Hi, I originally posted this email to my users' list as I have some customers who are concerned about the Digital Economy Act. I was asked to repost it here as it may be of interest, so I'm editing it a little and doing so.
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. It's also not my work, it's Andrew Cormack's. I might have misunderstood something. To summarise what we know so far: - The Act was only passed a short time 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 [my company] 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 ISPs in the UK. It is possible that the final definition will exclude [my company] 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 alleged 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 alleged 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 alleged serious infringers, and can then ask court for a court order to obtain the alleged infringers' identities presumably for the purpose of suing the alleged 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 alleged 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 in reality be the case. Also note that changing the subscriber or the ISP resets all alleged 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 alleged 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. If this Act is going to be enforced then it would be nice if OFCOM was influenced by ISPs as uch as possible, because it appears that every ISP in the UK is on the side of the consumer on this one. 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 Cheers, Andy
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