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What is the Digital Economy Act? Three strikes and you’re offline

What is the Digital Economy Act?

Latest news for the Digital Economy ActThe Digital Economy Act is a wide-ranging set of laws affecting industries which do business online.

It includes online copyright infringement, internet domain registries, Channel 4, spectrum management, radio and TV production, and public lending for electronic copies of books, audio and video.

The DEA was voted into law in 2010, shortly before the last General Election in the UK. Most of the act came into force in June 2010, but some areas will be enacted through a statutory instrument – powers granted to the relevant government minister to use when they see fit.

These included a new code to be devised by media regulator Ofcom, which would govern the policing and enforcement of powers to punish illegal file-sharing. 

What is the Digital Economy Act?

Why is the Digital Economy Act controversial?

The most controversial parts of the DEA relate to online copyright infringement, or piracy and illegal file-sharing. They’re designed to help the police and copyright owners track down copyright infringers and then punish them through a series of extra-judicial measures (without trial).

The DEA was not debated at length in the House of Commons, and eas instead pushed through in the ‘wash-up’, which is used to push legislation through with little opposition before an election. During the wash-up, Conservative and Liberal Democrat MPs introduced a clause allowing illegal filesharers to face disconnection from broadband as one of the extra-judicial punishments.

ISPs, notably TalkTalk, were (and are) unhappy about becoming the DEA’s enforcers. They said forcing them to track and punish illegal file-sharers would be a conflict of interest, and could contravene the Data Protection Act.

The major ISPs are also unhappy that the DEA will only affect ISPs with more than 400,000 customers, encouraging customers to move to smaller ISPs.

I like file-sharing, how does the Digital Economy Act affect me?

At the moment, the anti-piracy provisions don’t affect you but ISPs may be able to look back at your online activity when it comes into force. Monitoring their customers activity will be the first step for ISPs once they are forced to police the DEA.

It’s likely that there will be a ‘three strikes’ system, where illegal file-sharers and downloaders will receive three warning letters from their ISP, directing them to legal (paid-for) download and streaming services.

Anyone who continues their illegal activity will be targeted with a rising scale of punishments: from throttling your connection speed to restricting all or part of your internet access, or even criminal prosecution. Copyright owners will also be free to pursue civil action to recover any revenue they claim to be owed.

It’s not known whether the ISPs will be instructed to pursue uploaders, downloaders, or both, and whether they will focus on the most prolific offenders to disrupt those who contribute most to file-sharing networks.

It’s also not clear how pirates will be identified if they’re using mobile broadband as well a fixed line.

When will the Digital Economy Act’s anti-piracy laws come into force?

Ofcom hasn’t yet published the code which will determine how to implement the online piracy provisions of the DEA, which it’s negotiating with ISPs and organisations representing copyright owners, such as the British Phonographic Industry (BPI), the British Video Association (BVA), the Motion Picture Association (MPA) and the Federation Against Copyright Theft (FACT).

ISPs maintain that it will be difficult, and possibly illegal, to enforce the Act, although the High Court of Justice ruled in May 2011 that it respected privacy law, and complied with EU law on IPS liability.

The online piracy provisions are won’t come into force until 2014 at the earliest, and the government may delay them until after the General Election in 2015 to avoid an unpopular showdown with online freedom activists.

Latest news for the Digital Economy Act

One in six online piracy accusations could be false

An open letter to the MPAA (Motion Picture Association of America) from UK body Consumer Focus shows that a number of copyright infringement reports made in 2008 were false.

The letter (which we saw via The Register) quotes figures gathered from Tiscali (now part of TalkTalk) subscribers suspected of illegal filesharing. Of the 13,711 received copyright infringement reports only 11,481 IP addresses were correctly matched. Or in other words 2,230 people could have been wrongly accused of crimes.

Consumer Focus said that the figures represented an error rate of 16 per cent and anticipated that under the Digital Economy Act 2010, up to 2 million copyright infringement reports could be generated each year.

Assuming the same 16 per cent error rate, this means that every year up to 320,000 false accusations of piracy could be generated.

The errors are generated as a result of ISPs using dynamic IPs – every time an ISP allocates a different IP address there is scope for the MPAA, BPI (British Phonographic Institute) or anyone searching for copyright infringement to misidentify who is really responsible.

As well as being inaccurate, the MPAA’s evidence gathering methods have also been withheld from the public. So if you’ve been mistakenly fingered as a pirate you’ll have no way of knowing how your accuser came to that conclusion.

Consumer Focus calls upon the MPAA to work on a “robust Initial Obligations Code” which would see the research methods subject to a “doctrine of perfection” and provided the accused with “the same evidence copyright owners used to determine [infringement]”.

There’s a worry that should the Communications Data Bill be enshrined in UK law there will be a renewed request for prosecutions from bodies like the MPAA. Making sure you’re prosecuting the right people would perhaps be a good start.

October 17, 2012

ISP Entanet says DEA is ‘old before its time’

The Digital Economy Act has been criticised by Entanet’s head of marketing Darren Farnden as being old before its time, saying “the most prolific infringers will have discovered even more ways to circumvent the DEA by the time it’s enforced.”

Even though the Digital Economy Act was passed into law in 2010, recent DCMS (Department of Culture, Music and Sport) proposals have revealed that it won’t likely have an effect until 2014. By which time, Farnden argues, everyone and their dog who wants to download illegally will know how to use Tor.

Indeed, the recent BT block of The Pirate Bay resulted in a huge amount of traffic going to a proxy set up by the Pirate Party and business as usual for internet freebooters.

July 13, 2012

Online piracy warning letters delayed to 2014 or later

Those suspected of illegal filesharing won’t see any warning letters from ISPs until 2014 at the earliest, according to DCMS’ head of arts Paul Kirkman.

Kirkman told a conference of the Creative Coalition Campaign that implementation has been “not as fast as we would have liked it to be,” adding that “the situation is that we were in court on this a very short while ago because it’s been subject to judicial review. That determines where we can start from.”

Under current proposals, the Digital Economy Act 2010 will see those who persistently offend sent three warning letters. Adopting a ‘three strikes’ policy, the Act will see ISPs able to slow down and even cut off broadband connections of repeat offenders.

April 26, 2012

Image credit: Flickr user MrBill

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