UK's 3-Strikes Plan Continues To Grind Through The System; Still Not In Force, Still Awful

from the put-it-out-of-its-misery dept

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.

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.

A crucial aspect of this approach is how those allegedly infringing on copyright can appeal:

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.

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Companies: bt, talktalk

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Comments on “UK's 3-Strikes Plan Continues To Grind Through The System; Still Not In Force, Still Awful”

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Anonymous Coward says:

Re: Re: Re:

As scummy as banks can be, at some point you have to take personal responsability and read the fine print so you don’t get taken in by weasle works and misdirection.

I think we need to better teach critical thinking skills and the importance of actually reading what you’re signing your name to because there will always be a way to rip people off no matter how many laws you pass.

John Fenderson (profile) says:

Re: Re: Re: Re:

you have to take personal responsability and read the fine print so you don’t get taken in by weasle works and misdirection.

I agree that reading the fine print is essential, but it is hardly sufficient to keep you from getting ripped off. These contracts are written so that even practicing lawyers have a hard time telling what they really mean. You & I don’t have a chance.

Sometimes the only way to win is not to play.

Nonsense says:

Re: Re: Re: Re:

What about people who did not sign a contract with a bank but found themselves without a job when their employer’s revolving credit was cut and a perfectly viable business went under? Or when their company lost business to perfectly viable businesses that went out of business because of the credit crunch?

What about the tax payers who have been made to bail out the banks? What contracts did they sign to be dragged into all this?

A single default might be a problem between a bank and a borrower, but defaults on the scale of the GFC effect a huge volume of entirely innocent and uninvolved people who did not sign any contracts, lend to poor risks or borrow money they cannot repay, yet they’ve lost jobs and businesses. What about young peole leaving school now in Spain looking for a job? How is any of this their fault?

Causing money to come into existence through fractional banking is a priviledge and with it comes responsibilities, not just to those seeking loans, but to everyone using the currency and to everyone whose wellbeing is intertwined in some way with “too big to fail” financial institutions.

In other words, I think we need to teach you critical and broad thinking skills.

Anonymous Coward says:

Re: Re: Re:4 Re:

The goverment should let failing banks fail or they do not have reason to be good banks.

Customers musttake the time to choose good banks for themeslves, so they they don’t have to worry about an incompetent bank gambling their mony away. Hell, so much of what you do with your money is a gamble anyway.

Buy a soda? Some jerk could cuase it to be spilled/

Buy a new purse? lose it while wrestling in jello(this is what women do right?)

Start a small business? market demand unexpetantly drops off and you go under

Anonymous Coward says:

‘probably for no ultimate benefit’. not true. the ultimate benefits are three-fold. one is the entertainment industries can remain in the dinosaur age instead of joining the rest of the world in the digital era, two, they (think) have kept control of their media and the buying public and three it proves that Ed Vaizey, along with the rest of the UK government are more concerned with pleasing the entertainment industries and their US masters than protecting UK citizens rights.

Anonymous Coward says:

having seen the debate earlier, it was stated by Rik and Christian that the 3 strikes’ is illegal. i assume, therefore, that any internet disconnection would be classed just as illegal? if that is the case, what speed would a connection be allowed to be throttled down to and remain legal?
i hope whoever the poor sod is that gets dragged into court over this has help to take the case to the EUCJ and the EUCHR and then the UK government and the entertainment industries get ripped up for arse paper! at the very least, there would have to be significant evidence presented to prove who the infringer was, what the IP address was, who was using the connection at the time and what was done on that connection. it’s also not illegal to have unsecured wifi, so how can they blame someone whose connection wasn’t secure?

Matt Williams (profile) says:

What would the ultimate penalty be?

I spent a couple of depressing hours trying and failing to fully read the Ofcom consultation document.

I couldn’t figure out, if you do get taken to court, or whatever, by the copyright owner – what the penalty might be?

Is it that you’ll get a letter threatening court or pay ?500 now and don’t do it again… at which point it’s cheaper to pay the penalty. Just like the old days with Andrew Crossley and ACS Law. Or the current Goldeneye debacle where people will be too ashamed to defend themselves because it relates to porn.

Anonymous Coward says:

“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?”

Welcome to the new witchhunts. Obviously, suspected copyright infringers should be tied up and thrown into rivers. If they float, then they are guilty, guilty, guilty and should be promptly burned at the stake. If they drown, then, uh, oops. But! At least the world was spared the POSSIBILITY of a witch–I mean copyright infringer. And that’s all that matters, right?

*If no river is readily available in the area, copyright holders should feel free to just drown the suspected heathen in legal documents instead.

Dave says:

Not even close to a solution.

Our non-elected, twice-disgraced, government “friend”, Mr. (I refuse to call him “Lord”) Mandelson has a lot to answer for with his disgraceful bill which seems to throw due process through a court of the land out of the window. Goes against all normal procedures but then, I’ve always thought of the guy as being abnormal anyway.

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