The Digital Economy Act (again)

The Digital Economy Act 2010 showed the long term goal of the entertainment industry, they want to criminalise file sharing. At the time, individual acts of copyright infringement were civil acts and the copyright owners had to pursue them through the courts, one at a time. This is expensive, slow, uncertain and most importantly expensive, compared with the cover price of a CD or DVD. The DE Act did that, it also sought to automate the justice system and in order to do that it weakened innocent until proven guilty, by prescribing defences and also placed a charge on going to court to argue not guilty. It really was a shit piece of legislation. However, the Law stated that the costs of surveillance and discovery had to be shared by the copyright owners and the internet service providers. The Courts struck down this part of the Law, (see here … for more) at which point it went into limbo. The bottom line is that the copyright owners don’t want to pay for it. The law is in place but the investigation and enforcement apparatus did not get built and is awaiting the introduction of statutory instruments to mandate the cost sharing agreements, but it doesn’t stop them trying.

In Act II, the copyright holders have lobbied the government and bullied the ISPs into a voluntary “educational” scheme whereby the copyright holders notify the ISPs of alleged infringing acts and the ISPs notify the account holder of these accusations. (I wrote about it here…) This started last month, and brands itself as “Get it right from a reliable site”. What’s important here is that have now built the apparatus. It should be noted that BT claim that since these are educational notices the record keeping is legal, maybe so but it is personal data and they have a duty to be accurate and I now have the right of erasure. They also claim that the copyright owner’s investigatory software is reliable. An assertion is not proof. Since this is a record of am alleged civil infringement, it is data governed by the Data Protection laws, at least once it’s on ISP systems. But now we have the automated investigation and notification system in place.

While they attempted to get the provisions of the 2010 Act implemented, the copyright owners have been looking at other laws to pursue infringers firstly the copyright laws but also the fraud laws and even the conspiracy laws, but not yet, as has occurred in the USA, industrial espionage laws. Private prosecutions by FAST and enforcement actions by the City of London Police Intellectual Property Unit have seemingly aimed at high value infringers although some of the actions taken by PIPCU go beyond investigation, but having said in some cases they are pursuing people who have undertaken what most would agree to be wrong. They also used the web site blocking powers given to the courts by the Digital Economy Act 2010 to make the use of streaming content harder, the result is that many of the torrent trackers and indexes are now unavailable in the UK. This legislative tourism shows that if they get the powers, they will use them.

In Act III, their lobbyists sponsor or hijack the new but misnamed Digital Economy Bill which is going through Parliament at the moment; this Bill prohibits sites that permit access to porn for under 18 years olds, and also criminalises copyright infringement for gain and if there is a risk of loss to the copyright holder. The law also makes the maximum penalty for copyright infringement 10 years in the slammer. It’s a big difference to £5.99 compensation for loss of income.

It would seem they have what they want, the act is now criminal, risking prison; other people are paying for the investigation, a database of alleged infringers is being built, I expect Act IV to be Norwich Pharmacol orders forcing the ISPs to release the contents of their notification databases.