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High Court squashes Digital Economy Act challenge

BT and TalkTalk's filesharing gambit fails – for now

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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. ®

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