Skip Navigation


Digital Economy Bill: An ISP perspective
Monday 05 April 2010 09:33:53 by Trefor Davies, CTO of Timico

As a general principle and in support of the rule of law, nobody involved in the campaign process against the implementation of the Digital Economy Bill (DEB) supports the theft of someone else's property as is the case when downloading a pirate copy of a music track. However, before we examine the history of the legislation, let's take a reality check about where we are.

The cat is well and truly out of the bag. The downloading of copyrighted material is now so widespread and with faster and faster broadband and bigger and bigger hard drives it is never going to stop. Infringers will just move on to alternative means - encrypted P2P for example. On this basis all the hard work on the DEB is likely to be a complete waste of time. It is also very difficult to prove who has used a specific broadband connection to indulge in this copyright infringement; what's more the burden of proof in this bill lies with the accused to prove themselves innocent. This is totally wrong and goes against all the principles of modern UK society.

The creative industry have not helped themselves as they do not make it easy for a company to offer cost effective music services - up to 44 separate licensing arrangements are needed to sell music online internationally with every country having different laws and approaches. This is a hugely expensive exercise which does not encourage competition.

The modus operandi of the creative industries encourages copyright infringement - pre release pump priming creates a demand for a product that people can't buy yet but which quickly becomes available on torrent sites. The same applies to material released in one country a long time before another, a trait from a bygone era. Many infringers would be happy to pay for this material if they could do so.

The issue of how to stop online copyright infringement has been going on for some years now. Discussions have been taking place between rights-holders and the ISP industry since at least 2008. These centred around ISPs assisting rights holders by sending letters to end users identified as "alleged infringers" on the basis of their IP address and evidence of the music, movie or software being downloaded, notionally via a torrent. These talks were being conducted on behalf of the music industry by Feargal Sharkey, CEO of UK Music.

Whilst initially rights holders were after the termination of broadband connections of repeat offenders they had appeared to relent on this. The whole process was presented by ISPs as fraught with difficulties, human rights, privacy and how to identify the real culprits being some of the issues.

The process did not appear to be going anywhere. There was an element of ISPs seeing the creative industry as wanting all the benefits without having to carry any of the costs. Also they didn't appear to be, or perhaps weren't able to be interested in changing their business models to accommodate the massive change in consumer habits brought about by the internet. It still isn't easy for a service provider to offer a cost effective online music product.

At the end of summer 2009, Lord Mandelson took things into his own hands after what turned out to be a well publicised (after the fact) lunch with music industry executive David Geffen. The result was the Digital Economy Bill as laid out before us today.

The DEB is multifaceted and covers a long list of subjects loosely arrayed under the banner of Digital Britain. These include:

  • General duties of OFCOM
  • Online infringement of copyright
  • Powers in relation to internet domain registries
  • Channel Four Television Corporation
  • Independent television services
  • Independent radio services (digital switchover)
  • Regulation of television and radio services
  • Access to electromagnetic spectrum
  • Video recordings

I don't propose to go through all of these points. All that we need to know at his stage is that the three main political parties support most of the bill which, digital switchover aside, is deemed to be non-contentious for the purpose of this article. The Digital Switchover is likely to leave 120 local radio stations stranded and 120 million radio sets in the UK redundant but that is a topic for another time.

The one aspect of the DEB that is creating a huge controversy is the online infringement of copyright. This is basically what Lord Mandelson brought back from his lunch in the sun.

In a nutshell, and nothing is ever that simple, the UK Government wants to help rights holders clamp down on music piracy by imposing a process that gradually applies stricter measures to offenders. They want to do this by giving government ministers powers, as a last resort, to impose technical measures on infringers. For technical measures read "throttle your bandwidth" or "cut off your broadband". The government also wants to stop access to sites that promote illegal copyright infringement.

The problem for all of us lies in the fact that not unreasonably the government wants to help the music industry, and has up until now been supported in this goal by both Conservative and Liberal Democrat opposition.

Amendment 120A

Two weeks ago, the Liberal Democrats passed an emergency motion at their spring conference supporting Freedom, Creativity & the Internet. This motion opposed DEB Amendment 120A, a part of the bill that gave rights holders the power to ask ISPs to block access to sites that the rights holders themselves considered to be hosting copyright infringing material. The fact that 120A was actually introduced by the Liberal Democrats in the House of Lords in the first place was immaterial.

