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Digital Economy Act 2010 analysis

The Digital Economy Act 2010 is a new Act which places a number of obligations on internet service providers. It was rushed through parliament at the last minute without proper discussion just before the election, and is widely seen as a badly conceived and badly worded Act.

This page provides some analysis from the point of view of an ISP. It is not legal advice, and I am not a lawyer. We welcome comments on the ideas presented here from anyone that does have experience of how workable they are. This page is very much a work in progress at present.

Why is it ill conceived

Whilst the Act covers some other aspects such as Channel 4 television and some of the role of OFCOM, the relevant bits to us are the way it affects ISPs. The reasons for the Act in the first place are very questionable and are driven by the music and media industries. They are apparently claiming that they are losing millions to illegal file sharing and copying of their copyright material. They have apparently insisted something must be done and there is plenty of speculation about political party donations that may have driven the governments rail road approach to pushing this Act through. Just to prove a point, the BPI's own web site reports record sales of singles in 2009 so clearly file-sharing is not damaging the industry that much.

The first problem is that the music industry is not losing millions. It is simply not logical. Yes, if many of the people downloading and sharing music paid for it then they would make millions, but that is clearly not going to happen. There are simply not millions lying around to give to the music industry. Even if there was, it simply means some other industry suddenly and unexpectedly loses out to the tune of millions and lots of jobs are lost - maybe in the fast food industry or clothing, or other entertainment industries. The Act can only serve to either stop people downloading music (rather than paying more) and possibly buy even less music as a result (because they are no longer in to music as much), or it will drive the file sharing to anonymous encrypted communications (already in use) which cannot be stopped. Before the Act the Copyright, Designs & Patents Act allows them to take civil cases against people. If the file sharing is driven underground they will not be able to trace people to do that, even.

One of the other problems is that this supposedly illegal file sharing is, for the most part, a simple civil wrong (possibly unlawful is a better phrase). There are existing processes to take civil actions for damages via the county courts. If these processes are not fit for purpose they need improving. The music industry is not special in this respect. There is no way the music industry should have received special powers and not everyone else that also finds the civil action process time consuming and costly.

What is particularly onerous is the way the Act involves ISPs. ISPs should be common carriers like the post office. i.e. we are nothing to do with what is carried over our network. It is (in most cases) simply impossible (technically) for us to police what goes over the network. Even some of clever (and expensive) techniques used by many ISPs for IWF filtering are easy to circumvent and have very limited use. They also, where effective, just drive users to other protocols and encryption. The Act gives ISPs a role in a purely civil complaint between a company (music industry) and some individuals (our customers). Yet they have not involved the PC vendor, or the power company in this - why not?

Specific aspects of the Act

1 OFCOM reports on infrastructure, internet domain names etc

This places requirements on OFCOM to report periodically on various matters relating to UK internet, wireless spectrum, and domain names, to the Secretary of State. Seems sensible!

2 OFCOM reports on media content

This places requirements on OFCOM to report periodically on various matters relating to media content to the Secretary of State. Seems sensible!

3 Obligation to notify subscribers of reported infringements

This is a specific obligation on ISPs. It allows copyright holders to send a report to a service provider complaining that one of their subscribers has apparently infringed their copyright.

  • This will be subject to a code of practice that has yet to be defined. The code of practice may be sensible, who knows.
  • The report will have to provide evidence (good) including the subscriber's IP address. So any form of NAT or proxy will mean they are unable to provide a subscriber's IP address and so the notice will not be valid.
  • There seems to be no obligation to reply to, act on, or record any notice which is not valid. It can simply be totally ignored and deleted. Not even recording why the ISP considered it invalid at the time.
  • If we do get a valid notice we have to notify the subscriber. But we can do that by email, which makes it cheap and simple to automate.
  • The notice we send has to have a whole list of crap in it.
  • We don't have to provide the subscribers identity without a court order. Bear in mind we publish contact details in RIPE anyway, but you can change those. We won't answer any requests for customer details without a court order.
  • Para (9) references sections 394 to 396, but I have no idea what those sections are??

