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Digital Top Stories
OfCom publish draft three-strikes code (sort of)
By CMU Editorial | Published on Tuesday 1 June 2010
Hmmm, for a system designed to simplify the process for copyright owners to protect their rights online against illegal file-sharing, the three-strikes style process proposed by regulator OfCom on Friday is pretty damn complicated. And, while anti-three-strikes net companies and campaigners, including TalkTalk and the Open Rights Group, are critical of the proposals, in reality they currently do little to extend a copyright owner’s existing rights to tackle those who steal their content.
The report published by OfCom on Friday was the first of three that need to be written following the passing of the controversial Digital Economy Act in April in order to set up a ‘graduated response’ system for combating file-sharing. It deals with the process by which copyright owners can instigate the ‘graduated response’ system, leaving tricky issues like who will pay for the operation of the process and the exact nature of the appeals procedure for subsequent reports.
The main innovations in the proposal document, which has been drafted based on various consultations with interested parties since the passing of the DEA, is the creation of standard Copyright Infringement Reports and a central Copyright Infringement List, which will presumably be administered and held by OfCom.
Content owners who suspect that the user of a specific IP address is infringing their copyrights will submit a Copyright Infringement Report to the ISP who controls that IP address. The ISP will be obligated to send that user a warning letter, telling them they have been accused of infringement, outlining the legal ramifications of that fact, and providing information of how the user can appeal against the allegation if they believe they have been falsely accused.
If three Copyright Infringement Reports are submitted against one IP address, the ISP will be forced to add that IP number to the central Copyright Infringement List. Content owners will be able to see the alleged file-sharers on that list who are accused of infringing their copyrights, thus alerting them to the fact other content owners have issued CIRs against the same people. If they wish, they can then launch legal proceedings to reveal the identity of any user on the list, and then sue that user directly for copyright infringement.
So far, so unrevolutionary. Although the proposed system will mean ISPs are obligated to send out warning letters, and those warning letters will be standardised, the end product of all this is a list of people for content owners to sue directly for copyright infringement. In reality, content companies have been able to compile such lists before, without the help of ISPs, and the reason said companies lobbied for the three-strikes provisions in the DEA was so that they wouldn’t have to sue individual file-sharers – because such costly lawsuits have proven to not wok as a deterrent for file-sharers in the past.
This particular code shirks the most important bit of the three-strikes system – ie “technical measures” or “net suspension”. Rather, the draft code, which also dictates the timelines by which CIRs can and need to be submitted, and the speed with which ISPs must respond, obligates OfCom to review the impact of the warning letters on a quarterly basis, leaving it for the government’s Culture Secretary to then decide – probably in late 2011 – whether net suspensions are required. Given warning letters have previously been sent out as part of a voluntary arrangement between the record industry and ISPs, with next to no impact on file-sharing, I think it’s fair to say they will be.
A consultation on the draft proposals will now begin. Those who support three-strikes are keeping an open mind, though the anti-three-strikes brigade have been out in force accusing the new measures of ignoring data protection rules, of failing to protect the interests of falsely accused net users, and of potentially skewing the ISP market (because the rules will only initially apply to ISPs with over 400,000 customers).
It remains unclear in which bit of its three-strikes planning OfCom will consider what measures web-cafes, hotels, schools, universities and the like can and must take in order to avoid liability for the inevitable file-sharing of their customers and students. And until those issues are addressed, the Open Rights Groups of this world do have legitimate concerns about all things three-strikes.
