Worth another look
Peter Mandelson was at his slippery, Machiavellian best when he pushed through the Digital Economy Act just before his party got booted out earlier this year. Aside from the rushed, ill-considered nature of the bill on the whole, the most contentious part of it effectively compels ISPs to police their own customers.
If the Act comes into effect, copyright holders will be able to collect the IP addresses of users suspected of illegal file-sharing and then compel ISPs to send those users warning letters. In principle, after three of these letters have been sent without a cessation of that activity, the ISP would then be compelled to disconnect the user.
It's easy to see why ISP's wouldn't be too happy about being forced by law to victimise their own customers. But equally it's easy to see why rights-holders, as represented by the likes of the BPI, are keen to see every conceivable measure put into place to protect their property from theft. The general feeling seems to be, however, that this bill is flawed, expensive to implement, and most probably ineffective.
Back in July, BT and TalkTalk got together to challenge the Act and call for a judicial review. Yesterday Mr Justice Wyn Williams announced he was granting their request.
"We are very pleased that the Court has recognised that our concerns about the copyright infringement provisions in the Digital Economy Act should be considered in a full hearing," said TalkTalk, in a statement. "The Act was rushed through Parliament in the ‘wash-up' with only six percent of MPs attending the brief debate and has very serious flaws.
"The provisions to try to reduce illegal filesharing are unfair, won't work and will potentially result in millions of innocent customers who have broken no law suffering and having their privacy invaded. We look forward to the hearing to properly assess whether the Act is legal and justifiable and so ensure that all parties have certainty on the law before proceeding."
ISP Entanet also applauded the decision. "We've voiced our objections to its introduction since the start of the year as it is a regressive bill that will inevitably cause more harm than good," said Darren Farnden, head of marketing "Innocent users will continue to be wrongly accused and persistent offenders will go underground. There will be only a minimal reduction in illegal file sharing while the real offenders persist, which won't help the entertainment industry at all."
Deborah Prince, head of legal affairs at consumer mag Which? surprisingly came out in favour of the bill. "Instead of challenging digital initiatives, it would be good if all stakeholders - rights holders, ISPs and the legal profession - came together to make the process of graduated response advocated by the Digital Economy Bill (DEB) work," she said.
"The DEB approach could benefit all concerned. Rights holders could get protection, consumers could get better education about file-sharing, and the courts could only be used for persistent offenders."
We assume the BPI isn't happy about the ruling, but none of its press officers seem to be at work today, so we have yet to confirm that.
UPDATE - 16:00, 11/11/10 - we just got the official line from the BPI:
"Rightsholders, ISPs and government all agree that urgent action is needed to tackle online copyright infringement. Parliament enacted the Digital Economy Act to encourage innovation on the internet and to protect jobs in the creative industries, which are a key area of growth for the economy. It's disappointing that a couple of ISPs are trying to frustrate this and resist any action being taken to reduce illegal filesharing on their networks.
"All that the court has done today is to allow BT & Talk Talk's legal challenge to go to a full hearing. We continue to believe that their case is misconceived and will fail. The Act remains in full force and we will continue to work with Government, Ofcom and other stakeholders to implement it."