From Jaw-Jaw to JR: TalkTalk, BT get judicial review of DigiBill

"Net providers get Digital Economy Act judicial review" is the title of a news item on the BBC website. The story is that ISPs TalkTalk and BT have been granted judicial review of the Digital Economy Act by the High Court (see Ben's post here for background).  The Beeb's take on things runs like this:

A judge will now scrutinise whether the Act is legal and justifiable, and could make wide-ranging recommendations [If I were a judge, that's the last thing I'd do unless I could divorce any suggestions entirely from the realm of legislative policy, which is where most of the controversy lives]. BT and TalkTalk argued that the legislation had been "rushed through parliament" before the election [this is beyond doubt: the Bill was subject to a dramatic wash-up process: see John's post here].

Internet service providers (ISPs) are unhappy with the part of the Act that requires them to take action against suspected illegal file-sharers. Depending on the judge's ruling, the government may be forced to change or even scrap the legislation.

... During the parliamentary debate about the Digital Economy Bill, held in the final days before the parliament was dissolved before May's general election, some MPs [but not very many -- only 6% of the country's elected representatives turned up for it] complained that it needed more debate because of its complex nature.

...  A judge will conduct a full review in February, considering whether the parts of the Act that deal with illegal file-sharing are in breach of the E-Commerce Directive, which rules that ISPs cannot be held liable for traffic on their networks. The Act will also be measured against EU privacy and technical standards legislation.

... Ofcom has been working on a final code of practice [see eg Jeremy's post here] for how the process of monitoring file-sharing will work in the UK. It has the power to slow down the net connections of persistent pirates or even cut them off completely, although such measures would not come into force until at least 2012.

A caveat added at the last minute stipulated that new legislation and several rounds of consultation would be required before such a course of action was taken. A spokeswoman for the regulator said it was "business as usual" as far as the code of practice was concerned.

The regulator is expected to publish its final code later this week ..."

Early responses can be gleaned from Which?, The Guardian, Information Age and The Telegraph

Splitting the load: good news for infringers, ISPs

The UK government's Department for Business, Innovation and Skills (BIS) has issued a press release today with the intriguing title "Rights holders to bear 75% of Online Digital Economy Act copyright infringement costs". The text goes like this:

"The Government today set out how costs would be shared as part of the Digital Economy Act’s measures to tackle online infringement of copyright. The decision will see costs resulting from these measures split between rights holders and internet service providers (ISPs) at a ratio of 75:25 [rights holders wanted 50:50] respectively [this being the case, I wonder whether the government would have done better to entitle this news "ISPs to bear 25% of Online DEA costs" ...].

Responding to its consultation on sharing costs for implementing the initial obligations to send notifications to consumers who have infringed online copyright, the Government also announced no fee will be charged to consumers who want to appeal a notification [might this prompt an outbreak of brazen and unconscionable appeals in unmeritorious cases, just for the hell of it, as the statement recognises later? Why not a presumption of no-fee-payable, coupled with discretion to waive it where appropriate?]. Minister for Communications, Ed Vaizey, commented:

“Protecting our valuable creative industries, which have already suffered significant losses as a result of people sharing digital content without paying for it, is at the heart of these measures ['these measures' presumably being the DEA itself and not the cost-sharing mechanism]. The Digital Economy Act serves to reduce [identifiable and detectable] online copyright infringement through a fair and robust process and at the same time provides breathing space to develop better business models for consumers who buy music, films and books online [Business models for consumers? Isn't it the 'valuable creative industries' whose business models are at stake, since the old ones aren't working any more?].

“We expect the measures will benefit our creative economy by some £200m per year [that's less than one-fifth of football club Manchester United's debt] and as rights holders are the main beneficiaries of the system, we believe our decision on costs is proportionate to everyone involved.”

The costs sharing decision applies to both the notification and appeals process. Following serious consideration of the issue of appeal costs, it has been decided that no fee should be charged to internet subscribers who wish to use the appeal system to refute a notification. However as a free system risks the possibility of large numbers of unnecessary appeals, the Government will monitor the situation closely, and reserves the right to introduce a small fee at a later stage [retrospectively?].

The decision will now be notified to the European Commission before being introduced in Parliament as a Statutory Order. Ofcom’s Online Copyright Infringement Initial Obligations Code will implement the notifications process and will also reflect the decision on costs. This will come into force in the first half of 2011".

We await further developments with interest.

BBC report here

Ofcom issues first consultation on three strikes implementation

Ofcom, the UK body which exercises supervision of the nation's communications sector, has now published Online Infringement of Copyright and the Digital Economy Act 2010: Draft Initial Obligations Code. The full print version of this document is a formidable 74 pages in length (you can read it here) and is only the first step in a consultation dialogue which will end with all interested parties having a say in what sort of rope internet service providers (ISPs) are expected to hang online copyright infringers with.

The Act itself requires ISPs to notify their subscribers if their internet protocol addresses are reported by copyright owners, in a copyright infringement report (CIR), as being used for the purpose of infringing copyright. ISPs will also have to furnish copyright owners with anonymised copyright infringement lists concerning subscribers whose CIRs exceed the threshold of illicit permissibility. Initially Ofcom's code is proposed to cover only the seven fixed-line ISPs with over 400,000 subscribers (BT, Talk Talk, Virgin Media, Sky, Orange, O2 and -- perhaps a surprise for some readers -- the Post Office).

Ofcom proposes that notifications be sent to subscribers on receipt of the first CIR, on receipt of a second CIR a month or more later, then on receipt of a third CIR received a month or more after the second (the 'three strikes'). Any subscriber would be included in a CIL if he or she receives three notifications within a year and the copyright owner requesting the CIL has sent at least one CIR relating to that subscriber within that year. Any subscriber facing cut-off will be able to appeal to an independent body, which Ofcom is required to establish, and which must adopt "specific measures to protect subscribers during the hearing of appeals, including a right to anonymity".

According to the draft code's Executive Summary, what Ofcom proposes is

"a system of quality assurance reporting to ensure that where allegations are made against subscribers they are based upon credible evidence, gathered in a robust manner".

The code has to be up and running by 8 January 2011 unless the Secretary of State extends the timetable [or the Act is subject to a new Statutory Scrappage scheme?]. Variable factors such as the need to pass subordinate legislation, notification of the code to the European Commission and Parliamentary approval may slow things down.

Two further consultation exercises are planned. These will cover (i) enforcement of the code and the handling of industry disputes, which is expected next month, and (ii) tariff setting – i.e. sharing costs - from implementing and fulfilling requirements in the code (possibly as early as September, depending on the progress of the government's cost-sharing plans).

Responses to this consultation are invited by 30 July 2010. To respond, click here. To see if anyone else has responded yet, click here.