is the only mainstream ISP in the UK to stand up to ACS:Law and its campaign against alleged file-sharers. In advance of ACS:Law going to court to obtain the real identities of individuals behind IP addresses it has harvested, the law firm approaches ISPs and asks them if they will contest the court action.

TalkTalk always refuses to comply and is therefore never included in court documents. This means that TalkTalk subscribers are protected from all the wrongful accusations documented dozens of times in recent months. The same, however, can not be said about BT. When approached by ACS:Law, BT indicates in advance that it will cooperate, which means its customers become heavily targeted.

Support TalkTalk on this too, BT, and then your subscribers will really take you seriously.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Although there has been some mainstream news coverage in the past, this week the press have really stepped up, helped along by the UK Lords who labeled the ACS:Law scheme “legal blackmail” – not exactly a shining endorsement.

Nevertheless, ACS:Law owner Andrew Crossley has stood his ground, telling the media that his campaign will continue. Following criticism that so far he has taken a grand total of zero cases to court, Crossley told the BBC that cases are pending.

“It has been said that we have no intention of going to court but we have no fear of it,” he said.

While Crossley may not be scared of taking a couple of cut and dried cases of infringement against minnows to court to prove his point, it’s not entirely true that in all cases he has no fear of a court battle. In the words of the Lords, Crossley is engaged in a bullying scheme and, like all bullies, when the big boys step up to fight, the bullies shrink away.

On November 19th at the Royal Courts of Justice in London, Crossley made NPO (Norwich Pharmacal Order) applications to force ISPs to hand over the names and addresses of subscribers the company claims had infringed their client’s rights. The NPO’s related to approximately 25,000 IP addresses harvested from UK ISP BT’s customer base and a further 5,000 from various other ISPs, covering approximately 291 movie titles. The order was granted and ACS:Law are now chasing these individuals for cash payments of around £500 each.

Someone present at the hearing provided TorrentFreak with information which suggested that several ISPs including Be, O2, BT, Plusnet, Enternet and Kingston were not opposed to the court order forcing them to hand over their customers’ private details to ACS:Law.

However, UK ISP Tiscali, whose customers had also been caught up in the ACS:Law dragnet, were strangely dropped from the court order. “Not seeking against Tiscali (previously respondent #8 in the application),” said the comment.

Tiscali were bought by TalkTalk for £236m last year. TalkTalk, as everyone must know by now, are absolutely against elements of the Digital Economy Bill and are refusing to sell their customers down the river on mere allegations of file-sharing. Could they be standing up to ACS:Law too?

We contacted TalkTalk and their response proved very interesting indeed.

“TalkTalk is the only major ISP which has refused to divulge customers’ information to lawyers pursuing alleged copyright infringers. We have held this position since the issue came into view and we continue to stick by this policy,” Andrew Heaney, TalkTalk’s executive director of strategy and regulation told TorrentFreak.

“If we are ever ‘instructed’ to disconnect or throttle a customer who has not been found guilty in a court of law, we will refuse to do so and challenge the instruction through the courts if necessary,” he added.

So, while the above-mentioned ISPs – and BT in particular – are collectively handing over thousands of their customers to be “legally blackmailed” by ACS:Law, TalkTalk will not and are prepared to fight for the rights of their customers.

TorrentFreak contacted BeingThreatened, a consumer group assisting those wrongfully accussed by ACS:Law.

“What the public want to see is a clear commitment from ISPs that they will protect their customers from the actions of these overly-litigious lawyers exploiting legal loopholes to demand money using groundless threats of court action. Given the tens of thousands of letters that have already been sent and the massive heartache caused as a result of this scheme, BeingTheatened would expect to see a concrete commitment from all ISPs,” spokesman James Bench told us.

“After all, TalkTalk’s stated position merely reflects the view of the wider industry (as stated by the ISPA) that the ‘evidence’ presented by these companies is unreliable,” he added.

“We are happy to see that one company has indicated an apparent willingness to display a degree of corporate integrity in looking after the data that its customers entrust to it and not to make this available to anyone that simply asks for it,” he concluded.

