Okay, we left off the last post around 2002. This was a really busy time for the internet in the UK. Ofcom had just formed, and as I mentioned in the last post, had no real remit to regulate the content of the internet. The Internet Watch Foundation, funded by the UK ISP industry, is starting to take on that mantle - the ISPs realised that the internet was effectively unregulatable on either a technical or legislative basis. And the government, surprisingly, is mostly agreeing with them.
Things started going sideways in 2003 though. As already mentioned, the tabloid press (who wanted to keep their monopoly on bullshit and tits) whipped up a furore over child pornography. In fairness, the internet of 2003 was very, very different from the internet of today. Commercial child pornography websites proliferated in the former Eastern Bloc, and even in the West - the 2001 Landslide takedown (which led to the Operation Ore fiasco) showed that the truly laissez-faire self-regulation still envisaged by most ISPs was always going to be doomed. Cleanfeed-like systems seemed to be the ideal solution here - a "voluntary" system that at least erected some barriers to the worst offenders, at relatively small cost and a very low collateral damage rate.
One thing that everyone - ISPs, the IWF, and even HMG - agreed on was that the Cleanfeed-like systems must not suffer mission creep and start to be used for other purposes. That would set a really nasty precedent, because of a name that is still only whispered in some quarters of the internet - Laurence Godfrey. Or rather, Godfrey vs. Demon. This was one of the first - and certainly the most important - legal cases about the applicability of meatspace laws to cyberspace. Laurence Godfrey claimed that he was defamed by a user of Usenet. He requested that UK ISPs remove the posting from their Usenet servers (yes, UK ISPs had their own Usenet feeds those days) and Demon refused. (Demon have form on this, their refusal to remove child porn groups from their feed was what started the ball rolling with the Express stories that eventually led us to Cleanfeed). Godfrey succesfully argued that even though the post did not originate with Demon, Demon had the power to prevent their users from seeing it and were therefore legally culpable for not removing it when informed.
From that point on the conventional wisdom was that ISPs should *not* attempt to pre-emptively regulate their users access to the internet, because to do it for one case would mean they would have to do it for all. Cleanfeed snuck in under those regulations because it was using a very narrowly-focused list provided by an independent third party. It's one of those bits of legal sleight-of-hand that makes no actual sense to the laymen but people who wear horsehair wigs for a living assure us is actually fully kosher for £750 an hour.
In which the IWF decide they can actually watch the internet
Unfortunately the IWF (or rather their new, independent board no longer drawn from the UK ISP industry, but instead drawn from police and charity) didn't get that memo. The IWF decided that their mission was to stop all illegal activity from reaching UK internet users, and tried adding sites containing incitement to racial hatred and violence to the CAI list. This was a bridge way too far for the ISPs who threatened them with withdrawal of funding if they didn't sort their shit out. The IWF instead published separate lists covering racial hatred and later "extreme porn", which weren't used in Cleanfeed but were licensed by several commercial filtering providers.Everyone breathed a sigh of relief, bullet dodged, right? Wrong. This fiasco - and a couple of other high-profile cases, in particular the Google loophole and the Wikipedia issue (I won't go into detail on these because that's a whole book on it's own) led to the biggest UK ISPs revisiting the Cleanfeed architecture. It was only ever a stopgap and the limitations of it were being exposed on a regular basis. Each of them went their own way, but the common thread of all of them was an ability - missing in Cleanfeed - to edit the blocked list independently of the IWF feed. But still... not a problem... right?
In some countries they call a mobile phone a "handy"
Parallel to all this fun was the rise of mobile internet. Now mobile internet is a very, very different beast from fixed-line. The fact that so many people say stuff like "Why do I still need a copper pair when I have 4G?" is testament to the incredible technical leaps made over the last two decades to blur those lines. However for the purposes of our story you only need to know one thing - it is ridiculously easier (and indeed more or less an absolute requirement) to filter mobile internet traffic than it is fixed-line. Apart from a very few edge cases your mobile traffic all goes through some kind of proxying. This was useful for the mobile providers, as it meant they could block the IWF list for no extra cost. When the inevitable moral panic about the ease with which children could access pornography in their own bedrooms via their mobiles came along, they could also filter that. Quietly and apparently without anyone really noticing all of the mobile providers simply started blocking access to any porn sites in 2004. You could re-open the fleshy floodgates with a simple age verification test. And so the tabloids were mollified, the mobile providers saved face (and a lot of transatlantic transit costs) and everyone was happy.The important words to take from that paragraph, jumbled though it is, are "simple age verification test". These words will come back soon.
