Digital Economy Act 2010 Scenarios
The Digital Economy Act 2010 places a number of requirements on internet service providers.
The idea of this page is to list a number of real and hypothetical cases that can be used to test any definitions, code of practice or technical measures under the Digital Economy Act. i.e. if the code of practice is good then these cases will all have the sensible outcome. Where obvious I have tried to state the sensible outcome too. In all cases we have to assume someone using the service is infringing copyright or there has been suitable spoofing or poisoning of data to cause them to appear to be doing so.
Cafe
A real case. A cafe in the corner of a book shop with DSL router and access point and no computing equipment at all on the premises, providing free wifi internet you users of the cafe.
If they are treated as a subscriber then they will get copyright infringement notices from their ISP. They are not infringing copyright, and could easily show this if taken to court for infringement (they have no computers on site). However, they cannot appeal any notice or technical measures as they are not locking down their wifi to stop infrinegers (they don't have to kit to do that or the legal requirement for them to do that). They could be disconnected which would be bad for business. It is als bad from a human rights basis as they have done no wrong (civil or criminal) but are being punished and denied any defence or appeal. This is not a good outcome.
If they are treated as an internet service provider then they will get copyright infringement reports (if the copyright owners realise who to send them to), but they have no means to pass these on to subscribers. The code has to allow for this and not make them non compliant (and liable to a fine) for not passing on notices when they are unable to do so.
If they are neither a subscriber or an internet service provider then they don't get reports or notices and have no obligations, this is a good outcome for the cafe, but puts the copyright owners in a difficult position. Is this a problem to solve or just a shortcoming in the Act?
Whatever they are treated as, their ISP has to know which so they know what to do if they get a copyright infringement report.
Event public wifi
If someone gets internet access for an event. They provide public wifi. The event lasts a week. What then?
If we get copyright infringement notices a month later, and then the same subscriber is running a different event, and we get enough for technical measures - do we disconnect the new event? This is clearly the wrong outcome as the notices relate to a place and service that is no longer being provided.
Or are the event organisers treated as an internet service provider? What are they to do with notices long after the event is over? What are they to do with notices during the event?
What if we, as an ISP, sponsor a beer festival by providing free wifi for the event. Is each user a subscriber? They have no agreement with us?
Dealer/reseller selling internet access
A real case. We have resellers that buy broadband from us, and sell to their customers often part of a package of services they sell. They are however selling internet access services.
In this case our customer is clearly a communications provider, that should be a clear case for the definitions.
They clearly provide internet access services, but they do not allocate IP addresses, we do.
So who is the ISP? We are not as we do not have an agreement with the end user. Our agreement with the dealer is as a communications provider. They are not as they do not allocate IP addresses.
Dealer/reseller selling something else that usesinternet access
A real case. We have resellers that buy broadband from us, and sell to their customers as part of a package of services they sell. The services they sell are not really communications services and they are not selling internet access services. An example is someone that provides point of sale solutions and has internet access to provide the back end for that system.
This is tricky - our customer is not a communications provider.
I suspect in this case the dealer is a subscriber, so we pass notices to them. However, they can appeal as they are simply not the end user so they have not infringed.
Multiple offices and home on same account
A real case. Offices with broadband, and one or more lines on the same account that are to homes. Copyright infringement going on at one of the homes.
Technical measures mean disconnecting the subscriber - i.e. all of the offices, because one line is infringing. This is not a good outcome.
Multiple lines on one site
A real case. Multiple lines to one site, IPs directed to specific lines under end user control. Copyright infringement apparent on one line.
If technical measures mean disconnecting the relevant line only (see above case for why this may be so), then subscriber just routes same IP to another line and carries on. Not a good outcome for copyright owners.
VoIP provider
A real case. Customer providing voice over IP services to people in next office, so they are a communications provider but not providing internet access services.
What are they?
Home user with family and guests
A real case. Home user providing internet access to family and house guests. Are they an ISP?
Technical measures could mean they lose internet for the whole house even though one person (maybe house guest) is infringing. Is this reasonable. Is this legal as it is punishing a group of people for one persons wrong doing.
If they are an internet service provider they could disconnect the house guest themselves and leave family connected
If they are a communications provider and not an internet service provider - ideal for that customer, but what do copyright owners do in that case?
Home user with public wifi to be neighbourly
Is a home user with public wifi a communications provider? If they are, then are they an internet service provider.
Very much like the cafe case, but the customer could be the infringer in this case. However, in a civil case they have some plausible deniability as they run a public wifi.
Home user providing free wifi or even a cable specifically for next door neighbour
As above
Home user providing internet as part of facilities for a lodger
As above
The cloud
Many places, like McDonalds and some pub chains, etc, operate wifi using The Cloud. As I understand it the service uses locally provided DSL lines. The Cloud handle the authentication and they are the one making the agreement with the end user (subscriber), so you would think they are the ISP. However, they do not allocate the IP addresses as that is done locally. So by definition they are not the ISP. The ISP however does not have an agreement with the end user, so also not the ISP? Who is the ISP?
If McDonalds is considered the subscriber in this case, and they get a few infringement reports would their ISP cut off all McDonald's? Bear in mind someone could send copyright infringement reports because a user downloaded a file from a web site - it does not have to be peer to peer file sharing or any such. So, if someone wanted to shut down McDonalds they could either send made up reports, or even contrive for them to be genuine reports if they wanted.
