Wednesday, April 20, 2011

Judicial Review of Digital Economy Act fails: interim note

Just a quick note for those seeking basic info, as I haven't had time to read it properly yet - am about to! (or try @copyrightgirl's tweets, or the Guardian . )

The expected, though still bad, news is that most the arguments put forward by BT and TalkTalk were rejected ie on incompatibility with the Technical Standards Directive, the Data Protection laws, the E-Commerce Directive and proportionality generally. The Act therefore stands.

However BT etc were partially successful in relation to sharing the costs of the filesharing system to be established - the cost sharing SI made under the Act proposed a 75:25 split between the copyright holders and the ISPs; it now seems ISPs wil not be required to pay 25% of the cosst of establishing the appeals body but will still have to pay in relation to "internal costs" ie sending letters and identifying filesharers.

A key point will be appeals. BT and Talk Talk are considering their positions on this. I would have strongly expected a reference to the European Court of Justice for clarification, but the judge has indicated he found the issues of law clear and therefore would not support such. My feeling is this point at least might well be appealed successfully - especially following the Advocate General's opinion in Scarlet v SABAM only a few days ago, where the reasoning is strongly against the legality of blanket filtering and monitoring to protect copyright, since invasion of personal data privacy is inevitable. Although this does not necessarily directly affect provisions of the DEA itself other than s 17 on web blocking orders (which may itself be heading for non-implementation hell if Ed Vaizey manages to convince ISPs, IWF-style, to block sites on a voluntary basis, without need for court orders, behind closed doors) the balance struck here between rights of privacy and rights of property will surely cast a doubt that the interpretation of EC law, especially the DPD and PECD , is quite as untroublingly easy as Mr Justice Parker has suggested.

If there are no such appeals, the Guardian suggests the first letters to filesharers could go out in the first half of 2012. Pangloss is not quite sure if this means letters warning alleged filesharers or letters indicating sanctions like suspension, traffic slowing, etc (technical measures) - but probably the former. Certainly it has already been announced that the final version of the Initial Obligations Code has been put back to at least summer 2011 from the original deadline of Xmas 2010. Given that the Initial Obligations stage has to run for at least a year before stage 2, Technical Measures can even be introduced - and that still needs the assent of both Houses of Parliment - we are still a very long way from the first potential disconnections.

In the meantime, streaming has already overtaken downloading, Spotify has managed to educate millions of Europeans, even without much assistance from US record labels, that legal streaming is a great idea, and hardened down and up-loaders have already become far too clever to ever be caught by the DEA's IP address collection methods, while the innocent may find themselves falsely accused (see Richard Clayton's excellent witness statement to the court) .

By that long away time (2013?) when the first disconnections might be justified, the DEA may be too antiquated for even the music industry to press for its continuation. In the meantime however a huge amount of money - £500m estimated - will have been spent to safeguard an industry worth £200m (also an estimate, of course) - and of course also to make it universally hated by its target customers.

The takeaway message on this also is that the judicial review court has only found that the DEA has not technically violated any EC laws. Only these arguments could be made because an Act that is otherwise passed under doctrines of parliamentary sovereignty, however bad it is , in principle, policy or execution, stands till repealed, because that is how we do law in this country. Nothing that happened today proves the DEA makes sense or is right - merely that one judge thinks it does not violate any supranational laws.

ps is there really no English translation of SABAM yet other than a Google translation? Pangloss cannot seem to locate..

1 comment:

Will Gilmour said...

Nice summary Lilian. Good to know the legal bods are on the same page as actual human beings. Seems it's the 'creative industries', politicians and judiciary vs. the rest of the world.

As you observe, it's a way off for the technical measures (ie. disconnections) yet - but they'll come. It's not so much if it all goes belly up, but when.

Did no-one learn anything from ACS:Law?