The effect of Amendment 120A was going to be devastating in the UK. If an ISP refused to block the site in question and a rights holder was subsequently granted a court order then the ISP would have to pay all the costs of the case. The effect was going to mean ISPs potentially blocking a site every time they were asked to do so rather than risk incurring the costs.

The Lib Dems made a fuss and the Government kicked Amendment 120A out in any case, resorting to the original plan of giving ministers the powers to decide what to do.

The problem here is, aside from the wholly undesirable concept of an ISP blocking your internet access, is where do you draw the line? Websites such as YouTube and Facebook might never again be able to take off if the user generated content they carry is deemed to be illegal. If you take the concept to the extreme you would even block access to search engines.

Perhaps an equally worrying issue is that this bill would set a precedent. Copyright infringing sites today - some other type of site that the UK Government doesn't like tomorrow.

The Lib Dems have now gone a stage further and said that they will completely oppose the online copyright section of the bill because it has not had adequate parliamentary scrutiny.

The Parliamentary Process

At this point it is worth taking a look at the whole parliamentary process as it is being applied here. Normally a bill begins life in the House of Commons, moves on to the Lords and back to the Commons for the final vote, being subjected to scrutiny by a committee at each stage of the process and with time for expert input to be provided. This process can take a long time - a year maybe. We don't want to rush things and make mistakes.

In the case of the DEB the Government didn't have a year—they knew that there would be an election in the spring. In order to short circuit the process they quite legitimately began the Digital Economy Bill in the House of Lords. The Bill had two reading in the Lords and is being rushed through to the House of Commons. It is normally possible to go to eight readings in the Lords, indicating how fast this legislation is being rushed through.

The Digital Economy Bill is now in the Commons and is due to have its second reading on 6th April. This coincidentally, is the same day that Gordon Brown is expected dust down his best suit and head over to Buckingham Palace to ask the Queen to dissolve parliament, and call an election.

This however means that despite the fact that the DEB will have had barely any scrutiny, it is likely to end up in the 'wash-up' process. This is the process at the end of a Parliament where all parties get together for a bit of horse trading. "I'll let you have that bill if I can have this one". It can all be over in an hour! As long as a bill has had its second reading, this is all legal.

There is no precedent for a bill to be rushed through in this manner. As we get nearer to the wire the voices of reason have been crying out and in particular, as previously mentioned, the Lib Dems have said they will oppose it. On their own, I doubt that they can succeed. However the hope is that enough noise has been made in regard of the anti-democratic nature of this process that other MPs will object. A number of Labour MPs have already come out against the bill. In the words of Tom Watson MP "A bill that is made in haste is a bad bill".

Campaign organisation 38Degrees is raising cash to fund widespread newspaper advertising on the day of 6th April to draw the attention of the MPs to the lack of scrutiny the Digital Economy Bill has received. Not many MPs are likely be around during the wash-up as many will be out on the campaign trail. This last minute effort is seen as vital.

Trefor Davies is co-founder and Chief Technology Officer at Timico and a member of the Council of the Internet Service Providers' Association (ISPA). You can read his blog here.

If you are a representative from the music industry, or other creative industries, and would like to put across your point of view on the Digital Economy Bill and the provisions relating to protecting the creative industries in the UK, please contact us on team@thinkbroadband.com

Comments

Posted by cyberdoyle over 6 years ago
The current fiasco with the ashes to ashes campaign posters shows how ignorant of the facts most people are. saatchi to saatchi, do as I say not as I do #debill http://j.mp/aaqYrm #digitalbritain
We have said all along that only the n00bs will get caught, the real tech savvy won't. This proves beyond a shadow of a doubt the flawed bill will penalise the wrong people, copyright needs sorting, modernising and legislating properly, not in this halfassed way the dark lord thought up. Thanks Tref for a great post.
Posted by cyberdoyle over 6 years ago
BTW if anyone has 2 mins to spare today it is REALLY quick and easy to email your MP on this link http://www.38degrees.org.uk/page/invite/internetlawTAF?
Posted by Mr_Fluffy over 6 years ago
My MP is an expenses fiddler on his way out, and he never even acknowledged my son's attempt to email him about similar stuff several years back - what are the chances he won't do naff all about this?

Don't talk to me about parliamentary democracy - I don't think there's a country in the world that practices real democracy!
Posted by gbswales over 6 years ago
Sounds to me like the legistlation rushed through to scupper the radio pirates in the 60's.

It is a poor piece of legistlation based on old copyright laws long overdue for change.

