UK’s OfCom Publishes Draft Three Strikes Law Standards for ISPs

The UK is one of only a select few countries that have embarked on a path of creating a “Three Strikes” law where if you are accused of copyright infringement three times, you would have your Internet access cut off. While other countries have, at best, experience some problems implementing the laws and, at worst, experienced what some call an epic fail during implementation (ala HADOPI), UK regulators and the UK government seem confident they’ll finally put a three strikes law in place.

Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes

While Europeans celebrate, the Anti-Counterfeiting Trade Agreement (ACTA) going on life support thanks to a critical blow by a fifth and final committee, many in Britain may find the whole thing of little comfort. That’s because the process to implement a three strikes law as part of the Digital Economy Act has become one step closer to becoming reality. Thanks to disputes between the ISPs and regulator OfCom, the implementation of the three strikes law has been delayed until at least the end of the year.

Slashdot is TechWeekEurope which lays out what is in the latest draft of the UK three strikes law. One part that was particularly noticeable to me was the third paragraph:

Under the plans, copyright owners are expected to invest in awareness campaigns “to help educate consumers about the impact of copyright infringement”. A separate Sharing of Costs Order establishes that they will also have to pay the cost of implementing the new system.

I do wonder if this awareness campaign will be based on fact. After all, we laid out a huge body of evidence back in March which consists of 20 studies that discussed the impacts of file-sharing. Really, if you want science-based fact, the 20 studies we covered is an excellent resource. Of course, I get the impression that this will be simply industry driven campaigns with whatever random numbers the corporate entities imagines up and present them as fact – I’m referring to comments like, “File-sharing has cost the industry [insert imaginary number here].” That is something that is completely debunked by all of the studies we looked at, not just in the 20 studies we covered all at once, but through the numerous other studies we have looked at in the past several years. I guess time will tell whether these awareness campaigns will be based on fact or industry sponsored opinions.

The Draft Policy

We took a quick look through the standards that were published (PDF) and here are a few highlights:

The DEA provisions insert amendments to the Communications Act 2003 (“CA03”) to create two new obligations for internet service providers. These are referred to as the “initial obligations”. They are to:

– Notify their subscribers if the internet protocol (“IP”) addresses associated with them are reported by copyright owners as being used to infringe copyright; and

– Keep track of the number of reports about each subscriber, and compile, on an anonymous basis, a list of those subscribers who are reported on above a threshold to be set in the Initial Obligations Code. This list is referred to as a “Copyright Infringement List” (“CIL”). After obtaining a court order to obtain personal details, copyright owners will be able to take action against those included in the list.

So, IP addresses would be used as evidence of wrong-doing. As anyone with any technical know-how knows, an IP address is a horribly unreliable piece of evidence primarily because there is absolutely no way to be sure if the subscriber is behind that number or if someone else using the same connection is committing the acts carried out by that number. Wi-Fi networks – especially unsecured networks – are often used by more than one individual to connect to the Internet.

Finally, Appeal Costs are to be recovered through the imposition of a Subscriber Appeal Fee of £20, and through a Case Fee which the appeals body will itself set.

Personally, I think the fee is an insult to the alleged infringer. First, its a guilt until proven innocent system, second of all, the accused has to fork over money just to at least say, “I didn’t do it!”

TechWeekEurope also made this note which I think is of interest:

The accompanying Sharing of Costs Order, which establishes who will pay for the scheme, has also gone through some changes. Under the revised version of the Code, copyright owners will bear all of the costs incurred by Ofcom, the majority of costs incurred by the appeals body, and 75 percent of the costs efficiently and reasonably incurred by ISPs in carrying out their obligations.

I personally think it’s offensive to expect the ISPs to bear any of the costs at all. Why should an ISP, which is the business being forced to provide a service, be the ones expected to pay for the costs of that service for the benefit of another industry altogether? If an industry refuses to adapt, I don’t think it’s up to other industries to, against their will, keep the deprecated a business afloat.

Another important note in the draft document:

Once these procedures are complete and any revisions to the Code that may result have been made, we will publish a final statement and, subject to the approval of the Secretary of State, make the Code, which will then be laid in Parliament. We anticipate this process will begin in late 2012, so that the Code can come into force by January 2013.

So, there’s still time for something to happen. If not, British citizens will have time still to find ways of hiding their tracks before this comes into force.

There’s lots in the draft proposal, but be warned, it’s nearly 130 pages long.

Some Final Thoughts

I think a three strikes law is a fatally flawed idea that is doomed to failure. It won’t stop file-sharing. In fact, it’ll make file-sharing harder to track as users find more secure methods of downloading content.

When file-sharers woke up to the reality of Napster getting shut down, they moved to other networks. When using the Fast Track network became too risky, they moved to more secure networks like BitTorrent. When public BitTorrent websites became too risky for some, they simply moved to private BitTorrent websites and UseNet. Assuming a three strikes law will do any good is pretty much assuming that this law will completely defy more than a decade of file-sharing history. Judging by the details laid out here, hoping this law will change that long history and stop file-sharing once and for all is about the equivalent of hoping to win the Powerball Jackpot lottery 50 times over in the span of a month. It’s extremely unlikely.

Update: A ZeroPaid reader in the comments section below has informed us that British citizens can send their concerns about the law to OFCOM. We agree that this is a good idea, so if you’re British and have concerns about this, do send your concerns in.

Drew Wilson on Twitter: @icecube85 and Google+.

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