The Digital Economy Act is 'back', not that it ever went away. It's only been dormant, and for now it remains so, but now we at least know a bit more about what it will look like in practice. We still don't know nearly enough, though.
The Digital Economy Act is 'back', not that it ever went away. What does it mean for people accused of file-sharing?
There are three variables that are crucial to answering that question, and right now all are up in the air.
The first is the will of rights holders to go after people they suspect of unlawfully sharing their copyrighted material. Yes, that is the point of the legislation, but fervent (albeit otherwise unsuccessful) legal battling from BT and TalkTalk has led to rights holders having to pay the vast majority of the costs. We're talking between £7.20 and £45.10 for each copyright infringement report (CIR) they send to the ISPs.
There's a great incentive for the rights holders to send out lots of CIRs, because the cost-per-CIR falls sharply with greater volume, but either way it will end up expensive. Whether it's 70,000 or 175,000 CIRs sent out per month, the rights holder will still be looking at roughly £15m a year. Chump change? Maybe, maybe not.
The second variable is the nature and fairness of the appeals process. This is probably the most important element, and we still don't know how it's going to work. That's because Ofcom, the telecoms regulator, has passed on responsibility for the appeals process's rules to the body that will run it — which hasn't been set up yet.
The Digital Economy Act may be mainly of interest to geeks and lawyers right now, but it's likely to end up a serious political issue.
Ofcom will vet these rules before they are established, but they remain a mystery for now, as does the standard of evidence that both sides will have to produce. What is clear is that appeals will cost £20 each (refundable if successful), and that there will be narrowly-defined grounds for appeal: mistaken identity; the copyright violation not being a copyright violation; the rights holder or ISP having broken Ofcom's code; or — and here's where it gets tricky — the subscriber being able to prove that they didn't commit the infringement and that they had properly secured their network.
Now let's look at the worst-case scenario, because that is the scenario that will make its way into the Daily Mail. A kid visits his grandparents and downloads something naughty over their broadband connection. Granny or Granddad get a CIR informing them that they have committed a copyright violation. Let's assume it's written in plain English and they understand what is going on.
Let's also add to the mix the material in question being pornography (after all, porn producers have proven to be enthusiastic about going after infringers). Granny and Granddad now have a dilemma: they could accept the CIR without appealing, they could appeal and say it was their grandson, or they could appeal and just say it wasn't them. Except that last option isn't actually an option anymore — Ofcom wanted to allow more discretion in considering grounds for appeal, but the government nixed their idea.
So really, the grandparents will have to either turn in their grandson or suck up an accusation of 'pirating' porn. This sort of thing (although obviously not always as extreme) will happen, and — given the amount people actually file-share — it will happen often. The letter-writing campaign will probably scare a lot of file-sharers off their illicit activities as intended, but it will also generate bad publicity.
This will continue for a year, from March 2014, as a sort of pilot. If it does not succeed in reducing unlawful file-sharing by 70 percent during that time — a pretty tall order — then we move onto the third variable: the punishment.
The DEA envisions a three-strikes plan, but we still don't know what happens after the third strike. That decision is up to the government. The DEA says they can go as harsh as suspending repeat infringers' internet connections, a move that would hit entire family households, shared accommodation and so on. Or bandwidth-throttling, which is also collectively punitive.
And here's the kicker: thanks to the delays caused by the ISPs' legal action, the timing of the government's decision now roughly coincides with that of the 2015 general election.
The Digital Economy Act may be mainly of interest to geeks and lawyers right now, but it's likely to end up a serious and much-discussed political issue. How that plays out depends on what we still don't know.