Speaking in the House of Lords, Lord Lucas took aim at ACS:Law solicitors, a firm that has been used by record companies in Britain to intimidate file-sharers, and that has apparently cause an enormous number of complaints to the Solicitors Regulation Authority. Of particular interest is this extract:

If people fall foul of this Bill, they will have a couple of warning letters, but after that they will get a typical ACS:Law Solicitors standard letter saying, “Pay us £500 or we will take you to court”. If they do not pay the £500, they will end up in court, there will be technical evidence against them, and they will have no ability to provide a technical defence. That is the difficulty that people faced with ACS:Law Solicitors have at the moment. There is this inequality of arms. They are in a civil court, with a 50:50 balance-of-probability judgment, and must contemplate risking thousands of pounds in mounting a defence when it is not easy to do that.

This is a recognition of one of the fundamental problems with a bill like the DEB: the consumer-grade networking equipment that is currently available and that has been being given out by ISPs in the past few years does not allow users to defend themselves.

Say, for example, that you get a letter accusing you of violating copyright and demanding that you stop. You know that you haven’t been, and you think that it was probably the tech-savvy kid from next-door breaking into your wireless. What can you do? On most consumer-grade equipment: nothing. The wireless routers that have been distributed by ISPs do not support strong enough encryption to keep him out, nor do they keep detailed enough logs to vindicate yourself. To put it simply: once the accusation has been made you cannot escape it, since the tools are not available to you to prove your innocence.

The result of this is, as Lord Lucas points out, that the record companies can accuse absolutely anyone they feel like, and the person will have no choice but to pay the fine they demand – it is legally sanctioned blackmail:

In a civil procedure on a technical matter, it amounts to blackmail; the cost of defending one of these things is reckoned to be £10,000. You can get away with asking for £500 or £1,000 and be paid on most occasions without any effort having to be made to really establish guilt. It is straightforward legal blackmail.

On the 12th the Lords got back down to work to try to plough through some more of the 300 amendments that have been proposed for the bill – they’re only up to number 56 so far, so it looks like the committee stage will drag on for a few more weeks yet.

Discussion has finally got round to the copyright provisions of the bill – the part that really concerns us. Very briefly, these provisions would allow any “copyright holder” to get in touch with your ISP to report that you have been violating copyright. If these letters aren’t enough to get people to stop downloading files from the internet, the copyright holder would then be empowered to have your ISP cut you off or throttle your internet connection.

The real worry with this is that the process is not held to the same standards as proof in a court of law – the evidence is gathered and weighed up by the copyright holders, not by a judge, and the user would not be guaranteed a chance to defend him- or herself until after the sanctions have been imposed.  Proposing an amendment that would change the language of the bill to call the accusations, well, “accusations”, rather than infringement – which implies that guilt has been proved – Lord Clement-Jones said:

The information obtained by copyright owners, and in a sense laid before ISPs, is allegations of breach of copyright, not infringements in themselves.

Unfortunately the amendment was withdrawn – the Lords felt that the fact that it was the rights holder’s “reasonable belief” that infringement had taken place was guarantee enough. Maybe we should apply this reasoning to all trials – if the prosecutor reasonably believes you’re guilty, you  go straight to jail – should save some tax money…

Later, Baroness Miller asks a question that gets to the heart of our objection to the bill:

[I]f you have an internet connection in your own home which a member of your family or a friend from next door has used, why should you be liable for their copyright infringement? Is it that you should be liable if you knew that they were downloading and you did nothing about it? But why is simply allowing others to use the connection different from, for example, allowing someone to use your car if they were insured to do so, and they were caught speeding? In those circumstances you are asked if you were using the car, to which the response is, “No, it was X who used the car”. If X was speeding, X is liable for the fine and the points on their licence. But in this case, as the Bill is written, it is still the person who provides the internet connection who is liable for disconnection, throttling or any of the other sanctions provided, not the person who was actually using the internet connection.

