As Techdirt reported in 2010, the passage of the Digital Economy Act was one of the most disgraceful travesties of the UK parliamentary process in recent times; it was badly drafted, hardly revised and then pushed through with almost no debate in the dying moments of the previous government. Since then, two UK ISPs -- BT and TalkTalk -- have challenged the Act in the courts, but lost earlier this year.
This has cleared the way for the UK communications regulator Ofcom to spell out how the 3-strikes system would work by publishing
a draft code for consultation that would require large internet service providers (ISPs) to inform customers of allegations that their internet connection has been used to infringe copyright.
Here's the summary:
The code will initially cover ISPs with more than 400,000 broadband-enabled fixed lines -- currently BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media. Together these providers account for more than 93% of the retail broadband market in the UK.
A crucial aspect of this approach is how those allegedly infringing on copyright can appeal:
The draft code requires ISPs to send letters to customers, at least a month apart, informing them when their account is connected to reports of suspected online copyright infringement.
If a customer receives three letters or more within a 12-month period, anonymous information may be provided on request to copyright owners showing them which infringement reports are linked to that customer’s account. The copyright owner may then seek a court order requiring the ISP to reveal the identity of the customer, with a view to taking legal action for infringement under the Copyright Designs and Patent Act 1988.
Customers would have the right to challenge any allegation of infringement through an independent appeals body. Ofcom will appoint this body and require it to establish transparent, accessible appeal procedures. Copyright owners will need Ofcom approval of their procedures for gathering evidence of infringement before they can be used under the scheme.
That last point, that the evidence-gathering system employed by copyright owners must be approved by Ofcom, is one welcome change to the first draft of the code, which was put out for comments in May 2010. Indeed, Ofcom has announced that it plans to sponsor the development of a publicly-available standard to help promote "good practice in evidence gathering". This should ensure that at least the IP addresses of alleged infringers are obtained in a reasonably rigorous way.
However, an IP address on its own doesn't identify the person responsible for the alleged infringement -- the use of an open wifi network is an obvious reason why not. This touches on one of only four grounds allowed for appeal (in the original draft, other reasons were permitted, but Ofcom has now narrowed this down "following a direction from the [UK] Government"):
the act constituting the apparent infringement to which a copyright infringement report relates was not done by the subscriber and the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service;
The big question, of course, is what constitutes "reasonable steps": would, for example, WEP-encrypted wifi be enough, even though WEP is now easy to break? Ofcom passes the buck on this one:
we believe it is for the appeals body, not Ofcom, to assess the evidence presented by subscribers and to determine the basis on which it will assess the reasonableness of any steps that the subscriber may have taken to secure its internet access service.
This means a crucial aspect of the Digital Economy Act -- on what grounds people can appeal against allegations of copyright infringement -- is still unclear. And remember that this current code is only about sending out warning letters: we still don't know what might happen after that. Ofcom merely says that any "technical measures" -- like throttling speeds or disconnection -- would require further legislation before they could be considered.
Although far from complete, the current code already imposes an unnecessary burden on ISPs that are merely providing the digital plumbing. Worse, it starts from the assumption that those accused of infringement are guilty, and must prove their innocence in an appeals process – but how on earth do you prove a negative: that you didn't download a file?
What makes this even more deplorable is that the copyright industries still haven't provided any credible, independent evidence that unauthorized file sharing is damaging them. In fact, as Techdirt has shown in its report The Sky is Rising, they are all flourishing. This means that fundamental rights are being harmed, and costs incurred, without justification and probably for no ultimate benefit, since determined downloaders will simply switch to using VPNs or other means. The longer the great Digital Economy Act farce drags on, the more absurd it becomes from every viewpoint.
Follow me @glynmoody on Twitter or identi.ca, and on Google+