London’s Court of Appeal has told BT and TalkTalk — Britain’s two biggest internet providers — that they must abide by the provisions of the Digital Economy Act, the government’s controversial legislation aimed at curbing online piracy.
The law, which was snuck through parliament shortly before the 2010 election, introduces new measures and an ex-judicial process for tracking down and punishing those believed to be illegal filesharers. That includes a three-strike system that could see persistent offenders lose their connections or be sued. BT and TalkTalk had spent two years arguing that the proposals were not compatible with European law — but that didn’t chime with three top judges who made their ruling that the law was legal and enforceable on Tuesday.
So what next?
In the wake of widespread protests against proposals such as SOPA and ACTA, there is chatter online that the law is out of sync with the public mood.
The BBC is even reporting one legal expert’s view that BT and TalkTalk could look to bring in support from those previous protests to give them more consumer power.
Adam Rendle, a copyright specialist at international law firm Taylor Wessing, said he expected BT and TalkTalk to now appeal to the Supreme Court. He added that it was also likely the companies would step up lobbying efforts, perhaps harnessing support from groups recently protesting against the US Stop Online Piracy Act (Sopa) and the EU’s proposed Anti-Counterfeiting Trade Agreement (Acta)…
“When the Digital Economy Act itself was passed in the dying stages of the Labour government, there was a huge amount of disquiet that this kind of important legislation was being introduced without proper scrutiny. That kind of disquiet didn’t result in the kind of action we’ve seen against Acta and Sopa. It wouldn’t be surprising to see a lot more public outcry than there was when the Act was first passed.”
Will that work? It seems unlikely.
True: the widespread anger over SOPA and ACTA means there is now a broader base for protest than when the DEA was first pushed through. But the evidence that there will be an uprising in Britain seems thin on the ground.
For a start, there has not been much local appetite for this so far. While the recent protests against ACTA that took place all over Europe saw thousands take to the streets in countries such as Poland, the response in Britain was muted: only around 200 demonstrators gathered in London to protest outside the offices of rightsholder groups — despite the effort to mobilize support from organizations like the Open Rights Group.
This is not just the British stiff upper lip at play, either: last summer’s riots and recent major marches against austerity measures being put in place by the government show that for certain issues, public demonstrations can happen. For whatever reason, the Digital Economy Act hasn’t been able to spark passion on the same scale.
Behind it all I think there are two problems that anyone opposing the DEA has. The first is that this is already the law, which makes it tricky — and expensive — to oppose. SOPA was a proposal, able to get shot down before it turned into reality. So in part, the time for protest has passed by.
The second problem is a rhetorical one. Assuming there is a public out there to be motivated, there has been little success in doing that — unlike SOPA, which mobilized Internet users from all over the world.
Even those who have continued to fight against it have rarely made an argument about how it will really affect real people. Instead of BT and TalkTalk saying “we think this is a bad deal for our subscribers because it will kill legitimate web services, drive prices up and lead to many people being unfairly punished” they have largely framed their arguments around the costs they will incur if they have to implement the law.
While they are, obviously, concerned with protecting the rights of ISPs, without making a stronger case for protecting the rights of users there is never going to be much traction. And without public support, you can’t apply political pressure to try and prevent the law from being put into practice.
The ISPs say they will “continue to fight”. But if their arguments don’t change, I suspect it will make no difference.
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