[bitfolk] Digital Economy Act (Was Re: Digital Economy Bill)

Hello, On Thu, Apr 08, 2010 at 01:19:11PM +0000, Andy Smith wrote: [...] Just to keep you up to date, I attended the UK Network Operators' Forum meeting yesterday and saw a presentation on the DEA by Andrew Cormack, a legal type person at JANET. The slides are here: http://www.uknof.org.uk/uknof16/Cormack-DEA.pdf and hopefully the video will be available soon. The following is not legal advice, it is simply my interpretation of someone else's analysis, which is also not legal advice. To summarise what we know so far: - The Act was only passed a few days ago and we're about to get a new government so it's still very unclear. - Most of the workings of the Act have been left to OFCOM to implement, and OFCOM is still consulting with stakeholders (which does include ISPs but also the media industry) - OFCOM is not going to force ISPs to be police (we aren't going to be forced to investigate reports), judges or juries (we aren't going to be forced to decide who is guilty of anything or not), but we might end up being like prison guards (enforcing punishments ordered by the courts). - What is an ISP and what is a subscriber are not yet defined. For example, there is no indication yet that BitFolk is an ISP in the eyes of the government for the purposes of this Act. The government thinks there may be somewhere between 5 and 450 ISP in the UK. It is possible that the final definition will exclude BitFolk at which point I have no official interest. - The Act will be introduced in a staged manner, starting in January 2011 in a mode where rights owners may send infringement reports to ISPs regarding subscriber IPs and the rights owner's content. At this stage the ISP is supposed to just relay the information to the subscriber, e.g. - for the first few reports to just pass on information about copyright infringement, where to buy legal copies etc etc. - 10+ reports send warning letter/email - 50+ reports send severe warning/email Rights owners will be able to ask ISPs for a list (anonymised) of serious infringers, and can then ask court for a court order to obtain the infringers' identities presumably for the purpose of suing the infringers. - 2012 or later, if the government decides it is appropriate, a "technical measures" clause may be added. This might mean that at some high level of infringement reports, ISPs are compelled to take some technical measure such as throttling or filtering. Basically a purposeful degradation of the subscriber's service. There will be an appeal process. - 2012 or later, if the government decides it is appropriate, it will be possible for rights owners to obtain a court order for "blocking" a subscriber, i.e. disconnection but they don't like to call it that. There will be an appeal process and the court will be required to consider third party interests (other users of the service, ongoing police investigations etc.). - Note that at present, the government is under the belief that an ISP always knows who its subscriber is, of course depending on how you define subscriber this may not be the case. - Also note that changing the subscriber or the ISP resets all infringement counters because the information is not shared between ISPs. So moving to another broadband ISP (typically free) or changing the person who holds the contract resets the infringement count for that service to zero. - It is still unclear if this can be applied to a subscriber who is not a UK citizen. There's still a lot to be decided. At this stage I think it is probably best if ISPs engage with OFCOM to try to influence the eventual code, and the best way for this to be done is via ISPA, the UK's Trade Association for ISPs: http://www.ispa.org.uk/ If your ISPs are members then you might ask them to work with ISPA on this wherever possible. BitFolk is not yet a member, but I'm working with some who are. The following page is some ongoing work by Andrews & Arnold on what a code that ISPs could work with might look like: http://aaisp.net.uk/dea-code.html -- http://bitfolk.com/ -- No-nonsense VPS hosting