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This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome back to OUT-LAW Radio , where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.
My name is Matthew Magee, and this week we try to find out if anyone can stop ISPs holding media companies to ransom.
But first, here are some of the top stories from OUT-LAW.COM, where you can read breaking technology law news throughout the week.
Government sets 70% piracy reduction target for new policies
and
Trade mark wars to hit supermarket shelves
The government believes it can reduce unlawful file sharing by 70% to 80% by forcing internet service providers (ISPs) to tell users that their copyright infringement has been noted and making evidence of infringement available to the courts.
It says that its policy "needs" to make that much difference, even as it came under fire from content industry bodies for not mandating the cutting off of file sharing internet users.
In its Digital Britain report published this week, the government said that most piracy will be wiped out by its plans.
If file sharing is not reduced by its ambitious target, though, the government said that it will give telecoms regulator Ofcom powers to force ISPs to interfere with the internet connections of suspected file sharers.
Those measures will include blocking individual connections from accessing certain sites or certain types of content, slowing down connections or placing a cap on their bandwidth.
Supermarkets and other retailers who create own brand goods must change the way they package them in the wake of a European court ruling on trade marks, according to a legal expert. The ruling outlaws packaging that imitates major brands.
Europe's top court has said that packaging will infringe trade mark rights when it mimics major brand packaging and gains an advantage by it. The European Court of Justice (ECJ) said that this was the case even if consumers were not confused into thinking that the goods came from the major brand.
Iain Connor is an Intellectual Property law expert at Pinsent Masons, the law firm behind OUT-LAW. He said that the ruling means that any business that makes own brand goods needs to reassess its packaging designs.
“If someone has a packaging trade mark for a leading brand and somebody else produces lookalike packaging that intentionally imitates it, it will be found to be taking unfair advantage of that leading brand, which is outlawed," said Connor.
Those were some of the top stories from OUT-LAW News.
What exactly do you do when you pay your internet access bill? You might think you know, but this is said to be a major debate in the coming months between ISPs and the people who make the things you like to look at online.
Last week BT put a match to one of the most inflammatory debates in the world of internet service providers: Should content providers pay for the delivery of their material?
BT said for the first time last week that it wanted people like the BBC and Google to pay some of the costs of people watching video content on the iPlayer and YouTube.
Its argument is that people used to look at fairly static web pages full of text and pictures, which do not contain much digital information. Thanks to the BBC, YouTube and others, people are now watching lots of video online.
This is much more demanding of broadband capacity. BT says it has to invest massive sums to keep its network going, and that content producers should share that cost.
“We can't give the content providers a completely free ride and continue to give customers the service they want at the price they expect," BT's Managing Director of the consumer business John Petter told the Financial Times.
We asked BT to tell us its thoughts about the issue, but it said that it had said everything it wanted to, to the FT. Petter told that paper that content companies were developing "very profitable business models" on the back of online video, and that some of that should be directed towards the ISPs that deliver the material.
Content providers have always rejected such claims when made in other countries and they have resisted demands that they should pay. The BBC told OUT-LAW that its iPlayer makes up only a small portion of the UK's internet traffic.
This debate has already raged for some years in the US, where it has been dubbed the 'net neutrality' debate. There is a fundamental question at the heart of this, and it is this: is all information equal?
It might surprise you to learn that already the answer to that question is 'no'. All ISPs have to manage their networks so that all their subscribers get an acceptable service. This means sometimes restricting the speed of connections of very heavy users so that lighter users can get at least some access.
The BBC has complained, though, that BT's routine slowing down, or throttling, of video on its networks at peak times was affecting the viewing experience of the BBC’s users.
That throttling did not cause particular alarm until last week, because nobody is suggesting that ISPs shouldn't be allowed to manage the traffic on their networks - but as soon as BT said that it wanted to be paid for the extra strain video puts on its network an ugly spectre reared its head. That was: what happens if the BBC and others do not pay up?
The implied threat is that speeds will be cut further or access restricted altogether to companies that do not pay. And this is where the debate gets really fierce.
It is also where our opening question comes in: what do you think you are actually buying when you pay your internet subscription? The natural assumption is that you are buying access to the whole internet, not just those parts of it that pay a fee to your ISP. So what happens if the ISP starts interfering with your access in a game of brinksmanship to get fees out of content companies?
