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VCAP: a welcome move for anti-piracy efforts

VCAP: a welcome move for anti-piracy efforts

Fri 25 Jul 2014 6:47am GMT / 2:47am EDT / 11:47pm PDT
BusinessOnlinepiracy

The UK's new voluntary system is an approach to piracy that finally acknowledges the developments of the past five years

The UK isn't decriminalising online piracy. Let's make that clear from the outset, in case anyone missed the updates; the story which flew around the internet earlier this week stating that the UK was about to defang its enforcement scheme for copyright theft was entirely incorrect. The scheme in question, the Voluntary Copyright Alert Programme, is merely a new opt-in approach which content holders can use to secure the cooperation of internet companies in warning their users about copyright violations committed on their internet connections.

VCAP is a scheme with significant backing, including the support of the British government, but it's in addition to existing remedies, not in replacement of them. The scheme itself doesn't have any escalation at the end - if violations continue after the fourth and final warning, VCAP doesn't automatically move to tougher enforcement - but the various legal approaches which presently exist aren't going away, so copyright holders can continue to use those.

It's worth noting, though, that the notion of "decriminalising" piracy is slightly odd anyway. Although online piracy is technically a criminal act, the remedies available are generally civil in nature; the police will rightly invest time and effort to pursuing criminal gangs who profiteer from large-scale copyright theft, but are far less concerned with trying to pursue criminal charges against teens downloading on BitTorrent. "Decriminalisation" has been confused with "legalisation" in a lot of this week's coverage, but they're quite different concepts. "Decriminalisation" means that the criminal penalties and enforcement mechanisms regarding an offence are removed, but it still remains an offence under law. In common practice, that's already the case for online piracy in the UK and many other jurisdictions.

"VCAP replaces that quagmire with a much more co-operative approach; media companies work directly with ISPs, who simply contact their own customers directly to let them know about possible copyright infringement on their account"

Even if VCAP was actually replacing existing remedies, then, it wouldn't be a case of "decriminalisation" because the existing remedies are civil, not criminal. Various civil remedies have been attempted, some with more success than others; some, unfortunately, also had very dubious morality and legality underwriting them. One popular approach in the USA which was sadly exported to the UK a few years ago involved writing threatening letters to people accused of file sharing, many of whom may not have been guilty at all, and demanding a relatively small payment to avoid an expensive legal action and potentially a bigger fine. Many people paid up simply to avoid a legal battle, regardless of their own guilt; the reality is that the technology used to identify sharers may have been deeply flawed.

This latter aspect, incidentally, is part of the reason why criminal enforcement doesn't generally bother itself with individual downloaders or sharers. Criminal cases demand a much higher standard of evidence than civil cases; in order to secure a criminal conviction, you need to prove guilt "beyond reasonable doubt", while civil cases are determined on a lesser standard, "the balance of probabilities". Bluntly, piracy cases are deeply unlikely to stand up to the higher standards required by criminal trials. There's simply too much doubt introduced by technological aspects like spoofed IPs, open WiFi hotspots and so on; tying an individual person to a file-sharing action is tricky as hell to prove to a criminal standard.

All of this was meant to be cleared up, to some extent, by 2010's incredibly controversial Digital Economy Act, but the full provisions of the Act are still to be put into effect; it turns out that actually implementing a deeply dodgy extra-judicial process for punishing people for offences you couldn't prove in court is a hell of a lot harder than shoving a poorly-considered bill through a rushed session of parliament past a group of MPs who were consistently confused about what the letters "IP" even stand for in any given context and thus had about as much chance of fully understanding the provisions of the act as my dog did.

So VCAP, then. It looks like a soft touch; a few letters sent to people with no serious enforcement to back it up. There's been plenty of scoffing and criticism regarding the system over the past week, with some content creators stepping up to express their horror that more isn't being done to protect them, and some hardened pirates pointing out that they're not going to be dissuaded by a sternly worded letter if it's clear that there's nothing more serious coming down the line. It's a damp squib then, right?

Actually, I think VCAP - for all that it's a minority scheme that doesn't have much backing from big media companies (or any game companies, for that matter) - is one of the most progressive and interesting things to happen in anti-piracy efforts in a long time. The hang 'em and flog 'em brigade may scoff at the soft-touch nature of the scheme all they want; the fact is that it's got a number of really attractive features which mean that it might actually end up being really effective at reducing piracy.

Firstly, this scheme treats the ISPs as allies rather than enemies. Previous efforts, including the DEA, have generally focused on trying to strong-arm ISPs into complying with frankly unreasonable demands from media companies, who seemingly couldn't bring themselves to understand why ISPs might feel that they had a duty to protect their customers' private data and at the very least demand hard evidence of wrongdoing before handing that data over to a third party. ISPs quite rightly balked at the notion of giving customer data to media firms on a "because I say so" basis, and even more so at the notion of cutting off customers or applying other punishments on an equally extra-judicial and evidence-light basis. VCAP replaces that quagmire with a much more co-operative approach; media companies work directly with ISPs, who simply contact their own customers directly to let them know about possible copyright infringement on their account and provide information about what this means and how to avoid it.

