Yesterday morning saw Justice Kenneth Parker present his ruling regarding the Judicial Review of the Digital Economy Act. Two of the UK's largest ISPs, BT and TalkTalk, were swept aside as their attempt to persuade the court that the new law infringed web users' basic rights and freedoms as a result of the Act being passed into law without adequate parliamentary scrutiny.
All but one of the ISPs claims were overruled (the exception being the claim about the costs imposed on ISPs as a result of rights holders queries about subscribers IP addresses). As a result, Justice Parker deemed the provisions of the Act to be consistent with EU law. Moments like this, when severely flawed policy is rendered appropriate to the task, can leave those of us who have been vocal in their opposition to the Act feeling a little beaten. However, now is not the time to give up hope, but a time to regroup and focus on the practicalities involved in the next stage of action.
There are still many issues that raised by the Digital Economy Act that need publicly questioning and there are several forums in which to express these concerns. Whether the focus is on the future of open public wi-fi networks (under threat by the Act), the potential for individual privacy to be compromised by various surveillance regimes, or whether or not website blocking arrangements are a threat to future new startups or personal creativity, the war is far from over.
Peter Bradwell, writing for the Open Rights Group, has stated that the "ruling is an assessment of the Act's consistency with EU rules on how governments are allowed to legislate" - it is not an assessment as to whether or not the Act is the right tool to support digital innovation or whether it is the most appropriate policy judgement regarding the policing of 'guilty' IP addresses. Indeed, Justice Parker's ruling seems to go against the grain of Judge Birss in the ACS Law case, in which the QC acknowledged that evidence of an IP address infringing is different to pin-pointing a person. It's certainly going to be interesting to see how courts will proceed with cases based on the 'graduated response' process especially given the problems of:
- inaccuracies in the software and methods employed to detect file-sharers
- inaccuracies in the connections made between IP address, bill payer and actual file-sharers
- inaccuracies in the data logs kept by ISPs
The biggest problem comes from the way in which government seems beholden to the 'big numbers' game being played by effective industry lobbyists and their projections of massive losses that results in legislation being passed under false pretences. Put simply, there is insufficient research or evidence of losses associated with file-sharing, yet that hasn't stopped the BPI's wishes making their way into the Act.
The Digital Economy Act may well yet prove to have a 'chilling effect' on the content industry in the UK - such an outcome would be a travesty given the wide-spread criticism of the legislation. In a response to a recent letter I sent to my MP, the Secretary of State, Jeremy Hunt noted:
The Government does not have any in-principle objections to blocking sites set up primarily to distribute illegally-copied content. I am aware, though, that there are a number of technical issues which would need to be addressed if such a scheme were to be made to work effectively, and I appreciate that there are methods to evade blocking techniques which could be employed by websites determined to infringe copyright.
Many users of infringing sites may be unaware that the sites they are viewing carry content unlawfully, and they may find it useful for such unlawful sites to be less readily available. Therefore, I continue to believe that there is value in exploring the options.
This seems indicative of the problem - many users are unaware of infringing content (YouTube? Muxtape?) and it's questionable how the messages regarding infringement will be conveyed under this new regime. YouTube fingerprinting software even preempts the uploading of content that might be digitally flagged as potentially suspicious. How far will techniques like this go as content hosting intermediaries start to police their users, and subsequently, those users police themselves?
As I said at the beginning of this post, the war is still continuing even if this battle might be lost. I'd like to cite Peter Bradshaw once again:
Bad decisions build movements against them. Whether it is ID cards or the poll tax, history is littered with examples of governments charging ahead with illegitimate ideas that are ultimately abandoned because they are wrong, and people do not accept them.You can take part in the war.
Join the Open Rights Group.
Help fight for your digital rights.