By: MarkJ - 26 April, 2010 (2:01 AM)
aaispBroadband ISP Andrews and Arnold ( AAISP ) has discovered a potential loophole in the controversial Digital Economy Act 2010 (DEA) that could actually encourage consumers to setup an open / public Wi-Fi (wireless) internet hotspot; as opposed to discouraging it as many people fear.

It's often been reported that the Digital Economy Act 2010 (DEA) will make it more difficult to setup public Wi-Fi Hotspots due to the potential threat of legal action or disconnection against the owner by Rights Holders. This impedes the ability of businesses (cafe's etc.) to offer a service and people to get online.

It all stems from the fact that the owner is unfairly made directly responsible for anybody downloading unlawful copyright infringing files over their network. The alternative's of re-classifying yourself as an ISP brings extra legal and cost burdens, as does asking another ISP to "manage" the network for you.

The solution, claims AAISP, is to stop identifying yourself as a "Subscriber" and instead become a "Communications provider", which is apparently critically different from being defined as a "Service provider".

Adrian Kennard (blog), AAISP's Director, said:

"Tell your internet provider that you are now buying the service from them as a communications provider. Well, best to ask first in case they have any extra terms, AUP, or costs, but some (like AAISP) don't mind at all. In fact go further - advise then that sending you copyright infringement reports would cause you distress and alarm.

Now you have done that you are not a subscriber as defined by the Digital Economy Act 2010. But as you have no agreement with the public for them to use the wifi so you are not a service provider either. So you don't have nasty obligations under the Act either.

Your internet provider cannot treat you as a subscriber as the definition is clear in the Act. As such they have no legal requirement to pass on or count copyright infringement notices to you for your IP addresses. In fact, if they do they could be comitting an offence under Protection from Harassment Act 1997, section 22 of the The Privacy and Electronic Communications (EC Directive) Regulations 2003, or section 127 of the Communications Act 2003.

The internet provider must not count the notices they get or take technical measures against you under the Digital Economy Act because you are not a subscriber."

AAISP admits that copyright owners could still get your details and take legal action against you, although in theory the customer now has the perfect defence of running a public Wi-Fi network (i.e. the copyright infringement could have been carried out by a random member of the public); plausible deniability. Put another way, the DEA might actually encourage people to run public Wi-Fi . Of course nobody has tested this theory, yet.

In related news it's been reported that Ofcom is likely to impose a threshold that takes into account an ISP's size and costs of compliance with the Digital Economy Act. The move could result in small Wi-Fi networks and ISPs being exempt from the act. Mobile Broadband providers might also escape. However nothing concrete will be known for a few months.

It's important to point out that many consumer broadband offering UK ISPs will impose restrictions within their Terms and Conditions (T&C's) against the sharing of a connection with others.
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