Surely that would undermine your rights as a consumer because the service you thought you had bought had changed? We asked Stephen McGlade of Which? Legal Services, part of consumer rights body Which?, where that would leave an ISP customer.
Stephen McGlade: The consumer in this instance is, you know, the innocent party and under the, you know, Supply of Goods and Services Act that relates to their broadband contract so basically there is an obligation there to provide, you know, the service that was previously promised and as described, so if there is any situation as you say where their internet connection is reduced in some way then, I mean, obviously one would have to look at the, you know, the actual service contract the terms and conditions to what it says in relation to that service agreement. But if it is slow and it is being that they are having problems with that then in certain situations that they could challenge it, if they are having, you know, they are deprived of being able to look at this, you know, the legal content. Then, you know, they could either request an alteration to the service and should be looking for some, you know, compensation if they are deprived of that.
So a subscriber would have a cause of action if the service was limited in a way not described in the terms and conditions. But BT's current Fair Use Policy does say that it throttles video content on its cheapest broadband package at peak times, so its customers are informed. We can only assume that any major ISP would change its terms and conditions if it changed the service materially. BT’s current throttling is to do with traffic management, but if it started picking out content providers who didn't pay and punishing them with slower speeds, would that break any rules?
Well, all telecoms companies are regulated by Ofcom. So we asked them and their answer, basically, was that ISPs can do what they like as long as they tell you that they are doing it.
An Ofcom spokeswoman said that ISPs had to comply with its general conditions in order to get and keep their licence, but that the general conditions don’t deal with whether or not they have to carry all network traffic equally.
There is a voluntary code of practice on broadband speeds, but all this does is force ISPs to tell customers if they shape traffic, it does not say what they can or can't do it.
The spokeswoman said that Ofcom was aware of and had previously considered the issue of whether the stopping or reducing of customers' access to certain sites or services was unfair to them, but that no conclusion on that had been reached.
So what do the content providers think of all this?
The BBC was reluctant to have someone speak directly to us about the issue but a spokesman told OUT-LAW Radio that it definitely did not agree that it should pay ISPs for the delivery of its material. He gave us this statement:
“Despite its popularity, the BBC iPlayer is just one of many services on the open internet and only makes up a small percentage of total internet traffic in the UK."
Google which owns YouTube, similarly told us:
“While operators should have the necessary flexibility to effectively manage their networks, they should not be allowed to block, degrade, or discriminate among different websites, applications, or services."
The result is stalemate. BT and perhaps others want to earn revenue from the people on the internet side of their business as well as the people on the consumer side. Hard pressed media and content companies are unlikely to pay up anytime soon. So BT might start squeezing access, or at least promoting access to the services of anyone who does pay.
And as Which? lawyer Stephen McGlade and regulator Ofcom told us, as long as they tell us it's happening, it's ok.
But McGlade has one other thought: if the terms of the ISPs service are changed, they still have to be objectively fair. He explains.
Stephen McGlade: You have the Unfair Terms in Consumer Contracts, you know, Regulations and whatever these new terms and conditions may well say. They say that a consumer is not bound by a standard term in a contract if that is unfair and what we mean by that is that it is one that creates a significant imbalance in the party’s rights under the contact to the detriment of the consumer. If there is that imbalance there then in certain situations the individual consumer could refer that, shall we say that contract, and if the Court agreed with the consumer then the ISP would not be allowed to rely on that term. You have got to show that you have been deprived from this fundamental benefit, you can’t actually get the services being provided but if you don’t think the provider is meeting the service agreement adequately then, you know, you do have, you know, grounds for raising that complaint.
But technology law expert Struan Robertson of Pinsent Masons, the law firm behind OUT-LAW, says that even that offers cold comfort for consumers.
Struan Robertson: If you are going to make a really major change to a contract then, well people should have the opportunity to walk away as long as they give people that opportunity then it does not become an issue under the Unfair Terms legislation. If people have the opportunity to just walk away and just join another provider then I doubt there will be an issue.
So, we are left to rely on the market, on the hope that if one ISP changed the way it managed traffic to slow or block those who didn't pay, all its customers would just switch to someone who didn't.
Apart from that, it seems, the law offers little protection for ISP users who thought they had paid for the whole internet.
That's all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you know of a technology law story? We would love to hear from you on radio@out-law.com. Make sure you tune in next week; for now, goodbye.