Digital Economy Bill (23 Nov 2009)
Cory Doctorow seems to have crafted the lexicon of the opposition to the Digital Economy Bill with his phrase ‘Pirate Finder General’ . In his follow up he claims that this bill will introduce three-strikes, ISP spying and powers for Peter Mandelson to rewrite copyright law at will.
I spent a fun-filled Sunday afternoon reading the bill to see how bad it really is so that you don't have to (although you still should). You're welcome.
Firstly, the changes to copyright law are only a small part of the bill. Other parts of the bill cover: Channel 4 and Channel 3 licensing, removing the requirements for Teletext, digital switch over, radio licenses and classification of video games. I won't be talking about those in this post.
The bill requires that ISPs pass on infringement notices to subscribers, either via email or via the postal system. Copyright owners can also request infringement lists. This allows them to see that their notices A, B, C all went to the same subscriber. They can then take this information to court and proceed with the usual actions. (124A and 124B.)
The bill defers much of the policy in this area to a code that is to be written by OFCOM with the approval of the Secretary of State. This code includes the number of infringement notices that a single subscriber needs in order to be included in a report, the size of fines to be imposed on ISPs for failing to follow the code and the appeals process. The Secretary of State sets the compensation paid from copyright holders to ISPs and from everyone to OFCOM (124L).
What isn't in the bill is any talk of disconnection, ISP spying or three strikes. However, 124H gives the Secretary of State the power to require any “technical obligation”.
(3) A "technical measure" is a measure that (a) limits the speed or other capacity of the service provided to a subscriber; (b) prevents a subscriber from using the service to gain access to particular material, or limits such use; (c) suspends the service provided to a subscriber; or (d) limits the service provided to a subscriber in another way.
A brief interlude about statutory instruments is needed here. SIs are published by the government and cannot be amended by Parliament. There are two types. The first takes effect automatically and Parliament has a short time (usually 40 days depending on holidays etc) to annul it. The second requires positive action by both Houses before it takes effect.
According to Wikipedia, the last time that an SI was annulled was in 2000, and 1979 before that. The last time that an SI wasn't approved was 40 years ago.
The powers to impose technical measures are of the annul variety: they take effect automatically after 40 days. They don't appear to include requiring ISPs to spy.
After that power, 302A gives the Secretary of State the power to change the Copyright Act via a positive action SI “for the purpose of preventing or reducing the infringement of copyright by means of the internet”.
Next up, 124N gives the Secretary of State the power to take over any domain name registrar. By my reading, that is no exaggeration.
The Secretary can take action if they believe that the actions of a registrar affect “(a) the reputation or availability of electronic communications networks or electronic communications services [...] (b) the interests of consumers or members of the public [...].”. The action can either be to appoint a “manager”, who has total power, or to ask a court to change the constitution of the body and enjoin them from changing it back.
There's no requirement that this registrar be based in the UK, or even to allocate in the uk ccTLD.
Understandably, they are quite upset about this.
I'd also like to quickly note that this bill contains provisions for the licensing of orphan works without the copyright holder being involved also for libraries to have the rights to lend out e-books. (Although without giving any powers to do anything about technical limitations on e-books that might prevent it.)
Lastly, and I might be misunderstanding something here, on page 52 the Secretary of State seems to get powers to amend or annul anything relating to this act, in any bill in this session of Parliament, or before, by using a positive action SI.
Hopefully the above provides pointers for people who want to understand and read the bill. Now, my (informed) opining:
This is an abomination. It's an attempt to subvert Parliament by giving the government the power to write copyright law at will. The provisions are extraordinary. The sanctions against domain name registrars are staggering. I don't know of any other case when the government can sequestrate a private entity at will. Given the international nature of the domain name system, this should cause international concern.
I expect that this power is largely intended to be a very large stick with which to force the removal of xyzsucks.com style names that embarrass business or government. No registrar will dare cross their interests if they have this power.