Digital Economy Bill - When will it take effect?
April 12, 2010 5:28 AM
Now that the Digital Economy Bill in the UK is rushed through what is the timeline for enforcement?
The Register article is a good summary but is hazy on the Parliamentary super-affirmative implementation procedure which Leader of the House Harriet Harman announced on the 6th. Basically, whoever takes the reins following the election, there will need to be a public consultation among other things on this Bill. There’s still a lot of horse trading to be done and the devil will be in the details – in the secondary legislation which gives effect to the Act.
Given that the Tories have all but pledged to abolish OFCOM which will be responsible for the production of the regulations giving substance to many of the controversial sections of the Act and that the industry is in open revolt, led by TalkTalk, don't expect rapid progress.
My sense is that the Conservatives are likely to be more receptive to lobbying from the ISPs' Association than from the creative industries once they've taken power. Geffen may have done a real number on Mandy but in doing so he's likely to have alienated Hunt, who will ultimately decide whether this misbegotten piece of special pleading stands or falls. While I don't see Hunt repealing it, I can anticipate a situation in which many of the provisions are not implemented or given effect to. Following 'consultation' DCMS officials might well determine that the procedures set out in the Act are 'impracticable' and we could well all quietly return to status quo ante.
And all this before the inevitable first test case in the courts, no doubt brought with Which and Liberty as interveners. See this parliamentary briefing from Liberty ahead of the Lords 2nd reading on the Bill - the drafting is so broad you can drive a regulatory bus through it and a policy of wholesale disconnections - the logical conclusion - will likely be seen as disproportionately injurious to freedom of expression. A declaration that the P2P sections of the DE Act contravene the European Convention on Human Rights will sound the death knell for the First Secretary’s legislative legacy.
posted by dmt at 7:42 AM on April 12, 2010
Given that the Tories have all but pledged to abolish OFCOM which will be responsible for the production of the regulations giving substance to many of the controversial sections of the Act and that the industry is in open revolt, led by TalkTalk, don't expect rapid progress.
My sense is that the Conservatives are likely to be more receptive to lobbying from the ISPs' Association than from the creative industries once they've taken power. Geffen may have done a real number on Mandy but in doing so he's likely to have alienated Hunt, who will ultimately decide whether this misbegotten piece of special pleading stands or falls. While I don't see Hunt repealing it, I can anticipate a situation in which many of the provisions are not implemented or given effect to. Following 'consultation' DCMS officials might well determine that the procedures set out in the Act are 'impracticable' and we could well all quietly return to status quo ante.
And all this before the inevitable first test case in the courts, no doubt brought with Which and Liberty as interveners. See this parliamentary briefing from Liberty ahead of the Lords 2nd reading on the Bill - the drafting is so broad you can drive a regulatory bus through it and a policy of wholesale disconnections - the logical conclusion - will likely be seen as disproportionately injurious to freedom of expression. A declaration that the P2P sections of the DE Act contravene the European Convention on Human Rights will sound the death knell for the First Secretary’s legislative legacy.
posted by dmt at 7:42 AM on April 12, 2010
On the other hand, Cameron promised the music industry a copyright extension on sound recordings beyond 50 years and a crackdown on piracy back in 2007 if they took their 'social responsibilities' more seriously so I'm not counting on the Tories killing the followup assuming they win the GE.
As I understand it, Ofcom is 'invited' to draw up regulations for handling the nastygram letters side of things; basically a code of practice that allows copyright holders to send letters to ISPs, who then have to send them onto their ISP customers, partly at the ISPs expense, warning customers of serious consequences if they don't stop doing that. This is similar in principle to the Virgin letter writing campaign in concert with the BPI. The regulations will need to comply with EU law (just like the DNA retention changes, hah) so it's expected to take Ofcom a while to draw up the process, so we're unlikely to see any letters actually start to go out until 2011 or so; and assuming the tories don't dissolve Ofcom entirely without handing it's responsibilities off to something else.
This process won't prevent copyright holders, such as those currently using ACS:Law from going to court to get subscriber details and sending £500 settlement letter offers to alleged infringers, and will likely be used by the least scrupulous agencies to really scare people, including the many who have been falsely accused - telling them that the DEB now means that merely being the owner of the line used makes you liable, whereas previously they had to identify the actual infringer in principle.
AFAIAA, the super-affirmative procedure only applies to future changes to the bill in order to bring in additional 'technical measures' - i.e. slowdowns and disconnections forced on ISPs against their own customers, based purely on accusation instead of anything resembling actual reliable evidence. The cunning plan is that the letter writing plan, sent far and wide at the ISPs expense will have two consequences:
1) people will be frightened into stopping it
2) ISPs will get so pissed off with dealing with the letters, they'll 'voluntarily' introduce anti-P2P measures on their networks voluntarily. You can already see this in action; ISPs such as entanet, talk-talk and plusnet do use packet-shaping and deep-packet-inspection to throttle or block P2P traffic in peak hours. It's a fairly short step to imagine major ISPs will just use that expensive kit to just block P2P connections altogether, or throttle them to unusable speeds.
3) as a result of 1 & 2, people will stop spending money on rent, food and petrol and start spending vast sums of money on restrictive DRM music that'll only play on once device, thus ensuring those in charge of the creative industries are kept sufficiently in coke and hookers, though the musicians are as screwed as usual.
