Digital Economy Act/Ofcom

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This page is for the Pirate Party's work on Ofcom's consultation on Online Infringement of Copyright and the Digital Economy Act 2010. More details can be found here and the Consultation document can be downloaded from here. The final response is being drafted here.

Feel free to add comments. Please sign each paragraph in some way and leave two lines above each question and below each answer. If you are replying to something already stated, use an additional indent ( : ) to make that clear.

A meeting took place between representatives of Ofcom and the Party on 10th June, 2010. Minutes of the meeting can be found here.

Contents 1 Executive Summary 2 Introduction 3 Application of the Code 4 Copyright Infringement Reports 5 Identifying subscribers and making notifications 6 Copyright infringement lists 7 Subscriber appeals 8 Administration, enforcement, disputes and information gathering

Points outside the Code:

• Do they have an estimate of the number of CIRs?
• What are the provisions intended to achieve - 124E (1)(k)
• Are they still hoping for ISPs to enter into discrete, commercial arrangements?
• How will Ofcom be measuring the "current level" of copyright infringement - 124F (5)(a)
• Are notifications going to be sent to electronic or postal addresses?
• Note that there is no rush, under 124D (2)(b)'

Executive Summary

Introduction

Application of the Code

Question 3.1 (page 10)

Do you agree that Copyright Owners should only be able to take advantage of the online copyright infringement procedures set out in the DEA and the Code where they have met their obligations under the Secretary of State’s Order under section 124 of the 2003 Act? Please provide supporting arguments.

• I don't see the need to say much here other than "Yes". Obviously we can provide the arguments (along the lines of this all being for their benefit and they have complete control over the process, so they should at least have to fulfil their obligations. -Duke
• One of the problems is that the requirements as they stand potentially exclude smaller copyright holders from making infringement reports. I'm not sure that we should bother mentioning that though. PeterBrett 20:05, 7 June 2010 (UTC)
• Why not? Make the point that rather than providing support for all, they are simply "acting as the whipping boy" for large corporate interest rather than the man on the street (being the artist, and the indie promoter). Obviously word it better though ---Scuzzmonkey 12:02, 29 July 2010 (UTC)

Question 3.2 (page 11)

Is two months an appropriate lead time for the purposes of planning ISP and Copyright Owner activity in a given notification period? If a notification period is significantly more or less than a year, how should the lead time be varied? Please provide supporting evidence of the benefits of an alternative lead time.

• I think the question is best answered by the ISPs; I don't really have much idea how much of a lead time they will need. -Duke

Paragraph 3.8 states "As no CIRs can have been issued to date, we do not have information about CIR columes before the first notification period..." - it might be worth suggesting they look at the volumes produced in previous letter-writing campaigns such as those by ACS:Law, Davenport Lyons and the BPI who, iirc, ran a letter-writing campaign for a while. -Duke

• Yes, I think that's a very good idea. Also, I think it's reasonable to expect that the volumes will be about an order of magnitude higher than that, due to the streamlined process that DEA offers. PeterBrett 20:05, 7 June 2010 (UTC)

Paragraph 3.11 has an interesting statistic that could possibly do with verification or at least sourcing. -Duke

Paragraph 3.12 has quite an important quote that could be turned against the "IP addresses uniquely identify a device" argument: "An IP address identified as related to copyright infringement may be in use by multiple individual subscribers at the time of the alleged infringement." -Duke

At this point it would be useful to get clarification that Universities and Libraries that provide Internet services under contract are counted as ISPs, and so are exempt if they have fewer than 400,000 subscribers. -Duke

Question 3.3 (page 14)

Do you agree with Ofcom’s approach to the application of the Code to ISPs? If not, what alternative approach would you propose? Can you provide evidence in support of any alternative you propose?

This seems a rather pointless question, to me - I'm not really sure what to say. -Duke

Question 3.4 (page 14)

Do you agree with the proposed qualification criteria for the first notification period under the Code, and the consequences for coverage of the ISP market, appropriate? If not, what alternative approaches would you propose? Can you provide evidence in support of any alternative you propose?

