Tuesday, 14 September 2010

DEA gets worse

One of the parts of the DEA is the issue of costs for running the stupid scheme, and it has now finally been decided that this will be a 25/75 split of costs between ISP and rights holders, with the end users (accused) not paying to appeal, etc.

Well, this is meant to be a rant, and I know life is not fair and laws do not have to be fair, but this is really crazy. I can't see the logic. As far as I am concerned this is nothing to do with the ISPs. Well, I am biased, but still. At the end of the day a right holder is accusing someone of copyright infringement and wants the ISP to provide communications between them. However, somehow, it is decided that they will only pay 75% of the cost of that communications service. It makes no sense. If they sent the copyright reports by post, would they expect to pay the royal mail only 75% of the postage?

We then have the crazy situation of ISPs paying 25% of OFCOM and appeals body costs. This seems odd too. This is where an end user is accused and wants to defend that accusation. They were accused by a right holder. The ISP was just the means to pass on that accusation. Why are we even involved in that process let alone paying for 25% of it. In fact, the Act seems to kind of assume the ISP may come along to the appeal as a sort of expert witness for the rights holder. I can't see why we would, or if we do come along why we would not be working on the accused's side.

It is not clear why the ISP is expected to pay anything. One thought is that maybe the rights holders think that somehow we are complicit in the copyright infringement. That does not make any sense though as that would mean we are co-accused and so should have no costs at all even for appealing just like the accused end user. We are certainly not complicit with the rights holders. It is just madness.

Of course, to some extent, this is all academic as OFCOM have said that this will only be applied to the top few ISPs. But they can change that. In the past, with IWF stuff, the government wanted 100% coverage not 99%, etc, so it is quite possible they will make this insane scheme apply to us one day.

We also have this crazy situation that, according to the Act, all our customers are communications providers (as they operate apparatus which has stored program control and switches and transmits signals) and so are not subscribers. It will be interesting to see what happens if/when OFCOM ask how many subscribers we have and we say zero....


  1. Yes, but at least with you paying a proportion of the costs, we can be assured that you will "have a real incentive to adopt the most effective and efficient process in processing CIRs and issuing notifications".

    What a complete load of balls.

  2. Err, if, as I suspect, the price will be somehow pre-defined and fixed, then we have that incentive. We do not have to be paying a portion of them to have that incentive. It is total balls, yes.

    We also have the issue that OFCOM say in the code that the final notice has to be recorded delivery. The Act (i.e. the law) says we can send by email. The Act does not appear to provide OFCOM with the power to change that rule. So I think we comply with the law by emailing and not sending recorded delivery.

  3. quote : It will be interesting to see what happens if/when OFCOM ask how many subscribers we have and we say zero....


  4. 'We also have this crazy situation that, according to the Act, all our customers are communications providers ... and so are not subscribers.'

    The snag, IMO, is that it could be very expensive for you to argue this point. If you say to OFCOM that you won't implement this new legislation because it contains a drafting error, they may go to court. The court may find some kind of fudge where they choose to give effect to the 'clear intention of Parliament' or something like that. You then get to pay OFCOM's legal costs. On the other hand, if you win, OFCOM may appeal.

    Still, you'll get lots of publicity from it, I suppose! The extra subscribers might even pay for the cost of the court case.

  5. I agree, has to be a careful argument. If we get a request for how many subscribers we have, we can say zero and argue pretty safely as we are not "refusing to implement the law", we are just answering a question in accordance with our understanding of the law. That could get the argument in the open, but not give an actual cause for them to take legal action against us. In any case, as you say, publicity.