Virgin Media, copying and use

BBC Blogger Bill Thompson is concerned that his ISP, Virgin Media, appears to be monitoring its customers' activity for signs of illegal copying. Along with the obvious general question of who can monitor whose activity when and for what, he has a specific concern about copying via BitTorrent:

Like almost every technically-competent internet user of my acquaintance I've used BitTorrent to get my hands on a copy of a TV show that I missed, taking advantage of the kindness of strangers who bothered to record and upload the shows for fans because the companies that make and broadcast them choose not to.

However I also go out and buy the DVD box sets as soon as I can.

And I don't feel like a criminal, because I don't see why downloading a copy of a show that someone else has recorded should be seen as a breach of copyright while recording it myself onto a DVD is not.

It's certainly not wrong to make a copy of something you've already paid for, and by that argument it doesn't seem wrong to make a copy of something that you fully intend to pay for and do pay for reasonably soon. But the question here is not whether something is right or wrong, but whether it is legal. Ideally, these are closely related questions, but we're talking about digital media here.

A while ago I had a small epiphany from Linus's assertion that copyright is about distribution and not use. The copyright holder can't and shouldn't be able to control how you use something you've bought, but it does have some say over who can copy it and how.

Thompson's two cases look the same from the point of view of use. In either case, he's watching something and paying for it. They look completely different from the point of view of copying and distribution. In one case he's following the licensed method and in the other case he's not.

It's also pretty clear why the distributor would care. In the licensed case, it knows exactly who copied what and it knows it's getting paid. In the unlicensed case, it knows neither, particularly not the latter. Many people, like Thompson, are honest, but even an honest person might be tempted to think "Oh, I only watched it once" or "I'll pay for it next week" and next week never comes.

Of course, this being the law, things are not always so clear-cut. It's generally a copyright violation to charge people admission to watch a DVD you bought. That looks more like "use" than "distribution", unless you squint just right.

As always, remember I'm not a lawyer.