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back to article Gov removes 'general appeal' rights for accused freetards

The government has asked Ofcom to avoid giving alleged copyright infringers a general right of appeal against warning letters they may receive about their online activity in new regulations due out shortly, the telecoms regulator has said. Under the Digital Economy Act (DEA) Ofcom is tasked with writing new regulations to help …

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Anonymous Coward

Guilty until proven guilty

The original headline on Outlaw was neutral - 'Ofcom asked not to include general right to appeal under Digital Economy Act code'. The Reg's headline implies that anyone accused of downloading must actually be a freetard, ie must be guilty. The general right of appeal was perfectly reasonable, as it left room for changes in technology, forensics, etc.

Not good enough for the Reg.

Computer newbie who accidentally leaves WiFi open? You must be a freetard!

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Devil

Possibly Andrew writing that headline

Though if you're an American you might want to read "Alleged" for "Accused" and all is well again. Except that by now "alleged" has become so overused as to imply the speaker assumes guilt but has to fudge for legal reasons, or goes down this route expressly for the sake of sensation. Anyhow. If you're trying to be pedantic, the headline is quite correct if not exactly value free.

But then this is el reg, where commenters are commentards and anyone downloading anything must be a freetard. Though the commenters, excuse me, commentards tend to disagree with the staunchest rights holders advocate. I won't say shill because he does try to make an argument and occasionally makes for entertaining discussion. And, let's be honest, whenever the BPI or whichever rights holders association this week gets another shoddy report full of unfounded conclusions and obviously incorrect numbers fit to the conclusions made into government policy, the register will slam them and the government for it, and rightly so.

Personally I don't really agree with any of this, as I like as-slim-as-reasonable-but-no-slimmer governments that refrain from moral judgements themselves, and I dislike how big copyright lobbyism has perverted the entire system into an everlasting goal in and of itself. But that's neither here nor there. The headline isn't incorrect and doesn't imply more than it does, provided you know the local lingo.

The basic problem I have with this is that the costs and trouble, supposedly to be ponied up by the copyright industry, are slowly being deflected back unto the accused twenty quid at a time, and as the article reports, the accused aren't being left with overmuch ways to appeal. This I say is another sign that reinventing judicial process without judicial oversight isn't the smartest thing to do. Yet it is /de rigeur/ at the moment, with anything having to do with teh intarwebz. That general trend is something to be aware of and an excellent excuse to take a big heavy large spiky cluebat to the heads of government.

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(Written by Reg staff) Silver badge

Re: Possibly Andrew writing that headline

"Possibly Andrew writing that headline"

Not my headline :-)

"But then this is el reg, where ... anyone downloading anything must be a freetard"

You've made 1,780 posts here (all anonymous), Sir, so you should know by now that is false.

Find the cluestick, find your head, acquaint the two.

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Anonymous Coward

It could have been.

Oh shush you. Especially when I'm making a point largely in favour of that icon you're sporting. Though I probably should've explicitly excluded slamming faux rapports from the things I don't agree with. An oversight, I'm sure. Anyhow, adding myself to that little list I have won't make a difference for the next few decades so I think I'll not bother.

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Anonymous Coward

Red Herring

The idea that leaving wifi unsecured is an exuse is a red herring. Firstly it's pretty hard to leave wifi unsecured since most of the home routers/APs available are not unsecured by default and haven't been for some time. Secondly it would not stand up as an excuse in law - ignorance not being a defence and all that.

Consider the position with your car (if you have one). If a car is spotted being driven in a naughty way then the police have the right to ask the registered keeper who was driving at the time. If the keeper can't name the driver or refuses to do so then they, the keeper, can be prosecuted. The point being that as the registered keeper you are responsible for your vehicle. The same could be said of your internet connection. It's your name on the contract so you are responsible for what that connection is used for. Indeed I'd be suprised if it doesn't say something like that on your contract.

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Trollface

Stupid

Do you realise how stupid that sounds? if its reported as stolen, you wont be prosecuted for ANYTHING he does with YOUR car, go read some law before posting on here.

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FAIL

Well done Mr Herring

Speaking of poisson rouge, I see you have made the common mistake of conflating criminal and civil matters.

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Anonymous Coward

Nope

"you have made the common mistake of conflating criminal and civil matters."

