I went along to the Digital Economy Act appeals meeting at Ofcom today. I did so partly out of concern that smaller ISPs were not being given a voice at this important stage of the post DEAct game.
The Ofcom Boardroom (R11.01) was hardly big enough for the 35 or so people there. Organisations represented included ISPA, Timico, Which, Consumer Focus, Ofcom, AAISP, DCMS, Alliance Against IP Theft, UK Music (Feargal), BPI, BT, Mobile Broadband Group, Sky, Premier League, Orange, HSBC, Post Office, Virgin Media, TalkTalk, T Mobile, Communications Consumer Panel, Open Rights Group, Nintendo.
The scope of the meeting was to discuss the Appeals Process for subscribers accused of unlawful copyright infringement. Other meetings and consultations were being held to discuss all other facets – Code of Practice, evidence, Definitions (what is an ISP) costs and charges.
Ofcom is looking to complete the process by August and envisaged a period of 6 weeks (only) for the consultation.
Key points from the discussion were:
There was a general agreement (!) that things should be as simple as possible. This aint simple however.
The independent review body should be properly set with appropriate governance rules and complete transparency – there are going to be many consumers with grievances.
It was expected that the first warning letter would result in many questions from consumers not sure what it was all about. There was a concern that however the letter was worded it would result in many phone calls to ISP support desks for clarification. This is a concern because of the large cost associated with having to have the staff in place.
ISPs proposed that an organisation be nominated or set up to cope with these enquiries. Perhaps the Citizens Advice Bureau or Consumer Focus (no enthusiasm from CF on this). CF also pointed to similar situations in other industries that had caused anguish and problems.
There was a right to appeal after this initial letter. People might want to appeal if they considered themselves innocent and did not want to risk going on the serious infringers list that would be the outcome of a second letter.
This starts getting complicated here. At this stage an appeal should be a low/no cost easy process. However if a person does not want to run the risk of being on the Serious Infringers list why should they not be able to pursue a full appeal? This includes challenging the validity of the Rights Holders’ claim to ownership of the copyright. You might think this was straightforward – whoever wrote the song owns the copyright right? Not necessarily always apparently. Also copyright issues would normally be contested in a court with specialized evidence. It is not planned that a court be involved until the final stage – two letters and an appeal later. This needs some thought (Ofcom).
Next is the issue of frivolous appeals. RightsHolders wanted something in the process that disencouraged frivolous appeals. ie appeals that had no real basis. It doesn’t take a great leap of the imagination to envisage a campaign whereby everyone being issued with a letter appeals. This could be a charge for the appeal that is refunded if it is successful. Not consistent with the principle that money should not be an obstacle to achieving justice. No answers yet here.
How long the process should take was also discussed. How long should a consumer have between a letter being sent and an appeal being made? RHs proposed 2 weeks but this is clearly inadequate. The comparison was made with the time you have to appeal against a parking fine. However a parking fine is something that involves money and people have a heavy incentive to get their appeal in quickly. In this case there is no fine and it might take time for people to source the right advice before deciding on an appeal.
There was also the issue of how long an appeal should take to be resolved. 8 weeks was deemed reasonable. But what happens if everyone appeals and the system is swamped?
There is one disincentive in appealing and that is that in doing so you have to reveal your identity which under the process has not been done at this stage.
One of the grounds for appeal would be that the IP address supposedly associated with the infringement was not that of the consumer in question. This has apparently often been the case where the controversial law firm ACS Law has been involved. ISPs called for an agreed robust standard for how IP addresses are identified. The RH’s distanced themselves from ACS Law and said their system is more robust than the IP harvesting used by ACS Law.
There is a long way to go in this whole process though not much time. Tomorrow’s meeting is about Definitions. When is a subscriber an ISP and thus does not merit a warning letter? Watch this space.