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ShareOfcom takes an axe to the DEA on website blocking

Plans to block illegal file sharing websites first established within the controversial Digital Economy Act last year, have finally been scrapped by the government thanks to a review of the policy by Ofcom and its conclusion that the measures are ineffective.  At the same time Liberal Democrat Business Secretary, Vince Cable, announced the government has accepted all 10 of the recommendations from Professor Ian Hargreaves’ review of intellectual property law.

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

The Department of Culture, Media and Sport (DCMS), in its official response entitled ‘Next Steps for implementation of the Digital Economy Act’, confirmed: “Following advice from Ofcom – we will not bring forward site blocking regulations under the DEA at this time. We will do more work on what other measures can be pursued to tackle online copyright infringement.” What these measures will be, however, is not mentioned.

The statement is somewhat surprising after recent news (opinion.enta.net: ISPs lose first court battle against website blocking) that the High Court had ruled in favour of the Motion Picture Association by forcing BT to block access to alleged piracy site Newzbin2 and it suggests that the government’s plans are at odds with the ruling. This is understandable when you think about the length of time and the resources it would take to bring each case to court. Many feared this ruling would be the start of a long line of court orders, with right holders dragging ISPs through the courts to get their own way. We’re now hoping this decision will help prove that blocking websites isn’t as easy as right holders make out.

The report carried out by Ofcom investigated several different techniques available for blocking access to internet sites including IP address blocking, blocking via Domain Name System (DNS) alteration, Uniform Resource Locator (URL) blocking and deep packet inspection. It suggested that all techniques can be circumvented to some degree by users and sites that are willing to make an additional effort to make content available. For instance, an infringing site could relatively easily re-establish the site elsewhere, just like the site Newzbin when it was moved and changed to Newzbin2.

In its report, Ofcom concludes: “It is our current belief that the blocking of discrete URLs, or web addresses, is not practical or desirable as a primary approach. Infringing website operators can readily change the structure of a websites, particularly commonplace database driven websites. We therefore recommend that if site blocking is adopted it should be implemented at a domain level.”

It suggests: “Of the techniques we consider to be most effective, only blocking based on Deep Packet Inspection would appear to offer a level of granularity where over blocking would not be a major concern. The use of DPI is not, however, without risk, as it raises privacy issues, and is extremely complicated to implement, based on current technologies. DNS blocking would perhaps offer a simpler and less expensive option, but is likely to be fully effective only until DNSSEC is implemented, so is perhaps not a long term solution. IP address blocking is simply not granular enough and the ease by which it can be circumnavigated would suggest that it is not a suitable technique candidate. URL blocking is currently used, but its limited scope and ease of circumvention would suggest it has at best a complementary role to play alongside DNS blocking.”

Unsurprisingly, Consumer Focus agrees with the decision. Chief Executive, Mike O’Connor, states: “Website blocking will not of itself solve the problem of copyright infringement. Not only is it expensive, and the costs would be likely to mean higher bills for customers, there is also a risk of “over-blocking” preventing access to legal services.”

Good news prevails for ISPs whereby the DCMS, in its plans in moving forward with the DEA, reveals it will be removing the obligation for ISPs to contribute towards the costs of Ofcom and the independent appeals body in setting up and administering the regime.

In terms of the government’s privacy notification system, which is also part of the DEA, letters will still be sent to those identified by an IP address for downloading unlawful content. The change however comes in a bid to prevent a large volume of non bona fide appeals from subscribers, which could drive up the costs of the appeals system by a substantial degree, by introducing a £20 fee to appeal. The fee would be refunded if the appeal is successful. Under the current DEA, persistent offenders can endlessly appeal every letter they receive from ISPs, which creates mounting costs to the taxpayer, ISPs and right holders.

Consumer Focus’ O’Connor argues that even £20 is too much to pay for an appeal. “They [alleged offenders] are innocent until proven guilty,” he argues. “£20 may not sound like a big sum but it could deter innocent people on low incomes, leaving them cut-off from what has become an essential service.”

The good news continues with news that the government is accepting all 10 of the recommendations put forward by Professor Ian Hargreaves in his Intellectual Property Law review, which it is estimated could add £7.9 billion to the UK’s economy. The government is said to be aiming to have all 10 in place by the end of this parliament following further consultations. We originally covered Hargreaves’ review back in May when the much anticipated report was first published. (opinion.enta.net: Professor Hargreaves restores the balance).

The news means that the government will be pressing ahead with Hargreaves’ main idea for a Digital Copyright Exchange, which will result in a digital market place where licences in copyright content can be readily bought and sold as well as sweeping away with many of the UKs archaic copyright restrictions, such as transferring content from CDs to other formats.

Peter Bradwell, campaigner at the Open Rights Group, welcomes the move. “The government should be applauded for wanting to modernise our copyright laws by following the Hargreaves Review recommendations,” he says.

We agree and are pleased the government has listened to Professor Hargreaves and made the necessary changes to the current out-dated laws.

So, is this the end to the web blocking debate? We doubt it. With the recent news of BT being forced by the High Court to block Newzbin2, we envisage many rights holders following suit. That is, of course, if they have the time, money and patience to take it this far. This is why this solution on its own is unworkable. If a website needs blocking quickly because it is hosting a sports game illegally for example, waiting for the court process is simply not quick enough. Why waste all that money when the site can easily up-sticks and host elsewhere?

Of course we should not forget that we have Ed Vaizey’s Voluntary Code of Practice for blocking access to websites to contend with next, which involves a fast-track legal process that avoids court cases. Hopefully the Ofcom report has however, proved that the options available to ISPs for blocking websites, at least for the time being, will never be 100% effective. We just hope Ed Vaizey takes this information on board in his meetings.

Have your say!

What are your thoughts about the government’s plans to block illegal file sharing websites? Do you think the government is finally seeing sense thanks to Ofcom? Do you agree with the government’s plans to implement all 10 of Professor Hargreaves recommendations? Let us know your thoughts by leaving us a comment below.

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One Response to “Ofcom takes an axe to the DEA on website blocking”

  1. I think its long been the conclusion that if you want to cut out piracy and file sharing, you must tackle the source.

    If you give people the tools to do this, then why be surprised when those people use those tools and methods to circumvent the law?

    I would fully support a block on all filesharing websites.


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