Nobody should be surprised that Britain is on the brink of disconnecting file-sharers by the million. This day has been looming for years.

Now that it has emerged that the Government will compel ISPs to take action against customers who download pirated music and film, it’s worth looking at the events that led up to this ignominious moment.

Since the dawn of the consumer broadband era, the music industry has been trying to convince the internet service providers to do what they can to shut down access to peer-to-peer exchanges.

At the outset, the requests by the music industry and other copyright holders made to ISPs were fairly benign, if not entirely unworkable. Just shut down any known ports that lead to these free exchanges, they suggested. ‘Filter traffic?’the ISPs scoffed. ‘Never.’

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  Bernhard Warner

Then, as music sales sunk and shareholders sold off their stakes and the industry fell into crisis, the music industry got tough. In a risky move, they began suing consumers who they felt were looting their works by the thousands and passing them among friends and strangers by the millions. The future of the industry was on the line, they told us.

But there was a problem with this tactic. Music labels still needed the ISPs to hand over the names and addresses of file-sharers. Sensibly, the ISPs required a court order, effectively removing the stick from the music labels’ hands.

In round three, copyright holders went to legislators. Finally, they would find a sympathetic ear, but sadly, most of the politicians who listened had a poor grasp of the technology. They told the two sides to work out a solution or one would be forced upon them. Fair enough, except that the negotiations put two parties in one room – desperate media executives and unyielding telecoms officials – that were never going to agree.

Should the ISPs agree to monitor their networks, they would lose their status as “a safe harbour”, they would argue. In such an occurrence, if the ISPs start tomorrow trauling for copyright infringers, the next day they might very well be mandated to hunt for groups plotting a bank heist or a terrorist bombing on the London Underground. Try pleading this case to the music industry. They feel as if they’ve been under attack for years.

As the talks dragged on with no solution in sight, developments occurred elsewhere that would ultimately swing sentiment in favour of copyright holders and take some steam out of the ISPs’ defence.

The first is that the internet now resembles a garish bazaar of music, film, video games and software in constant circulation. The traffic is so vast that there is now a prohibitive cost for both parties. For the copyright holders, the majority of traffic consists of free copies of their work passed from user to user. And for ISPs, the deluge of downloads is creating strains on their networks. Across the United States and Europe, there are allegations of ISPs throttling traffic from known P2P exchanges to keep network costs down. To be sure, the net is remarkably resilient, but it could take a lengthy and expensive build-out to transform it into a global, on-demand broadcast medium, particularly if every broadband user is downloading gigabytes of TV shows, films and music every evening.

The second development was regulatory.

In the name of saving French musicians and filmmakers from ruin, the French Government this summer will be the first EU country to require ISPs to disconnect file-sharers. Johnny Hallyday and Co will live another day. Without a doubt, the British Government and industry officials will be watching it closely to see how this landmark purge fares, as will Brussels.

With a symbolically important piece of the regulatory puzzle now in place, and mounting business arguments against allowing the unchecked flow of file-sharing to persist, it put the pressure on the ISPs and copyright holders to reach an amicable resolution in the UK, one that would hopefully not criminalise millions of Britons. And yet they still couldn’t work it out.

Instead, the UK will be borrowing a page from Nicolas Sarkozy’s Government in adopting piece of legislation that will require an unprecedented level of digital surveillance to pull off. Britons are already accustomed to this level of Big Brother oversight on the high street. We cannot be surprised that it will soon be following us online.

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Bernhard Warner, a freelance journalist and media consultant, writes about technology, the internet and media industries. He can be reached at techscribe@gmail.com

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