Some musings on the nature of Subscribers

An interesting distinction regarding the Digital Economy Act 2010.

The copyright clauses which are added as additional sections of the Communications Act 2003 all refer to internet service providers and subscribers.

These are defined as follows:

“internet access service” means an electronic communications service that—

(a) is provided to a subscriber;

(b) consists entirely or mainly of the provision of access to the internet; and

(c) includes the allocation of an IP address or IP addresses to the subscriber to enable that access;

“internet service provider” means a person who provides an internet access service;

“IP address” means an internet protocol address;

“subscriber”, in relation to an internet access service, means a person who—

(a) receives the service under an agreement between the person and the provider of the service; and

(b) does not receive it as a communications provider;

It is the (b) associated with "Subscriber" that is the most interesting. If we go to section 405 of the Communications Act 2003 we find:

“communications provider” means a person who (within the meaning of section 32(4)) provides an electronic communications network or an electronic communications service

and:

“electronic communications network” and “electronic communications service” have the meanings given by section 32 

Going to section 32 brings us:

(1) In this Act “electronic communications network” means—

(a) a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and

(b) such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals—

(i) apparatus comprised in the system;

(ii) apparatus used for the switching or routing of the signals; and

(iii) software and stored data. 

and:

(4) In this Act—

(a) references to the provision of an electronic communications network include references to its establishment, maintenance or operation;

(b) references, where one or more persons are employed or engaged to provide the network or service under the direction or control of another person, to the person by whom an electronic communications network or electronic communications service is provided are confined to references to that other person; and

(c) references, where one or more persons are employed or engaged to make facilities available under the direction or control of another person, to the person by whom any associated facilities are made available are confined to references to that other person. 

My reading of this is that if you tell your ISP that you will be installing your own router ("apparatus used for the switching or routing of the signals") and that you will be managing it yourself ("establishment, maintenance or operation") then you classify as a Communications Provider under the bill and they are then not liable to respond to any reports sent from copyright owners that are related to your IP address.

Chewtoy's Digital Economy Readthrough. Part One: Sections 1-2.

OK.  I the final version of the controversial Digital Economy Act (2010) has now been published.

During the hurried progress of the Bill through the commons I became confused over which sections were dropped, which were modified and which made it through unscathed.

In a series of posts here I am going to read through the bill and make some comments on the content according to my interpretation.

I am not a lawyer.  I have a good knowledge of Internet infrastructure and surrounding technologies such as  DNS.  I should be able to make a good crack at the technical aspects of this bill but may make mistakes on the administration and law aspects.  If you spot an area where I am totally wrong, please let me know via the comments.

The opening paragraph of the Act lays out the areas covered.  There are twelve different topical divisions of the contents of the Act.  With such a wide ranging scope and the numerous sections with controversial aspects it really beggars belief that this was pushed through in the wash-up with just two hours of committee and debate before it was passed through largely unchanged.

So.  On with the read through.

The first two sections of the Act refer to duties imposed on OFCOM for the generation of reports.

Section 1: OFCOM reports on infrastructure, internet domain names, etc.

This section inserts additional sections (134A - 134C) into the Communications Act (2003).

Section 134A outlines the details of reports to be generated by OFCOM covering UK network infrastructure.  

Due to the complexity of this act and the wide range of subjects covered timing is a confusing issue.  The first Infrastructure report should be generated no more than 12 months after this section of the Act comes into force.  Fast forwarding to section 48 (Commencement)...  Basically the sections of this bill mentioned in 48(2) come into force on the day the Act is passed.  The sections mentioned in 48(3) require a statutory instrument before they come into force.  Sections one and two are not mentioned here so they come into force two months after the Act is passed.

This means that the first report due under section 134A of the Communications Act 2003 should be generated for a date no later than June 9th 2011.  There is then a further two months after generation to provide the report to the Secretary of State.

This generation of this report should then be repeated every three years, unless there is a significant change.  Significant being defined as having significant adverse impact to businesses or members of the general public (choice of order significant here?)

subsection 7 is interesting.  7(b) says that it should be published so that it can be brought to the attention of people that OFCOM consoder to have an interest in it.  Personally I would say this is everyone...

subsection 8 lets OFCOM omit information from the report using the same criteria as could be used to refuse a Freedom of Information request.  This is probably reasonable.

134B outlines the types of networks to be covered by the infrastructure report, and what details of those networks that should be included.  It is mostly a pretty dry list of items.  Basically says that there should be a report indicating the main types of network covering the country, how many people they cover, availablility information and disaster readiness.  I quite like the use of "Wireless Telegraphy" in 134B(2)(a).  Very quaint.

