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Ofcom Brings Back “Three Strikes” Online Piracy Measures

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The watchdog tells ISPs to keep a list of illegal file-sharers…

Today, Ofcom has published an updated draft of the proposed measures to combat online piracy under the Digital Economy Act (DEA), which could see ISPs compile lists of illegal file-sharers, to be disclosed to copyright holders.

The code will cover customers with BT, Everything Everywhere, O2, Sky, TalkTalk Group and Virgin Media, which together account for 93 percent of the UK’s broadband market.

Under the plans, copyright owners are expected to invest in awareness campaigns “to help educate consumers about the impact of copyright infringement”. A separate Sharing of Costs Order establishes that they will also have to pay the cost of implementing the new system.

The online piracy naughty list

Ofcom first published the “Initial Obligations Code” designed to tackle illegal file-sharing in 2010, aiming for the proposals to come into force in 2011. However, the measures were widely criticised by the industry, politicians and even the United Nations, and the watchdog had to return to the drawing board.

The plans include requirements for ISPs to “notify their subscribers if the Internet protocol (“IP”) addresses associated with them are reported by copyright owners as being used to infringe copyright” and “keep track of the number of reports about each subscriber, and compile, on an anonymous basis, a list of those subscribers who are reported on above a threshold to be set in the Initial Obligations Code.”

In accordance with the Code, serial fil-sharers who have infringed copyright more times than the threshold would be included in a special list, available to copyright holders, who would then be able to take legal action.

In July 2010, BT and TalkTalk tried to challenge the controversial plans in court, saying that the anti-piracy measures were “inconsistent with European law”, would breach the privacy of their customers and result in higher costs for all parties involved.

The judges dismissed these claims, maintaining that the DEA is proportionate in dealing with illegal file-sharing and the costs are justified. The ISPs later launched an appeal, which wasn’t successful.

The updated draft of the Code, published today, describes plans to force ISPs to send monthly warning letters to owners of IP addresses which are suspected of copyright infringement. If a customer receives more than three letters in a 12-month period, anonymised information on their behaviour can then be supplied to copyright holders.

The copyright holders can then decide if they want to seek a court order revealing the identity of the customer, and take legal action against them.

Lipstick on a pig

Of course, not every customer who is accused of copyright infringement will be brought before the court.The plans include the establishment of an independent appeals body, which will charge defendants £20 to process their case. This fee will be returned in the event of a successful appeal.

There have been a number of changes in the document since May 2010, when the draft code was first published. Ofcom will now have to approve evidence-gathering procedures of the copyright holders, rather than give them free rein. Also, appeals will now have to be based on narrow grounds specified in the Digital Economy Act, rather than any grounds the appellant chooses.

The accompanying Sharing of Costs Order, which establishes who will pay for the scheme, has also gone through some changes. Under the revised version of the Code, copyright owners will bear all of the costs incurred by Ofcom, the majority of costs incurred by the appeals body, and 75 percent of the costs efficiently and reasonably incurred by ISPs in carrying out their obligations.

Some issues remaining in the code concern public networks, such as libraries, hotels and bars, which will have to deal with automated accusations of infringement, but are obviously not responsible for the behaviour of their customers.

In the future, things could get even worse for illegal file-sharers. After the code has been in force for at least 12 months, the Secretary of State will be able to approve additional measures to tackle piracy, all enforced by the ISPs, including Internet bandwidth reduction, blocking of Internet access or temporarily suspension of accounts.

“These measures are designed to foster investment and innovation in the UK’s creative industries, while ensuring Internet users are treated fairly and given help to access lawful content,” said Claudio Pollack, Ofcom’s Consumer Group Director.

“Ofcom will oversee a fair appeals process, and also ensure that rights holders’ investigations under the code are rigorous and transparent,” he added.

“Ofcom are being asked to put lipstick on a pig with this code,” commented Jim Killock, executive director of the Open Rights Group. “The appeals are a joke. The Government has decided that ‘I didn’t do it’ is not a defence. Some people will almost certainly end up in court having done nothing wrong.”

Subject to further review by the European Commission, the code of practice will be presented to the Parliament by the end of 2012. Ofcom expects the first customer notification letters to be sent in early 2014.

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