Note the definitions of both service provider and subscriber later. All of this only applies where we qualify as a service provider and you qualify as a subscriber which may not be the case.

4 Obligations to provide infringement lists to copyright owners

This places an obligation on an ISP to provide a list of infringement notices to a copyright owner. This makes no sense to me as it is only a list of the reports made by the copyright owner in question, Surely they can keep their own list? I suspect it is that the list has to correlate the reports to subscribers. This is probably relevant for dynamic IPs and people with multiple IPs as the copyright owner won't know they are the same subscriber. We have to list where the number of complaints per subscriber have reached a threshold, but not identify the subscriber which is good. They also have to request the list, which is good.

5 Approval of code about the initial obligations

This allows OFCOM to approve a code of practice that can control the obligations we have. They don't have to write the code, just approve it, and the Secretary of State also has to consent to it, and parliament can annul it. Sounds reasonably sane.

6 Initial obligations code by OFCOM in the absense of an approved code

If there is not code, OFCOM have to make one, but get 6 months to do it. However, if OFCOM make a code they can dictate jurisdiction and awards or directions for reimbursement of costs. They can also establish an appeals body. Again the Secretary of State has to consent, and parliament may annul.

7 Contents of initial obligations code

This defines what must be in the code. It sets thresholds and provision about notifications, etc. Notably it provides for contributions to costs. It also defines how ISPs keep information about subscribers and for how long.

It does usefully have to specify how the copyright holder collects evidence and the standards of that evidence, for notices they send. It also says the code defines the form of the report they send (hopefully some nice XML that can be processed automatically).

Oddly they also specify the code has to say the means by which an ISP identifies the subscriber. This odd as the evidence has to have a subscriber IP address. Is that not enough? Not sure what they mean by this. Maybe it is something at sign-up for service where we have to take some steps to identify the customer. That would be nasty!

8 Progres reports

This is another one where OFCOM have to provide reports - this time about infringement of copyright. However I did not see a requirement for ISPs to tell OFCOM of copyright notices so how they get this data is unclear.

9 Obligations to limit internet access: assessment and preparation

Basically, OFCOM have to assess what technical obligations they should place on ISPs. The measures are to the ISP to prevent subscribers (the ones with lots of notices) from infringing - e.g. stopping their internet or limiting it in some way. OFCOM have to consult copyright owners and ISPs and we have to co-operate with OFCOM!.

10 Obligations to limit internet access

The Secretary of State has to make and order to limit internet access, and only then after OFCOM have done their assessment. No order can be made in first 12 months (phew!). The order has to be laid before both houses of parliament (phew!). Again this talks of subscribers so see the definitions.

11 Code by OFCOM about obligations to limit internet access

If we have technical obligations, OFCOM have to make a technical obligations code which we would have to follow. Again consent by Secretary of State and anullment by parliament.

12 Contents of code about obligations to limit internet access

The code has to include various things, notably subscriber appeals process. It also is to define contributions to costs. It also allows for penalties for breach of the code, and also indemnity by copyright holders for ISPs costs for errors.

13 Subscriber appeals

This allows for an appeals process. The costs of which can met by ISPs, copyright holders and subscriber. WTF has ISP got to so with this and why the hell are we expected to pay anything. This should be simple. End user may have to pay to appeal but get costs if they win - just like court. Arrrg!

The subscriber is presumed guilty and would have to show that it was not them that infringed copyright and that they took reasonable steps to prevent others infringing copyright. One wonders if a simple notice "don't break any laws" counts as reasonable steps?

Para (8) does say subscriber costs usally covered if they win (good).

14 Enforcement of obligations

Up to £250,000 fine for not meeting the code, WTF!

15 Sharing of costs

Noting firm - an order may say who pays what - including payment by ISP to OFCOM's costs - WTF!

16 Interpretation and consquential provision

This is basically all of the definitions and leads to come interesting loopholes.

