Broadband News

The Digital Economy Bill is currently going through the House of Lords in what is the committee stage; this week it had its first "line by line examination." With 299 amendments having been put forward by the time of writing - midweek it was a comparatively mere 74 - some of them are inevitably in contradiction to others.

Pinning the blame on the donkey

Lords Whitty and Lucas want to make sure that IP addresses are used to pin the blame for any copyright infringement on those who pay for the Internet connection used, despite it being argued even by ISPs that IP addresses are by no means a fool-proof way of finding the culprits. However, it is recognised elsewhere that the potential exists for "a third party other than the subscriber to an Internet access service has infringed the owner's copyright by means of the service" - and it's proposed that a clause be removed from the existing Bill that would otherwise allow action to be taken against subscribers if this were the case.

Yet when it comes to punishment, it's been suggested that "any technical obligations imposed must be accompanied by an assessment of their impact on individuals, copyright holders and internet service providers," which could some mean households would never be disconnected. And then there's also amendment 34, proposed by Lords Razall and Clement-Jones:-

the Secretary of State must demonstrate before such action is implemented that he has considered whether such action ... appropriately balances the interest of rights holders and the interests of the public in due process, privacy, freedom of expression and other fundamental human rights guaranteed by inter alia the European Convention of Human Rights and the EC Charter of Rights.

While it's likely that words to this effect would be necessary for the Bill to comply with European legislation - and therefore actually become law in the UK - if enacted they'd give an extra layer of protection to alleged copyright criminals.

Paying the Bill

Then there's the question of whether individual acts of online piracy actually constitute a loss of business or revenue for the rights holders concerned. Amendment 52, put forward by Lord Lucas, suggests that “the value of the infringement” would have to be specified by such copyright owners. This could ultimately force them to argue that each illegal download corresponds to one lost sale - and to date there hasn't been any persuasive evidence to back up such a claim.

On top of this, there are moves to satisfy those who feel aggrieved that the only way they could obtain a particular song or film is via an unpaid for P2P download. Amendment 172 would put this on a peculiarly subjective basis, leaving it up to Ofcom to decide whether:-

(a) there are arrangements in place for the wholesale licensing of copyright works for distribution on the Internet which are fair, reasonable and comprehensive; and
(b) the market in which copyright works are sold to the public via the Internet is properly functioning.

Amendment 105 takes things a step further, allowing for "the value of an infringement" to be calculated using a set formula - in any possible incidence. The value would hence be worked out:-

on the basis of the benefit that would have accrued to the owner had the copyright material been legally acquired from an ordinary internet retailer, except that copyright infringements relating to work that has not yet been published in any format anywhere in the world shall be valued at 10 times such benefit, and that copyright infringements relating to work that has been so published but is not legally available in the format downloaded by the subscriber shall be valued at zero.

Looking out for the little guy

But what do you do if you're actually accused for copyright infringement and facing the dreaded "technical measures" or other punishment? Well, Lord Lucas wants to make sure the alleged criminals are given "full details" on how to go about making an appeal, while Lord Clement-Jones wants any warnings sent to subscribers threatening action to include "advice about how to respond to the notification if the subscriber believes it to be based on an error of fact, wrong in law or unreasonable."

And then there's amendment 169, which would give alleged pirate the power to strike back against copyright owners - not only by way of "injunction against the continuance of [their] threats" but also "damages in respect to any loss which he has sustained by the threats." The rights holders could even be forced to prove infringements actually took place or face action against themselves:-

If the claimant proves that the threats were made and that he is a person aggrieved by them, he is entitled to the relief claimed unless the defendant shows that the acts in respect of which proceedings were threatened did constitute, or if done would have constituted, an infringement of the copyright concerned.

If enacted, this would genuinely help redress the balance of power in favour of those who are victim to threatening letters without having committed any crime. However, there's a long way to go yet until we find out which amendments will see the light of day. The committee stage will continue on January 12th.