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Wednesday, 10 November 2010

Public Intermediaries and the Digital Economy Act

Last night's session of the All Party Parliamentary Group on the Digital Economy (DEAPPG) held at the British Library covered many of the problems public bodies are likely to face as the provisions of the Digital Economy Act designed to tackle copyright infringement are brought in over the next couple of years.

The most nauseating aspect of the Digital Economy Act for me is the responsibility shifted onto ISP subscribers (essentially, the person who pays the bill) for any copyright infringement that occurs via their internet connection.

To the layman this might make some sense - it's often impossible to trace infringement to the actual person copying the film or song, and we live in a civil society where someone must take responsibility, right?  Not quite, as I've explained in the past.

Obvious issues arise in any household with 3 or more occupants - notwithstanding the security of WiFi - and these problems are magnified many times over when considering larger organisations offering casual internet access to members of the public.

Intermediaries - organisations who are not ISPs but offer internet access to multiple persons; eg employers, schools, universities, libraries, café owners, etc will soon be forced to consider the consequences of what people do with this internet access.

During the session we heard a detailed summary of the legal uncertainties, technical challenges and likely costs (huge) that our schools, libraries, councils, universities and colleges must confront.  Refreshingly, the speakers were drawn from a wider pool than the internet and technology advocates I usually hear speak on the Digital Economy Act, yet the overriding message is the same: this is a badly-conceived retrograde piece of legislation.

The speakers were Ben White of Copyright for Knowledge, Marshall Mateer from the National Education Network, Mathew Dean, technology manager for the Association of Colleges, and Trefor Davies, CTO of Timico. The meeting was chaired by Eric Joyce MP - who's also the DEAPPG Chairman.

Frustratingly we were promised but didn't get an Ofcom speaker.  Ofcom being the body responsible for filling the copious blanks in the primary legislation,  I feel it would have been useful to get their take and have a representative listen to the numerous issues raised in this meeting.

Speaking first Ben White outlined the problem.  Multiple public bodies are often involved in providing internet services, complicating even the basic task of distributing infringement notification letters to the school or library responsible.  For example, the finance department of a local council might be listed as the bill payer for all local libraries. New systems and procedures might be needed just to distribute the notification to the library where the infringement occurred, without even considering the task of tracking the library user responsible and preventing repeat infringements.

Ben presented cost estimates for the additional technology overhead in Universities.  The estimates were provided by Copyright for Knowledge with a headline figure of £24m in equipment and software over the first 3 years, with an additional £32m if taking into account the cost of dealing with appeals.

It's worth noting some of the unintended consequences of the Digital Economy Act I see; such as the increased monitoring of internet use in public spaces, or the possibility that services will be restricted or even stopped altogether.

At a time when government is actively encouraging digital inclusion, does it at the same time want to be discouraging bodies from offering public internet access?

The Digital Economy Act unwittingly impinges on the whole spectrum of digital rights issues; from privacy, to universal access for essential internet services, and censorship of content on the grounds of copyright.

Marshall Mateer expanded the problem of layered responsibility in respect to the National Education Network (NEN).  NEN have created a nationwide high-bandwidth low-latency content delivery network for schools.  Several technical challenges were overcome to make NEN work reliably whilst providing facilities such as the "e-safeguarding" of children using the network.  Marshall's worry is by the time challenges created by the Digital Economy Act are solved, the technology will have moved on.

Children need educating about intellectual property rights rather than living their online life in the face of threats of disconnection or civil penalties.  Marshall described blocking and disconnection provisions as a barrier to learning, and also highlighted the large amount of copyrighted works used legally in schools under educational license, hinting at the complexities of challenging wrongful accusations of infringement for already-licensed material.

I raised a point in Q&A, without wanting to wheel out the "think of the children" card, I did just that: the primary concern for schools must be safeguarding their pupils online, protecting their privacy and preventing access to harmful content.  Why should schools be faced with the additional burden of policing their networks in order to stave-off the threat of disconnection or civil legal action for copyright infringement?

I put the above words in Marshall's mouth, but he did seem to agree with me in his closing statement.  Of course a term bandied around parliament during the limited debates on the Digital Economy Bill was blocking.  Schools, libraries etc would simply block "peer to peer" services and access to websites facilitating copyright infringement.