This is perhaps the biggest practical problem with the law – consumer-grade networking equipment does not allow the user to keep records of who has used it for what purpose, meaning that the eventual code would have to either accept any excuse or none – there is no proof that the average user could possibly produce to exculpate themselves. The Earl of Erroll put this rather well, asking

When some noble Lord’s child, or maybe not even a child, a friend, downloads music or something like that, or, as we have just heard, downloads some text which was in copyright [...] over the connection provided by Parliament, is Parliament going to be prosecuted? Does the whole parliamentary system then get suspended, if sufficient noble Lords do this? It is an interesting thought.

Lord Davies, who was defending the bill, did not answer this charge, preferring to drone on at some length while making brilliant comments about being fertile regarding defence, and how important it is to be flexible. Oh, and insisting that the measures are necessary because of the problem of “child-abuse images” – nice to see that we can have a reasoned debate without resorting to buzz-words and political hackery.

I’m going to wrap up there for now

The committee stage means a line-by-line reading of the bill, and the review of amendments proposed by individual Lords. There are a total of 299 amendments currently tabled for discussion; a lot of these are likely to be quickly withdrawn, or obsoleted by other amendments – obviously if the clause that an amendment would change is removed that amendment is not needed.

The first amendment tabled would have removed any compulsion for Ofcom to intervene “to promote appropriate levels of investment in electronic communications networks” and “to promote appropriate levels of investment in public service media content”. These would be new duties, created by the Digital Economy Bill, and the worry that led to this amendment was that Ofcom’s involvement in investment would be anti-competitive and would harm the consumer:

Given Ofcom’s open disregard of its duties to the citizen and to the consumer, that is putting too much emphasis on the wrong side of things. If we consider Ofcom’s attitude combined with those words, we are creating something which over time will reduce competition and the breadth of services available to the consumer. (Lord Lucas)

The response was basically that we have tried letting companies decide on their investment themselves, and they are failing in their duty to provide the infrastructure that Britain needs in order to move into the 21st century:

I should have thought that in this day and age there should be a general policy to ensure that where there is at least a reasonable population-I am not talking about the tops of mountains-and villages which do not yet have a telecommunications network, the companies that have not built the necessary masts should do so. (Lord Steel)

There was a general feeling that Britain is not currently deploying the resources required to support new technology – and a recognition that sufficient investment is required to support the changing economy. Lord Mitchell put it particularly well:

I have been in the IT industry for 43 years-I started in the very early days, and have seen a thing or two in my life-but the most dramatic thing to me is that the IT industry, instead of going into middle age and slowing down, seems to have reverted to adolescence and is growing faster and more frenetically than ever.

On the darker side, while we don’t want to make fun, it is alarming to see that after so many memoranda and so much expert advice being made available from all camps, some Lords still don’t quite get it:

Enough gigabytes need to be available so that the level is acceptable right across the country. I fear that we did not have enough gigabytes in the first place so that we could compete with countries such as Japan and so on. (Baroness Howe of Idlicote)

The bill does not contain provision for “three strikes”

There is nothing in the bill making clear how long you would have to infringe for or how many times you would have to infringe before your ISP could be forced to disconnect you. The relevant section of the bill is 124(H):

The Secretary of State may at any time by order impose a technical
obligation on internet service providers if the Secretary of State
considers it appropriate in view of—
(a)
an assessment carried out or steps taken by OFCOM under
section 124G; or
(b)
any other consideration.

Section 124G requires only that the content owners be consulted, that the technical measures be effective and that they be in accordance with a “code” – which has not yet been written. And this could well be moot, thanks to the “any other consideration” clause shown above. It could well be that this would be used to give people “three strikes”, as a “last resort” as Mandelson suggested – or not. There is no language in the bill protecting people from the over-reaction of the media industry or mistakes by the copyright holder, since there is no requirement for proof and the bill does not specify any particular delay between warning and disconnection.

The good news is that Lord Mandelson recognised that there “a very clear obligation on the creative industries to get their act together and build business models that provide access to content at a cost that makes the risk of breaking the law an unattractive option”. He also stated that the powers to throttle or remove internet access from individual subscribers are a last resort that  ”should not and will not be used lightly”.

All this is good. However, it is not what the bill itself says and we only have his word for it. The bill

• Does not require or encourage content owners to lower their prices.
• Does not require that sanctions be used only as a last resort
• Does not set out the conditions that must be fulfilled in order to take action against a subscriber – not even the standards of proof required.