The UK has just released a draft set of rules for its new "three strikes and you're... on a list" approach to online copyright enforcement. The quick and dirty details: ISPs must log copyright infringement warnings, rightsholders can sue when anyone picks up three warnings within a year, rightsholders must prove they use a solid process to uncover violations, ISPs must prove they can properly match IP addresses to names, and there's an appeals process. At first glance, it doesn't seem too bad.
That's until you start thinking about the key question: who counts as an ISP, and who counts as a "subscriber"? A coffee shop that offers WiFi might count as an ISP. A business that offers open WiFi access in its lobby would count as a subscriber—and could be liable for lawsuits and penalties based on how visitors use its network. Libraries that offer Internet access may need to collect e-mail or postal addresses from users before allowing access. Running an open WiFi network could get individuals into trouble for copyright infringement.
These aren't theoretical questions. The UK telecoms regulator, Ofcom, spells out the implications of Britain's new approach to dealing with online infringement in its own implementation proposal (PDF), released today.
"Some businesses provide access in their public areas, and some consumers may also run unprotected WiFi networks to allow others in their community free access to the Internet," says section 3.30. These groups are Internet "subscribers," meaning that they could be reported by rightsholders for any illicit use of their networks.
"Those who wish to continue to enable others to access their service will need to consider whether [to] take steps to protect their networks against use for infringement, to avoid the consequences that may follow," concludes Ofcom, even while noting that such protection will be "challenging" to implement.
As for libraries, they appear to be ISPs, and may need to collect addresses or e-mails (and, apparently, verify accuracy somehow) from everyone who uses the Internet connection.
And when it comes to WiFi that is "provided in conjunction with other goods or services to a customer, such as a coffee shop or a hotel," such providers would also be called ISPs. That means collecting user information, having processes in place to handle infringement letters from rightsholders, and maintaining a list of users who rack up more than three "strikes."
Start slow
The good news is that none of this will affect small ISPs at first. Ofcom's plan would apply the rules only to the seven wireline ISPs that serve more than 400,000 customers (BT, O2, Orange, Post Office, Sky, TalkTalk, and Virgin). Mobile operators are excluded, as are all small players.
But Ofcom doesn't want to create a situation in which infringers simply sign up for small ISPs instead, or head over to the local library, so it will reconsider this decision regularly. Ofcom makes it clear that, if infringement becomes an issue at libraries, WiFi hotspots, and coffee shops, even small ISPs could eventually fall under the new regime.
Internet disconnection isn't an option at the moment; for now, rightsholders can only get an anonymized list of people who have racked up at least three strikes. If they want to pursue the cases, they can go to court and uncover individual identities. But UK law allows for much tougher penalties down the line if the Secretary of State decides they're needed.
This mean that one year from now, without needing to pass additional laws, it's entirely possible that the UK could boot repeat infringers (including businesses) off the Internet and that everyone from coffee shops to libraries to open WiFi hotspots will need to lock down their services and collect more data from users.
While the Liberal Democrats have expressed opposition to many parts of the Digital Economy bill that brought the new regime to the UK, their Tory senior coalition partners don't appear to have the same concerns.
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