This is the second in a series of posts explaining what the Digital Economy Act will do, how it works and how it will affect individuals. It is aimed at providing an objective and descriptive overview of the legislation, rather than opinion or comment on the content. The first part can be found here. This part covers the technical measures that can be imposed on a subscriber to limit their Internet access. Some parts may be legally technical.

The Initial Obligations Code of the Digital Economy Act 2010 is designed to reduce online copyright infringement by educating those accused of infringing and warn them of the legal consequences if they persist. However, any legal action taken against the alleged infringer is restricted to what could be done before the Act came into force; i.e. a copyright holder must first sue the ISP to obtain the identity of the subscriber, and then they must sue the individual subscriber. This is where the second prong of the measures to tackle online copyright infringement comes in; the obligations to limit Internet access.

Obligations to Limit Internet Access

These are defined in Sections 9 to 12 of the Digital Economy Act (which create Sections 124G to 124J of the Communications Act). They consist of technical obligations (imposed by the government on ISPs) and technical measures (put in place by ISPs on their subscribers). However, Section 124H (2) states that these cannot be put into place until at least 12 months after an Initial Obligations Code is in force but this does not stop Ofcom working on the Code before then. The earliest these obligations are likely to come into force is January 2012.

Technical Obligations

Under Section 124H (1) of the Communications Act 2003 (as amended by the Digital Economy Act) the government may impose "technical obligations" on ISPs if they consider it appropriate. A technical obligation is defined in Section 124G (2) as an obligation on an ISP to impose some sort of "technical measure" against some or all of its subscribers, solely for "preventing or reducing" online copyright infringement, provided those subscribers are already on a copyright infringement list as defined in the Initial Obligations Code. This only means that the subscriber must have received at least one notification under the IOC - as with much of the content of the Digital Economy Act, the rest of the details are left to Ofcom.

Technical Measures

The types of technical measures that can be imposed are listed in Section 124G (3) and are listed as follows:

1. Something that "limits the speed or other capacity of the service provided to a subscriber" - this would include bandwidth throttling or placing download caps.
2. Something that "prevents a subscriber from using the service to gain access to particular material, or limits such use" - this would likely be website-, protocol- or port-blocking targeted at the specific subscriber (rather than the entire service).
3. Something that "suspends the service provided" - and this is the infamous disconnection. Note that there is nothing that states these measures must be removed after a certain time period, so this "suspension" could last indefinitely.
4. Something that "limits the service provided ... in any other way" - and finally a completely generalised measure. Essentially, this means that government can force any limit on anyone's Internet connection provided they can show it might prevent or reduce online copyright infringement.

The Technical Obligations Code

As with the first set of obligations, the technical measures must also be regulated by a code, created by Ofcom and approved by Parliament. This is defined in Section 124I of the Act and the following section lays out a set of conditions it must satisfy. These are fairly similar to the requirements of the Initial Obligations Code and include that the Code must be objectively justifiable - Section 124J (1)(e), proportionate - 124J (1)(g) and transparent - 124J (1)(h).

How will this Affect You?

At the moment it is hard to determine the precise effects of the technical obligations code as it is much more loosely defined than the initial obligations code. In particular, the threshold for applying the measures is based on the IOC and there are virtually no limits on what the measures can consist of. It is most likely, however, that those in favour of the imposition of technical measures will be seeking as harsh penalties as possible for those who may be infringing their copyright so it is likely that people may see their Internet slowed down, filtered or even their accounts disconnected (although it will probably be called a "suspension" - the two words are interchangeable). In theory such punishments will only apply to those who have infringed copyright, but there are no restrictions on the level of evidence required to impose such punishments contained within the text of the Act.

Fortunately, both sets of measures are subject to an appeals process, which will be described in the next section of this guide.

The author is a law student and Governor of the Pirate Party. Any comments, corrections or suggestions are welcome and can be emailed to duke 'at' pirateparty.org.uk.

This work is licensed under a Creative Commons Licence and should be attributed either to the author or a spokesman for the Pirate Party UK (in which case a link should be provided to the PPUK site).

This is the first in a series of posts explaining what the Digital Economy Act will do, how it works and how it will affect individuals. It is aimed at providing an objective and descriptive overview of the legislation, rather than opinion or comment on the content. The first part contains a general introduction and focuses on the Initial Obligations Code. Some parts may be legally technical.

The Digital Economy Act 2010 (c. 24) is a law of the United Kingdom. It consists of 48 sections and two schedules, received Royal Assent on 8th April 2010 and came into force on the 8th June. The Act contains new government powers over Internet domain names, material on Channel 4 and independent television networks, radio licensing (including provisions for a radio 'digital switch-over') and laws about the classification of video games. It ends with a section that should help libraries loan out audio- and e-books - although it does not go quite as far as it could. However, the most contentious parts of the Act are the sections on Online infringement of copyright (sections 3-18) - which contain the framework for disconnecting Internet users accused of infringing copyright by amending the Communications Act 2003. So, does this mean that we should start checking our email and post for threatening letters sent under this legislation? No - well, not yet.

