Warnings just aren't good enough. That was the message delivered at a London conference today by a group of UK creative industries, which are demanding that ISPs start disconnecting users accused of repeated online copyright infringement. But the response from ISPs was clear: the creative industries can just shut their collective pie-hole until they do a better job of licensing legal content.

Hey, Digital Britain, start disconnecting people!

Today's push for tougher "graduated response" penalties is politically timed to put pressure on the government's soon-to-be-released Digital Britain report (read our coverage of the report's interim conclusions). That report will shape government policy on issues like graduated response, and early drafts have so far been in keeping with the government's current approach—Internet disconnection is off the table as a penalty.

It is our view that legislation on enforcement should only be introduced on the condition that the rights holder industry commits to significant licensing reform.

Previous UK studies have shown that a mere warning (which strips away the veil of anonymity that many Internet users believe they enjoy) is sufficient to stop the vast majority of illicit file-sharing. The UK music business has essentially endorsed this approach in the past, signing a memorandum of understanding with the UK's largest ISPs which saw warning letters sent to suspected infringers. But, with the government poised to set policy in this area soon, the music and movie businesses have decided that there's no harm in aiming for what they really want: mandated disconnections, like those just passed in France.

The thinking here seems to be that warnings would have an effect if backed by the threat of disconnection, but once every file-swapper in the UK knows that no penalties would follow the letters, effectiveness would plummet.

Revolt of the ISPs

But the ISPs aren't going quietly into that dark night. In a statement, the Internet Service Providers' Association (ISPA) said that it agreed with creative industry calls for "the safe and secure delivery of legal content." Getting access to this content remains difficult, though, and ISPA notes that "Internet companies remain extremely frustrated by the ongoing difficulties in securing licensing that is needed to offer consumers legal alternatives through new models of online content distribution. It is our view that legislation on enforcement should only be introduced on the condition that the rights holder industry commits to significant licensing reform."

Despite the apocalyptic figures released today by the creative industries (800,000 jobs could be lost! Half the UK's Internet traffic is piratical!), the industry's own data shows that the situation is improving. Last week, the RIAA's research department sent Ars new research showing that legal music services now exceed illegal ones in popularity for the first time.

US Internet users who download digital music (%)



Data source: NPD

"An increasingly entrenched group of hardcore file sharers continue to trade even more files," says the RIAA. "That’s predictable, and probably an audience that's nearly impenetrable. A more relevant barometer is the number of people using P2P as a share of Internet users, and that number, despite significant growth in both broadband penetration and legal downloading, has remained essentially flat for the past three years."

This is obviously not an argument for doing nothing about the problem, but it does suggest that deeply controversial measures might not be necessary. And, with the European Parliament adamantly opposed to nonjudicial Internet disconnections, tough graduated response penalties certainly qualify as "controversial."

The movie and music industries deserve full credit for finally getting their act together and licensing new services that are hugely popular with consumers. In the US, we have DRM-free iTunes, the Amazon store, Hulu, Netflix online streaming, Last.fm, eMusic, and others. Europe has its own set of butt-kicking services, including the BBC iPlayer and Spotify. Despite the work that has been done, though, the ISPs continue to insist that streamlined licensing and better business models will succeed better than turning Internet providers into cops.

And then there's that pesky "evidence" that people get so hung up on. "ISPA members have consistently explained that significant technological advances would be required if these measures are to reach a standard where they would be admissible as evidence in court," said the group.

Given the problems with disconnection, the burgeoning growth of legal services, the European Parliament's obvious intention to restrict the practice, and the UK government's own resistance to disconnection, there's a good chance that Digital Britain author Lord Carter won't be swayed by the latest round of lobbying. On the other hand, the creative industries in Europe just pushed a 20-year copyright term extension through the European Parliament in defiance of all academic evidence, so anything is still possible.