The Digital Economy Act

I should have started this blog a long time ago and done my research/posted about the Digital Economy Act when it was still a bill going through Parliament. Well, to be honest, I was probably too taken by election fever and Cleggmania (yes, yes, I was one of those, and oh how I am repenting now) to focus on anything else. Despite the fact that none of its dispositions relating to illegal file-sharing (the only really interesting part: the other sections deal with miscellaneous issues such as the remit of Channel 4 and video game classification) have yet been put into practice (I shall explain why in a moment), the public at large needs to be made more aware of how this piece of legislation could affect them in the future. Therefore I will talk less about the cost impact for ISPs, and more about how it will affect the average filesharer. There are also implications beyond the immediate consequences of the substantive content which should be considered in greater depth. 

The Digital Economy Act 2010 is really a compilation of amendments to various other acts of Parliament. The sections we are interested in are sections 3-18, which amend the Communications Act 2003. I won’t bore you with all the details, but the main points of interest are split into two parts: the obligation of notification of infringement, and the proposed “technical obligations” (the scary headline-making part). 

Obligation of notification

1. The copyright holders will send a ‘copyright infringement request’ to the ISP, with technical details of the infringement.
2. The ISP will then provide a ‘copyright infringement list’ to the rights-holders, with details of the infringements of each relevant subscriber. At this point the information is still anonymous, and the subscriber is unidentifiable. 
3. The ISP will be responsible for sending details of the alleged infringement to the subscriber. This is the notification itself.

The exact conditions for these notifications, such as the threshold for how much subscribers have to infringe in order to provoke one, have yet to be confirmed. They will be contained in an ‘initial obligations code’ written by OFCOM which is still in the consultation process. There will probably be a massive amount of lobbying from ISPs to keep the thresholds as high as possible, so it is likely that light downloaders will be completely unaffected. In addition, it has been proposed that the provisions only apply to ISPs with more than 400,000 subscribers, so if you’re with a smaller provider, you’re probably safe too. 

The notification itself means very little: along with details of the alleged infringement, it’ll probably tell you to make sure you set a password on your wifi network and to monitor who uses your network more carefully. For the vast majority of frequent filesharers, I predict that it will have no effect other than to provoke a giggle or two. All the wrangling about the notification has come from ISPs who understandably don’t want to bear the cost and alienate customers by sending vaguely threatening letters.

Technical obligations

I cited the most important passage about the possible technical obligations which, under the DEA, could be imposed subject to a new resolution passed by Parliament. The four possible types of measure foreseen are 

1. To limit the speed or other capacity of the subscriber’s internet
2. To prevent or limit access to certain material
3. Suspension of service
4. Some other kind of limitation

Now, don’t panic: it’ll be at least 18 months before any of this could affect internet users, and even if it does, it’s likely to have a pretty high threshold to avoid the courts (or whoever the appeals body will be) being flooded with angry subscribers, and if the OFCOM’s codes draftsmen are worth their salt (this is more a wistful kind of hope) they will not allow automated systems for enacting these measures. So there’s nothing really to worry about just yet. In the worst case scenario, there will always be a way to appeal the treatment, but of course this will be expensive.

There are so many possible criticisms of the DEA that it is hard to know where to start. The fact that the bill was rushed through Parliament as New Labour was breathing its last means that it had very little scrutiny, even in the House of Lords; and since the news at the time was dominated by hero-worshipping our new Coalition masters, there was little room for coverage of what is, by its looks, a pretty technical and specified bill.

Ineffectiveness

It is impossible to tell at this stage exactly how effective the Act will be since the relevant OFCOM codes have not yet been finalised. Also, there is very little precedent to go by. As I pointed out in my last post though, the research that does exist points to a small proportion of P2P users who will be deterred by a mere notification from their ISP; further, the DEA does nothing to combat those who fileshare by other means. 

If and when the technical obligations come into effect, I’m sure the deterrence rate will be higher; however, the elite will always find a way around the regulations (even if they covered all current forms of filesharing, which they don’t), and once the demand exists, these methods will be popularised. 

It’s pretty hard for the rights-holders to actually find a case, anyhow; it has to be established that the subscriber is either the one doing the infringing or allowing it to be done. Even if you don’t count children and the such, and even if you have a WEP- or WPA-protected network, it’s not impossible for those keys to be hacked. I don’t imagine that it would be difficult to worm out by saying “it wasn’t me”.

Awful draftsmanship

I’m serious. Case in point:

“The things that may be required under subsection (6)(i), whether in general or in a particular case, include in particular -”

Seriously. “Things”. There’s a bit about stick figures later, too.

Unfair representation of interests

A friend pointed out to me that I can’t really complain about unbalanced interests being represented in the DEA because the whole point of intellectual property law was to protect one party: the rights-holder. And although we demonise the record companies and video game publishers, in the end, the rights of the artist - or at least, their economic interest - is at stake too. However, it strikes me as extremely unfair that an Act which provides for a possible restriction of the right of an individual to access the internet (and yes, I know it’s not a recognised human right, but it has been protected by European texts, and I will argue in later posts that it should become a full legal right) does not even address the interests of individuals’ civil liberties. I think there is one line requiring consideration of the right to freedom of expression. 

Disproportionality

I don’t mean ‘disproportionality’ in the judicial review sense: see previous post for that.

Let us imagine that OFCOM has placed technical obligations on ISPs to limit internet access or restrict certain content from certain users due to illegal filesharing. I download a few films, ignore a notification letter, and my internet is blocked or a download cap is set. What if I, or someone else in my house, wants to use the internet for a legitimate purpose? What if I want to use it to legally buy and download a film? It seems like a completely disproportionate response to restrict access to an open medium - is the internet even a medium? - for a whole household because of a specific offence by one user. There needs to be some kind of re-calculation of how we view the relationship between users, access, and the law. 

In conclusion, it feels as if the DEA is full of very vague yet blunt instruments that will just turn out to be ineffective. The average non-expert probably won’t even rack up enough infringements to be caught, and the heavy filesharer will just find a way around the restrictions. And again, none of this applies to methods outside of P2P. 

The whole thing needs a massive overhaul.