Secondly, the scheme recognises that hardcore pirates are a lost cause and that it's utter folly to throw good money after bad in chasing them down. Rather, it takes aim at the cases of piracy that might actually be open to remedy; kids pirating content without the knowledge or consent of their parents being the most obvious ones. By sending an informative and non-combative letter to the parents, VCAP aims to encourage them to engage more closely with their children's internet usage and to talk to them about accessing content legitimately. There will also be cases of adults who have simply got into the habit of using BitTorrent and would benefit from a nudge in the direction of Netflix, Spotify or their ilk. This is low-hanging fruit which existing anti-piracy efforts ignore.

"Support the great, accessible content services that have sprung up in the past half-decade by nudging casual pirates in their direction, and you'll probably accomplish more in a short period of time than any amount of campaigning for draconian legislation would"

Finally, and on a related note, VCAP recognises that the internet has changed a lot since the wild west days of piracy and the braying for blood that led to legislation like the Digital Economy Act and its ilk. The developments which have actually helped to nail down piracy in the past five years haven't been legal, they've been commercial. Innovative companies have recognised that while some pirates (the hardcore group that are a lost cause anyway) are attracted by getting stuff for free, an even larger group were attracted the fact that pirates were doing a better job of providing content in a convenient and accessible way than the companies who were actually meant to be doing that for a living. iTunes and Spotify; Netflix, Hulu and Amazon Instant Video; Steam, GOG, Humble Bundles, PS Plus... We've passed the tipping point where for many kinds of content, it's simply easier and more attractive to pay a little for it than it is to spend ages figuring out how to pirate it. The exceptions are easy to see; Game of Thrones, famously the most pirated show on TV, is rather notably locked up behind a requirement for an eye-wateringly expensive US cable TV subscription by its owners HBO.

Companies who managed to look past their righteous indignation at consumers' behaviour have accomplished all of this in a short space of time without the slightest bit of legislative assistance. Hardcore pirates aren't going to go away, and you aren't going to catch them either - they're the ones using VPNs and encrypted traffic, whose technical knowledge is far ahead of daft legislative schemes and enforcement systems that are still catching up to sharing technology from five years ago. Then again, they weren't going to buy your content anyway; to them, it's about the act of piracy as much as it's about playing or watching any of their ill-gotten content. So forget them, and focus on the consumers you're actually missing; the people who are genuinely susceptible to a well-worded nudge to get a Steam account or a Netflix subscription instead of turning to BitTorrent for everything; the parents who don't think hard enough about how their kids always seem to be watching the latest movies on their laptops. Support the great, accessible content services that have sprung up in the past half-decade by nudging casual pirates in their direction, and you'll probably accomplish more in a short period of time than any amount of campaigning for draconian legislation would. If anti-piracy efforts are really about securing the livelihood of creative people rather than about punishing people whose actions infuriate us, then the bigger media and game companies ought to be throwing their weight behind schemes like VCAP; if the soft touch approach accomplishes your goals better than the iron fist approach ever did, it's by no means weakness to use it.

10 Comments

Nick Wofford Hobbyist

180 190 1.1
"...than shoving a poorly-considered bill through a rushed session of parliament past a group of MPs who were consistently confused about what the letters "IP" even stand for in any given context and thus had about as much chance of fully understanding the provisions of the act as my dog did. "

It's the same in the US with our Congress. I once watched a hearing on bandwidth issues go on for about an hour and a half before the chair of the committee had to stop and ask someone what the definition of bandwidth was. I'm not a fan of ageism, but in the case of technology, it's just a fact that really old people are behind in the understanding department. But they'll pass laws about the Internet, don't you worry.

Posted:3 months ago

#1

Barrie Tingle Live Producer, Maxis

387 205 0.5
What I don't get, well I kind of do as a Brit that saw the government build the Millennium Dome, is why bother spending all this money just to send someone a letter to tell them they have been pirating and that there are legal methods of obtaining what they pirate.

The person that gets the letter knows those legal methods, they know they pirate and a letter isn't going to change that. In fact I imagine those letters finding their way onto websites shortly after the first one gets delivered and mocked. If I pirated (which I don't) and got one of the letters I'd be "I know, I was there" and throw it in the bin.

If there is no repercussion for doing what they are doing then don't spend millions of pounds on a letter scheme.

Posted:3 months ago

#2

Keldon Alleyne Handheld Developer, Avasopht Ltd

450 423 0.9
If I pirated (which I don't) and got one of the letters I'd be "I know, I was there" and throw it in the bin.
Perhaps, but that does not stop it from influencing you if written in the right way.

Posted:3 months ago

#3

James Berg Games User Researcher, EA Canada

178 227 1.3
@Keldon - Precisely. Pirating something is an invisible crime - nobody is going to be there to tell you not to do it. This provides an outside influence politely asking you to stop. Not convinced it'll be particularly effective, but I can't see it doing any harm either.