Still the same bill paves the way for digital radio so I guess the youngsters will now record music from that just like us old timers used to copy to tape from the top 40 show
Posted by Dead1nside over 6 years ago
gbswales said it best 'It is a poor piece of legistlation based on old copyright laws long overdue for change.'

Pandering almost solely to the interests of copyright holders doesn't look too good for the government. None of the major parties really appear to be espousing a policy on this that would be agreeable to me, although the Lib Dems were talking the most sense (apart from their amendment).
Posted by otester over 6 years ago
"nobody involved in the campaign process against the implementation of the Digital Economy Bill (DEB) supports the theft of someone else's property as is the case when downloading a pirate copy of a music track"

It's not theft, it's copying.

Are TB's editors that retarded that they even stuck both words theft and copy in the same sentence without realising?
Posted by otester over 6 years ago
^Replace TB with Timico guy.
Posted by CARPETBURN over 6 years ago
Load of old nonsense anyway people that download copyright material will just continue, theres already ways you can do it securely.

ISPs can block as many websites (I suspect the music biz and goverment are thinking torrents). Wont stop the smarter users from using Secure encrypted Newsgroups, proxified and encrypted IRC and encrypted P2P solutions.

Only users its likely to catch is idiots using old rubbish like limewire LOL
Posted by chrysalis over 6 years ago
whos the guy who wrote this article? I dont recognise the name. I immediatly looked for the name after reading the first set of lines, 'theft of someone else's property'. Downloading copyrighted material is wrong but it is NOT theft.
Posted by otester over 6 years ago
@CB

The problem is eventually if they force VPN's to log (which will be happening in the EU soon).

In the US, this would be hard to implement because of the Bill of Rights, so we still have a safe haven for now.
Posted by otester over 6 years ago
@chrysalis

How is it wrong?

It's basically previewing the material.
Posted by Somerset over 6 years ago
otester - what do you think 'copyright' and 'intellectual property' means?
Posted by otester over 6 years ago
^

A load of bull****, that's what it means.

It was evented purely to protect the monopolies currently in power and stiffle innovation.
Posted by otester over 6 years ago
invented*
Posted by vanessadeagan over 6 years ago
I'm a single mother of four children aged between 14 and 21. I live in a small apartment and also have a couple living with us. I pay for the broadband connection.

My 14 year old son configured my router and got everyone's computers hooked up. As a busy mother of four, I don't have time to become a network administrator.

What really angers me is that I will ultimately be responsible for the data traversing the connection which is used by six other people.
Posted by Somerset over 6 years ago
otester - so if you wrote a book you would be hhappy for people to copy it and sell the copies?

If you invented something you would be happy for people to copy it?
Posted by Somerset over 6 years ago
It encourages innovation, so people know that they can generate an income for their efforts.
Posted by chrysalis over 6 years ago
2nd comment now. The author is right tho that this will be nigh on impossible to enforce, and good luck on enforcing vpn providers to log, the costs will be tremendous as well as trying to implement this eu wide would be a joke. Many people will be popping up vpn's and the like on own personal hobby servers.
Posted by NICK_ADSL_UK over 6 years ago
It isn't possible at this time to prevent copyright as the so called expert's in these fields are behind the times when it comes to those who have the ability to devise the work around at short notice such is their talent. There are many in china for example who google and join up in security forms etc worldwide which proves the point.
Posted by otester over 6 years ago
@Somerset

Yes, even the Matrix is a copy of one of Platos works (the cave).

However I am glad they copied it as it produced a kick ass movie.

If the entertainment industry wants my money then they are going to have to provide a better service than P2P/Usenet and stop suing everyone and trying to censor the web.

This is very easy to do.
Posted by CARPETBURN over 6 years ago
^^^ I seriously doubt you would pay for anything given some of your previous posting and rambling about what you download.
Posted by herdwick over 6 years ago
"This is totally wrong and goes against all the principles of modern UK society." - I take it Trefor hasn't looked closely at how Asbos work.
Posted by Dixinormous over 6 years ago
How exactly do they supply a better service than free? Unlike Usenet / P2P they actually need to pay people for producing the content people download through them.
Posted by CommanderZendo over 6 years ago
Part 1

Speaking as an Internet User of many years not just an employee in this industry or a council member of ISPA I personally believe there is so much wrong with this Bill I don’t know even know where to start.