Not at all. If a court were to order that you identify the user of your broadband and you failed or refused to do so then you would be in contempt of court. It wouldn't matter if the court were criminal or civil.

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FAIL

Appeals?

The problem with the appeals process is that it is essentially FOC for the MAFIAA /RIAA/<whoever alleges infringement> to accuse somebody, and there's no comeback on them (that I can see anywhere at least) if the person then wins their appeal - they can't lose under this scheme.

Of course, as I can see there's also nothing to stop freetards who do collect warning letters to change ISP every time they have got 2 letters; it'd take a long time to work through the list of ISPs/VISPs etc before you ran out.

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Boffin

Maybe but...

The problem would be most ISPs have a minimum contract period of 12 month so it would be rather costly to change before then :(

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Anonymous Coward

Correct I think

You seem to make a good point.

If the only "bad" outcome is the accused getting the money back he paid for an appeal, then there's nothing to stop anyone from just accusing every user you see of downloading illegal.

I'm wondering if the wrongly accused wouldn't be better off not appealing it, and then being dragged to court, only to show their innocence and then claim all sorts of compensation from the accuser. Not sure that's possible though.

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Headmaster

One month, twelve months

In English, when you make a word into a plural - that means more than one - the most common and easiest to understand method of showing this is to add an S to the end of the word.

HTH.

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Flame

"5 thumbs down"

Thus confirming my original hypothesis. Speculate for yourselves what that might have been.

It seems there is several person who does not agree with the need for plurals. Or maybe they think the subject is so advanced it is unreasonable to expect them to understand it.

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Actually, I think they just don't like you...

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WTF?

I'm with OFCOM on this one

If we have to have this then at least build a law that allows sensible defence and can cope with the changes in technology and behaviour that we will certainly see.

I'm not a big fan of this full stop, I want the criminal activity to be prevented but at the same time, I don't want my ISP to have to put up charges to cover their process costs and to be sending letters to people who are innocent. I'm still not convinced that the benefits outweigh the costs and that proving a user's inocence (er that whole concept is wrong surely) will be a simple, free and stress free process.

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Anonymous Coward

Has something changed?

"I want the criminal activity to be prevented"

I thought Copyright Infringment is a civil offence, not criminal.

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Thumb Down

I'm NOT with Ofcom on this one...

As a father of four boys all in their late teens / early twenties, I've had my share of infringement complaints from my ISP. I have had service suspended twice, each time instantly re-enabled following a promise that no infringing material remains on my childrens' computers.

This is hard to prove so there's an element of trust involved, and I have had huge rows with the kids about this problem. Ultimately it's my head on the block over it, though.

Plus my work as an independent IT contractor requires heavy use of legit P2P for downloading a variety of large items, such as Windows ISOs with which to install to brand-new drives on damaged computers, or where no recovery partition survives. As you can imagine I have had to choose my ISP with great care as my connection would be throttled mercilessly by just about every big name out there (thankfully my current ISP does not traffic shape in any way. I receive the full speed of 730kps on an 8mb line both on and off peak).

What is being done here in the name of 'cleaning up the net' is Orwellian. As another poster said, copyright infringement is a civil matter and one would normally be fined upon conviction in a magistrates' court. But we are on the brink of having a system that's like crushing your car because your brother parked it in a disabled bay.

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Anonymous Coward

Parental Responsibility

"As a father of four boys all in their late teens / early twenties, I've had my share of infringement complaints from my ISP."

Parental responsibility. Heard of it?

You have the ultimate control here. You pay the bill, it's your connection. If your kids won't stop being freetards than the simple solution is for you to stop them using your internet connection. Kids these days probably couldn't survive for more than about three minutes without the oxygen of the internet so you'd probably only have to disconnect them once to sort it out.

How many more times do you think the ISP will buy your promises?

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Pirate

Evolution will happen

Evolution will mean that these kids will learn about darknets and VPNs pretty quickly, especially if they get threatened with disconnection.

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Silver badge

Letters

That's warning letters from the ISP and not the money-grabbing, scare-mongering, bullies that call themselves solicitors?

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Unhappy

Is there a difference?

"That's warning letters from the ISP and not the money-grabbing, scare-mongering, bullies that call themselves solicitors?"

@ Elmer Phud With no right of appeal I wonder if there is a difference?

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Facepalm

so much for Ofcom's independance

rubber-stamp quango, anyone?

