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We’re not fans of the DEA, that’s no secret, but it’s been two years since its ‘back door’ entry into law and we have seen very little progress. In fact last month, with the launch of it’s Initial Obligations Code, Ofcom announced that the controversial three strikes warning letters will not commence until 2014 – a whole four years after the law was passed! With so much notice, surely the most prolific infringers will have discovered even more ways to circumvent the DEA by the time it’s enforced. So we ask, is the DEA old before its time?

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

The Digital Economy Act (DEA) was the brain child of Lord Mandelson who controversially passed it into UK law through the pre-parliamentary wash-up. This meant it received very little parliamentary discussion before becoming an Act – much to the dismay of ISPs and other objectors across the country. However, two years on and we’re still waiting for one of the most debated aspects of the DEA to be implemented – the three strikes policy. This will see copyright infringers receive warning letters and potentially face court action from the copyright holders and even disconnection from the Internet if they persist with their unlawful behaviour.

In Ofcom’s recent announcement of its Initial Obligations Code it states: “Ofcom will now consult on the revised draft code. Subject to further review by the European Commission, it will be laid in Parliament around the end of 2012. ISPs will then prepare to meet their obligations, and Ofcom will appoint an appeals body. Ofcom currently expects the first customer notification letters to be sent in early 2014.”

There are several bones of contention that are still expected to be argued out between Ofcom, various ISPs and the copyright holders. These include the division of costs between the ISP and the copyright holder; the appeals process, potential charge to appeal and the expected punishments, including potential disconnection from the Internet; and the impact on cafe’s, libraries, hotels and other places that offer free WiFi. Therefore we expect this debate to be dragged out even further between now and the expected ‘live’ date of ‘early 2014’.

So will the DEA be outdated by 2014?

Well the Open Rights Group (ORG) certainly thinks so. Jim Killock, Chief Executive of ORG described it as “Ofcom are being asked to put lipstick on a pig with this code.” He went on to state “It’s already out of date and it will only become more so….This was set up because the rights holders said they needed a new means of enforcing copyright to protect their revenues, but what we see now is they are already getting the revenues.”

Here Mr Killock is referring to the fact that entertainment industries’ revenues have been noticeably increasing over recent years and in particular their online revenues have significantly increased. The 2012 IFPI Digital Music Report states: “Many major markets are seeing healthy increases in single track download sales, including the US, up 10 per cent (Nielsen SoundScan); the UK, up 8 per cent (Official Charts Company/BPI) in 2011; and France up 23 per cent (GfK). Consumer demand for iTunes, the market leader, is growing healthily.”

Mr Killock continues: “They can do it on their own, which begs the question of why we’re wasting the time and money. The DEA was always going to be poor and be beaten by changes in technology, and it’s already out of date. Things like BitTorrent are declining – so where will it be in two years’ time?”

However on the flip side of this argument Ed Vaizey stated: “We must ensure our creative industries can protect their investment – they have the right to charge people to access their content if they wish, whether in the physical world or on the internet.”

Unsurprisingly we agree with ORG on this one. We have opposed the DEA since its first inception and the longer its implementation drags on the more pointless it becomes. Mr Killock is correct when he says technology already exists to circumvent the DEA’s plans. The most commonly talked about circumvention techniques are the use of proxies or VPNs. Research by the Cybernorms research group at the Lund University in Sweden revealed a 40% rise in the use of VPN systems by the 15 to 25 year age group since 2009 in Sweden, surely proof that such circumvention is already being implemented.

Ironically, our Government (and the US Government) have been known to praise the use of VPN and proxies by protesters in countries where free speech is restricted, such as in China, Libya and Iran. With regards to the DEA these technologies could render it useless.

As we’ve said since the start, the DEA is fundamentally flawed. Whilst we appreciate the need for the entertainment industries to protect their material, pursuing people through the courts based on shaky IP address information and then threatening them with warning letters and disconnection is not the way to tackle this issue. Entertainment companies need to reassess their business models to take advantage of the opportunities the Internet brings, not fight them. It’s clear from the recent growth figures that this is possible and is beginning, but more needs to be done to encourage users to purchase media through legal channels with less focus on pursuing ‘offenders’, especially when the prolific offenders will be using proxies and VPNs to avoid detection anyway.

Like the ORG we believe the DEA is going to be out of date before it’s even implemented!

Have your say!

What do you think about the DEA and the entertainment industries plans to enforce their copyrights? Do you believe the DEA is out of date or will be by 2014? Or do you think the DEA is an essential piece of legislation that will enable rights holders to protect their material? Let us know your thoughts by leaving us a comment below.

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