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Strained, inconsistent, unjustified and full of misconceptions - proposals by UK telecoms regulator Ofcom for implementation of the 3-strikes copyright enforcement regime under the DE Act, come in for  a litany of criticism by the Internet Service Providers (ISPs).

 It's rumoured the the UK Culture Secretary, Jeremy Hunt, voted for the Digital Economy Act so that he would not have to hear of it again. If that is true, he could not have misjudged it more.  

The  ISPs are finally fighting back, and  have vented their anger in a barrage of criticism directed at the telecoms regulator, Ofcom.  They accuse Ofcom of pushing forward the ill-thought-through plans of the previous Labour government, without consideration of the implications for their business or for citizens. They allege that Ofcom is  failing UK citizens, distorting the market, and takes a

cowardly,  lame-duck attitude towards the rights-holders.


Their criticisms relate to Ofcom's draft Initial Obligations Code, and are to be found in their responses to the  consultation which closed in July. They come amid rumours of delays - reported by ISP Review - in the overall  consultation process.


The ISPs say that Ofcom is  taking a superficial approach to the appeals procedure. In particular, TalkTalk ,  the largest ISP serving consumers and small businesses,  does not mince its words, saying that Ofcom's proposals are full of miscconceptions about the subscriber responsibility for alleged infringements.


BT and TalkTalk both argue an incorrect use of terminology in the  ‘appeal' process. Subscribers will be contesting an allegation, which is different from an appeal. An appeal can only be made following a decision by a legally competent tribunal - and neither rights-holders nor ISPs are such a tribunal.


This is an important criticism, because the appeals procedure was the previous Labour government's proposed method of ensuring compliance with the EU Telecoms Package.


The ISPs argue that Ofcom's Initial Obligations code contains requirements which entail changes to their business models.


They also claim that Ofcom's proposals will create a market-distorting effect, and as such they contravene the regulator's duty to promote competition in the market.


There is a bitter battle being ignited around Ofcom's proposed 400,000 subscriber threshold, to determine whether or not ISPs will be obligated to enforce the 3-strikes copyright regime. This proposed threshold, as well as the exclusion of the mobile operators, will significantly alter the competitive boundaries within the ISP market.


There are further competitive implications surrounding the possible levels of copyright infringement which the ISPs are being asked to co-operate on. The ISPs claim that the rights holders - who after all lobbied for this legislation on the basis that their business is being harmed - can not state how many notices they will sending. This is important for the ISPs, who will have to develop, install and implement new large-scale systems for the benefit of the rights-holders.


It is unfair on the ISPs to be expected to design systems without a firm specification, especially in the current uncertain economic climate  (and they will have an engineers' rebellion on their hands if they try to do it).


This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010) DE Act unjustified: Internet industry  hits out  at Ofcom  8 September 2010







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