Letter to my MP about proposed “2 strikes” legislation
Dear Mr Dudderidge,

I sent the following to the above consultation. Whilst I am aware that you strongly support the industries rightful efforts to reduce copyright breaches, I would like to think that you would take the enclosed points into consideration.

Phil Culmer
(address redacted)

From: Phil Culmer (email redacted)
Sent: 25 August 2009 17:30
To: ‘adrian.brazier@bis.gsi.gov.uk’
Subject:

Dear Mr Brazier,

I would like to register my objection to the proposed “two strikes” legislation on several grounds:

1. The proposed legislation is even more extreme than that rejected by previous consultations (as being too extreme), and proposing it is therefore not only in breach, but in defiant opposition to, the government’s consultation guidelines.
2. Whilst technological measures available may identify the protocol in use by a simple scan, the protocols used for illicit file-sharing are also used for entirely legal and innocent file-sharing, and for other applications, such as software distribution, and transmission of internet television. Whilst deep packet inspection may permit identification of the content, it is controversial, being ethically equivalent to phone-tapping or mail interception, both of which require a court to be shown probable cause for authorisation. It can also make no indication of the legal status of an identified file – it cannot tell the difference between a file being illicitly shared and a licensed download.
3. It is an attack on the common carrier status of ISPs. Currently, they make no attempt to regulate the content travelling over their wires, and are not held responsible for the actions of their users. This legislation is equivalent to holding a telephone company responsible for the content of a phone call, or requiring the Royal Mail to inspect all mail to ensure that it is legal. Whether or not it is technically feasible (and currently it would appear not to be), it completely changes the legal position of ISPs; by requiring them to attempt to regulate traffic traversing their network, they become legally responsible for it. At the current state of the art, this would hold them responsible for something which they cannot control – a patent violation of natural justice.
4. This legislation was proposed days after a meeting between Lord Mandelson and representatives of the recording industry, an industry which has become notorious for its abuse of the legal process in pursuit of those which it asserts are stealing its product, whilst showing cavalier disregard whether the individuals accused are guilty. In fact, in several cases, they have been found by the courts to have perjured themselves, with the intent of terrorising those accused into submitting, regardless of guilt or innocence. They are currently under investigation for breaches of the RICO statutes of both US federal law, and those of several states. There is thus a suspicion of improper influence, and of unclean hands on the part of the industry.
5. This legislation risks undermining public support for copyright law. In addition to the above mentioned legal issues in the United States, there is a growing public perception of the recording industry as endeavouring to manipulate the law in order to maximise their own profits, at the expense of both consumers and recording artists. Proposals such as copyright extension, which experts analyse as being for the benefit of the industry and a few major artists, at the expense of the public and of smaller artists, are eroding what support they have left.
6. The proposed legislation smacks of “giving the foxes the key to the hen-house”, and cannot avoid the suspicion of being used by the major labels to damage smaller independent distributers, and/or prevent legitimate non-commercial distribution. The major labels are currently running a major emotive campaign, equating the illicit copying of material with the theft of physical merchandise. This is the latest technological advance which they wail is “destroying” their industry – following such obvious social evils as tape recorders, VCR units, radio stations, and lending libraries, none of which have managed so to do. The reliance on emotive, and blatantly false, scare stories only damages their reputation further. Expert analysis indicates that those who are guilty of illicit file sharing are those who purchase the most music and movies, but the industry is attempting to smother data such as this with rhetoric and hyperbole. In the current age, the easy availability of expert studies shows hyperbole for what it is.
7. The proposed legislation is unnecessary. File sharing is decreasing, most probably due to the availability of legal means of obtaining music, such as Spotify, Last.fm, and similar advertising supported sites. The music industry is being dragged kicking and screaming into the 21st century, and (despite their attempts to the contrary) is quite able to obtain a sufficient revenue stream from modern technologies. Their attempt to abrogate our constitutional protection from unjustified judicial interference is supported by assertions of a non-existent bogeyman, in order to maintain an artificial scarcity which serves not even them – there is even greater income to be made from ubiquity.

Thank you for your kind attention.

Yours sincerely,

Phil Culmer
—
This is what we know, when you tell us of your fondest hopes and dreams for us: that your greatest wish is that one day we will cease to be, and strangers you can love will move in behind our faces.
Jim Sinclair, “Don’t Mourn for Us”, http://autistics.selfip.org/dont_mourn.html