Yesterdays Westminster e-Forum on unlawful file sharing (P2P) by customers of UK broadband ISPs revealed that BT is confident its Judicial Review with TalkTalk against the Digital Economy Act 2010 (DEA) can succeed. Sadly the Performing Rights Society for Music has taken the opposite stance, threatening to use controversial Deep Packet Inspection (DPI) technology from Detica to impose a new music tax on ALL internet users.

Judicial Review

Representing BT at the eForum was their director of group policy, Simon Milner, whom largely sought to repeat what the operator said last week (here) after revealing that it had teamed-up with TalkTalk to call on the High Court for a Judicial Review of the act.

Milner, speaking in reference to the DEA's rushed nature, said that the controversial Act did not get a "fair ride in parliament" and singled out a modified clause forcing ISPs to block websites accused of hosting copyright files, which was notoriously added at the very last moment "without any kind of impact assessment".

The operator therefore remained generally confident that its Judicial Review would succeed, noting that the UK government had failed to follow due process, especially in terms of conflicting EU laws. Naturally the Rights Holders (RHS) in attendance were keen to disagree, effectively telling ISPs to stop attacking the law and move on.

Crucially, it should be noted that Judicial Review's are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. A victory for BT and TalkTalk could result in all or part of the DEA being put through new parliamentary scrutiny, which is no guarantee that any major changes would be made; especially when the majority of MP's and Lords who voted in favour of it are still present.

Furthermore the DEA is already a prime candidate for a second review by the House of Lords next year, assuming a proposal to give Lords the power of post-legislative scrutiny is passed. Several Lords from all three major political parties have given this their support. ZDNet has an interesting quote.


However the Conservatives' Lord Lucas warned that, under the new proposal, the DEA would have to have been running for one full year before it could be scrutinised. That is ironically the same amount of time before technical measures, such as account disconnection or speed restrictions, could be introduced as a punishment for repeat offenders.

The UK ISP Music Tax

Sadly anybody who thought that the passing of the DEA would result in Rights Holders putting down their swords for awhile are mistaken. The Performing Rights Society for Music (PRS) has just published new proposals (Download PDF) that would require UK ISPs to use Deep Packet Inspection (DPI) technology to monitor what broadband customers download (i.e. asses the level of internet piracy), which could form the basis for a new TAX.

The report views "ISPs as Next Generation Broadcasters (NGB)" (i.e. effectively, owners of content on the internet) rather than "mere conduits", as the ISPA so often touts. With an unrealistic mindset like that it's easy to see how ridiculous ideas can come to pass (e.g. why should my ISP own the content of this news item? They didn't write it and it is not stored on their servers).


The 50p fixed phone line tax was a widely disliked proposal of the previous government and ended up being shelved prior to the general election, never to see the light of day again. Contrasting the country's need for better internet access to the fight against unlawful downloading is not exactly a fair comparison.

Sadly they are perhaps correct in later suggesting that piracy will get worse because consumers are able to download faster, thanks to new broadband services. Historically faster internet connections have always given access to higher quality content, though that is NOT the fault of the connection itself but those who would choose to abuse it.

The PRS essentially proposes to use Detica's CView DPI technology to "(i) measure the scale of such activity and (ii) develop some estimate of the media consumed such that (iii) any monies collected can be distributed fairly and efficiently". Virgin Media are trialling this system (here), under the watchful eye of a certain European Commission (here).

The government and Ofcom have previously said that they would not require UK ISPs to snoop on their customers private online activity. Contradicting this, it does not appear to rule out the adoption of Detica's CView technology. Detica claims that its system (not unlike Phorm before it) protects privacy and is powered by a fully automated, closed system which does not identify individuals or store their data.

The reports proposed levy/tax hints at "a transfer of value from ISP to rights holders". This appears to suggest that ISPs would be the ones held to account and forced to raise or lower their subscription prices based on how much unlawful downloading is being done by their users. In other words, legal subscribers would pay the price too.


Further research indeed, hopefully by an independent third party that has no connection with rights holders and actually understands how the internet works. That would be a start. Thankfully a start is exactly that this idea is unlikely to get.

The DEA has already been passed and the government will not be looking at any new ideas in this particular area, especially since the idea of a music piracy tax has been thrown out before. It was unpopular because law abiding consumers shouldn't have to pay for the activities of unlawful ones. If you start treating everybody like criminals, then pretty soon everybody starts acting like a criminal.