BT and TalkTalk succeeded in getting the High Court to grant a judicial review of the Act, which calls for a graduated warning system for those accused of illegal file-sharing. This has angered many organisations working to prevent intellectual property theft, with FAST leading the charge, accusing the ISPs of working towards their own “agendas”.
“The underlying issue here is not that the Act was pushed through Parliament in the so-called ‘wash-up’ period, but that the ISPs are trying to use this as a fig-leaf for their own agendas,” said John Lovelock, Chief Executive of FAST.
It appears a little hypocritical to harp on about ISPs having an agenda while leading an organisation that is about putting an end to software theft. To suggest that FAST does not have an agenda in backing the Digital Economy Act and, in its own words, “lambasting” the ISPs who object to the questionable sections of the Act, raises eyebrows.
Lovelock called the judicial review a “last ditch attempt” by the ISPs to protect their financial interests, but the ISPs say that the Act was rushed and treats larger ISPs unfairly, since only those with over 400,000 customers are subject to the laws. It is likely that illegal file-sharers will simply join the smaller ISPs to continue downloading away, which will hardly bring about the renaissance of genuine file purchases that FAST is expecting.
FAST cited research that suggested as much as 70 percent of file-sharers would stop sharing files if they received a warning letter, leaving only “the serious, serial infringers to deal with”.
In other words, they are attacking people who might download one or two songs illegally and ignoring the people who make money from the illegal sharing of files or actively leak them in the first place.
FAST also did not state where this research came from until TechEye got in touch, when it was revealed that media law firm Wiggins conducted the report, which suggests 80 percent of filesharers would cease their activities if they received a letter.
The thing is – of course the majority of people sharing files illegally are going to stop when they receive a threatening letter. If a person is made aware that they are being watched they are going to try to be on their best behaviour, and if an organisation brandishes legal threats most people will buckle without question.
“It was always our hope that the graduated response provisions of this Act will be proportionate and drive traffic towards legitimate downloads. What can be wrong with that?” said Lovelock.
“FAST has consistently called for behaviour change. We know that when people are challenged, they change their behaviour. An inevitable part of the legislative framework must discourage people from taking the illicit route.”
The problem is that the Digital Economy Act seeks to harry and punish suspected file-sharers, which pushes the affair into greyer territory. With weak provisions for appeals in place most people will be unwilling to contest that they are being wrongly accused, allowing authorities to effectively bully all and sundry into compliance, whether or not there was any need to comply in the first place.
FAST did not take kindly to us questioning the morally grey points that the Act brings up. It said that the judicial review that the ISPs have sought is simply “to halt the legal requirements placed on them to report misuse,” as opposed to there being a problem with the Act iself.
FAST also hailed the ACTA framework, which is currently being drafted and covers intellectual property theft, including illegal file-sharing, on a global scale. Countries must sign up to ACTA on a voluntary basis, but many of the world’s powers, including the US and European Union are members of the consortium.
While negotiations on ACTA are still ongoing, several potential breaches of privacy have appeared already, including suggestions that MP3 players and PCs should be checked at borders, which has not going down well with Bitkom or the Free Software Foundation.
FAST told us that ACTA could “help rights holders in the UK and other member states.” It is probably hoping that ACTA fills the void that may be created if the Digital Economy Act is found to not up to scratch in the judicial review.