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Digital Economy Act 2010 analysis

The Digital Economy Act 2010 places a number of requirements on internet service providers.

OK, several ideas come to mind...

Huge hole - how did I miss it?

The missing definition was communications provider. A customer is not a subscriber if they are a communications provider. The Communications Act 2003 defines:-

  • “communications provider” means a person who (within the meaning of section 32(4)) provides an electronic communications network or an electronic communications service;
  • “electronic communications network” and “electronic communications service” have the meanings given by section 32;
  • 32(4): In this Act— (a) references to the provision of an electronic communications network include references to its establishment, maintenance or operation;
  • 32(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.

A DSL router is a apparatus for transmission system for signals using electrical means which switches and routes those signals and has software and stored data. Simply operating a DSL router counts as provision as specified by 32(4), and provision of such a network makes you a communications provider. That means you are not a subscriber.

  • In the event of a copyright notice, making our customer not a subscriber by allowing them quickly and easily to change who the subscriber is but continue service unchanged.
  • In the event of a copyright notice, making our customer not a subscriber by making them a communications provider. We're prepared to peer with our customer buying access to our customers IP blocks via their ADSL line for 1p/month. This makes them a communications provide and so not a subscriber. But as their customer is us, a communications provider so not a subscriber, they do not become a internet service provider and so not themselves subject to most of the regulations.
  • In the event of a copyright notice, making our customer not a subscriber giving them a choice of IP addresses (change of IP). However, by offering a choice and allowing them to pick an IP they have not been allocated an IP address by us. That means their service is not an internet service and so they are not a subscriber.
  • Recording where our customer is a communications provider - which applies if they provide communications to anyone. I suspect many businesses and even homes could buy our service as a communications provider.
  • Operating more than one retail arm selling to customers and allowing customers to migrate freely with no change to service between those retail arms, thus bypassing copyright notice counting and any blocking orders.
  • Making us not a internet service provider by making all customers not subscribers using either the communications provider or not allocated IPs as above. Hence making us not subject to most of the Act.
  • Not co-operating with copyright holders - if they send a notice which we consider invalid, just delete it.
  • The circular definition of internet access service and subscriber could mean we can simply state we are not providing an internet access service. If that is true then none of our customers are subscribers as they have to have an agreement for an internet access service to be subscribers. If we have no subscribers then our service is not an internet access service as to be so it has to be provided to subscribers. No idea if that holds water.

Interesting point on the reseller side. We normally have a contract direct with end users, but in some cases we deal with a reseller or wholesale customer of ours. There is no way to tell from the IP address who that reseller is - it is a purely contractual arrangement. However, without any messing about that reseller is themselves a communications provider. As such notices to us about their customers (subscribers) IPs to not have to be passed on by us. So what does the copyright holder do? We don't have to tell them who the reseller is (without a court order). And even if they found the reseller, the reseller does not allocate IP addresses (we do), so they don't provide an internet access service (under the act).

Code

We need a code of practice - here are some initial ideas.