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By: MarkJ - 20 November, 2009 (9:38 AM)
pirate flagThe draft Digital Economy Bill has just been released, which includes the governments final approach towards tackling illegal file sharing (P2P) among customers of UK broadband ISPs. We have outlined the initial details below, though some of this could change during the normal process of parliamentary debate.

Stage 1 - Notifying Subscribers of Copyright Infringement

The process first begins when a copyright owner issues a 'Copyright Infringement Report' (CIR) to an ISP concerning "suspected" illegal downloading by one of their customers. The report must detail the following bits of information.
(a) states that there appears to have been an infringement of the owner’s copyright;

(b) includes a description of the apparent infringement;

(c) includes evidence of the apparent infringement that shows the subscriber’s IP address and the time [ED: plus the date] at which the evidence was gathered; and

(d) complies with any other requirement of the initial obligations code.
ISPs will be required to keep track of all reports about each subscriber, and compile, on an anonymous basis, a list of some or all of those who are reported on. Related personal subscriber details will only be released to copyright owners for further action "after obtaining a court order."

If asked to do so by a relevant copyright owner, ISPs must supply a serious infringer’s list showing, for each subscriber who has been identified repeatedly by the copyright owner, which of the copyright owner’s reports relate to that subscriber. The list will not reveal any subscriber’s identity. This makes it easy and cheaper for copyright holders to target groups of big abusers in a single large court case.

The ISP must then verify that the evidence received meets the required standard, and link the infringement to subscriber accounts. However linking an IP and date/time to a specific user is easy, though identifying whether the actual information is correct (IP's can easily be redirected, hacked, spoofed and generally abused) remains very difficult.

Following this an ISP will then be required to notify the subscriber about the existence of the report (i.e. first warning letter). The letter must include a description of the alleged illegal activity and evidence, such as a copy of what the copyright holder has already provided.

The letter will include additional details about copyright law, advice on how to obtain lawful content, advice about protecting your Internet connection (i.e. to help prevent Wi-Fi hacking) and anything else that Ofcom might require in a future obligation code.

Additional letters may also be sent for each detection of illegal activity, with a “final warning” letter being issued to the worst infringers. This would include a threat of legal action and or the possible imposition of future technical measures (see below).

Stage 2 - Limiting Subscribers Internet Access

In case the initial obligations/warning letters prove insufficient to reduce significantly the level of online infringement of copyright, the provisions also grant the Secretary of State (Peter Mandelson) a power to impose further obligations (technical measures) upon ISPs.

Mandelson recently informed the c&binet conference that if the amount of illegal downloading had not dropped by 70% come April 2011 then measures to cut-off file sharers would be imposed from July 2011 onwards. The full list of potential measures, though not yet enacted, could include the following options.
(a) limits the speed or other capacity of the service provided to a subscriber;

(b) prevents a subscriber from using the service to gain access to particular material [blocked p2p websites etc.], or limits such use;

(c) suspends the service provided to a subscriber [disconnection]; or

(d) limits the service provided to a subscriber in another way.
Presently it is not clear how many warning letters would be required before a technical measure is triggered, which appears to have been left up to Ofcom to decide. Likewise Ofcom will also need to decide upon how long such a measure should be imposed.

The intention is that technical measures would be used against "serious repeat infringers only". In addition it is suggested that ISPs could impose softer measures, such as bandwidth capping or shaping, first. If that failed then a customer could be disconnected from their ISP as a last resort.

Stage 3 - The Appeals Process

The provisions also require an appeals process to be setup as part of the underpinning codes. These would include the right to appeal decisions of ISPs to impose technical measures. The appeal would be to a person independent of OFCOM, with a further right of appeal to the First-tier Tribunal.

Any appeals process, assuming it ruled in favour of the targeted customer, could have the power to remove a technical measure and or award costs to an ISP if it lost money over the incorrect action. Technical measures could also be suspended while an appeal is underway.

However this all begs the question; how does somebody who has had their network hacked and abused for illegal downloading prove their innocence? It is often a crime without evidence. So far the full and final appeals process has yet to be detailed.

Other Stuff

The government’s intention is for the obligations to fall on all ISPs except those who are demonstrated to have a very low level of online infringement (under constant review). The exclusion would be based on a threshold criteria; specifically the number of CIRs an ISP receives in a set period of time. The aim is obviously to encourage ISPs to try and stop piracy before it happens.

Copyright owners will pay a fixed fee to cover an ISPs costs after having to issue warning letters to customers. It's also warned that contravention of the new/future obligations could result in a fine of up to £250,000 (a fine of up to £50,000 could also be held against copyright infringers).

So there you have it and indeed it looks as though we'll have to wait for Ofcom to draw up its new obligation code before we see any further specifics. Much as we've come to expect, today's Bill talks a lot about punishment and does little to encourage legal alternatives, which consumers actually want.
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