Yes, this seems fairly sensible; covering 95% of fixed internet users and avoiding mobile ones - although missing out on the majority of students might be either a little naive or particularly insightful - might be worth checking. -Duke

Paragraphs 3.22 and 3.23 contain the stuff about wireless internet providers. At this point, I would like to ask how they will determine whether or not a wireless ISP has more than 400,000 subscribers (particularly if it is open, with just a landing page for a contract). -Duke

Paragraph 3.28 covers the loop-hole of someone providing open wireless themselves (even under contract) as they would "ensure that they do collect [enough data] to comply with the obligations in the DEA and the Code". -Duke

• Is that data collection requirement spelt out anywhere? It might be useful for our campaigning, even if it's not something OFCOM have any control over. PeterBrett 20:05, 7 June 2010 (UTC)

Question 3.5 (page 16)

Do you agree with Ofcom’s approach to the application of the 2003 Act to ISPs outside the initial definition of Qualifying ISP? If you favour an alternative approach, can you provide detail and supporting evidence for that approach?

I have no significant issues, but I would like some of the things I mentioned cleared up. -Duke

Paragraph 3.31 needs a lot more clarification. This suggests that those who what to provide access to their own service (i.e. as subscribers themselves) will "need to consider whether [to] take steps to protect their networks against use for infringement...". This strikes me as a clear liability issue and something that really needs to be sorted out. Will certain steps taken be sufficient defence? Who will say what these steps are? Apparently Ofcom hopes this information "will be provided by stakeholders". For some reason that does not fill me with confidence. -Duke

• I'm concerned by the requirement that you're counted as a subscriber if you use your Internet connection yourself. In particular, just about every business that might want to offer free WiFi promotionally will want to use it for e.g. communicating with suppliers. Also, I agree that this paragraph is far too vague. PeterBrett 20:05, 7 June 2010 (UTC)

3.22 Open wireless = subscriber. Is this intentionally designed to persuade users to secure their wireless? Should warning labels be attached to routers? Borgs8472 23:50, 9 June 2010 (UTC)

3.31 Not challenging, impossible. Borgs8472 23:50, 9 June 2010 (UTC)

Question 3.6 (page 16)

Do you agree with Ofcom’s approach to the application of the Act to subscribers and communications providers? If you favour alternative approaches, can you provide detail and supporting evidence for those approaches?

Again, subject to the above questions, yes. -Duke

Copyright Infringement Reports

Paragraph 4.3 raises a lot of questions.

• In particular, when they reference the "title of the Relevant Work", is this the file name, the name of the actual work, the name of the .torrent file if needed etc.? -Duke
• I think that the "statement that there appears to have been an infringement" needs strengthening in some way so that the Copyright Owner becomes liable if there was insufficient evidence. Not exactly sure how to achieve this. -Duke
• I think this should also include the value of the work (see later) and the date the work was or will be published. -Duke

The final section of 4.3 terrifies me somewhat. "This list is based on the information currently produced by agents working on behalf of Copyright Owners. We believe that this matches the standard of evidence required by the courts in relation to civil proceedings by Copyright Owners for copyright infringement." Personally, I was not aware of any such full civil proceedings but I may be wrong. Again, something to ask about. Similarly, I am not fully convinced that Ofcom should be accepting the copyright owners' agents' word for this. Evidence is a key issue and should not be left up to the COs. -Duke

• Why does the code not cite relevant court decisions which support the statement that this is a sufficient standard of evidence? Why are agents working on behalf of COs being relied on here? Such agents have a vested interest in keeping the standard of evidence as low as possible, so that they can secure more convictions and thus justify their employment by COs. This doesn't look good at all, to me. PeterBrett 20:12, 7 June 2010 (UTC)

Question 4.1 (page 18)

Do you agree with the proposed content of CIRs? If not, what do you think should be included or excluded, providing supporting evidence in each case?

• No, as discussed above. -Duke

• Filename could just be 'video.avi'. Hash code is useless without lookup facility. Port is irrelevant without the service name. Service name without an example programme. Ports can be random too. This evidence is not inherently robust. Any system to deal with this? Borgs8472 00:24, 10 June 2010 (UTC)

• Do we have any concrete proposition as to how CIRs can be improved? PeterBrett 20:12, 7 June 2010 (UTC)

Question 4.2 (page 19)

Do you agree with our proposal to use a quality assurance approach to address the accuracy and robustness of evidence gathering? If you believe that an alternative approach would be more appropriate please explain, providing supporting evidence.