Assuming 3) doesn't happen, i.e. copyright infringement doesn't fall by 70% (it's unclear if they're referring to P2P music sharing only, or including non-music torrents and other forms of sharing copyright material) after 12 months of nastygram sending, then the process to implement additional technical measures, which will need to be signed off by parliament kicks in. This won't happen till 2012 at the earliest.
It's a long way between here and then, but given how successful the music industry has been atbuying bullshitting lobbying both Labour and the Tories, I wouldn't count on it not happening.
To quote my tory MP that wrote back when I expressed my concerns over the rushing through of the DEB;
"For nearly 12 years, the Government has negelected this crucial area of our economy. We believe a huge amount needs to be done to give the Uk a modern regulatory environment for the digital and creative industries.
we want to make sure that Britain has the most favourable intellectual framework in the world for innovators, digital content creators and high tech businesses...
It is also worth pointing out that many of the fears about the Bill's proposals are not enitrely accurate. People won't be disconnected from the internet without due process, and it will only be a small minority of people who consistently infringe copyright who are disconnected, not the average person who happens to have done so once or twice. Even then, they may be able to reconnect using another ISP immediately and without penalty.
Please rest assured that my colleagues in the Shadow Cabinet will do everything in their power to work towards legislation that strengthens our digital sector and provides the security that our our businesses and consumers so desperately need."
He completely ignored my entire section about the technical unreliability of accurately identifying infringers by IP, and that identifying the IP accurately only got you as far as the phone line owner, not the infringer (wifi) etc. Nor did he go to the debate, or even vote on the bill.
But I wouldn't count on the tories sailing to the rescue in the next parliament; they've proven to be pretty as much in the music industries pocket as Mandy.
posted by ArkhanJG at 8:51 AM on April 12, 2010
As I understand it, Ofcom is 'invited' to draw up regulations for handling the nastygram letters side of things; basically a code of practice that allows copyright holders to send letters to ISPs, who then have to send them onto their ISP customers, partly at the ISPs expense, warning customers of serious consequences if they don't stop doing that. This is similar in principle to the Virgin letter writing campaign in concert with the BPI. The regulations will need to comply with EU law (just like the DNA retention changes, hah) so it's expected to take Ofcom a while to draw up the process, so we're unlikely to see any letters actually start to go out until 2011 or so; and assuming the tories don't dissolve Ofcom entirely without handing it's responsibilities off to something else.
This process won't prevent copyright holders, such as those currently using ACS:Law from going to court to get subscriber details and sending £500 settlement letter offers to alleged infringers, and will likely be used by the least scrupulous agencies to really scare people, including the many who have been falsely accused - telling them that the DEB now means that merely being the owner of the line used makes you liable, whereas previously they had to identify the actual infringer in principle.
AFAIAA, the super-affirmative procedure only applies to future changes to the bill in order to bring in additional 'technical measures' - i.e. slowdowns and disconnections forced on ISPs against their own customers, based purely on accusation instead of anything resembling actual reliable evidence. The cunning plan is that the letter writing plan, sent far and wide at the ISPs expense will have two consequences:
1) people will be frightened into stopping it
2) ISPs will get so pissed off with dealing with the letters, they'll 'voluntarily' introduce anti-P2P measures on their networks voluntarily. You can already see this in action; ISPs such as entanet, talk-talk and plusnet do use packet-shaping and deep-packet-inspection to throttle or block P2P traffic in peak hours. It's a fairly short step to imagine major ISPs will just use that expensive kit to just block P2P connections altogether, or throttle them to unusable speeds.
3) as a result of 1 & 2, people will stop spending money on rent, food and petrol and start spending vast sums of money on restrictive DRM music that'll only play on once device, thus ensuring those in charge of the creative industries are kept sufficiently in coke and hookers, though the musicians are as screwed as usual.
Assuming 3) doesn't happen, i.e. copyright infringement doesn't fall by 70% (it's unclear if they're referring to P2P music sharing only, or including non-music torrents and other forms of sharing copyright material) after 12 months of nastygram sending, then the process to implement additional technical measures, which will need to be signed off by parliament kicks in. This won't happen till 2012 at the earliest.
It's a long way between here and then, but given how successful the music industry has been at
To quote my tory MP that wrote back when I expressed my concerns over the rushing through of the DEB;
"For nearly 12 years, the Government has negelected this crucial area of our economy. We believe a huge amount needs to be done to give the Uk a modern regulatory environment for the digital and creative industries.
we want to make sure that Britain has the most favourable intellectual framework in the world for innovators, digital content creators and high tech businesses...
It is also worth pointing out that many of the fears about the Bill's proposals are not enitrely accurate. People won't be disconnected from the internet without due process, and it will only be a small minority of people who consistently infringe copyright who are disconnected, not the average person who happens to have done so once or twice. Even then, they may be able to reconnect using another ISP immediately and without penalty.
Please rest assured that my colleagues in the Shadow Cabinet will do everything in their power to work towards legislation that strengthens our digital sector and provides the security that our our businesses and consumers so desperately need."
He completely ignored my entire section about the technical unreliability of accurately identifying infringers by IP, and that identifying the IP accurately only got you as far as the phone line owner, not the infringer (wifi) etc. Nor did he go to the debate, or even vote on the bill.
But I wouldn't count on the tories sailing to the rescue in the next parliament; they've proven to be pretty as much in the music industries pocket as Mandy.
posted by ArkhanJG at 8:51 AM on April 12, 2010
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posted by SyntacticSugar at 6:23 AM on April 12, 2010