I think the first thing that needs said is Apathy cannot get in the way of stopping this from being railroaded through in the house today, bearing in mind its being debated as I type. With an election coming up every single internet user in this country should make it clear to their mp and their parties that we won’t stand for it.
Posted by CommanderZendo over 6 years ago
Part 2

If you haven’t mailed your local MP do so and remember you can write or e-mail your political parties leader via the House of Commons too.

The copyright infringement aspect alone in the DEB puts the burden of proof on the "Account Holders" of an ISP service and they, no one else will have to bear the cost to prove their innocence. Please remember that as it is extremely important and a total change to innocent until proven guilty.

Again - "YOU" must prove you did not as the account holder responsible for your ISP service, download material that is not yours to do so.
Posted by CommanderZendo over 6 years ago
Part 3

As far as I am concerned we have criminal and civil procedures today which are perfectly suited to resolving copyright disputes however the cost is borne by the rights holder alleging infringement so no surprise that they are keen to see the DEB and similar amendments to it pushed through as then it makes their lives easier and certainly more cost effective.

I have been in the ISP industry 15 years now and never seen so much political scrutiny and influence over it as there is today.
Posted by CommanderZendo over 6 years ago
Part 4

While I do not condone illegal use of an internet service I also do not support an end user having to try and prove they did nothing wrong when the ease in which anyone can access an internet service off of someone who is not knowledgeable enough to know it’s being used by someone else is very easy to do.

For any government to allow that to happen is unjust in itself and no government should be supporting that in favour of pressure from a very strong and well funded rights holder group or indeed individual.
Posted by CommanderZendo over 6 years ago
Part 5

ISP’s, ISPA, and many others such as the Open Rights and 38 degree groups are all working hard to try and get this Bill debated properly as are thousands of internet users who have already pledged their support and written to their respective MP’s. Many thousands more have yet to do so – If you’re one who has not then please do so. Your voice must be heard on this, your votes are a valuable commodity in the coming election for every party – Make it clear that you will not support a party who supports railroading through Bill’s like the DEB.
Posted by CommanderZendo over 6 years ago
Part 6

The post above this from “vanessadeagan” highlights just one of many people like her who will become victims of this if it’s allowed through as is and I say that with the greatest of respect to the lady in question. Not everyone is technically able to defend themselves in fact most people even some who think they are would struggle in a court.

This is in all our hands.
Posted by kamelion over 6 years ago
Not just victims, they will be criminalised due to the actions of others. I used the form at 38 degree and have received a reply from my MP. It hasn't given me any confidence that my views will be acted upon.

He won't be getting my vote on May 6th
Posted by CommanderZendo over 6 years ago
True Kamelion they will be criminalised, good point! And well done for putting your vote where it matters. MP's need to know that they should listen to their constituents not just pay lip service to them.
Posted by Dixinormous over 6 years ago
In the news today ISPs concerned about losing money from people who use their networks to download copyright material object to DEB.

Don't like how it's being passed, do accept the need for action. Too many freetards, ISPs sticking fingers in ears and profiting from it not acceptable.
Posted by CommanderZendo over 6 years ago
We are an ISP and I can assure you we don't profit and won't ever profit from it. This has got nothing to do with freeloaders whatsoever. This is about the government running our Internet which is exactly what will arise if this Bill it's amendments and others like it are voted in without proper consideration of the likely impact.

And I'm certain the only people who will pick up the bill (No pun intended) for the likely costs these amendments will have on ISP's should they become law is the customer.
Posted by systemx over 6 years ago
As part of the "wash-up" the 50p lev on phone lines has been dropped. It was due to start in October. Labour have said that they will re-introduce it if they win the election.

Source Newsnight.
Posted by otester over 6 years ago
@CB

I support ethical companies.
Posted by CommanderZendo over 6 years ago
@Otester - Glad to have you as a customer ;-)
Posted by Mr_Fluffy over 6 years ago
So much for emailing your MPs to let them know your concerns over the bill - 96.6% of MPs didn't even bother to turn up for the second reading!

My "parliamentary representative" was one of the horde conspicuous by their absence!

PAH!
Posted by CommanderZendo over 6 years ago
@ Mr_Fluffy - So we all now know what we should be doing in the elections when the Labour and Conservatives come looking for our votes. I know what I'll be doing and saying to them, and they won't like it.
Posted by Mr_Fluffy over 6 years ago
Unfortunately we aren't given the opportunity of a negative vote, and the people in my area are so moronic that the Council and MP have both been the same political colour since I came here in 1969, so I feel rather disenfranchised
You must be logged in to post comments. Click here to login.