So, if you and your family are looking for an ISP run by people who are prepared stand up for your rights, look no further than TalkTalk. While Mr Crossley may not fear going to court against a lowly individual, it seems incredibly unlikely that he’ll take on TalkTalk’s lawyers.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

While delaying a final decision until the next parliament, Business Secretary Peter Mandelson yesterday confirmed plans to have UK residents accused of illicit file-sharing disconnected from the Internet as a “last resort”.

Preceded by months of sending warning letters with an aim of achieving a 70% reduction in online piracy by 2011, Mandelson claims that only persistent offenders would be affected by the harshest measures – those accused of infringing copyrights multiple times.

However, downloading a single music track constitutes an infringement, so being accused on the basis of three or four tracks downloaded over a period of months could be enough to have an entire household disconnected from the Internet. Hardly the promised “proportionate” response.

While the Business Secretary is insisting that there will be an independent appeals process to ensure that any accusations are accurate, his words aren’t inspiring confidence with Internet service providers.

Yesterday, BT Group made a statement indicating its concern at the government’s proposals, noting its disappointed that ISPs will have to bear some of the costs of the scheme, resulting in increased prices for broadband customers.

As detailed earlier, those costs are likely to spiral to £365m per annum, putting the alleged music industry piracy “losses” of £200m in the shade.

“We are also interested to hear whether or not customers will have some form of fair legal hearing before their broadband supplier is required to take any action against them,” said BT.

TalkTalk, the UK’s second largest ISP, owner of the Tiscali and AOL brands and operator of the Dont Disconnnect Us website, went much further.

“The approach is based on the principle of ‘guilty until proven innocent’ and substitutes proper judicial process for a kangaroo court. What is being proposed is wrong in principle and it won’t work in practice. We know this approach will lead to wrongful accusations,” said Andrew Heaney, TalkTalk’s Executive Director of Strategy and Regulation.

According to a report this morning, TalkTalk is now threatening to launch legal action if Mandelson makes good on his threats and implements any disconnection scheme without due process.

“If the government moves to stage two we would consider that extra-judicial technical measures and would look to appeal the decision because it infringes human rights,” Heaney told The Guardian. “TalkTalk will continue to resist any attempts to make it impose technical measures on its customers unless directed to do so by a court or recognised tribunal.”

One pressing issue that seems to have been completely ignored is the existence of current copyright laws which are already being used to punish alleged file-sharers in the UK.

Companies like ACS:Law are already making accusations against UK Internet users who they claim are infringing the rights of their clients, demanding £600+ for the alleged infringement of a single music track.

Are we to have a dual system where Internet users can be both disconnected by the government and financially punished by private companies for the same offenses? The government should decide which system is to prevail and pick one, changing the law if necessary.

The full proposals for the graduated response scheme will be detailed in the Digital Economy Bill, set to be published later on this year.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

But the high costs involved are not the only problem the Internet providers are worried about. In a recent blog post, Andrew Heaney, Executive Director of Strategy and Regulation of the ISP TalkTalk points out that the new legislation will not only lead to numerous wrongful accusations, but it also violates human rights.

“It would put in place a principle of ‘guilty until proven innocent’ that contradicts fundamental human rights. But moreover the proposals will be totally unworkable – and today we’ve proved why,” Heaney writes.

To show how easily people might get disconnected for ‘crimes’ they did not commit, one of their Internet security experts went out to a residential road to see how many unsecured Wi-Fi connections he could run into. It didn’t take long for him to find several unsecured connections from which he could easily download whatever files he wanted to.

Under the new law, these unsecured hotspots could earn their unsuspecting owners a temporary Internet disconnection, and that’s not a good thing according to TalkTalk. “It is absurd to make people, in effect, legally responsible for the traffic on their internet connections and require them to prevent any unauthorised traffic,” Heaney says.

“TalkTalk acknowledges that there is a problem with illegal filesharing and that solutions must be found. First and foremost the content industry must develop new business models to make content more easily available and more affordable,” he adds.

So, instead of trying to overcome the piracy problem by flawed legislation, the entertainment industries should focus on innovation and develop new business models that will convert pirates to paying customers.

Until that happens, TalkTalk will do everything in its power to prevent the current plans from being signed into law. “We will continue to strongly resist any approach that does not protect the innocent,” Heaney concludes.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.