Several members of the panel dismissed blocking as both costly and ineffective.  Innovative school children made it their game to break through firewalls, and Trefor Davies reiterated the imperfection and expense of blocking.  He also touched on private intermediaries such as hotels, who would also be affected in similar ways to public bodies.

On the subject of blocking I raised the oft-forgotten good uses for peer-to-peer services that would be blocked along with the infringement.  Peer-to-peer is a hugely efficient and scalable technology for delivering large volumes of data to multiple users.  Many free Linux distributions are shipped this way - do we want to prevent school children from learning to install and use Linux in the computer labs?

Mathew Dean highlighted the massive legal risks all bodies face due to the incomplete definitions in the Act, not least of which being the legal status of public intermediaries: ISP? Subscriber? Something in between?

The chair mused on the amount of government machinery in terms of regulatory oversight that may be needed because of the Act, wondering if this was something a Conservative-led coalition would support in their quest to trim government.  I countered with the words of the Earl or Erroll, who said in the House of Lords (8th April 2010) the act would become "a dream for lawyers" since it would rely on inadequate definitions being tested in the courts, not government or regulatory oversight.  So no fat government then - just fat cat lawyers.

Legal costs from public bodies are ultimately met by the taxpayer, therefore a Conservative government promising small state should be aware that the incidental cost to the public purse could be large, and was not accounted for when the act was rushed through parliament at breakneck speed at the fag end of the last parliament.

UPDATE: It's probably worth capturing a comment from the audience representing a university, who described the work done recently to open up the institution's networks to accommodate the changing way that students use mobile devices. Her fear is that the Digital Economy Act will undo this move towards open networks and restrict how students use new devices to study.


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  1. If the official government line is to block peer to peer, then why do the government themselves use Bit torrent p2p for public information from their own web sites?

    As at http://data.gov.uk/dataset/coins

  2. Hi John, yes indeed!

    BTW I didn't say "official government line". Merely that blocking was touted as the universal answer in the limited debates on the #deact, and since parliamentary time was so limited there wasn't chance for MPs to properly examine this during committee stage.

  3. Is there not something immoral in allowing what is, if anthing, a civil issue to result in possible disconnection for an individual? Many job applications are only accepted onine and can take hours and hours of time to complete. Even Sainsbury's and Tesco jobs. If a son/daughter downloads are all his family disconnected? If a father downloads are his kids then denied internet access too?

    As other countries move ahead laying broadband in mountain villages and free access WiFi zones in city centres why are we so slow to be innovative and creative? Why is the UK so obsessed with legislation? The ever pragmatic Spanish slapped an extra tax on every blank CD and DVD sold to pay the copyright. Why do we so hurriedly slip something through the back door with little inspection or discussion?

    The Digital Economy Bill/Act was embarrassing in its backwardness and not only did few MPs bother to pay attention but few of them understand either the issues or the implications.

    I don't buy the "hurting business" propaganda - what is hurting is a refusal to adapt with the times and be creative and innovative. A refusal to take a long view and invest in the future. Those that take that stance seem to do very well out of the internet and those that don't are no different from any other anachronism.

    The idea that the web can be parcelled up into "channels" of access to be sold like satelite TV packages has been around for ages and was only narrowly squashed by the EU last year. It is sure to surface again. The Digital Economy Act is just another step in the same direction.

    So while I respect the efforts by 'public bodies' to debate these issues I sincerely hope the terrain is not limited to some kind of institutional opt-out clause. Please pay attention to the wider issues beyond the academy.

    As it stands it is already a foregone conclusion - the 'spying' software has been piloted and quietly tested by certain ISPs on their unsuspecting customers for ages. It utiises deep packet technoogy and was designed by a famous international armaments and defence company. It seems there are an awful lot of vested interests/contracts at stake. And the implications of a digital infrastructure neatly enlaced with this sort of kit go way beyond a few spotty kids downloading movies and music.

  4. I agree with you Lucia, but unfortunately government organisations such as schools, libraries and universities that run intermediary services are somewhat restricted to fighting their own corner when it comes to discussions with central government - for the simple reason they don't have a mandate to campaign on wider issues that don't affect them.

    But don't worry, whilst the topic of last night's meeting was public intermediaries, I believe the DEAPPG group will be looking at all issues, including the civil rights concerns you mention.

    The next session in Westminster on 30th November will feature speakers very familiar with digital rights, such as Jim Killock from the Open Rights Group.


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