It doesn't seem to matter how many times this very obvious truth is stated, the media industry lobbyists, the more ignorant of the politicians and now, alarmingly, some of the more naive members of the judiciary seem not to be able to process it correctly and take it on board.
It's not as if there aren't any lessons to learn from. ACS:Law stands out as a glaring example of the level of failure (thus far achieved) that hung itself on the 'IP address = subscriber' premise. The more enlightened of the judiciary (that's a hat tip to HHJ Colin Birss of the Patent's County Court) recognise "the fact that an IP address does not identify an infringer at all but only an internet connection which is capable of being shared by many people," but today's judgment in the Digital Economy Act judicial review contains some alarming phrases. At the risk of upsetting the gentleman Mr Justice Parker appears not to be quite so well informed - perhaps because his court offices have not received tearful telephone calls from those wrongly accused of filesharing, such as Birss has.
A couple of the outstanding flaws in the judgment:
"When the ISP sends a CIR to a subscriber, it is not "monitoring" any information. It is simply reporting to the subscriber that, according to information received from another person, the subscriber has infringed the rights of a copyright owner. Similarly, when the ISP sends a CIL to a copyright owner, it is not "monitoring" any information. It is simply reporting to the copyright owner that, according to information held by the ISP, a particular subscriber, identified through the IP address or addresses, has infringed the owner's rights on a number of occasions (to be specified in the code)." (para. 116; my emaphasis)
"Under the DEA, on the other hand, the copyright owner will routinely and systematically receive CILs that, in practically every case, will accurately identify the subscriber/infringer and the extent of copyright infringement." (para. 228; my emphasis)It would perhaps be unkind to wish upon the architects of the Digital Economy Act, the rights holders' organised lobbyists and Mr Justice Parker that members of their direct families might receive incorrect accusations of copyright infringment, but if that is what it takes before they realise that an IP address ≠ an infringer (in fact, it doesn't even necessarily relate to a subscriber), then so be it. It was their decision after all; it's not as though they weren't told.
#2 Filesharers adapt
There are already so many ways that the measures set up in the Digital Economy Act can be circumvented by those that wish to pirate. All the DEA will do, once the provisions kick-in, is alienate the customers of the ISPs (and, in practical terms, for the purposes of discussing lost revenue, that's the same customers as of the content producers and the rights holders).
While it may not be arcane knowledge, terminology such as 'cyber lockers', 'seed boxes' and VPNs are not currently everyday terminology to the layman. They may soon be. As could have been anticipated by anyone with an ounce of foresight (not those that drafted the DEA then), filesharing will simply disappear underground. Everyone will do doing it but it will no longer be on the radar. And once you've forced individuals to identify themselves as filesharers you've created a self-fullfilling prophecy in those people. If someone signs up to a VPN you can be certain that they'll want 'value for money' from it; they'll torrent more than they ever did before.
People will get wise, and educated pirates are far more 'dangerous' to the creative industries than casual downloads by bored teens keen to get the latest album ASAP. There are already online very accessible 'shopping lists' as to how the DEA can be bypassed.
People that want to pirate won't be stopped, and they won't be identified. All that will be left for the provisions of the Act to 'notify' will be grannies with hacked wifi, public providers and those suffering the annoyance of wrongful accusations caused by the creative industries' flawed monitoring or ISPs data mishaps.
It's been estimated that the provisions of the Act will cost £500 million (intended to prevent an alleged loss of £200 million* by the creative industries). That's a whole lot of money for a whole lot of uneconomic aggravation.
(*In fact it's since become known that P2P filesharing accounts for only 37% of this online copyright infringement. Return on investment: Not. Good. Economic. Sense.)
Photo credit: http://www.flickr.com/photos/steve_way/