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Mandybill: innocence restored, fines for copyright cockups

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Mandybill Overnight amendments tabled by Lord Mandelson give significant concessions to critics of the Digital Economy Bill.

A revised section on the appeals process for ISP subscribers accused of infringement restores the presumption of innocence, introduces fines for copyright holders who make accusations that are later shown to be false - or who otherwise cockup - and gives the administrator the right to delay and substitute penalties.

There are many other minor tweaks, to the effect that the ultimate sanction of suspension may be delayed for months.

In order to comply with EU law, the presumption of innocence has been restored. It emphatically points out the copyright holder must show an infringement occurred, and that the subscriber's IP address was infringing at the time it occurred.

Similarly appeals must focus on whether the rights holder actually holds the rights mentioned in the infringement notice, and whether the endpoint was engaged in infringing. False accusations or other cockups, such as incorrect paperwork, make the copyright holder liable for costs.

It's introduced as a deterrent to careless or frivolous infringement requests.

If you're wondering exactly what the Tribunal is, you're not alone. The Digital Economy Bill gives Ofcom the power to order ISPs to introduce technical measures. But Ofcom has the power to do the administration itself, or hand it over to a third party. The Tribunal will be a new judicial body to process appeals. It's up to Ofcom to decide who or what carries out this function, and how.

The latest concessions aren't a surprise. The Government's minister in the Lords, Lord Young, had already promised as much.

"It is our intention that the full appeals process should be exhausted before any technical measures are imposed on a subscriber-that was one of his major concerns, and I give him an explicit assurance on it," he told peers last month.

Other amendments are process related. The ISP must act on infringement notifications within a month, and the copyright holder can't use infringement evidence older than a year.

One key unresolved matter is the cost of appeal. The Government says the accused must pay something to appeal, to deter would-be copyright martyrs from mass appealing en masse, a tactic that costs the industry more than it costs the infringer. In private, ISPs are dreading the prospect of such large scale "civil disobedience" as they'll share the lion's share of the costs with copyright holders. With margins so small in the business, they can scarcely afford to be full-time administrators, with an ISP business attached.

It could even leave ISPs and copyright holders worse off than they are now. ISPs terminate hundreds of accounts already every year, quietly and without fuss, for customers persistently abusing the terms of the contract. Dealing with thousands of appeals through a new quango could make that much more expensive, raising broadband prices for everyone. ®

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