Is the Digital Economy Act now unstoppable?

The Act became law in the dying days of the last government

The High Court upset a few people this week when it rejected BT and TalkTalk's appeal against the controversial Digital Economy Act.

As our very own Kate Solomon reports, the court rejected claims that the Act breached EU privacy laws and that its anti-piracy measures were disproportionate, although it did say that ISPs shouldn't pay towards the costs of setting up any anti-piracy measures.

Our columnist Gary Marshall, who was railing against the Act long before it was even an Act, wasn't impressed. "It's nice that the review concluded ISPs shouldn't help fund the creation of a kangaroo court," he writes. "But it's still a kangaroo court."

The Act became law in the dying days of the last government, despite enormous opposition from concerned voters. In what former minister Tom Watson called "a catastrophic disaster" the proposed legislation was rushed through in the "wash-up" period, a kind of last day of school when most MPs have already returned to their constituencies and the few who do turn up are allowed to bring in board games.

Despite MPs of all parties promising to fight the legislation, it was passed with a comfortable majority and was granted Royal Assent last April.

Three strikes and you're off

Why does this matter? The Act's anti-piracy measures want ISPs to implement a three-strikes policy with possible disconnection for persistent copyright infringers, and they also allow blocking of infringing websites.

There are several concerns about that. The first is the cost to ISPs, and the way it would change their role from independent third parties to copyright cops. The second is that infringers would be chosen by the entertainment industries, whose track record in correctly identifying pirates is hardly exemplary.

And the third is that the legislation could potentially cripple the connections of innocent people or organisations whose home, office or public Wi-Fi connections were (ab)used by others, or of sites wrongly accused of copyright infringement.

As one prominent politician put it: "It [is] far too heavily weighted in favour of the big corporations... it badly needs to be repealed, and the issues revisited." That politician promised that if he was elected, he'd campaign for repeal of the Act.

Good news! He was elected! Bad news! He's Nick Clegg!

Another key concern is that there could be a slippery slope here, and that things could get even worse.

For example, in New Zealand apparently sensible people are demanding legislation to cut copyright infringers off from the internet altogether, without the ability to sign up with a different ISP. Closer to home, scoundrels of dubious legality have imitated the three-strikes letters to demand money with menaces from alleged infringers.

Could sites be blocked?

The government is currently consulting ISPs on plans to create a kind of Great British Firewall to block sites accused of copyright infringement. The Act permits such injunctions for sites where "a substantial amount of material has been, is being or is likely to be obtained in infringement of copyright". Could that mean a search engine, a whistle-blowing site like Wikileaks or a user generated content site such as YouTube? Maybe.

It's enough to worry Google, certainly: when the Act was being finalised, Google expressed its concerns that the Act's site-blocking amendments were "introduced 24 hours before a crucial vote in the House of Lords, without a full debate over whether such a policy is right in principle," and argued that "blocking through injunction creates a high risk that legal content gets mistakenly blocked, or that people abuse the system."

BT and TalkTalk are currently mulling over the verdict and whether they will appeal. If they don't, Gary Marshall has a suggestion: get Google to buy the entire music business. "Which would you rather see?" he asks. "Google-owned record labels, or an internet where you can only see what record labels say you can see?"

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