High Court squashes Digital Economy Act challenge

BT and TalkTalk's filesharing gambit fails – for now

By Andrew Orlowski, 20th April 2011

The High Court has tossed out a legal gambit by BT and Talk Talk to derail the copyright infringement portions of the Digital Economy Act. The judges rejected the arguments that the provisions designed to clean up their networks were unfair. The ISPs did get tossed a scrap, though, but it is a technicality relating to costs, and nothing else in the DEA will require changing.

The TUC's general secretary Brendan Barber described it as "a major boost to people who work in the creative industries and whose livelihoods are put at risk because creative content is stolen on a daily basis. Rather than individuals being hauled into court, the DEA makes it possible to conduct a mass consumer education programme to give people the information they need to avoid using illegal sites in the future. The industry will finally be able to start repairing the damage wreaked by piracy.

"The DEA offers a fair, proportionate and entirely reasonable way to help promote a change in behaviour and point people to the legal sources of video entertainment through the notice sending process," said the British Video Association's chief Lavinia Carey. "Several other countries are adopting this measure and it would be bad for Britain's creative industries to be left behind more forward thinking nations who are supporting their creative economies at this difficult time of transition towards increased digital consumption during this period of recession."

Music and movie industries also welcomed the measure. Interested parties include the Premier League, the unions Unite, Equity, Bectu and the MU. The soon-to-be-defunct quango Consumer Focus (which you read about yesterday) and shouty Spartists the Open Rights Group attached themselves to the proceedings as "Interveners".

Talk Talk said it was disappointed but said it might fight on in Europe:

"We're disappointed that we were unsuccessful on most of the Judicial Review. On the question of the proportionality of the Act, we're pleased the judge identified issues but disappointed that he felt that the evidence of the futility of the measures imposed by the Act, and the cost and harm they will cause, is not sufficiently definitive enough at this stage to uphold our claim. We are reviewing this long and complex judgment and considering our options, which may include an appeal to the Court of Appeal, or a request that the Court of Appeal make a reference to European Court of Justice.

"Though we may have lost this particular battle, we will continue fighting to defend our customers' rights against this ill-judged legislation."

BT and TalkTalk presented five reasons why the piracy provisions should be chucked out, all claiming breaches with various EU directives, and the European Charter of Fundamental rights. All were rejected. They also challenged the statutory instrument setting out costs – and saw a little joy there.

The DEA permits the Secretary of State to ask ISPs to introduce as-yet unspecified technical measures, if there isn't a substantial decrease in online copyright infringement. Individuals appealing these measures will be able to appeal for free to an Appeals Body. ISPs will still be required to pay 25 per cent of the costs of sending out letters or the appeals, but won't have to pay the 25 per cent setup costs of the Appeals Body that will review cases.

In its statement, the Culture Dept said it will revise the statutory instrument.

It could take years to resolve, since the UK High Court is essentially now a provincial backwater, and not where the law of the land is ultimately decided. But after many delays, the Act is now back on track. ®

COMMENTS

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Highly Rated

Posted Wednesday 20th April 2011 11:04 GMT

Mad Mike

They still haven't worked it out yet.......

The various industries affected (mainly music and films etc.) and the government (various over time) still haven't got it. No matter what they do, they will never stamp out copyright theft unless they tackle one fundamental issue. People will find ways round any measures they put in place to try and stop it. The genie is out the bottle. All the evidence suggests the major industries/companies being impected by this are those who have ridden roughshod over the consumer and been taking the p**s for years. Evidence shows that most people are quite willing to pay for content provided it is a reasonable cost. That's why music, films and software (as in the major players) are the ones primarily affected. They want completely unreasonable costs for their works and therefore when an alternative came about, people went for it.

The only way to stop copyright theft (or a large proportion of it), is for these people to reduce their charges etc. to a reasonable level. Unfortunately for them, some of the copyright theft at the moment revolves around 'getting your own back', where people are getting their retribution for prior acts in now. Basically, unless they made the content free, it won't stop the theft. But, that's their problem and maybe they should invest some of their previous ill gotton profits into some payback.

Free and community software normally has an ability to pay a donation and money does come in. So, the idea that everybody wants everything for nothing is plain wrong.

Another area these industries and companies need to start addressing is their completely stupid claims of the size of the issue. If people can get something for nothing, they'll use it, but if they had to pay for it (even a modest amount), they probably wouldn't bother. So, all the illegal installs are not all lost money/profit. That's plain rubbish and makes the people claiming that look stupid as well.

A substantial number of people who use Microsoft Office at the moment would simply switch to OO or something similar if they started having to pay. After all, OO is fully compatible, does pretty much everything a home user could desire and costs nothing. So, Microsoft Office takeup at home would drop like a stone.

Posted Wednesday 20th April 2011 11:41 GMT

Eponymous Cowherd

How to beat the pirates

Give people the stuff they want at fair prices.

Take the latest debacle over eBooks. For a large number of best sellers and new releases the eBook price exceeds that of even the hardback edition. This is profiteering, pure and simple.

And now the publishers that concocted this price fixing "agency" model are starting to whine that their eBooks are appearing on BitTorrent.

Its not about "educating" people, its about trying to force them to buy overpriced goods and services. And that's how "freetards" are born.

I'm not much into music or movies, but I love a damn good read. Up until this week I was quite happy with my Kindle. So far every book I've looked at has been priced at, or just below, the paperback price. I've been working my way through Ian M Banks' "Culture" novels and bought every one through Amazon. Just got to his latest "Surface Detail".

The price of the Kindle edition is *more* than the hardback!!!

Am I going to pay that? Not a chance!!

So, for the first time, I looked to see if I could find it on BitTorrent, and there it was!!! Still umming and ahhing over whether to download it and dive into "fretardery", or not, but I have to admit its bloody tempting, and, in some ways, justified. The publisher is trying to rip me off, so is there anything morally wrong in repaying the compliment??

Now, I can well imagine how someone pissed off by stupid prices, etc, for a single title (book, music, or movie) could download *that* title, think "that was easy" and a "Freetard" is born.

Posted Wednesday 20th April 2011 12:44 GMT

Mark C 2