This is likely to be because the latter two are far more closely aligned to the content provision industry with BT and TalkTalk being really just (or largely in the case of BT) connectivity providers.

People should not get too excited at the prospect of a Judicial Review. This is just a process of checking to see that the legal process was followed. Did it receive the required number of readings in Parliament? etc.etc

The Act, as we all know, was rushed through with outrageous haste as the last gasp of a dying government. The issue will be whether, in the rush for the door, the government made any mistakes in process that could invalidate the Act. This would mean that Parliament would have to start the whole process again.

There is clearly no desire on the part of the present government to revisit the Act although if the review did find any transgressions they would have no choice. I imagine if the review did uncover an issue a head might roll in the civil service – the politicians’ heads have already been lopped off for unassociated reasons.

How long a Judicial Review will take is also in my mind an issue. It wouldn’t surprise me if this lasts into next year by which time much of the damage, in terms of costs having to be incurred by ISPs, will already have been done.

The picture below is me with Feargal Sharkey at last night’s ISPA Awards. Feargal gave a speech and expressed the sentiments that two industries (ISPs and music rights holders) need to get the lawyers out of the equation and get on with the job.

Unfortunately the lawyers are already gathered firmly around the trough, are chomping away to their hearts’ content and won’t be shifted in a hurry.

Tref shaking hands with CEO of UK MUsic Feargal Sharkey at the ISPA Awards

PS I get to meet al the celebs – check out me and David Beckham here.

Additional news later on Friday – BT and TalkTalk press release here.

If it was as simple as that we might be able to come to some arrangement but of course it isn’t.

The BIS consultation on Costs under the Digital Economy Act is not scheduled until October 2010. Work is going on now to prepare for this and yesterday Ofcom held a meeting with ISPs to take on board their views on the subject.

It was not a happy meeting. Ofcom has been given what is known in rugby parlance a hospital pass. The regulator has job that it cannot perform to anyone’s satisfaction.

ISPs will by January 2011 have to have systems in place that support the notification to their customers of alleged copyright infringement and the storage of the data associated with this.

Based on gut feel I would expect this to be a 9 – 12 month kind of job, and that was once the specification had been agreed and understood.

The spec for this job is not known and won’t be known until we understand how many notifications have to be processed. Rights Holders are not apparently obliged to report on their forecast numbers until two months before the notification process needs to begin.

Ergo impossible job or as Mr Micawber¹ would have put it – result misery.

All seven ISPs initially affected by the Act were at the meeting, including I’m told the Post Office, together with some smaller ISPs who are painfully aware that their turn might come in a year’s time.

The Post Office is in my mind an interesting case. Correct me if I am wrong but I think they are a straight white label operation using BT Wholesale as a supplier. The costs of developing a system will be even more in their case as they will likely have to involve BT.

Also I would imagine that most of their customers are of the blue rinse variety (ahem sorry if I got that one wrong – if so someone needs to stamp it out straight away) – in other words of the pension collecting demographic. I doubt that they have many copyright infringers amongst their customers compared with some of the others. Probably all their downloaded stuff is already out of copyright (ok stop that right now).

There is therefore a scenario where Rights Holders will initially focus on a subset of the 7 ISPs with the highest number of (alleged) infringers.

We may end up with the situation where 7 ISPs are asked to develop systems to process CIR notifications with the distinct possibility that not all of them will be asked to issue any notices, at least initially. We don’t know because we don’t have the numbers.

This makes it even more important that ISPs get plenty of advance notice on these numbers. Their capital expenditure plans for this year will be up the spout whatever happens.

People need to get on to BIS to complain here. It is clear that the schedule defined by the DEAct is unworkable.

On an administrative note Ofcom’s Qualifying costs will be allocated on a fixed percentage (75% to 25%) between qualifying RHs and ISPs. Individual ISP shares will be determined according to the projected volumes of CIRs to be received in a notification period. A qualifying ISP that is not due to receive any CIRs in a notification period doesn’t have to contribute to the qualifying costs.

The fixed fee that RHs have to pay to ISPs to cover notification costs will be set by using an efficient operator’s costs as guidelines. Ofcom will commission a study to determine this efficient operator’s costs. Fieldwork will take place between June and August and cover the qualifying ISPs and ideally one or more Mobile Network Operators and smaller ISPs.

PS I have already had one consultant on the phone regarding this commission. My rates are in my mind wholly reasonable if anyone else wants to arrange a meeting.

PPS it seems fair and sensible to me that ISPs outsource all the system development required here to an Ofcom managed consortium which can then pass 75% of the set up costs on to the RHs.

¹ David Copperfield by Charles Dickens

There isn’t much time for the industry to respond here and I’m certainly not in a position to give it a comprehensive review after 10 minutes of scan-through reading.

