VCAP: a welcome move for anti-piracy efforts

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.