In recent news, Virgin Media has decided to "measure the level of illegal filesharing on its network"...
On the face of it, it sounds innocent enough - illegal file sharing keeps hitting the news, and if the adverts can be believed, then file sharing equals copyright infringement, and copyright infringement equals theft. And we have all heard the music industry whining about loosing gazillions of pounds/dollars in profits due to the nefarious pirates.
And yet: I find this worrying.
There are several problems here:
- In order to identify traffic as "file sharing" they need to (literally) spy on users and examine the contents of each packet.
- On the internet, nearly all communication is file sharing. The internet is based on computers copying files to each other. You would not be able to read this web page if my web server had not shared this file with you.
- Contrary to common belief, file sharing is not illegal. However, copyright infringement is.
- If the Dark Lord Mandelson gets his way, users can have their internet connection cut if they are accused of copyright infringement 3 times. Yes: accused, not convicted. The presumption of innocense is gone.
As an internet user and system administrator, I am well aware that all my network traffic passes through my internet service provider (ISP), and they could (if they wanted to and were legally allowed to) intercept and record every single email, web page, download and instant message that I send or receive. This is similar to the position of the Royal Mail who handles all of my paper-based communication: They can read any mail I send or receive too (assuming that somebody issued the relevant warrants allowing them).
Under normal circumstances, my postman is not allowed to read my mail. He needs a warrant from e.g. a judge (or anybody else). If he started reading my mail anyway, he would be in serious trouble and risk ending up in jail
The Royal mail can still get useful information without opening the mail - e.g. they can measure and weigh the envelopes to check that the correct postage has been paid. Or they could measure how much mail is sent from one postcode to another - this would be relevant when projecting the mail volume in the future. As long as they do not open the mail.
Virgin Media does not seem content with that.
In order to identify network traffic as "file sharing" they will have to analyze all traffic. And not only do they need to look at the internet-equivalent of "envelopes", they need to examine the contents of the traffic. But as far as I know, the Regulation of Investigatory Powers Act (which regulates who is allowed to intercept communication in the UK) does not grant that right to any ISPs.
"File Sharing" is a wooly concept. The internet is based on computers copying files to each other all the time.
When you point your browser to http://www.virginmedia.com, the browser gets a copy of the web site. Exactly the same happens if you point it to http://thepiratebay.org or http://www.bankofengland.co.uk. Every image on the web page must be downloaded to your computer before it be displayed on the screen. Every web server on the planet works by sharing the web page with readers - without this, no web sites can exist.
Another common form of file sharing on Windows is network drives, e.g. where the H:\ or U:\ "drives" are really located on your company server.
Nearly all network protocols (http, ftp, smtp, imap, pop3, smb, cifs, bittorrent to name a few) are used for file sharing - and most of them were designed with file sharing in mind.
Identifying copyright infringement is dicey at best. To be guilt of copyright infringement you have to distribute a copyrighted work without a license to do so.
Thus, for Joe Public to be convicted of copyright infringement, the accuser needs to prove 3 points:
- Joe Public copied file "X" to somebody else
- File "X" is under copyright
- Joe Public does not have a license to distribute file "X"
Using deep packet inspection it is sometimes possilble to identify what file was copied - although this itself is a nontrivial problem: The file has to be compared to a (huuuuuge) list known files to find a match. The entire contents of the file is needed here - the filename itself is not sufficient - "Killer-Queen.mp3" could be a recording of the wife preparing a meal starting with a live chicken.
Not all files are under copyright. Every year material "fall out" of copyright. This is part of the "copyright deal" - copyright is limited to a certain number of years, after which it becomes public domain. For example, currently, the early Beatles recordings are falling into the public domain. Arguably, then length of copyright is excessive, but that is a different discussion...
Unfortunately, Virgin Media will have no way of telling these apart:
- Joe Public downloading a DVD from a legal retailer - e.g. Netflix
- Joe Public sharing the DVD on his web site
- Joe Public copying the DVD from his work computer to his home computer
- Joe Public copies the DVD to his iPod
Of these, only the 2nd and 4th are illegal (and only the first 3 can be detected on the network).
And don't forget: If the "3 strikes and you're cut off" comes into law, Joe Public may just loose his internet connection as a result.
It seems appropriate to paraphrase Martin Niemöller here:
First they came for the terrorists, and I did not speak out—because I was not a terrorist;
Then they came for the paedofiles, and I did not speak out—because I was not a paedofile;
Then they came for the pirates, and I did not speak out—because I was not a pirate;
Then they came for me—and there was no one left to speak out for me.
Welcome to the new world - James Orwell is smiling smugly in his grave...
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