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Digital Economy Act

Comment 6th July 2010

This Act should be repealed and rethought in principle

Why does this matter?

This Act was rushed through Parliament in the dying days of the last administration without proper scrutiny.
The aspect of the Act that causes me great concern is that relating to Copyright Infringement.
This element appears to have been changed at the request of the major media companies to Lord Armstrong – an UNELECTED member of the last government – over lunch.
I do not support copyright infringement and there is currently adequate provision through the CIVIL courts for copyright holders.
The question should be asked “why don’t they use this route to pursue alleged copyright infringement?”
The provision in the Act move copyright infringement from the Civil courts and place it in the CRIMINAL courts. A previously civil offence has now been ‘criminalised’.
I would suggest that the large media companies did not pursue via the civil courts because it was difficult for them to ‘pin down’ exactly who it was that had downloaded ‘illegal/pirated’ media content via any particular internet connection.
Under the Act this ‘policing’ role – and subsequent costs – falls on the shoulders of the Internet Service Providers (ISP’s)
The IP address of users is allocated to customers of the ISP’s either statically – never changes – or dynamically – changes frequently but the times a specific IP address is allocated to a particular customer is recorded.
These IP addresses can and are easily ‘spoofed’ i.e. appear to come from a particular computer when they actually come from elsewhere.
Wireless routers are very common now and many of them use an ‘unprotected; not encrypted; connection. This mainly due ignorance; on the part of the majority of the public; of the technology and its potential dangers.
Anyone within range of such connections can ‘piggyback’ onto such unprotected connections and download whatever at the expense of the customer and potential criminal charges.
Many of the large ISP’s provide wireless routers to their customers as part of the package.
BT, for example, does so and these routers do have a degree of protection when supplied but it is at the lowest level of encryption available, WEP.
This is VERY easy to break into: see http://en.wikipedia.org/wiki/Wired_Equivalent_Privacy
The tools to do so are readily available on the internet and a 10 year old with a mobile phone could probably do it.
Should any one use your wireless connection in this manner it would be very difficult for you to prove that it was not you.
Even when encrypted to the highest level available WPA2: and currently not broken as far as I am aware: see http://en.wikipedia.org/wiki/Wi-Fi_Protected_Access such a connection may be shared by several family members or individuals in multiple occupancy accommodation .e.g. students in ‘bed-sit land’
In short, it is VERY difficult/impossible to know EXACTLY who was using a specific IP address at any one moment only that it was being used; either legally or illegally.
The above examples are the difficulties which faced copyright holders prior to the Act and it was very difficult to pursue an individual through a civil court, EVEN TO THE LOWER LEVEL OF PROOF required in comparison to criminal courts.
This is the reason “why don’t they use this route to pursue alleged copyright infringement?”
With the advent of this Act the burden now falls on the individual who happens to be the ‘owner’ of a particular IP address, to present evidence to a criminal COURT that it was NOT them that was using it but another individual.
In other words; under this Act you are PRESUMED GUILTY unless you have proof that it was NOT you; and as indicated above, very difficult to do, and the level of proof would be higher than that which the copyright holders were not prepared to take to civil court.
I am aware that the Act contains provision for ‘warnings’ to be issued before court proceedings would be instituted but ultimately you have to prove that you are not guilty.
The major media companies behind this element of the Act have very nicely; for them; put the boot on the other foot, got the ISP’s footing the majority of the costs and all for the price of a bit of lobbying while providing lunch for “the Dark Lord” – Mandelson.
This Act needs repealing.

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