Posted:3 months ago

#4

Rafa Ferrer Localisation Manager, Red Comet Media

61 88 1.4
Sure there's a lot of work to do regarding awareness, but I don't think it will do the job by itself.
Most chronic pirates would never steal an overpriced, overrated or outdated game disc in a store (just trying to think of a physical item that matches some usual arguments for pirating), but still pirate for hundreds of dollars every month without a thought. Sometimes I think the root of all evil on the internet is the lack of consequence, and that the only effective solutions are also the most grim and big brother-ish. Tough one indeed.

Posted:3 months ago

#5

Brook Davidson Artist / 3D design

83 223 2.7
I am sort of one of the people that is 100% ok with online piracy. Do I consider it wrong? Ya sure, up to a certain extent I do believe it is wrong. However, that line gets fuzzy when the person who pirates ends up buying it afterwards anyway. In which case ... would they still have purchased it, if they didn't pirate it?

I certainly will not claim to be innocent either. I most certainly have pirated, but always end up buying what ever it is if I like it. If I don't like it, than I would delete it. No point in keeping something I don't like, right .. .and it saved me some money.

I realize some people release demos of their products, but sometimes it's such a washed down product that you really can't get an accurate idea if it's good or not. Demos sometimes can give a very false impression.

Posted:3 months ago

#6

Curt Sampson Sofware Developer

596 360 0.6
Barrie Tingle writes,
The person that gets the letter knows...they pirate...
Not necessarily. Please re-read the article with a little more care.

Posted:3 months ago

#7

Curt Sampson Sofware Developer

596 360 0.6
Rafa Ferrer writes,
Most chronic pirates would never steal an overpriced, overrated or outdated game disc in a store (just trying to think of a physical item that matches some usual arguments for pirating), but still pirate for hundreds of dollars every month without a thought.
No, it's people like you who feel entitled to their rent-seeking behaviour that aren't thinking about it.

If you can't see the difference between a retailer who paid, say, $10 for an item who can no longer sell it, and someone who paid nothing (not even bandwidth charges), you're the one that's unthinking. Who is going to come to your on-line shop and be unable to buy a copy because someone else downloaded a copy from another server?

The government grant to you of a monopoly on the use of your work is no different than the government enforcing a rule that, say, only certain people are allowed to wear clothing coloured purple. After some rather nasty false starts with various kings deciding who could and could not print and distribute what, society came to an agreement that we would accept a limited amount of harm to society over-all (denying the use of certain things unless you got your rent for them) because we felt we wanted to offer encouragement to artists to create new works. We obviously need to be fairly flexible on that; when was the last time you purchased an appropriate license to sing "Happy Birthday" at your child's birthday party? (If you didn't purchase an appropriate license for this, you are just as much a "pirate" as anybody torrenting a video game.)

We're simply lucky that corporations such as Disney didn't mature fast enough to keep things such as Shakespeare under copyright, or nobody could quote him without being sued. That's not a world we want to live in.

Posted:3 months ago

#8

Rafa Ferrer Localisation Manager, Red Comet Media

61 88 1.4
@Curt
No, it's people like you who feel entitled to their rent-seeking behaviour that aren't thinking about it.
You couldn't be more misguided. You know nothing of my stance on copyright or patent laws or whether my behaviour is rent-seeking, so please try not to be insulting by putting words into my mouth, or worse, facts into my life.

I just said the lack of consequence is a major reason why most people pirate without a care. They won't pay a game they'll play but they wouldn't steal an apple from a grocer's (hope this example sounds better) because, among other reasons, they can get in trouble. Then I conclude that the only solutions I can think of are almost totalitarian. Although I don't think this initiative will be all that effective, I'm actually agreeing with the last part of the article and underlining the moral dilemma of enforcing copyright laws at their full extent. I don't know why you jump at my throat like I'm some corporate lobbyist asking for people who whistle on the street to be put behind bars.

In fact, I agree with your misdirected rant, although I think there's a huge difference between being flexible and condoning the behaviour of people who won't miss a movie, book or game but won't pay a dime for it. There are lots of levels of "being a pirate", each with a different level of harm they can cause to an industry, from none -including beneficial effects in a handful of cases- to a lot.

Posted:3 months ago

#9

Curt Sampson Sofware Developer

596 360 0.6
Rafa, sorry about misunderstanding your position, but you were using words and phrasings commonly used by the "piracy is terrible" folks, without any indication that you don't agree with them. Especially when you then appear to refer to the beaviour under discussion as "evil."

In particular, I don't find your proposition that "pirates steal...without a thought" to be credible. Some may do so, but others are making a rational choice based on the thought that they are being treated unfairly in some way (be it via the inability to use one's purchases on various devices, the risk of all of their purchases simply vanishing one day, or simply that "big media" has twisted the compact made originally between artists and the rest of society too far in the favour of the media owners.)

Posted:2 months ago

#10

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