A few points do immediately jump out of the page at me though.

As previously reported the initial Code is only going to apply to ISPs with 400,000 or more subscribers. Ofcom considers that his will cover 96% of infringers.

These ISPs’ regulatory types are going to have the delay their holidays this summer. They only have 8 weeks to comment. All this we already knew of course.

What does hit home is the amount of system development work these larger ISPs are going to have to do to guarantee the integrity and accuracy of the whole process.

So the costs to the industry are already starting.

Ofcom does not attempt to discuss either the enforcement and appeals process or the costs appropriation. These are due for consultation in August (4 months) and October (2 months) respectively.

There is some overlap for some of these consultations because the outcome of one could influence the response on another. In an ideal world these consultations would all be sequential.

Government action is required to facilitate cost apportioning. The Statutory Instrument for this is needed in the July timeframe. When does Parliament break up for its 3 month holiday?

Under section 124K (2) of the 2003 Act, Ofcom is required to appoint an independent person to determine subscriber appeals. Also 7.3 The notification procedure proposed in the draft Code ensures that a subscriber’s identity is not disclosed directly or indirectly to a Copyright Owner without the express written consent of the subscriber.

It will be interesting to see how an appeals process could be undertaken whilst preserving the anonymity of the subscriber.

The Copyright Infringement Reports (CIRs) must provide details of the infringement and should provide both the start and end time of the period during which the evidence was gathered. Currently these notices from Rights Holders only provide a single timestamp. The notices will have to change from their current format.

It also appears that subscribers will potentially have only 4 weeks between a first and second CIR notification. I’m sure that this will be clarified during the consultation on Disputes and Enforcement. The obvious question is whether this is enough time for an appeals process to work.

Grounds for appeal include a claim that the act constituting the apparent infringement to which a CIR relates was not done by the Subscriber and the Subscriber took reasonable steps to prevent other persons infringing copyright by means of his/her internet access service.

This is the most contentious bit and relates to the fact that the Subscriber is effectively guilty until they can prove themselves innocent. Also what might constitute “reasonable steps”?

It’s going to be a busy summer for all concerned. I wonder whether Lord Mandelson is planning any more lunches aboard yachts. At least he is no longer in power.

The DEAct was heavily weighted in favour of rights holders and we should be seriously concerned that the Code of Practice does not adopt a similar bias.

ISPs are intermediaries that pass packets of information over their networks. ISPs neither benefit from, nor encourage, users to infringe copyright law online. As such ISPs should not be financially liable for the cost of enforcing the law against these users. Moreover the regulator should not seek to use existing resources, already paid for by the ISP industry as part of the Ofcom levy, in the supervision of the Code of Practice.

The Internet offers excellent opportunities for rights holders to access their target market with relevant lawful content without the significant costs associated with production, distribution and marketing that exist in a non-digital environment. Witness today’s announcement by the Times Newspaper Group that they will charge for online access to timesonline.co.uk. If the business case for the DEAct is as strong as the rights holders say it is then they should not have a problem with paying for its enforcement.

The digital economy, as we keep hearing, is vital to the competitive future of UK plc. Imposing any financial burden on ISPs in order to protect existing outdated business models of rights holders is wrong. It will introduce a slowdown effect on the vital investment in infrastructure and innovation required to underpin this digital economy. Imagine if BT had to divert some cash away from its fibre rollout in favour of supporting the DEAct processes.

For these reasons and to maintain consistency with the established principle of ‘beneficiary pays’, it is clear that rights holders should be responsible for all actual costs associated with this process. There is no precedent in UK law for one group to incur the costs associated with protecting the private interests, e.g. copyright of another.

Furthermore, ISPs are fully reimbursed by law enforcement agencies and other relevant authorities for the costs incurred when assisting criminal investigations, eg information disclosure under RIPA. This same principle should be applied when assisting the private sector with cases of potential civil liability. In this case the private sector is the rights holder community which on the whole makes substantial profits from copyright.

Indeed, the Government has previously admitted in its consultation document of 2009 that the cost should usually be borne by the party that will benefit (Govt Consultation, June 2009, 4.17).

As regards the consultation document itself it is unreasonable to expect complete and informed answers to the questions posed given the uncertainty that surrounds the implementation of the DEAct.

The decision to publish the consultation before the Bill had received Royal Assent at a time when it was still liable to change must be considered to be highly questionable.

Even once Royal Assent was received, because the responsibility for determining most of the contentious detail was delegated to Ofcom, many important areas of the Act remain unknown.

The subsequent decision to draft the Code of Practice largely behind closed doors and without any serious degree of coordination with stakeholders has only served to further highlight the unreasonableness of the whole situation.

