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P2P: What happens next?

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Now that the Digital Economy Act has been passed by both Houses, what can internet users expect, and when? Quick answer: nothing much soon.

The outgoing government says it introduced the measures because in the 20 months since the MoU between ISPs and copyright businesses, little progress has been made. So the P2P part of the Bill is actually a long set of instructions for Ofcom, inviting it to draw up a code of obligations for both ISPs and copyright holders. The code of practice will guide how both parties deal with infringement, mainly from P2P use.

The invitation to start work on the initial code, then, is the starting pistol - and it may go off in mid-May, when the next Parliament convenes, or later.

Ofcom is then invited to spend six months drawing up the code for handling copyright infringement notifications. During this time it is expected to consult widely: the Act mentions rightsholders, service providers, subscribers and anyone else interested. Clearance with the EU is also required for this code, as BIS explained here.

The UK government must show the measures are consistent with "Convention Rights, with European Directives on subjects such as copyright protection, Internet Service Provider liability and privacy and in a way that is consistent with principles of administrative law."

Don Foster MP didn’t think it could be done in less than three months, speaking in the Commons this week.

The code agreed will be put into practice for a year, during which the outgoing government hopes lots of new music services will appear, and casual infringement will fall. As BIS wrote in an explanatory note earlier this year:

“The ultimate aim of the legislation is to shift people’s behaviour from the unlawful to the legal.”

One view is that up to now people have used P2P because they know they’re not being watched, and 12 months of monitoring may be enough to change that. Another view is that they may not care that they’re being watched, and are willing to take their chances.

If the former view turns out to be nearer the mark, then the story ends there. Everyone breathes a sigh of relief. The government says it expects that the volume of CIRs, or Copyright Infringement Reports to be high – but generating these is expensive for copyright holders, and processing them even more expensive for ISPs. It’s not what either of them should be doing.

If people don't stop downloading illicitly the full 12 months must elapse before the Secretary of State can draw on powers to act further.

If at that point infringement has not fallen sufficiently in his judgement, the Secretary can order Ofcom to draw up “technical measures” to be introduced by the service provider. Ofcom has a palette of four options, as the Act defines a technical measure as something that does one or more of the following:

  1. Limits the speed or other capacity of the service provided to a subscriber
  2. Prevents a subscriber from using the service to gain access to particular material, or limits such use
  3. Suspends the service provided to a subscriber
  4. Limits the service provided to a subscriber in another way

The technical obligations are then presented to Parliament for inspection, and must pass a vote in each House.

So if you add it all up, then a code can’t be put in force any sooner than early next year, 2011, and even then 12 months must elapse before any technical obligations are sharpened. We’re looking at Spring 2012 for the first technical measures being put in force.

Remember that the subscriber has two tiers of appeal – to the ISP or to an independent appeals body. This is where the important Lib Dem amendments, now almost forgotten, become important. Rather than a Star Chamber, as originally envisaged, the appeals body is obliged to presume innocence.

For anyone determined to be the first Mandybill Martyr, the first bandwidth throttling or account suspension won’t then take place before Summer or Autumn 2012 – well over two years away.

A lot can happen in two years. Then again, we had high hopes in July 2008, too. All we've had since then is Spotify. ®

Bootnote

What about the old Section 18, you ask, the bit about web-blocking? The future of this can of worms is so uncertain we'll defer discussion on that for the moment. It may not survive scrutiny in the 60-day eyeballing opportunity promised in the new Parliament.

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