Smaller ISPs to avoid initial copyright crackdown

Mobile broadband providers and ISPs with fewer than 400,000 subscribers will not have to send letters to suspected infringers in the first wave of the crackdown, reports suggest
Written by David Meyer, Contributor

The letter-writing campaign that will precede the Digital Economy Act's anti-file-sharing crackdown will only take in customers of the biggest ISPs, according to a top-level ISP executive.

Regulator Ofcom is currently drawing up a draft code of practice to govern the sending of copyright infringement reports to suspected unlawful file-sharers. This code — still to be consulted upon — will describe elements such as the notifications process, the appeals process and the sharing of costs between ISPs and rights holders, who will inform ISPs of who they think is sharing copyrighted content.

In talks with the secretariat of the ISP Association on Monday, Ofcom said that the code will initially cover only ISPs that have "around 400,000" or more subscribers, according to Trefor Davies, chief technology officer for the business ISP Timico. Mobile broadband providers will also be exempt at first, Davies added in a Monday blog post.

This means that at first, only Virgin Media, Sky, O2, Orange, BT Retail and TalkTalk will be required to send letters to customers suspected of unlawfully sharing videos, audio tracks and software.

However, according to Davies, "the long-term ambition is to target those ISPs with copyright infringing consumers... so downloaders who migrate to an ISP not included in the soft launch of the code will eventually be covered as Ofcom follows the traffic".

Ofcom's consultation on the code will be published "in the next few weeks", and "until that code is published, nothing is confirmed", a spokesperson for the regulator told ZDNet UK.

According to Davies's post, Ofcom is working to short timescales, so the code will be instructional rather than setting out line-by-line what is required.

"For example, instead of dictating a standard approach for a [copyright infringement report], those affected will have to tell Ofcom how they will go about it, and Ofcom will then approve it or recommend changes," Davies wrote.

Once Ofcom's code is finalised, it will have to be approved by the European Commission. If that goes through as expected, the year-long letter-writing campaign will begin around the end of 2010. After 12 months have passed, Ofcom will evaluate whether or not the campaign has successfully cut unlawful file-sharing by at least 70 percent. If it has not, the regulator will have to draw up a second code detailing new sanctions against alleged infringers.

Those sanctions could include bandwidth throttling, protocol blocking, account suspension or other punitive measures, and would be imposed at the discretion of the Business Secretary, who is currently Liberal Democrat Vince Cable.

The Digital Economy Act was rushed through the legislative process in the run-up to the May general election, garnering a heavy level of criticism from campaigners and politicians alike. It remains to be seen whether the Liberal Democrats, who have pledged to repeal elements of the act, will carry out these promises in the coalition government.

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