• I think this is fair enough, but I would like the Quality Assurance reports to be published for all to see (including a list of all the COs taking part). This would help assure the public that the process was "evidentially robust and accurate". Having a published list of Copyright Owners would also good for a number of reasons, including making it easier to gauge the effects of the process, as well as preventing any CO from benefiting from the process without contributing, and preventing any CO from losing out as a result of them as well (i.e. those who think that file-sharing is good for them). -Duke

• The QA report will never pass scruntiny. (joining torrent swarms, entrapment etc Borgs8472 23:52, 9 June 2010 (UTC)

Question 4.3 (page 19)

Do you agree that it is appropriate for Copyright Owners to be required to send CIRs within 10 working days of evidence being gathered? If not, what time period do you believe to be appropriate and why?

10 working days strikes me as the maximum length of time; it will already be hard enough to defend against accusations as it is without a huge delay. If anything, it could be a shorter time. -Duke

Identifying subscribers and making notifications

Question 5.1 (page 21)

Do you agree with our proposals for the treatment of invalid CIRs? If you favour an alternative approach, please provide supporting arguments.

• Yes, although I think 5.4 should include some punishment of sorts for a CO who does not comply with all the appropriate procedures. -Duke

• Especially #2s where the IP wasn't even allocated. That should flag the QA system pretty quick. Do all bogus requests fall under this area, or is there separate provision for malicious or abusive use of the system? Borgs8472 23:56, 9 June 2010 (UTC)

Question 5.2 (page 22)

Do you agree with our proposal to use a quality assurance approach to address the accuracy and robustness of subscriber identification? If not, please give reasons. If you believe that an alternative approach would be more appropriate please explain, providing supporting evidence.

Seems reasonable to me - again perhaps if the reports could be published? -Duke

Paragraph 5.11 is, in my opinion, wrong, as is their justification in 5.13:

• Something being straightforward does not make it correct, particularly when it comes to the law. -Duke
• Disputes over the "subjective value" of a work could be avoided by having a straight-forward system; I would envisage one whereby either a particular value was assigned to each type of infringement (i.e. 1 point for a music track, 10 points for an episode of a TV show, 20 points for a film, and so on) then scaled by the age of the work (with a factor of 1 for something published this year, a factor of 0 for something published 50 years ago and interpolating and extrapolating linearly from that - subject to it being non-negative). Then you would need to go over so many points per month in order to get a notification. This way we do not end up in a situation whereby someone who allegedly downloads two 30-second tracks a month apart is "worse off" than someone who allegedly downloads the entire Microsoft software library in an afternoon. -Duke
• There are, if anything, more "free-hit" CIRs in Ofcom's proposed system as once you have received one notification you know that no infringement in the next month-(10 working days) will count towards the next notification. By my reckoning, that gives you about half a month of "free-hit" CIRs. -Duke
• Their final "excuse" doesn't really seem to make much sense as a sentence to me, never mind as a justification for a the system. -Duke

Question 5.3 (page 23)

Do you agree with our proposals for the notification process? If not, please give reasons. If you favour an alternative approach, please provide supporting arguments.

No. This method strikes me as particularly stupid as outlined above. I would much prefer a value-based system as copyright law in England & Wales is based on "damages", rather than any "statutory minimum" etc. as in the US or it being a criminal offence (as in France, I think). -Duke

I have a few concerns with the list in 5.15 of things to be included in the notification:

• Stating it has been sent under Section 124? of the Communications Act 2003 immediately sets the wrong tone, in my opinion. It straight away says "this is a legal thing" and that isn't even a useful reference point as many copies of the CA 2003 won't have been updated yet. I would much rather that was included in the technical stuff and the main text said "under the Digital Economy Act". There is a lot more information available under that name than the CA. -Duke
• the "evidence" is again subject to the earlier points about the lack of evidence. -Duke
• I would like to know who will be writing the "information about copyright and its purpose". Going by what is in the draft notifications provided (page 70, section 2) Ofcom can't provide accurate information, and I have little trust in the industries that provided us with "downloading stuff is stealing" and "piracy funds terrorism". - Duke
• the above applies to all the other bits of "advice or information" to be included. The access to lawful works should include where to find work that is either released under a friendly licence (e.g. CC) or is out of copyright as well as the legal pay-services. -Duke

