The Piracy Code, episode 47

Man listening to music The Digital Economy Act seeks to curb rising rates of online piracy

Today's news of the latest phase in the war against internet piracy takes me back to my O-Level history lessons. As we learned about the Schleswig Holstein question our teacher told us of the quote from Palmerston - only three people understood it, one was dead, another was mad, and he himself had forgotten what the question was.

That's how I feel about the Digital Economy Act (DEA). The passage of this controversial law through Parliament in the dying hours of the last government was marked by fevered arguments. To copyright holders in the music, TV and software industries the legislation was a much needed protection against what they saw as the scourge of online piracy. To web freedom campaigners and Internet Service Providers it was an expensive and illiberal assault on consumer rights that would cripple the open internet.

Two years on they've both been proved wrong because the law hasn't been put into effect. But today Ofcom has published the code which sets out how the letters to alleged copyright infringers - the key measure in the act - will be sent out. So now we will finally see who's right about the benefits/dangers of the legislation.

Err, no - the first letters will not be sent until 2014 and there is still room for plenty of argument because we now get another consultation process on the code, after which it gets sent to the European Commission.

Within a couple of hours of the code's publication, Consumer Focus was objecting to the £20 fee that consumers will have to pay to challenge accusations of copyright infringement. For its part, the Open Rights Group said Ofcom had been asked to put lipstick on a pig, and predicted that some people would end up in court having done nothing wrong.

Amongst the most vociferous - and effective - critics of the DEA so far has been BT, which as an Internet Service Provider has been unhappy about what it saw as the act's assault on the freedom of its customers. Along with TalkTalk, BT mounted a judicial review of the legislation. That failed eventually, but it played a big part in delaying the law's implementation.

Last week Ed Vaizey, Minister for Culture, Communications and Creative Industries, criticised BT for its delaying tactics. He mused that its approach might change now that it had spent a huge sum on Premier League football rights which it might want to protect from online piracy. No word yet from BT on those new rules on the piracy letters - which will not arrive at households until after its new football service is launched.

So, expect plenty more arguments before we finally discover whether the Digital Economy Act really has the potential to be as good for the creative industries or as bad for the consumer as the different lobbies claim.

Meanwhile you could argue that the whole enterprise already looks obsolete. The copyright holders have found that existing laws enable them to take action against piracy sites, with court rulings forcing ISPs to block access to Newzbin and the Pirate Bay.

And the focus seems to be switching from targeting consumers to going after the money - cutting off the funds to piracy sites which are becoming very big businesses.

Later this week I'm expecting to see some interesting research on the business models behind these sites, which collect large sums from advertising and through legitimate payments systems. The government is beginning - extremely slowly - to contemplate legislation to cut those connections, in the form a Communications Act due by the end of this parliament.

So by the time the Schleswig Holstein question of the Digital Economy Act is resolved, we may have another law to fight over. If we're not all mad or dead by then…

Rory Cellan-Jones Article written by Rory Cellan-Jones Rory Cellan-Jones Technology correspondent

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  • rate this

    Comment number 29.

    I bought my favored album firstly on vinyl, then on tape so I could play it in the car, then on CD - I have already paid three times now my car has an MP3 player they want me to pay again for the same music! If you own a legal copy you should be allowed to download a "free" MP3 version. Not everyone is technically ably to make their own MP3 files.

  • rate this

    Comment number 28.

    As someone actively involved in producing copyrighted work, I have no problem with piracy at all. A digital copy of a physical item (in my case, books) is only going to make someone wish they'd bought the real thing (assuming they like it!) Piracy is basically free advertising.

    And from what I've seen, many pirate sites are not that different from iTunes: the media industries need to wake up.

  • rate this

    Comment number 27.

    Do I dimly recall a time when I could walk into a library and borrow digital content recorded onto a physical substrate for free? I've been into a few libraries recently and they seemed empty. If we no longer need a physical substrate, then I'll shed a tear for the library and move on. But we must continue to have the same ease of access to their digital replacement - or we are a doomed society.

  • rate this

    Comment number 26.

    Picking up on comment #22, the Ofcom documents are well worth reading.

    In Ofcom's proposals for the sharing of costs ie. Copyright Owners paying "the costs incurred by ISPs and Ofcom", Ofcom's skepticism of the Copyright Owners claims shows, both in the number of CIRs issued and the longevity of the scheme.

    See para 6.13, 6.20 & 6.32 of the consultation on cost allocation.

  • rate this

    Comment number 25.