The Act itself (from now on, referring to sections 3-18, and the new sections 124A-124N they add to the Communications Act - it is a little technical) does not contain any actual measures. The only solid duties it places are on Ofcom (the "Independent regulator and competition authority for the UK communications industries"), asking them to produce reports on everything to do with online copyright infringement on a yearly basis and produce an Initial Obligations Code and a Technical Obligations Code. These code contain the measures for "tackling" online copyright infringement, but even the initial code is unlikely to come into force before 2011.

The Initial Obligations Code

Sections 3-7 of Digital Economy Act form a framework for an Initial Obligations Code. This is a set of rules, drafted or approved by Ofcom (and to be put into law via a statutory instrument by Parliament), which gives instructions to ISPs and copyright owners on how they can or must deal with cases involving online copyright infringement. The Act contains some guidelines as to what must be included in the Code (in the new Section 124E of the Communications Act but it is up to Ofcom to come up with a final version. This is expected to be done by September, so it can be sent to the EU for approval (about three months) before coming into force early next year.

How it Works

The idea behind the Initial Obligations Code is quite straightforward, but how it works is a little complicated:

1. A Copyright owner (A) (such as a record label, film studio, or even the author of this blog post) finds evidence that suggests that a certain IP address is being used to infringe some of their copyright.
2. (A) finds out which ISP (B) is responsible for assigning that IP address and sends them a copyright infringement report (CIR) which contains their accusation (and a few other things listed in Section 124A (3) of the Communications Act).
3. (B) checks their records to see which of their subscribers (C - this could be you) was assigned that IP address at the time the infringement allegedly occurred and sends them a notification (via email or post) telling them about it (and including various things listed in Section 124A (6) of the Communications Act).
4. (C) can contest this, on various grounds (although not necessarily on the grounds that they did not do it) through a badly-defined appeals process but if they do not, or if their appeal is unsuccessful, the ISP (B) keeps a record of them and the number of CIRs they (B) has received about them (C).
5. After a certain threshold has been reached (this could be a certain number of CIRs about a particular subscriber, a certain number of notifications have been sent or any other threshold the code contains) the ISP (B) puts that subscriber (C) on a copyright infringement list (CIL) - a list of all the CIRs they have received (more specifics, although not many, in Section 124B (2) of the Communications Act).
6. At some point, the copyright owner (A) can demand that the ISP (B) hand over their CILs - however (and this is an important bit) the information must not enable (A) to identify (C). Essentially, all this list does is tell the copyright owner which of the CIRs they send are about the same subscriber (C) but without telling them who that subscriber is.

That is it. The result of this is that the copyright owner has a list of which subscribers they have accused of infringing their copyright repeatedly. Note: in order to take any action against them (e.g. sue them or send them their own threatening letters) the copyright owner still needs to take the ISP to court to obtain the subscriber's details and identity. These are the details that are in the Digital Economy Act itself. Any other information about this has likely come from the draft code published by Ofcom, rumours or misinformation.

How will this Affect You?

At this point, it should be emphasised that this Code is still being drafted and the earliest it will come into force is January 2011. At the moment Ofcom are consulting on the draft code and all those interested are encouraged to participate in the consultation. However, once in force, what will happen to the individual subscriber is not that different to what has been happening already, but on a larger scale and with a few more protections for them.

The first a subscriber will know about the process is when they receive their first notification from their ISP (under point 3 above). This will give details as to what is going on, why it has been received and the various processes that will follow. It should also contain details on the appeals process (if there is one) and any possible defences that can be used. The subscriber then may receive other warning letters but then it will be a case of waiting to see whether or not the copyright owner takes further action - most likely in the form of a threatening letter (of the type being sent by some law firms already) or possibly going straight to legal summons.

What to do now?

For now the best thing to do here is read up on the Ofcom Consultation on the Initial Obligations Code (more details, including the official Pirate Party response, should be appearing shortly) and try to submit a response. There is an easy online form for submitting a response although it does require reading through the document itself. Other than that, we must wait to see what for the Code takes and whether or not it will be approved by Parliament and the EU. There is no reason to be afraid for now, but that does not mean we should not be campaigning against these sections of the Act.

The next part to this guide will focus on the Technical Obligations Code and the measures it can introduce.

The author is a law student and Governor of the Pirate Party. Any comments, corrections or suggestions are welcome and can be emailed to duke 'at' pirateparty.org.uk.

This work is licensed under a Creative Commons Licence and should be attributed either to the author or a spokesman for the Pirate Party UK (in which case a link should be provided to the PPUK site).

During another intense session in the House of Lords this afternoon a vote was finally held on the controversial Clause 17 of the UK's Digital Economy Bill. This clause would have allowed the Secretary of State to amend the UK's copyright law with a lot less oversight from parliament than usual. The government did not hide the fact that this provision would be used to clamp down on unlicensed file-sharers in various ways as the industry demanded. However, there was a bright side; the clause would have permitted Lord Mandelson (or more likely his successor) to do as he promised back in October and relax the UK's copyright law by bringing in the 'fair use' exemptions it so desperately needs.