134C (OFCOM reports on Internet domain names) [Note: the document seems to use lower-case internet, rather than the correct upper-case Internet to indicate the global Internet]

The secretary of state may request OFCOM (no set timeline) to generate a report on the state of the Internet domain names.  It doesn't say so, but I assume this is to be limited to UK domain names, rather than a report on the state of the global DNS system.  But assumptions are dangerous...

The report should cover matters relating to "the allocation and registration of internet domain names" and misuse of domain names.  It doesn't define what is meant by misuse of domain names.

I think this is the first of the poorly drafted sections of the bill.  There is no indication of what would cause the Secretary of State to want to generate such a report, and the only time associated is "as soon as is practicable".  I assume the "people likely to have an interest" is probably the membership of Nominet at minimum, if not everyone.

On to section 2: OFCOM reports on media content.

This is another insert into the Communications Act 2003 (section 264A).

This section covers generating reports on media services.  References to television services in the existing Act are extended to mean media services which includes (264A(5)(a) television and radio (b)on-demand programmes and (c) services provided by means of the internet where there is a person who exercises editorial control over the material included in the service).  Not entirely sure what editorial control would entail...  I assume this report is intended to cover things such as internet TV and radio stations, but not cover user contributed sites such as youtube, etc.  I am not sure where this puts podcasts.  There is editorial content here so they seem to classify.  I don't know how OFCOM are supposed to report on them though.

Here ends the coverage of sections 1 and 2.  Next up are the sections on Online infringement of copyright.  Given that this is the most contraversial area of the Act it is likely to take me a while to dig through...

Digital Economy Debacle

This post started life as a stream of consciousness journal on 750words.com.  Apologies if it is even more rambling than usual...

So last night was the second reading of the Digital economy bill.  What a farce.  There must have only been a dozen MPs present for the full reading.  Can they truly pretend that MPs care about this bill with such an appalling attendance?

The UK has a knowledge based economy.  Technology, communications and creativity are all essential to our future as a country.  Yet our leaders are as tech-savvy as a bowl of figs.  There were a handful of responses last night that understood the issues.  Tom Watson, Fiona MacTaggart.  Even John Redwood FFS.  "The vulcan spoke logically" as I saw someone say on twitter.  The debate went on and on.  Some of the commenters seemed to only be there to score political points.  Adam Afriye spent an age recounting those that had gone before, generally taking the sting out of the arguments of those against while also disagreeing with the arguments for the bill and concluding with a scathing remark about it being a washed up bill made by a washed up government.  He seemed to have an awfully long time at the microphone yet added very little substance to the debate.

But at least he was there.  My local MP was not, and I would guess that most other people felt similarly unrepresented in this.  The general election has been announced so many MPs are already back on the campaign trail, leaving London behind, perhaps forever.  So one of the most important pieces of legislation being considered is being left to be settled by a handful of stragglers left in the house.

One of the arguments trotted out is that the bill got plenty of consideration in the Lords.  The point was made in the debate (but seemingly not acknowledged by those who heard it) that the fact that this took longer than expected to pass through the house of Lords and arrive at the Commons, was that it was contentious.  Was that it required proper scrutiny. Scrutiny that is not possible in the time left to this parliament.

Usually a bill of this magnitude will start in the commons before being passed to the Lords for scrutiny.  This time the bill started in the Lords (and if many people's suspicions are right actually started over lunch between Lord Mandelson and major record label execs).  The bill went through a couple of readings, a set of major revisions, and was being modified right up until it was passed to the commons.  There were even clauses being updated as it was passed over, so any argument that it had received sufficient scrutiny in the Lords to allow consensus to form is specious.  If time had been available I have no doubt that this would have taken even longer than it did to pass through the Lords.  And we would all have been better for it.

I do not really have a problem with this whole bill like some people seem to.  I have read this bill through.  In several of its incarnations.  I have been following its progress through both houses.  I agree with a lot of the sentiments in it.

Broadcast isn't my area so I am not really fit to comment on those aspects of the bill.  As a long term user of DAB radio I would probably not be quite as pro-changeover as the bill seems to be, even though I am close to having a vested interest in freeing analogue spectrum up for digital communications.  Analogue radio has an important place to fill.  Even in urban areas digital radio reception can be poor.  And the station quality is extremely diluted.  Pretty much the only stations worth listening to are the BBC stations.  But then that is my opinion on analogue radio too, so that's not really news.