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Silver badge

I am a freetard and proud of it

I track about 85 torrents. The material is copyright (games, movies, music etc.). I look forward to any nasty letter and I have my £20 at the ready.

Why?

Simple - whilst the material is indeed copyright, it's all either GPL/CreativeCommons/Copyleft/similar so I have the *right* to distribute and in fact it is positively encouraged as it makes life easier for the creators/distributors. And yes, I do punt them some cash so they can do their next project.

For the actual unlicensed sharers/downloads, it will just push them to use other measures to avoid detection. It's a war that cannot be won.

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Paris Hilton

wait, what?

"I'm a freetard and proud" .... "I do punt them some cash"

Something doesn't add up there. A true freetard takes movies, games, TV, music et al and walks away. No money ever changes hands for the copied material (note: not stolen). That's not to say that a freetard can't copy one game and then buy a different one from the same developer, but you can't be a freetard and still punt money over for that project you've copied.

Personally, I'm quite happy for them to go after the low hanging fruit. I'm not part of the scene and I'm not skilled enough to crack games and my internet connection's too slow to download an 8gb game, so I buy all my stuffs. The MAFIAA will never achieve their goal of defeating piracy though, they don't understand what they are up against at all. For every low hanging fruit there's probably 5 hardcore pirates who are already "lost" to the MAFIAA - ie, will never pay for anything ever again because they've got used to getting every for free and have the ability to stay under the radar. Then there are those that actually *do* the cracking ...

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re: I am a freetard

This is about copyright infringement. Torrents for GPL/CC/CL and such licences do not break normally break the copyright provisions in those licenses so there is no problem and you should not receive any nasty letters for them.

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Anonymous Coward

Semantics

So what you're saying is that you're not actually a freetard - you're helping people give away their works at their request. I would argue that a freetard is someone who takes what doesn't belong to them, maybe giving it to others, maybe not. The key is - if it belongs to them.

Also semantic arguments don't help your cause, it's commonly done by FOSS types and only serves to annoy rather than actually get the point across. What I believe you should have said would be more along the lines of:

"I download and redistribute copyright materials. This is encouraged by some copyright holders and to suggest that all copyright material is paid for and therefore illegal to download is oversimplifying the matter somewhat."

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Silver badge

@yoinkster

"A true freetard takes movies, games, TV, music et al and walks away. No money ever changes hands for the copied material (note: not stolen)."

It's not stolen (that's be a crime), it's a breach of license and a civil offence. They are also poisoning their own well. I have no sympathy for them.

Cracking DRM/encryption should not a crime, it's no worse than lock-picking (also not a crime) although they *could* be used to commit crimes and, in those cases, the people should be charged with whatever crime they have committed.

So it all adds up. Free as in speech, not as in beer. I am (by and large) free to examine, distribute and update what I torrent. And I do. I am a freetard. I am not a criminal.

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Silver badge

@AC - 11:56

I'd hardly dismiss a fight-back against the misuse of our language as mere semantics. People already confuse a copyright infringer (civil) with an actual criminal. This has all been done through the misuse of language.

Heck, the "stakeholders" have even managed to have ethics thrown out with various new laws getting passed (e.g. DMCA) so actually now creating new crimes that should not exist.

I still call myself a freetard as I think the word "free" is precious and we should try to keep in mind what "free" means. Otherwise we're doomed to lose it.

Nice summary - thanks.

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(Written by Reg staff) Silver badge

@yoinkster

>> For every low hanging fruit there's probably 5 hardcore pirates who are already "lost" to the MAFIAA - ie, will never pay for anything ever again <<

If your "5 hardcore pirates" want something badly enough they'll pay to get it. If they were never going to buy it in the first place, they are not a lost sale to the entertainment industries.

Many have twigged (in this thread and elsewhere) that the enforcement measures are leaky and incomplete, they CAN'T and WON'T stop determined downloaders. Eg web-blocking - we all know how to get around it.

But that's not the point, because hardcore 'tards are not the target of the measures. It's the 80 per cent, the casuals who will pay a bit more for stuff, but don't have to today because getting it illegally is consequence-free, who are.

That's the logic. It may be crackers, it may be rational, but you helps to understand it before formulating a response.

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Anonymous Coward

Indeed

"If your "5 hardcore pirates" want something badly enough they'll pay to get it."

