Lords mull Hail Mary penance for file sharers

Costs and ratchets

One was whether the file sharing detection breached RIPA. The Earl of Erroll thought it might be Phorm-like. Young said it would have to be consistent with RIPA, the Regulation of Investigatory Powers Act, "so anything that would not be possible under those Acts will equally not be possible as a result of the Bill."

There has been lots of discussion by the Lords of copyright shakedowns, with ACS Law sending menacing demands but refusing to allow the accused to go to court. You may recall Davenport Lyons ended the practice in 2008, but ACS continued.

For the Government, Young said he doubted the scale of the problem - nobody had complained - and perhaps even the sincerity of the LibDem Clement Jones in pursuing the case - since Clement Jones hadn't even advised anyone to complain.

The thorny issue of costs hasn't been addressed without being resolved. The government had said that 75 per cent should be borne by the rightsholder and 25 per cent by the ISP, based on costs. It now justifies that figure on rewards rather than costs.

Clement Jones said he was happy with the initial proportion, but noted mobile operators were wary of rightsholders increasing the burden later on. Rightsholders had proposed a 50:50 split.

Damages is another issue. Some infringements are far more costly than others, Lucas pointed out:

"A pre-release film, for example, would cause a very different amount of damage from a number of relatively old music singles."

Lord Howard of Rising was wary of copyright holders clubbing together to form blacklists of suspects who had evaded them. Young warned them that a rightsholder couldn't obtain an alleged infringers identity without going to court. There could be no technical measures before an appeal.

Overall Lucas summed up the criticism of the Bill when he described a ratcheting process: "...a cumulative effect - all kinds of little ways in which Ofcom will not set out to help the consumer and all kinds of little ways in which someone accused under the Bill will find their life made difficult and tiresome, with a great deal of effort and uncertainty imposed on them in dealing with the allegation. Although each little piece of the argument has its own logic, as a whole it paints an uncomfortable picture, which is tilted too far towards the copyright owner rather than the citizen."

Nevertheless, the Lords have dealt with the copyright portions now, and aside from some procedural additions, these remain intact. Two more committee stages are scheduled for the Lords before it lands in the Commons. ®