In February 2008, the UK’s culture secretary, Andy Burnham, challenged the UK’s Internet service providers (ISPs) to intensify their efforts to stem illegal downloading or be forced to do so by law.

In an interview with the Financial Times, Burnham insisted that his statements were not just a threat and that government had a “definitely serious legislative intent”.

His comments came after a government green paper was leaked to the press. The paper, a non-committal proposal of legal reform, suggested that ISPs might be legally obliged to adopt a ‘three-strikes-and-you’re-out’ rule regarding downloads. Under the rule, which is already on the statute books in France, users caught three times downloading material that is protected by copyright are disconnected from the Internet.

Aside from questions about the legal and technological viability of these proposals, concerns were also raised about their impact for business. Would businesses be held responsible for employees who illegally download illicit material while at work? Nothing in reports has so far excluded this possibility.

But despite its tough talking, the government would clearly prefer to avoid legislation. Squaring the implications of monitoring Internet traffic with existing data protection laws would be expensive, time-consuming and ultimately unpopular among voters.

Instead, a more ad hoc arrangement, such as the voluntary scheme currently operated by the ISPA (see below), which addresses each case on merit, is preferable for users, government and ISPs.

Whether this will be to the satisfaction of the copyright holders is another matter, as so far the scheme has failed to stop illegal downloading. The question to be answered now is whethenr UK law should bend to meet the demands of the copyright holders, or whether they should bend to meet the realities of modern technology.

The experts' reaction

Nicholas Lansman, secretary general of the Internet Service Providers Association (ISPA), believes legislation is untenable and that self-regulation is key

The ISPA has been operating a voluntary scheme whereby rights holders inform the ISPs when they detect copyright infringements. The ISP sends a warning to the user three times, after which ISPs may exercise their right to withdraw service. At each point, they can explain to the ISP what has been going on, so businesses have nothing to fear from this.

Toby Stevens, director of the Enterprise Privacy Group, says threatening users with disconnection is no way to protect copyright

The protection of copyright is essential for a knowledge economy, but this particular approach is doomed to failure. Hardened file-sharers will simply employ VPNs, proxy servers and zombie machines to hide their bit-torrents. ISPs cannot be expected to identify all their users before assigning accounts. It is high time for the recording industry to look to new commercial models such as music rental to protect its revenue streams.