The postman always port-knocks twice
We need to rewind a couple of decades at this point. One apparently unimportant detail of the Video Recordings Act was that it restricted the sale of R18 videos to in-person sales only. No mail order, because there was no way of verifying the age of the person ordering. A few court cases were attempted to reverse this, but to no avail. Several European companies merrily sold stuff across borders (and would even offer free refunds if Customs seized the tapes), and more than one court cast hinged on this unfair competition.This is where the BBFC come back onto the scene. There were a few dozen UK-based porn sites, from the staunchly-vanilla Paul Raymond-owned sites through to the downright exotic Janus (I've got a great story about them but Jesus this post is already dragging so I'll skip it for now). Of course these were all subscription sites that required credit card details for access. At first the government were happy enough with this - it matched the requirements they'd already drawn up but never got round to implementing. The BBFC grumbled a bit but because at this point none of the content was a "video recording" as mentioned in the VRA they had no power to do anything.
However, the explosion in cheap bandwidth soon meant that these UK sites were starting to offer video. The BBFC jumped straight in - these were "video recordings", and hence needed to be certified by them. Their original plan was, no doubt, to try and get a piece of the action on all the new internet-only porn in the same way they'd got in on the video nasty game 20 years ago. The providers, naturally, weren't having any of this. Most of them instantly moved offshore (something that the BBFC apparently hadn't seen coming) but a few - Harmony, in particular - tried another way. Harmony were already a UK licensed sex shop. They sold R18 videos perfectly legally from a dozen or so high-street shops. Surely if they could legally sell this stuff on a plastic disc in Thurrock they could sell it online? Nope, said the BBFC - that's mail order. Not allowed. Ah, said Harmony, but we're not actually mailing them the video recording - they're streaming it from our servers. Nope, said the BBFC, that's broadcasting. This court case rumbled on for TEN YEARS, and will come back later in the story.
In the meantime, the BBFC was seeing the amount of recordings they were getting fees on plummeting again. So they began lobbying, using the moral panic over extreme porn in particular, to be put in a position to regulate *all* video on the internet. They seriously proposed an amendment to the Criminal Justice and Immigration Act that would say that it was illegal to view any video on the internet that was not passed by them or declared exempt. They were assisted by this by the IWF, who suggested they could easily compile a list of all non-passed videos and the ISPs could then filter on that (another huuuuge reason why Cleanfeed-like systems were dropped).
Fortunately this was seen to be the idiocy that it was, not least because sites like Youtube started to come online during the consultation period. But the BBFC had caught a whiff of power and money and weren't going to let it go that easily.
Don't copy that floppy
Along with all the fun and games going on with porn, another even more powerful and dangerous enemy had been summoned by the slightly cheesy smell of those early high-bandwidth internet connections and their users. Copyright infringement had been a part of the internet from the very beginning. alt.binaries.* on Usenet was basically nothing but copyright infringement (and child porn). For the most part it was ignored, apart from occasional tilts at windmills like ALS, Inc vs. Literally Fucking Everyone On The Internet. ALS were one of the very first commercial providers of pornography on the internet (they're so old-school that their name, which stands for All Ladies Shaved, refers to a day when the Barbie-doll look for genitalia was still a fetish, dating them somewhere around the Triassic Period) and so their content was endlessly stolen and reposted around Usenet. They attempted to get all of Usenet shut down, with not much success, but did manage to get a little-known early content aggregation site, Bomis, down. The owner of Bomis, Jimmy Wales, decided his next project wouldn't have any copyright issues and so Wikipedia was born (and you can still be banned from there for pointing out Bomis was a porn site sued into non-existence).The ALS lawsuits and then of course the Napster catastrofuck kept the copyright infringement down to a manageable roar... and then Bram Cohen released BitTorrent onto the internet. Little-known fact - the very first publicly-seeded torrent was porn, an old Pirate DVD downloaded from Usenet. Cohen knew what he was up to, and this was certainly the easiest way to get a lot of users very quickly.
BitTorrent wasn't actually that clever an idea - it built on a lot of other P2P technology and in many ways was inferior, technically, to many of them - but it did have one killer idea, the tracker. Napster and it's clones were flawed because they were centralised, leaving a big fat target for lawyers. Limewire and the other second-gen "true" P2P protocols had the opposite problem - by being entirely decentralised finding what you wanted was a pain and there was no incentive for users to leave their nodes online while they weren't actively downloading, making the network incredibly slow. The tracker - by allowing limited centralisation and curation - avoided the latter problems while giving a million moving targets to the copyright enforcers.
