The British Phonographic Industry (BPI), a representative voice of the UK recorded music business, has warned that it could use the supposedly anonymous "infringer lists" maintained by broadband ISPs to take the most serious unlawful p2p file sharing suspects to court; long before the Digital Economy Act's (DEA) "technical measures" (disconnection, bandwidth throttling etc.) have even taken effect.

Under the Act UK ISPs have an obligation to retain an anonymous list of "suspected" copyright infringers. If asked to do so by a relevant copyright owner, ISPs must then supply a serious infringer’s list showing, for each subscriber who has been identified repeatedly by the copyright owner, which of the copyright owner’s reports relate to that subscriber.

The list itself will not reveal any subscriber’s identity, though such data could easily be requested by a court order; as per the BPI's plan. This makes it easy and cheaper for copyright holders to target groups of big abusers, bringing legal action where appropriate.


The move is particularly interesting because the BPI officially abandoned its court action approach in 2006, due in no small part to its limited impact upon unlawful file sharing and the adverse publicity involved. Earlier this year the BPI also criticised solicitor firm ACS:Law for sending letters to UK ISP customers that demand huge settlement fines (£300-£700) or threaten court action (here).


Much as we pointed out before, the words "don't favour" are not the same as "don't use". Similarly the BPI also never ruled out similar measures against "persistent or serious offenders", which is what they now appear to be preparing for. This is all despite the fact that such methods are prone to error and can end up targeting innocent individuals.

Ironically the Digital Economy Act's aim was partly to make it so that such action would no longer be necessary, instead seeking to dissuade ISP customers from unlawful file sharing. However the BPI claims that the government's decision not to impose Technical Measures immediately is the cause of its u-turn.

Under the current rules Ofcom could mandate for the imposition of technical measures only if the initial letter warnings failed to reduce levels of unlawful file sharing. The Government's Secretary of State, Peter Mandelson, said earlier this year that if the amount of unlawful downloading had not dropped by 70% come April 2011 then technical measures would be imposed from July 2011 onwards.


The BPI claims that it would much prefer the problem to be tackled by technical measures than through litigation, though it is already anticipating failure of the letter warning system and not even giving such measures a fair chance to "work".