    Apparently, the reason concert tickets are so expensive these days is that this is how artistes mostly earn a living in the digital age. Indeed; over the last 30 years ticket prices have increased by as much as 1,000% - far above inflation. Piracy is wrong, but technology has made it inevitable. The entertainment industry is now trying to shut the stable door after the horse has bolted.

  • rate this

    Comment number 24.

    Creative industries continue in trying to protect a failed business model. Why? We see again and again that the key behind the pirates' website successes appears to be a successful business model: no barrier to entry, advertising cash, low subscription fees. Is this about creative industries not being able to join up the dots, or is it simply just a case of ego?

  • rate this

    Comment number 23.

    If you are familiar with the term 'Hollywood accounting' it is hard to support the established film/music industry. Many artists have embraced sharing on the internet and make a profit. It is just a different model from the established one. Of course the film and music industry try to protect their established ways, but this does not mean it is valid nowadays.

  • rate this

    Comment number 22.

    Don't post your comments here, make your views heard by responding to the On-line Infringement of Copyright and the Digital Economy Act 2010 consultation at their web site.

  • rate this

    Comment number 21.

    Rory, have you looked into how trivial it is to circumvent the ISP blocks of the Pirate Bay? It took me roughly ten seconds once the block appeared on my ISP, and there are now more ways of accessing TPB than there were before the block. It might be an interesting thing to look at...

  • rate this

    Comment number 20.

    I don't have a tv licence, but legitimately watch programmes via on demand services and streaming services. This shows as a large monthly data download, so will I be the first to be investigated by my ISP for "piracy"? The ISPs can't easily police downloads, so will target the high users.

  • rate this

    Comment number 19.

    Both the Lib Dems and the Conservatives said they'd repeal the Digital Economy Act if they won the election. There were Lib Dems and Cons voting against it, so how come we're even talking about it now!
    The Big Business dollar is buying our Government and it stinks!
    If your business paradigm is failing change it, don't buy new laws to prop it up ... esp. as they are doomed to fail!

  • rate this

    Comment number 18.

    The purpose of a song is to be heard, the purpose of a book to be read, the purpose of a painting is to be seen. Apparently the purpose is to make someone money.

    There are copyright holders claiming losses greater than the wealth of nations, how can people not see that this is all a giant lie? Oh, hang on, they can, it is just government and business that are blinded to the truth.

  • rate this

    Comment number 17.

    Why is the Government so obsessed with protecting the profit margins of the media industries?

    There are other industries who have a business model that has been affected by modern technology e.g. high street stores by on-line shopping, but these other people are told to adapt to survive.

  • rate this

    Comment number 16.

    The ISPs want the profits from higher download amounts. The government wants to 'protect our creative industries' - except most of those will be American. Neither really care about us the punter.
    What grates on me is that if you go to Africa or especially Asia and there are shops everywhere selling pirate copies of everything and anything.Get their houses in order first.Ours is tiny in comparison.

  • rate this

    Comment number 15.

    @10 Well, Peter Mandelson had a nice meeting with David Geffen in Corfu shortly before the then government decided it it was vitally important to tackle this piracy stuff. But I'm sure that's just a coincidence.

  • rate this

    Comment number 14.

    The video games industry are the worst. They churn out sequel after sequel which amount to only minor updates, then they complain when their product is pirated by people curious to see if it's worth £40.

    Take Forza 4 - a game with 90% of cars from Forza 3 and even DLC we are expected to pay £17 for (Porsche pack) that is 90% cars from Forza 3!?!

    And they wonder why people pirate!?!

  • rate this

    Comment number 13.

    At the end of the day, they're never going to stop piracy. Think about it in the same way as prohibition laws. The countries with the most draconian anti-drug laws have the worst problems with drug addiction and trafficking (Thailand). It's already been proven that piracy increases sales by increasing free exposure, then allowing the consumer to make the decision whether it's worth paying or not

  • rate this

    Comment number 12.

    1: Intellectual property infringement is not a criminal offense. Thus ISPs have no business passing their customers details to a 3rd party unless they want to be in breech of the Data protection act.
    2: It is impossible for ISPs to prove which computer downloaded the files in question. A simple defense is to say that some one "hacked" your router and downloaded the files without consent.

  • rate this

    Comment number 11.

    I find the notion that I am automatically assumed to be guilty and must pay £20 for the privilege of having to prove I'm not to be absolutely outrageous.

    I thought we had a presumption of innocence in this country - it's for my accuser to prove me guilty, not the other way round.


  • rate this

    Comment number 10.

    So who paid them for these laws?


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