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In April 2010 the controversial Digital Economy Bill (DEB) was passed through the parliamentary wash-up and hastily implemented into law, much to the annoyance of many ISPs, Internet users and industry bodies. Then in May we saw history made with a new coalition government taking power. We were initially hopeful that the new government would put right the wrongs of the rushed DEA (Digital Economy Act) but have since seen little in the way of progress. Yet despite this lack of government action, over the last three months the industry news has continued to provide a steady stream of DEA related updates. We take a look at what’s been going on and provide you with an update.

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

To repeal or not to repeal?

It appears the proposed tackling of copyright infringement is still the main focus of unease within the DEA. At the end of June, Liberal Democrat MP, Julian Huppert, tabled an Early Day Motion (EDM) to repeal sections 9 – 18, the sections that cover the issue of illegal copyright infringement. Unfortunately the EDM gained little support and appears to have dropped off the radar.

A week or so later our new coalition government announced a new “Your Freedom” website via which members of the public can submit their own ideas for changes to our laws. Unsurprisingly our loveable DEA features strongly alongside bringing back the death penalty, repealing the smoking ban and repealing drugs prohibition.

Whilst the website insists that “[our] feedback will inform government policy and some of [our] proposals could end up making it into bills we bring before Parliament to change the law”, we’re not so convinced. After all ‘we’ continuously debated the DEB before the previous government decided to completely disregard the concerns of the industry most affected by this Act only to rush it through the wash-up, before they were ejected from power. Despite Mr Clegg’s initial agreement that the Act was indeed a ‘stitch-up’ and that “it badly needs to be repealed, and the issues revisited” the best he has come up with so far is this ‘freedom’ website.

Well I suppose there is one way to find out if they really will listen to the people – go to their shiny new freedom website and vote to repeal the DEA!

Judicial Review

So with an overwhelming lack of activity by the Government, two of the DEA’s most vocal opponents have decided to take matters into their own hands. TalkTalk and BT have mounted a judicial review through the High Court. The two ISPs are basing their case on a number of factors:

  • Firstly, that the Act was rushed through with insufficient scrutiny. We agree!
  • Secondly, they argue that the Act could damage “basic rights and freedoms” and could contravene EU laws regarding privacy.
  • The two ISPs have also taken offence to the fact that, to start with at least, the new laws will only affect the largest ISPs with over 400,000 subscribers. They argue that this is unfair and will simply result in offending customers migrating to the smaller ISPs that are currently unaffected by the Act.
  • Finally, they argue (as we have also done in the past) that ISPs are mere conduits of information and that they should not be expected to police the Internet. Indeed several existing EU and UK laws already utilise this principal.

We agree with all of the points they have raised with an obvious concern over the rollout of the DEA to smaller ISPs, who will be less well equipped to cover the increased workload and costs expected to be experienced. However it should be noted that even if they win their judicial review this simply means the Act goes back to parliament to review again. It doesn’t necessarily mean anything will be scrapped or changed. If it got through once before, there is every chance it could get through unscathed again.

BT discussed their plans for judicial review at the Westminster e-Forum on 14th July. Unfortunately at the same forum the PRS (Performing Rights Society for Music) announced their latest ludicrous idea to implement a tax based on Deep Packet Inspection (DPI). Once again they mistakenly argue that ISPs are responsible for the content used by their subscribers and therefore should be able to implement a tax based on the level of illegal activity as identified via DPI. At the risk of repeating ourselves yet again- ISPs are not responsible for the content used by their customers, they are simply conduits of information, just like the Royal Mail. It would be wrong and unjust to ‘spy’ on the activity of our customers in order to impose a tax. The idea is simply absurd.

Whilst we’re waiting

Whilst we await the judicial review Ofcom have been busy putting together their copyright infringement code in line with the DEA. Unsurprisingly the first draft has also been subject to criticism, mainly from ORG (Open Rights Group). ORG’s major issue with the code is the reliability of the evidence and they call on Ofcom to readdress this. ORG’s executive director, Jim Killock, said “Ofcom’s proposal denies us the ability to check whether any of the evidence is trustworthy. Instead, copyright holders and Internet Service Providers will just self-certify that everything’s ok. If they get it wrong, there’s no penalty.” The initial review period for the code ends on 30th July. Only after this will we find out whether or not ORG’s concerns are taken into account.

Going Underground

As many within the industry have repeatedly warned, albeit to deaf ears, the impending implementation of the DEA’s methods for tackling illegal copyright infringement has resulted in a significant increase in the number of P2P file sharers using free and paid for encryption, in essence hiding their identity, making them harder to find and prosecute and forcing them ‘underground’. I hate to say it but – we told you so!

Rather than the DEA encouraging offenders to come clean and see the error of their ways it has simply resulted in the creation of an ’underground’ for persistent and more tech savvy users, making it much harder to track and prosecute the real villains.

In other news…

It’s not just for the tackling of illegal copyrighting aspect of the DEA that has been hitting the headlines recently. The much anticipated 2Mbps USC has also become a cause for concern as the Government has announced delays. Initially the USC was expected to be completed by 2012 ensuring homes and businesses throughout the UK could achieve at least 2Mbps connectivity. Most spectators argued that 2Mbps was far too low especially with the emergence of next generation fibre based services but succumbed to the fact that at least this was a good starting point. I’m sure they are far less impressed to hear that their much required 2Mbps speeds will now be delayed until 2015.

So there you have it – a round-up of what’s been going on over the last few months. It seems we are still some way off our much needed repeal of the DEA despite the industry’s continuous requests and Nick Clegg’s initial support. As the deadline for implementation looms it looks like the best we can hope for is a successful judicial review which could still result in no or minimal changes or we have to hope the Government keeps its word this time and reviews the bills put forward via its “Your Freedom” site. Until then it looks like we remain stuck with Mandy’s legacy.

Regarding the delay of the 2Mbps USC, despite our initial concerns that 2Mbps would not be enough, at least it was a start. Those currently unable to achieve decent broadband speeds or located within broadband not-spots must feel disheartened by news of the delays and surely by 2015 the already criticised 2Mbps USC will be even less useful. The Government reportedly has plans to make the UK a world leader in the provision of next generation broadband by this time, so perhaps they have further plans up their sleeves that have not yet been revealed. I should hope so! We will never win that title if we are only able to provide a USC of 2Mbps in five years time.

Have your say!

What’s your opinion on the DEA? Are you also frustrated by the Government’s unwillingness to repeal the Act or do you think the repeal is unnecessary? What do you think about the USC delays? Let us know your thoughts by leaving us a comment below.

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