So... what happens when rich people think that they could be richer but can't be bothered to actually do anything about it? They get the government involved.
This section has been removed under the Digital Millennium Copyright Act
There's entire books to be written about the sheer fucking idiocy of the DMCA (and also about how somehow it's actually probably the least-dumb thing that the US Gov could have done under the circumstances) but this is the UK and we've got our own home-grown idiocy to deal with.Surprisingly the middle Blair era was - David Blunkett aside - pretty good. The people at the top mostly "got" the internet and realised that legislative fiat couldn't change the way it worked. They still occasionally tried, of course, but mostly they resisted the calls from the BPI and BAFTA to do something about all the file sharing that was definitely the reason nobody was buying Robbie Williams' new album or going to see Gigli.
This seems as good a time as any to address my own personal views and prejudices on this. I do actually believe that copyright is important, and should be defended. Some of this is simple self-interest - in the
Creators of content deserve fair recompense for their work. I don't think that should be a controversial statement to anyone.
However I also have a Giganews account which has been used to download over 15TB over the last decade, so I can hardly claim clean hands here.
My problem is not with the concept of copyright but with the methods used to defend it. Right, done with that.
Anyway, the Napster lawsuits opened up a thrilling new avenue for rights holders, one that hadn't really been considered before. Up until then, on both sides of the Atlantic (and indeed in most of the world) owning (or buying, or otherwise obtaining) copyrighted material was perfectly kosher. Laws had been written (as normal) to criminalise the suppliers, not the supplied, because ultimately it's much easier to nick the bloke with the suitcase of E180s down Brick Lane Market than the dozens of people who'd bought his pirated copy of The Empire Strikes Back.
P2P however gave them a whole new way of doing things. Intrinsic to the idea of P2P file sharing is the fact that every downloader was also an uploader - and with most of them an uploader thousands if not millions of times over. You didn't need to attack the trackers - they were often in legally inconvenient locations, and most countries didn't even recognise what they were doing as unlawful.
No, all you needed to do was start downloading the work you were attempting to protect, run a packet capture on the connection, and you suddenly had a list of hundreds of IP addresses each of which was "supplying" you with copyrighted material. Handily both the US (administrative subpoenas) and the UK (Norwich Pharmocal orders) had legal structures in place allowing them to translate those IP addresses into real-world names and addresses en masse and for very little money. Then just sue each of those "suppliers".
You might think you know how this story ends, but it's actually a little more complicated than that, and for that we need once more to go back to the ISPs, who so far have come out of this pretty well.
"Abuse Practitioner" remains the coolest job title I have ever had
Until the broadband boom, being an ISP was a pretty good deal. My first job in the industry, in that far-off mythical time known as "the nineties", was at a small ISP that charged it's users £15 a month for access by dialup and also took about .5p a minute for all the time that they were online. This meant that this small ISP, with about 50k users, could afford a proper Abuse Team - the equivalent of four full time employees (actually spread across a dozen or so people in the support, legal, systems and admin teams) dedicated entirely to dealing with complaints about their users. By contrast my current employers, with 100 times the amount of users, has... two FTEs handling abuse. And we're considered one of the better ones in our weight class.Copyright complaints were handled by these abuse teams. Almost all of them followed the then industry best-practice - warn on first offence, suspend on second, terminate on third - for any breaches of the Acceptable Use Policy, including copyright. Termination almost never happened and, crucially, Abuse Teams could and did actually intercede on behalf of their users. I once spent a good week helping one of our users get around DMCA complaints from the owners of Barney The Dinosaur. However this kind of personal service just doesn't translate when you're dealing with millions of users and certainly doesn't when a Norwich Pharmacal order with 10,000 IP addresses representing hundreds of users lands on your mat.
Remember when I mentioned Godfrey v. Demon way back up there? That turned out to be the crucial thing. While the ISPs could argue individual cases where simple takedowns had been requested, refusing to respond to the NPOs would put the ISPs in the dock right next to the person who'd torrented Phantom Menace. Nobody wants to share space with someone like that, so the ISPs rolled over.