  • The copyright owner can appoint an agent - fair enough. What is not clear is how an ISP knows the report they get is in fact from or on behalf of the real copyright holder.
  • An internet access service is one that is provided to a subscriber - so if our customers are somehow not a subscriber then its not an internet access service they get.
  • An internet access service includes allocation of IP address or addresses. So if we do not allocate addresses then it is not an internet access service. On top of this we have the fact that allocated is in fact a specific term in connection with IPs. IP addresses are allocated to a local internet registry, and then assigned to end users (not allocated). So using the definition in the industry none of our services are an internet access service anyway.
  • An internet service provider is someone that provides internet access service, so if either of the above apply to all of our connections then we are not an internet service provider and most of the Act does not apply to us.
  • A subscriber has to have an agreement with the provider of the service. So it is the person with the agreement that is the subscriber. If that agreement changes to someone else, the original person is no longer a subscriber even if they use the service.
  • A subscriber is someone that does not receive their service as a communications provider. So if the customer is a communications provider they are not a subscriber. This makes sense as it gets BT wholesale off the hook, and transit providers, etc. Note that they do not have to be a public communications provider
17 Power to make provision about injunctions preventing access to locations on the internet

This is a really nasty one... It allows for court orders to block access to locations on the internet (undefined).

  • The injunction is one that requires a service provider to prevent its service being used to gain access to the location. Does that mean each injunction has to be against as specific ISP?
  • The location has to one from which a substantial amount of material has been, is being, or is likely to be obtained by, or made available in infringement of copyright. It also covers any location that facilitates access to such a location. That is wide open... It covers all search engines as they facilitate access to all internet locations by providing searching and indexing.
  • The court may not make an order for costs against the service provider. Good.
  • (8) allows such regulations to modify the Copyright, Designs and Patents Act. Thankfully the statutory instrument must be laid before and approved by both houses of parliament. Good, else the Secretary of State would have had power to make any change to a primary legislation Act without parliament involvement!
  • This section defines service provider differently (ref Copyright, Designs and Patents Act section 97A, ref Electronic Commerce (EC Directive) Regulations 2002 section 2 ). This means steps to make us not a service provider do not apply and an injunction could still be ordered. “service provider” means any person providing an information society service. This means BT wholesale or Level 3 or LINX or anyone could be subject to an injunction blocking a location on the internet.
  • The fact location is undefined is a huge problem.
18 Consultation and Parliamentary scrutiny

Parliament gets to vet some of the stuff under section 17. Good.

19 Powers in relation to internet domain registries

Basically gives powers to take over Nominet. They have narrowed it to .uk and .gb domains though.

20 Appointment of manager of internet domain registry

As above

21 Application to court to alter consitution of internet domain registry

As above

22-41 TV and radio stuff

Not relevant

42 Increase of penalties relating to infringing articles and illicit recordings

The fines for criminal infringement have been increased.

44 Power to make consequential provision etc

Seems to give the Secretary of State wide reaching powers to amend Acts, but the amendments have to approve by both houses of parliament and can be later annulled by parliament.

Summary

As an ISP there are two main issues we potentially face.

  • That we have to pass on copyright notices to subscribers and may have to suspend or restrict access to subscribers. This is actually relatively easy for us to do, but has implications for us and the subscribers. For a start, if we do not do things that help our customers then we will lose them. OFCOM have made it easy and cheap for people to change ISP. If they change ISP all of the history of notices disappears and the copyright owner has to start again.
  • That we could have an order to block locations on the internet. Now, we would hope that as such an order can apply to transit providers or BT wholesale, etc, that anyone making such an order would not go to the bother of making an order against every small ISP. So such an order would not affect us, hopefully. If it did there are allowances for paying our costs. If BT wholesale did DPI based blocking we can work on ways around that by simple obfuscation at the PPP level. If transit provides block a location we can set up tunnels to links outside the UK. We can find ways around blocks if we have to, and so can our customers.