The weird thing is that some people will pay to use a service that provides pirated content. Just like those people who buy pirated DVDs from car boot sales for almost the same price as the legitimate ones.

Those people aren't freetards. Close though.

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Thumb Up

Appeal abuse

Think this change was inevitable as the response to the previous version was "it wont stop us downloading stuff because if they complain we can keep appealing so they can't do anything"

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It is a remarkable thing, the effect of power.

I seem to remember that the "partners" in the present government were very critical of the social-authoritarian tendencies of Blair's circle under the previous government. We can recall their supporters howling "Zanu-NuLabour" and "NuLabourStasi" on almost any and every blog they could log on to. What a difference a year or so makes. The police apparently (we are now told) have the right to shut down public communications without a court order and now we see *this* stuff from the government. We can a any rate conclude that they do not seem any more concerned with personal liberty or fairness than they claimed the previous lot were. They appear to have the same "sledgehammer to crack a nut" approach to social policy as Blair and Straw did - funny that hmm?

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Silver badge

True, but ...

...it is vital to remember that the only thing that changes when a new government comes in is the names you hear on the news. The "civil servants" (a total misnomer these days) are exactly the same, and not one of this insidious bunch of seat-warmers has ever been know to change his/her mind once it has been made up. All a change of government means to them is a few weeks/months persuading the new minister to take the route that has already been planned.

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Its a crap bill and should be scrapped

In times of austerity I propose that this bill should be scrapped for the following reasons

o Freetards will use an anonymous vpn such as hidemyass

o Children downloading CANNOT be prevented. Trust me on this one

o The downloading is happening because the Content business has not understiood the Internet and lowered their prices and reduced their costs

o Do we really want children prosecuted in their bedrooms (Who don't understand digital rights)?

o Its killing free WIFI from cafes and bars which is genuinely useful

o IP addresses are not reliable evidence

o There is no legall requirement to secure your networks

o The existing laws are perfectly functional

o Do we want unscrupulous lawyers spamming innocent customers demanding money with legal threats

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(Written by Reg staff) Silver badge

It might be a crap bill

And no one thinks it will save the creative industries unless they do a LOT more work with new services.

But a right is meaningless unless it can ultimately be enforced somehow. And creators have rights. Their current enforcement options are an ineffective token gesture, something very few can afford, so they want new ones to nudge people into paying.

"The existing laws are perfectly functional"

Semantically, this makes no sense. Did you mean "the existing laws are perfectly adequate" or "the existing laws are perfectly ineffective to stop anyone taking the piss" - and arrived at that as a compromise? :-)

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Anonymous Coward

Crap it might be...

...but the way our law works once a bill is enacted you can't simply scrap it. It becomes part of the common law and it would take quite a clever bill to completely kill it off.

One good reason for this system is it stops successive governments coming along and simply overturning every bill passed by the previous government.

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WTF?

Individuals will have to pay a fee of £20 to appeal

So its gonna cost £20 to have your day in court... or at least not admit to being guilty.

At least with a speeding ticket you can turn up in court for free and see the evidence. No such recourse for Pirates. So what will stop meeja companies just firing these things out to everybody whether doubt exists or not. After all the model is tried and tested by ACS

Of course if you don't appeal it will be recorded as an admission of guilt. So how long will it be before all these admissions of guilt are held up to show chronic piracy is?

Our movie didn't sell because of Piracy. Nothing to do with the film being rubbish of course.

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Anonymous Coward

@Irish

Turning up in court to see the evidence may indeed be free, but the fine imposed doubles.

If that's not already a deterrent to innocent before being proven guilty I don't know what is.

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Anonymous Coward

See the evidence

"At least with a speeding ticket you can turn up in court for free and see the evidence."

If by "evidence" you mean the photograph from the speed camera then no you can't. Plod very seldom produce that in court as evidence.

"Turning up in court to see the evidence may indeed be free, but the fine imposed doubles."

No it doesn't. I got a speeding ticket last year the fine was £60. I ended up in court because I failed to produce my licence (long story) and if you do that you have to go to court. In court the magistrates decided that I should pay the fine, plus the £15 surcharge. The only case where the fine increases is the case of parking tickets. And that isn't really a case of the fine increasing if you go to court. It's a case of the fine increasing if you don't pay up within a certain time. For example you might get a fine of £60 which will be discounted to £45 if you pay within 7 days (varies with different authorities) but that is very different from the fine increasing if you go to court.

