Copyright Implementation of the U.K.’s already delayed Digital Economy Act is likely to be postponed again, this 
time until at least 2012. Two of England’s largest ISPs, British Telecom and TalkTalk plan to challenge the law in court on Wednesday on grounds that it’s proposed curbs on file-sharing violate users’ basic rights and received inadequate Parliamentary scrutiny. Assuming the high court agrees to hear the challenge the legal process is expected to take at least a year and the whole process could take even longer if Parliament decides to make changes to the law based on the court’s decision.
The law, passed in a “wash-up” session ahead of last fall’s national election, requires ISPs to send warning notices to users suspected of illegal file-swapping based on IP addresses collected by copyright owners. In theory, repeat offenders can have their Internet service slowed, or even blocked. But the details of how those measures would work await follow-up legislation that is also expected to be at least a year off. In the meantime, a separate provision, calling for access to certain web sites that host illegal content be blocked altogether is under review by regulators at Ofcom to determine its feasibility. Copyright groups including the MPAA have drawn up a list of about 90 “cyberlocker” sites they would like to see blocked.
While the latest court challenge focuses formally on users’ rights under British and EU law, the real issue in the dispute is cost. Under the law, the costs of administering the notification system, including looking up the IP addresses of tens of thousands of users, are to be split 75/25 between copyright owners and the ISPs. But again, the details were left sketchy.
“Since the DEA passed into law there has been a considerable amount of work to do to implement the mass notification system,” a spokesman for the Department of Culture, Media and Sport said Monday. “Secondary legislation setting out how the system will be paid for and how it will work has to be passed by parliament. Ofcom also has to set up an appeals process.”
The ISPs are wary of taking on any additional costs for policing copyrights, or being forced by the government to cut off users.
Across the Channel, meanwhile, the costs of administering France’s HADOPI system of graduated response remain contentious. Under that law, ISPs are supposed to receive “just compensation” from the government to cover the costs of looking up IP addresses and sending warning notices to users. According to French ISPs, however, the system is not working. Bills are sent to the government, but often are not honored. The ISPs also claim they should be compensated for the initial costs of setting up the look-up and notification system, not just for the ongoing costs of the look-ups.
With both the U.S. Congress and the Obama Administration now making noises about enlisting ISPs to crack down on “rogue web sites” and other nefarious online actors, U.S. ISPs are no doubt watching the events in Europe warily for signs of what could be in store for them here.
Further reading:
Hadopi and Fair Remuneration for Operators (auto-translated from the French original).
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