Strong Opposition

However, as most people are aware, both the Conservative and Liberal Democrat parties (and many from within the Labour party) made it clear that they objected to these excessive powers being given to an unelected official. Finally, a vote was called on a relatively minor amendment that sealed Clause 17's fate. The clause was removed from the bill by a vote of 140 to 165, supposedly marking a triumph of democracy over the government's attempts to gain even more power. Unfortunately, what replaced it has already raised alarm across the online world.

The Alternative

The new text that was strongly pushed by the Liberal Democrats adds a new section to the Copyright, Designs and Patents Act 1988 (the basis for the UK's copyright law) entitled 'Preventing access to specified online locations for the prevention of online copyright infringement'. This section allows the High Court to grant an injunction that would force any service provider (such as an ISP) to prevent access to any specified website, service or other location to help prevent online copyright infringement. It is worth noting that the website or location does not even need to be hosting allegedly infringing material, just that the material is "accessible at or via" the location. This is clearly designed to force ISPs to block any website a judge can be convinced is hosting or linking to copyrighted material but could easily include hosting sites such as YouTube or even those that link such as Google itself.

Unintended Consequences

On the face of it, this might not seem too bad; a copyright owner would have to go to the High Court and plead their case, the ISPs and site owners would get a chance to defend themselves and it would be much the same as the current situation. Unfortunately, the debate made it clear that the provisions will work slightly differently. In practice, a copyright owner will first send a 'take-down' notice to the service provider (although it is not clear whether this will be the ISP or web hosting organisation) and the service provider will be expected to then censor the allegedly infringing content or fight the accusation in court. As we all know (and was mentioned in the Lords) legal action can be prohibitively expensive so it is likely that if this becomes law, we will see websites dropping or being blocked at the first sign of trouble.

The UK's DMCA

Does this sound familiar? At first glance this section would seem to closely resemble the provisions United States' Digital Millennium Copyright Act that allow a copyright owner to send a take-down notices. Since this became law there has been a steady flow (or torrent) of examples where this procedure has been abused. Such notices have been used to shut down competing websites, silence critics or for other malicious purposes and with the burden on the accused to prove their innocence it is likely we will see the same in the UK if this Bill passes in its current form. Despite the similarities with the DMCA, there are also some significant differences. Due to the speed with which this amendment was drafted and pushed through there are many significant holes in it. Take-down notices under the DMCA are directed at those who host content, requiring them to take down the material. Under this law, the notices would go to the ISP, effectively ordering them to block access to the specified site, without requiring that the offending site be notified. Secondly, the ISP is forced to pay all the copyright owner's legal costs if they choose to resist. We have already seen how quick certain ISPs have been to bow to legal requests without examining the evidence or challenging the accusations so it is unlikely they will put up a fight in this case, and due to the general fear of legal action and ignorance of the law (as recently demonstrated by a Consumer Focus study on copyright) it is hard to imagine that many individual site owners will feel able to take any action other than simply removing the (allegedly) offending content.

The Debate

The debate itself was rather heated. Lord Clement-Jones (LibDem) introduced his amendment with a passionate speech that demonstrated a lack of understanding. The Conservatives offered their support (led by Lord Howard) and the only defence that the government minister (Lord Young) found was that it might have negative effects on national security by driving file-sharers to encryption (which L Clement-Jones denied would happen). It was left to the Earl of Erroll (a cross-bencher) to stand up and explain, in great detail, the many flaws to this section. He repeated his call for a full review of copyright legislation - a call echoed by Baroness Miller, (LibDem) - and argued against both this new amendment and the original Clause 17, as usual, demonstrating a clear understanding of the issues and technologies involved. He was then 'corrected' (mistakenly) by L Clement-Jones who seemed unaware of the difference between an ISP and a website host (something reflected in the text of the amendment). The vote was finally called and the government defeated with Clause 17 being removed without a formal vote later. It its place now lies something that should be equally troubling to those who would have a free Internet.

What Happens Now

In response to the initial outcry (including a campaign by the Open Rights Group) Lord Clement-Jones published his justification for the amendment. The statement does little to remove the fears held by many opposing this and he demonstrates his lack of understanding; even the first sentence is factually incorrect - at no point in the Bill is P2P mentioned at all. While the initial consultations and debates only concerned the use of P2P software, by the time the Bill was published it had been generalised to all online activity. While advocates of sensible internet and copyright policy (such as the Pirate Party UK) have been opposed to this Bill since it was first mentioned, today's debate has managed to do the unthinkable and make it even worse, causing confusion and outcry even from within the ranks of the Liberal Democrats. Today's events clearly demonstrate that we cannot rely on the front bench of any major party to respect or understand the internet and modern technology. More than ever, it is clear we must support the Pirate movement.

by Duke, interim CAO of PPI and policy group leader of PPUK. This does not necessarily represent the views of either organisation. Feel free to quote or republish at will.