Summary:

The UK’s stalled graduated-response anti-piracy legislation is now more likely to come to fruition, after two of the leading ISPs failed in…

The UK’s stalled graduated-response anti-piracy legislation is now more likely to come to fruition, after two of the leading ISPs failed in their bid to have the law overturned.

The controversial Digital Economy Act obliges fixed-line ISPs with more than 400,000 subscribers to notify customers whom rightsholders say have downloaded content without authorisation. If this does not significantly reduce the problem, ISPs may have to impose technical measures like bandwidth capping, protocol blocking or temporary account suspension. ISPs would have to pay 25 percent of associated costs; rightsholders, the rest.

The ISPs BT (NYSE: BT) and TalkTalk had lodged a judicial review at the High Court, arguing that the obligations disproportionately impact them and their consumers, and that it is incompatible with European Commission directives. This has delayed production by media regulator Ofcom of the code under which the whole process would be managed.

But on Wednesday a judge rejected four of their five claims, saying ISPs’ assertion that “a determined infringer has … several means of avoiding detection” is problematic because “it rests upon assumptions about human behaviour”. But he sided with the ISPs on their complaint about incurring costs only associated with creating a body to hear aggrieved customers’ appeals.

It is a victory for big creative-industries organisations, which had long lobbied government for this legislation, having argued their sector is a key UK economic contributor.

The defence case had been supported by the British Phonographic Industry, British Video Association, Broadcasting Entertainment Cinematograph and Theatre Union, Equity, the Film Distributors’ Association, the Premier League, America’s Motion Picture Association, the Musicians’ Union, the Producers Alliance for Cinema and Television, and the Unite trade union. They jointly issued a triumphant statement…

  • BPI CEO Geoff Taylor: “This judgment gives the green light for action to tackle illegal downloading in the UK.”
     
  • Trades Union Congress CEO Brendan Barber: “The sector supports nearly two million jobs, with piracy depriving businesses of up to 20 percent of revenues. Rather than individuals being hauled into court, the (Digital Economy Act) makes it possible to conduct a mass consumer education programme to give people the information they need to avoid using illegal sites in the future. The industry will finally be able to start repairing the damage wreaked by piracy.”
     
  • Film Distributors Alliance president Lord Puttnam: “I am confident this will help to repair the serious damage online copyright infringement has caused, and continues to cause to the UK’s creative industries.”
     
  • British Video Association direct general Lavinia Carey: “Several other countries are adopting this measure and it would be bad for Britain’s creative industries to be left behind more forward thinking nations who are supporting their creative economies at this difficult time of transition towards increased digital consumption during this period of recession.”

But don’t expect this to be the end of the story. There are several other ways in which the UK is still considering its approach to digital intellectual property. The government has commissioned a review of how intellectual property law should change to better encourage innovation. And two parliamentary committees are conducting inquiries in to the likely effectiveness of the Digital Economy Act regardless.

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