The orphaned works clauses are important but have not yet reached the correct balance of creator rights versus access.  This needs to be sorted out; however it needs further debate to be sorted.  This issue alone probably requires more debate than the hour that has been allocated today for the third reading.
The ability for the government to step in and take control of Nominet via Offcom is just plain weird.  One of the members speaking last night (I forget which one and cannot find it in Hansard at the moment) was saying that comparisons to the Internet censorship used in China were patently ridiculous[edit: It was David Cairns MP for Inverclyde and the phrase he used was "Clearly bonkers"].  Given that one of the primary powers the Chinese use to enact this censorship is control of the country's DNS infrastructure I don't think the claim is a far fetched as he believes it to be.

And of course the copyright infringement.  This was the bulk of the debate, and rightly so.  I don't think any progress was made in the second reading debate.  Neither side gave any ground.  The same arguments were brought up again.

Why am I against the proposed actions?

Under the bill the accusation is the proof of guilt.  The accused has the burden of proving their innocence.  This is just plain scary and has wide ranging implications as a precedence if allowed through on the nod. The fact that current BIS recommendations included charging people to mount their appeals is also relevant here. 
Many arguments are made that it will be easy for ISPs to detect infringers.  That when infringers get more clever then deployment of DPI will solve everything.

Newsflash.  Vendors lie.  Not understanding that concept is a large part of why public IT projects constantly get delivered late and over budget.  The government and media industries faith in DPI is all based on vendor claims rather than the real world.

Mandating the use of DPI in service providers will slow down the growth of the net and will cause prices to rise.  There will be no incentive for vendors to lower prices - after all its not like the choice to not use their hardware is even available to people.  Does the government also plan on putting regulation in place on the DPI industry to stop price fixing?

I seriously oppose the way that this legislature will disincentivise people from providing free wifi access.  The risk will outweigh the benefits so people will stop.  Access will be reduced and innovation will be punished.
Note that I make no mention of the oft sported "downloaders spend more on digital content".  I fully agree that creators deserve to be paid for their works.  I am not one of the looney fringe that thinks that all copyright is theft.  I do not believe that this bill will do anything to stop serious infringes.

Disconnection is not a proportionate action.  The average infringer is not living alone in their dank basement, the sole user of their broadband connection.

Children may infringe on the end of the line that their parents rely on for their business.  Parents may infringe on the line their children use to research for their coursework.  An average user with no specialised security knowledge may unknowingly leave their access open to an infringer living in the neighbourhood downloading content on their connection.  In all of these cases the infringer is not the sole recipient of punishment.  How is this proportionate?

Another point often raised is: disconnection is a last resort.  If disconnected the user can just switch provider.  And it may be years before they are disconnected anyway.  So you are arguing that this is good law because it has no teeth? Really?

One last point before wrap up.  If rights owners block infringers they hope to increase their (already record) revenues.  If ISPs have to pay costs to disconnect their own revenue generating customers, where will these costs be reclaimed from? Other paying subscribers.  Innocent net users will be paying for the old media's old models.

Here's a thought about how it might happen: ISPs adopt the concept of no claims discount from the insurance industry.  All subscriptions rates are doubled and incremental discounts are available each year that passes without accusation.  After 5 years the discount rises to the cap of 50% (i.e. the original price). In order to allow transfers an independant body will maintain a subscriber database to track discount entitlements and accusations of infringement.  Maybe this could be yet another power for the beloved Offcom, mentioned so frequently already in the bill...

Just in case my opinion wasn't obvious from my tone in the previous paragraph: I do not think this would be a good way to do this.

I think that the Digital Economy Bill done right would be an important aid to our place as a leading knowledge economy.  I do not believe that bill currently before the house is done right.  I do not believe that this bill can be made right in the time available in this parliament.

In addition to the previous letter to my MP, posted here, I also agree wholeheartedly with the sentiments in this open letter.

A letter to Anne Main MP (cons) for St Albans.

Dear Mrs Main,

I also believe they should be debated in the House of Commons before we agree to them. Only if we are confident that they have been given the scrutiny that they deserve will we support them.

After your previous email stating your  commitment to full debate and scrutiny of the Digital Economy bill, I was disappointed not to see you present during the debate.

In fact my wife and I were appalled to see that the second reading debate of a Bill of this level of importance was taking place with only a handful of MPs present.  

http://twitpic.com/1dog33

I have seen it said many times that the passage of this bill before the dissolution of parliament is essential.  Can anyone truly claim this to be the case when most of the elected representatives couldn't even bother to turn up for the reading?

Your absence in particular has left me feeling both disappointed and unrepresented.

Please do not count on my vote in the upcoming general election.

Regards,