Thursday, 22 April 2010

Digital Economy Act

OK, I did promise to dumb this down for the non technical...

The new law has several bits, some of which relate to radio and TV and not anything for me to worry about so not even looking at those bits. I am interested in the intrenet bits...

What it tries to do

It is meant to give a means for copyright owners (i.e. film and music rights holders) to do things to those they think are copying their stuff (e.g. file sharing) using the internet. I.e. to punish people for some civil wrong without all that annoying due legal process that people expect as part of basic human rights...

1. It aims to provide them a simple and cheap way for them to send nasty notices to people they think are file sharing, via their internet provider. They don't get to know who you are though.

2. It aims to ultimately provide a way for them to actually get people cut off or have slowed down internet or block using the internet for file sharing if someone gets lots of these notices. Again, without all that annoying due legal process and the courts and stuff.

3. It may ultimately allow them to get sites on the internet blocked by internet providers as well. This is kind of unlikely. It does involve courts and they have to act fairly sensibly if they ever get this power. That is not so urgent...

But it fails badly to help anyone.

Things it does not do

1. It DOES NOT make any requirement to lock down your wireless internet access.
2. It DOES NOT make you legally responsible for what other people do using the internet service you have in your house or office
3. It DOES NOT cause any real hassle at all to anyone who is file sharing

The last point is worth explaining. Basically, you get these notices. They can take months per notice. If you get lots (and it might need 50 or so) then you get a warning saying your internet is going to be cut off (suspended) or limited. All you do at that point is ask for a migration code from your internet provider, find another internet provider, give them the migration code, and within a week you have moved to a new internet provider. The old provider cannot cut you off then, and the new internet provider has no details at all about any of the notices you had, and you don't have to tell them, and they can't find out. The rights holder does not know you are the same person either. They don't know who you are (not without them getting an expensive court order). They start the whole process of sending you notices again. Rinse, repeat.

So, if you are a file sharer, it is maybe a slight inconvenience - though often if you shop around you can get a better introductory deal with another provider. You can even go back to your favourite internet provider later as they have to delete all your previous details shortly after you leave them so again have no record of any notices (That's the Data Protection Act at work). If you have an internet provider that would rather they don't lose the business then you won't even have that minor inconvenience of switching provider - they will just say you are buying the service "as a communications provider" and then they can ignore any infringement notices they get for you. Or they could allow you to change the service to your wife's name, kid's name, or whatever. That means the subscriber that had the notices is no longer a subscriber so it all starts again.

What the Act does do

1. It will scare the shit out of innocent people - such as parents of teenage kids who gets nasty worded and threatening notices. The parents are not the ones doing anything wrong, but they get the nasty email. The kids may (or may not) being doing wrong but that is a matter between them and the copyright holders.

2. It will annoy innocent people - such as random internet users who's internet address has been added randomly to trackers to cause havoc. These are people that are not file sharing or doing anything wrong at all.

3. It will scare people in to not running useful public services, like internet cafe's, even though there is nothing wrong with doing so.

4. It can make a lot of hassle for internet providers, which means higher prices for internet services.

5. It can make a lot of cost for internet providers, which means higher prices for internet services.

We are now in the situation that we have a couple of weeks to draft some rules that OFCOM (the regulator) will consider adopting. If we (internet providers) don't, we could end up jumping through hoops for the copyright holders even though it will not do anythign to actually stop file sharers doing what they do.

Then, of course, there are appeals. It sounds sensible, especially as the courts were not involved in punishing you. If your service is to be suspended you can appeal. Yeh! There are issues with that...

1. The appeals process means a separate independant body, with staff, and offices, and so on. It is damn expensive, and it is paid for by rights holders and internet providers. So higher prices.
2. Appealing is likely to cost, though you should get it back if you win.
3. You could lose the appeal even though you did nothing wrong, as you have to show you took steps to stop other people using the internet to infringe copyright. Now, there is no legal requirement for your to do that. There is no criminal or civil wrong with running a totally open wifi for all your neighbours to use. Yet, you can be punished even though you did not actually do anything wrong and fail your appeal. In that case you are being punished without a court being involved and without you doing anything wrong at all. What was that about human rights?

But surely the biggest issue here is that if you are told you will be disconnected then you just migrate to another provider, or change the name on your account. That is likely to be totally free, and have instance effect with a reliable outcome (of not being cut off). Paying to appeal, when it will take time, hassle and risk not winning would be mental. Why would anyone in their right mind use the appeals process. Being wrongly punished for something you did not do will just be a fact of life and a minor inconvenience.

Interestingly we, as an internet provider, have to provide advice on securing your network. But there is no requirement for that advice not to be "You don't have to secure your network if you do not wish to". We also have to give advice on the appeals process, but nothing says we can't truthfully advice "You could appeal but it would cost you, and you would be mad to do so as we'll happily cancel the disconnection if you click here to say you are buying as a communications provider."

So, a stupid and unworkable law that has no positive effect on anyone but can annoy innocent parties and cost everyone extra money. Well done labour.


  1. Now on whois:-

    remarks: Important legal information, please read. This is not legal advice - consult a legal advisor before emailing anything.
    The contact detailed here may be neither a subscriber nor service provider as defined by section 16 of the Digital Economy Act 2010
    Sending emails to this contact that cause alarm or distress is an offence under the Protection from Harassment Act 1997
    Sending unsolicited emails to this contact that in any way promote or market any goods or services is an offence under section 22 of the The Privacy and Electronic Communications (EC Directive) Regulations 2003
    Sending emails that cause annoyance, inconvenience or needless anxiety is an offence under section 127 of the Communications Act 2003

  2. it's amazing they wanted to rush this ill conceived bill through, unless they think it's easier to get something on the statutes first then patch the holes up later?

    makes me sick to the pit to think all it takes is £5,000 a day to HIRE a minister to change the law in your favour if youre a big company or organisation/pressure group grrr

  3. Yeh, and for that £5K they get crap like this law. If I was the rights holders I'd ask for my money back :-)