5.17 needs to be clearer about including the process by which a subscriber can request their information (possibly with a simple online form; a "this is your number, put it into this site with this password" sort of thing). -Duke

A little clarification on 5.18 would be useful; I think that "notification" should read "notification and CIRs". -Duke

5.19 is missing the bit about the infringement only "appearing" to have taken place. -Duke

Question 5.4 (page 25)

Do you believe we should add any additional requirements into the draft code for the content of the notifications? If so, can you provide evidence as to the benefits of adding those proposed additional requirements? Do you have any comments on the draft illustrative notification (cover letters and information sheet) in Annex 6?

See above. Also, I think the notification should have a disclaimer along the lines of "No action (or lack of action) by you in response to this notification can be taken as an admission of liability or guilt for the alleged infringement." This should help people to realise that they do not really need to worry that much or jump straight to expensive legal advice. There should also be a link included pointing to where they can get free information from consumer organisations (ideally, but unlikely, including us). -Duke

5.17 The bill payer is responsible, not the address of the internet access. Implications for live out landlords? Borgs8472 00:04, 10 June 2010 (UTC)

5.18 Does that include a right to technical information? Borgs8472 00:06, 10 June 2010 (UTC)

Copyright infringement lists

Question 6.1 (page 26)

Do you agree with the threshold we are proposing? Do you agree with the frequency with which Copyright Owners may make requests? If not, please provide reasons. If you favour an alternative approach, please provide supporting evidence for that approach.

This seems reasonable to me subject to what was discussed above about the threshold for notifications. -Duke

• Copyright infringement lists should be anonymous to the extent that two COs shouldn't be able to put their CIRs together and double-team a subscriber. PeterBrett 21:02, 7 June 2010 (UTC)

This is covered partly by 6.5; "The list will only contain information directly related to the CIRs made by the requesting Copyright Owner". -Duke

Subscriber appeals

7.5 states that the grounds for appealing may include; "that the act .... was not done by the Subscriber and the Subscriber took reasonable steps to prevent other persons infringing copyright". Two things worry me about this; firstly that it is not even a defence and secondly it does not specify what these "reasonable steps" are, nor who gets to define them. In my opinion there are no reasonable steps one could take (other than telling people not to do it) however the IFPI et al. will be pushing for things like this to be installed on everyone's computers and so on - we really need to stop that. 7.11 then, rather confusingly, states that this is a defence, but again refuses to define the reasonable steps. I think one of the ministers in the Lords insisted that this would be defined in the Code, if anyone can find a quote on that, it would be very useful. -Duke

Personally I think 7.12 could do with being strengthened by explicit effects on COs for successful appeals. This would involve (among other things) being banned from making any more CIRs for a time period after so many successful appeals and if the level of evidence is found to be insufficient, all other CIRs using the same level of evidence should automatically be revoked. -Duke

• Am I right in thinking that it appears that "it didn't happen, the CO is full of shit" isn't a defence. PeterBrett 21:03, 7 June 2010 (UTC)

Question 7.1 (page 30)

Do you agree with Ofcom’s approach to subscriber appeals in the Code? If not, please provide reasons. If you would like to propose an alternative approach, please provide supporting evidence on the benefits of that approach.

No real comments other than those stated above. -Duke

7.5 Reasonable steps are very subjective, needs clarification, 7.11 etc Borgs8472 00:13, 10 June 2010 (UTC)

7.14 no fee please Borgs8472 00:13, 10 June 2010 (UTC)

Administration, enforcement, disputes and information gathering

Question 8.1 (page 31)

Do you agree with Ofcom’s approach to administration, enforcement, dispute resolution and information gathering in the Code? If not, please provide reasons. If you favour an alternative approach, please provide supporting evidence on the benefits of that approach.