As the DEA dictates, ISP accounts linked to peer-to-peer infringements will be subject to receiving a series of notifications warning the bill payer that their activities (or those of people in their household) are unacceptable and in need of change.

The amendments to the Code, which provides a set of standards and procedures by which the anti-P2P (mainly BitTorrent related) elements of the Act will be governed, are very much a mixed bag.

First, and on the plus side for subscribers, is that evidence collection systems of copyright holders will have to fall into line with OFCOM standards before they can send any CIRs (copyright infringement reports) to ISPs.

Additionally, the Code states that copyright owners may only send a CIR if they have “gathered evidence in accordance with the approved procedures” which lead to the “reasonable” belief that the subscriber has infringed a rightsholder’s copyright or that he has allowed someone else to use his account in order to do so.

In the original version of OFCOM’s Code rightsholders were given 10 days in which to send CIRs to ISPs, but in the updated code they are allowed a month following the time of detection – roughly three times longer than before.

For their part, ISPs were previously allowed 10 days from receipt of a CIR to notify a customer that they had been tracked. That period has now been extended to one month. This means that there could be a 60 day gap between an alleged infringement and a subscriber being notified, up from just 20 days.

On the downside for consumer protection is the complete removal of a clause which allowed ISPs to reject rightholder CIRs if they felt in their “reasonable opinion” they were invalid.

Originally it was envisaged that so-called ‘first and ‘second’ strike warnings would go out via email with only the ‘third’ going out by recorded regular mail. That has now been scrapped. All warnings will now go out by regular first class mail, meaning that there will be absolutely no proof that a subscriber has received his third warning.

In addition to conveying the warning itself, CIRs will now have to show the time and date when any infringement took place (as opposed to simply when the evidence was gathered) and also display the number of previous CIRs sent to the subscriber.

OFCOM reports that it has also introduced a requirement that there be a 20 day gap introduced between the date a previous CIR was sent out to a subscriber and evidence being valid for the creation of a subsequent CIR.

Under the previous iteration of the Code, copyright owners would only be able to request a copyright infringement report from ISPs once every three months, and the service provider would be given 5 days to produce it. That three month period has been reduced to a single month and ISPs will have double the time – 10 days – to produce it.

Under the Code subscribers will be able to lodge an appeal against wrongful accusations of infringement. The time to do so has now been clarified as 20 days from the date of receiving a CIR. It will cost an Internet account holder £20.00 to do so.

Finally, the amended Code ends with notes that the UK Government ordered the removal of two elements, both of which would have given a level of protection to subscribers.

“On the instruction of Government we have removed the ability for subscribers to appeal on any other ground on which they choose to rely,” the report notes, adding:

“On the instruction of Government we have removed the requirement for ISPs and copyright owners to provide a statement showing how their processes and systems are compliant with the Data Protection Act.”

This draft Code is now open for a one month consultation period before being presented to parliament later this year. Letters will start going out in 2014…..maybe.

The full report is available here.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

OFCOM also released a second report titled Digital Economy Act, Online Copyright Infringement Appeals Process: Options for reducing costs.

On the front page of the report there is a note that redactions have taken place to censor sections relating to “on-going policy development” of the Department of Culture, Media and Sport.

The DCMS did a better job of hiding the blacked-out text than earlier in the week but not so good as to keep out TorrentFreak and our X-ray specs.

The first redaction on Page 3 says simply “Revisit the grounds for appeal set out in Ofcom’s draft Initial Obligations Code” but two pages later things start to get much more interesting. It seems the government (or more likely their friends in the copyright lobby) doesn’t want talk of an error-prone system becoming public.

Page 5 – OFCOM wants rights holders’ accusations to be ‘quality assured’

Ofcom has also sought to ensure efficiency by introducing into the Code a requirement that Copyright Owners take part in a quality assurance process with the aim of minimising errors. This should help to reduce the number of wrongly identified infringements and subscribers. (ISPs can also have some impact here by ensuring that the letters they send to subscribers make clear the implications of receiving a notification).

A “quality assurance process” sounds like a great idea, but who could be trusted to implement such a regime and ensure independent scrutiny? Anti-piracy tracking companies are notoriously secretive and unlikely to be open about the short-comings of their “proprietary systems”.

Page 11 – Government rejects OFCOM suggestion of subscriber appeal “on any reasonable grounds”

The grounds set out in the Act are non-exhaustive and we reflected this in our drafted Code by including an option to appeal on “any other reasonable ground”. This was intended to provide an efficient mechanism through which to avoid a lengthy revision of the Code should subscribers find additional, but reasonable, grounds for appeal as technologies and consumer behaviours evolve.

We understand that Government believes we should not include this mechanism in the final Code

It is far from clear why the government wishes to remove the right for a citizen to appeal a wrongful accusation on “any reasonable ground”. What is clear, however, is why the government might wish to redact this statement from the report – it looks very bad indeed.

Page 11 – ISP IP address matching to be “quality assured”

We have also introduced into the Code a requirement that Copyright Owners take part in a quality assurance process with the aim of minimising errors. We are proposing to sponsor a similar standard for the IP address matching processes of the ISPs, although participation will be voluntary. This should help to reduce the number of wrongly identified infringements and subscribers (appeal grounds (a) and (b)). We anticipate that the majority of appeals will rely on ground (c) in the absence of systematic failures by a Copyright Owner or ISP under the Code.

When it comes to copyright infringement cases ISPs make errors so it is good they will be required to adopt similar “quality assurance” processes as rights holders. However, how many will choose to do so when participation is voluntary remains to be seen.

Redactions on page 17 merely repeat details covered in earlier redactions. Redactions on page 19 likewise, save a comment that a rightsholder “quality assurance” process

….does not create a rebuttable presumption in favour of the rights holder but should help bring down the proportion of incorrect CIRs [Copyright Infringement Reports] and therefore appeals costs since there are likely to be fewer meritorious appeals in this respect. This quality assurance is also intended to make sure that the number of CIRs rejected by ISPs for process reasons is minimised

The full but redacted document can be downloaded here.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

As part of the Digital Economy Act this legislation would introduce a commercial censorship policy, similar to those that were introduced in New Zealand and Australia last year.

However, the BBC reports today that this plan might not go through.

“The decision to review it follows a raft of complaints about the workablility of the legislation.”

Among the questions that are raised are:

* Is it possible for access to the site to be blocked by internet service providers?

* How robust would such a block be?

* Can specific parts of the site be blocked?

* What would it cost ISPs to implement such blocks?

Bootnote
A Guide to the Digital Economy Act
The Department for Culture, Media and Sport’s Press Release

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.