In this context, to choose to issue a reduced 8-week consultation period is completely unsatisfactory and goes against the principles regarding consultation for government departments.

For information the government’s own code on consultations specifically requires that: Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible.

Concerns around the minimal consultation period are even more pressing given the potential of the legislation and consultation to impact many stakeholders that could be included downstream (eg public WiFi, libraries and universities). Also considering the complexity of the issues surrounding the DEAct it would make sense that the “longer timescales” apply here.

We should ask ourselves whether there is anything that can be done about this? The Liberal Democrats continued to be vocal about repealing the DEAct up until very recently. They seem to have gone very quiet…

By January of 2011 the regulator must have set up an independent monitoring system so that there is data available to measure the success or otherwise of the Act.

Ofcom is proposing that monitoring should consist of three types of input: collation of existing data (eg existing industry reports, ISP traffic data and existing consumer research), consumer research and direct measurement of activity on file sharing networks.

Independant partners will be commissioned for the consumer market research and the direct measurement work with the tendering process beginning in June.

The market research will be conducted 4 times a year on samples of 5,000 persons each time. It will be interesting to see how accurate this research is. Will people tell the truth? I guess it will just be a contribution to the overall dataset.

The baseline data needs to be in place for the start of next year.

The DEAct is such a contentious subject that the last thing we want is to find  that this CoP is not objective and is bisassed towards one set of stakeholders over another. It is a lot easier to get changes made before the initial draft than afterwards.

It is also hugely important for Ofcom to remain transparent here and it would make sense to me for the regulator to be asked to identify how many contacts and inputs have been had with each set of stakeholders during the compilation of the draft CoP.

Ofcom responsibilites in respect of the DEAct can be found here. There is one meeting planned for 20th May to present these duties. Doesn’t seem to be to do with the CoP subject matter.

Secondly BPI spokesman Adam Liversage was allegedly caught advising his wife via twitter on how to infinge someone’s copyrighted images.

Thirdly today twitter is chirruping away like crazy about how the French Hadopi organisation is having to rebrand because its logo uses copyrighted font.  The Hadopi Law, if you are not familiar with the name is the French three strikes equivalent of the Digital Economy Act.

I’m not an expert on copyright but it seems to me that if the organisations and individuals mentioned above find it hard to not break the rules then what hope everyone else.

We could do with a repository to collect similar stories to build up a body of knowledge in respect of this.

My view is that Ofcom has been given a task, the generation of the draft  Digital Economy Act Code of Practice, that is impossible to fulfil to everyone’s satisfaction in the three weeks that the regulator has left to complete it.

The meeting did not nail the major issues in terms of definition of who is and isn’t an ISP or Subscriber. Some of the definitions are highly complex and subject to different interpretations. The natural order of these things, believe it or not, is to brush the problem areas under the carpet and assume that this will be ok.

However in this case using the “carpet technique” potentially leaves huge holes in the legislation that will make it completely ineffective. 

For example nobody believes that the intention of the Act is to kill off the  WiFi hotspot market.  Is a WiFi hostpot operator a subscriber or a Communications Provider? The latter potentially as it is selling/providing services to custmers.  It is impossible in a many cases to be able to identify the subscriber on these hotspots so infringement notices go to who? 

So whilst it isn’t Parliament’s intention to kill off WiFi hotspots if they don’t do so then these connections will become defacto standard targets for those wanting to continue to download copyrighted material.

Marry in haste and repent at leisure (or words to that effect).

Also good luck to the people at Ofcom because they are, in my experience, by and large intelligent and able folk. We only have to wait 3 weeks to see what they come up with.

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.

“RLSLOG.net was suspended by its German hosting company after removal request from law firm representing Universal Music, although we never hosted any files or copyrighted data on our server. Our site is strictly informative.

We found a new host and moved our site, but it wasn’t powerful enough to handle the site.

We should be back tomorrow on more powerful server.

Check our forums in the meantime: rlstalk.net.”

Now I’ve never been on RSLOG.net. A quick “Google” tells me this about it:

Links. RSS | IRC | Contact · New releases | posts · AuTo.RLSLOG.net · NewTorrents.info · NTi forums · Leecher’s Lair · PornLeecher · Rapidshare King …

It doesn’t look like my kind of site. I then did another quick Google on “NewTorrents.info” and it came up with about 1,950,000 results. That’s a lot of sites promoting free availability of copyrighted material (presumably).

The Government was naive in the extreme to think that filtering websites would go anyway towards solving the problem of unlawful copyring infringement. It is a complete waste of time, effort and money that also establishes a very dangerous precedent. 

If this ludicrous law somehow sticks I’d like to see the Government take on Google, Bing (Microsoft) et al and trefor.net.  We are all accessories to unlawful activity here.