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FAIL

But TalkTalk can't even get their billing right.

Do their customers have a hope in hell?

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Boffin

Just wondering

What kind of chance does anyone have with a: 'I didn't do it' defense?

Let's imagine that some company actually does start firing off letters en masse to random IPs in the range used for dynamic IPs from ISPs reasoning that most people are downloading sometimes and most of them do not remember exactly what they downloaded a month later. (or the downloads they aborted or never checked, so they don't know for sure what was the actual contents of a file).

Let's say user #n receives a complaint and knows he did not deliberately download infringing files. So if he replies: I did not do it. What happens? Is it just shrugged of as : Yeah right..wink wink or does the complainant have to provide any proof? What level of proof? Just a text log of IP x.y.z.a downloaded a file named xxx which we believe contains content X? Is the onus of proof on the user?

For each user who knows exactly he did not download anything there are at least 1000 who cannot be sure. Hell - maybe that game mod I tried to download that did not unpack and was deleted was a misnamed mp3 or something.

So the company in this example makes sure that user #n gets three warning in less than a year and they can get at his data and sue him for say nnn quid. Enough to make money but not enough to make contesting the claim the cheaper option. Sounds like a viable business model if you do it often enough and the process can be scripted.

There is no restriction to rightholders with a validated business address in the UK, is there? So the actual risk of such a business model is ...0.

I think I'll write a song and register a business somewhere abroad. I hear Lybia offers good taxes at the moment. No sorry - make that a porn movie and somewhere in the former GUS. The rate of contests will be even lower.

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Mushroom

Inception.avi ...

...actually contains video of me dancing about. I own the copyright to it - if you're checking the content because you suspect it's the film Inception and to see if I'm committing copyright infringement then that's copyright infringement.

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Big Brother

All suspects are guilty...

... I mean, otherwise they wouldn't be suspects... would they?

You're quite right of course, the appeal system is open to abuse - but then that's true of any proceedure allowing for mitigation. I still don't think it justifies draconian measures like this.

It's just so... undemocratic.

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seriously, does someone know the answer

So if I illegally download a movie (for example), and get a letter, and appeal against it saying "I didn't download honest guv, someone must've hacked my wifi" - what happens next?

Surely a search warrent would be needed to grab my computer, and find the offending file (assuming its still there) to prove it was, in fact, me and not someone hacking my wifi.

Seriously, what happens? Anyone know (I mean actually know, not speculate)

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(Written by Reg staff) Silver badge

Why are you asking when...

... the answer(s) are in the document linked to the article, with a nice flow chart, and everything?

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Anonymous Coward

Downloaders, not Sharers ?

I could have sworn that this legislation was only to target those people sharing 'copyright material', not the downloaders ?

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Additionally

Since most documents (those that are not in the public domain) are subject to copyright, it should be further reduced to documents that are in copyright for which sharing is expressly forbidden by the copyright holder.

Indeed, copyleft documents which are actually copyrighted, expressly grants distribution rights to all potential users.

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Anonymous Coward

If the case goes to appeal

What standard of evidence would each side have to provide to be successful? Bearing in mind that you can't prove a negative.

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Anonymous Coward

Don't talk nonsense

"you can't prove a negative"

I am totally sick of hearing that. Of course you can prove* a negative.

It would, for example, be relatively simple to prove that I was not at home at 5pm today. It would be simple to prove that my motorbike was not on the M1 at 5pm today. And it would be simple to prove that I was not downloading copyright material at 5pm today.

At 5pm today I was buying a large bale of timothy hay while my motorcycle was in bits in the garge and has been for quite a while and my computer was switched off. All of which are positives and in providing evidence of that you would demonstrate the negatives that you say can't be proved.

* Assuming you mean "prove" in its currently accepted sense of "demonstrate beyond reasonable doubt" rather than its more traditional sense of "test".

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In addition to open-wifi

... getting p0wned would be a realistic scenario for infringement happening without the formal "owner" of an IP address knowing anything about it. Another is friends/family using a connection. How thoroughly can one be expected or allowed to monitor this anyway? (Say, a spouse, as a subscriber monitoring the IP traffic of the other half does not sound good).

This would seem to be pushing the idea of the "owner" being responsible for all traffic.

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