01 June 2010

Ofcom's Plans to Build Corporate Cronyism into the Digital Economy Act

I've been meaning to talk about the Digital Economy Act for a while and I'll address the wider issues in another post, but I thought I'd raise this issue while the Ofcom consultation document is still fresh.

On the basis that Big Government and Big Business generally work hand in hand, I thought it was inevitable that the provisions of the DEA, as terrible as they already were, would be made even worse by the Ofcom code ensuring that all the benefits go to Big Content and other corporate associates, while all the restrictions fall on the private individual.  Two items in particular in the draft code consultation seem to point to that being the case:
  1. Corporate providers of open Wi-Fi will be offered some degree of protection, private individuals won't.

    From the code:
    In principle, operators of Wi-Fi networks would fall within the definition of internet service provider where the service is provided by means of an agreement with the subscriber, even where this is oral or implicit. Indeed, Wi-Fi operators would be regarded as offering a fixed service on the basis that it is offered from fixed locations and is not a licensed mobile network. It may not, however, apply to open access Wi-Fi networks where there is no payment from, and no agreement with, those making use of them. In those circumstances, the person making open access Wi-Fi available would themselves be a subscriber

    ...

    Where a Wi-Fi network is provided in conjunction with other goods or services to a customer, such as a coffee shop or a hotel, our presumption is that the provider is within the definition of internet service provider.
    So, as the initial obligations will only apply to the seven largest ISPs, commercial providers of Wi-Fi won't initially face any consequences if their customers use their networks to share copyright protected material without the copyright holder's permission. In itself, that's a good thing, but it's quite clear that the intention is to treat non-commercial providers differently and make them responsible for all users of their networks.

  2. The copyright infringement notification scheme will be geared so that it is only readily usable by Big Content

    From the code:
    section 124C(4) of the 2003 Act indicates that it may be appropriate for the Code to specify that rights or obligations do not apply unless a copyright owner has made arrangements with an ISP in relation to the number of CIRs which it intends to make to the ISP within the relevant period and has paid a contribution to the costs of the ISP in advance.

    ...

    In the Code we therefore propose that, to be a qualifying Copyright Owner for a given notification period, a Copyright Owner must have provided estimates of the CIRs it intends to make two months before the beginning of the notification period.
    First of all, I find it more than a little bizarre for somebody to suggest a regulatory process which requires that a person has to estimate how many unlawful acts will occur in future. It sounds a little bit too "Minority Report" to me. That aside, it's clear that the process is only really practical for bulk holders of copyright.
The act stank before, it stinks even more now.

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