Now there is yet another wrinkle here. Without getting into too many details (and I can hear my legal colleagues twitching as I type those words) the complainants have to prove their losses, and they really, really, really didn't actually want to do that. Because ultimately they would have to prove how many people downloaded the material from the user, and that each of those downloaders would have paid full price for the material. Except of course each of those downloaders would have downloaded fragments of that file from hundreds of other users, so you couldn't actually claim that someone who had allowed a hundred people to download from them was responsible for a hundred lost sales - or even one.
So what they actually did was what's now known as "copyright trolling". They would start a court case with an outrageous claimed amount of damages - somewhere over £10k, to keep them out of small claims court - then send an offer to "settle" with the user for a much smaller amount, normally a few hundred quid, with all sorts of NDAs and covenants that were again probably unenforceable. The whole idea was to keep the cases out of court.
Ben Dover Fucks It Up
There's disagreement about who actually started this, because none of the ISPs particularly want to admit when they first decided "fuck it, just give them the info". However it worked, pretty profitably, from about mid-2006 until 2011. Most people say that the ACS:Law fuckup is what killed copyright trolling in the UK because it happened around the same time, but that was just a hilarious exclamation mark to what was probably the most ridiculous series of court cases in the history of the English legal system.Simon Honey, known to fans of low-quality VHS porn as Ben Dover (and lord knows why he felt the need to change the most perfect porn star name ever) was in trouble by the mid-naughties. He'd already spent 3 years in prison for selling his videos by mail order in the 90s and so was understandably reluctant to move into online porn while the BBFC were still telling everyone that it was exactly the same as mail order. However he'd lost his international distribution deals, and the 14 people left in the country still buying porn from sex shops were never going to keep him in the manner he wished, especially as he had a kid on the way (that kid, by the way, went on to star in Outnumbered. No jokes or anything, just a really weird fact).
He and his business partner discovered copyright trolling. Ben Dover vids were pretty fringe and to their surprise there were almost none of them on the major BT trackers. They managed to get a few settlements but not even enough to cover their legal bills, so they got creative. They started just sending out demand letters more or less at random, often deliberately using the porniest file names they could think of (I leave googling a list of their, ahem, output as an exercise for the reader, but there are some corkers there). Unfortunately one of the people they demanded a settlement from had no internet connection whatsoever. After possibly the quickest court case ever Honey was told what he could do with his invoices (an act probably that would probably not even be covered by an R18 certificate).
Never one to be let down, he tried again, this time with names and IP addresses of people sharing titles owned by one of his former distributors (whether or not he ever had standing to do so was never settled, but probably not). However, publicity of the earlier case meant ISPs were extremely reticent about handing over details of their users. He went to court, and managed to fuck things up so badly that the High Court ended up ruling that the methodology used by *all* of the copyright trolls was fundamentally flawed, ending the whole business overnight.
Peter Mandelson, saviour of the internet
Okay, I've rambled on for far too long now. The first Digital Economy Act was actually an attempt to stop copyright trolling. You know how I tend to get a bit twitchy about people who don't know shit about the law and the internet call out laws that are actually helping them as Literally Worse Than Hitler? This one makes me go full Herbert Lom.After Blair retired to spend more time with his third-world dictators, Peter Mandelson managed to sleaze his way back into Gordon Brown's inner circle. However he was one of those New Labour figures who I mentioned earlier "got" the internet. He had a damned good idea. Copyright trolling was happening because existing law was completely incapable of dealing with the modern realities of the internet. What was needed was a legal framework that allowed rights holders to feel that they were able to defend their rights, but without the massive reverse lottery of pursuing individual infringers. Fortunately there actually was one, and one that had been working for a while. AUP enforcement would give a proper means of action to the rights holders, would have the chilling effect they desired on file sharing, but would mean individual sharers would not have to go to court. ISPs following it avoided the Godfrey trap.
So, the three strikes rule I mentioned above was more or less lifted-and-shifted into the Digital Economy Bill. Journalists, of course, instantly interpreted it as "YOU WILL BE BANNED FROM THE INTERNET FOREVER FOR EVEN OPENING BITTORRENT". A massive campaign by people who thought that Information Should Be Free Especially My Fansubs got the offending section first pushed out to be phased in gradually, and then the above-mentioned fuckup kinda took the wind out of everyone's sails.
Never ones to let simple common sense get in their way though, the rights-holders decided to go back to basics, and attack the trackers.
This gets us up to the first years of Cameron, which is where the story starts to get really fucking dumb. I'll come to that in the third part of what was supposed to be a one-part post but which now has me wondering exactly what the character limit on posts is. I've left a lot of loose ends dangling but I promise they all come together in that. Maybe.
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