The Grauniad Lacks Clue on The #DEAct?

The recent report by The Guardian about the Judicial Review into the Digital Economy Act seems to be little more than a whining board for those proponents of the legislation who are annoyed by the prospect of the review.  The comments after the article say as much. This is my brief (ish) summary of how the DEA came into being & how supporters of the legislation are behaving.  I don’t know if The Guardian has forgotten to mention some of the other salient facts or just missed them out for a word limit so here they are.

The Digital Economy Act (in my view) came about through a horrendous misuse of Parliamentary process.  Pushed through obscenely quickly, late at night and at the very end of a discredited “government”, MPs voted in almost complete ignorance with only a few voting with and real degree of understanding of the issues and their implications.  My own MP spun a standard line party line response  without appearing to want to engage with and learn from me.  Utterly useless.  Lord Mandelson deserves to be remembered as much for this pathetic piece of industry lobby group appeasement as for the “misjudgements” that twice caused his removal from government.

The most well-known (or should that be notorious) lawyers who chase alleged “pirates” are Davenport Lyons and ACS:Law.  You may have heard of either or both of these companies.  They sent letters to people they believed were engaged in file-sharing (and thus in breach of copyright) having obtained the details of ISP customers via a court order.  They argued that an IP address should be seen as sufficient evidence of identity and therefore guilt.  The majority of ISPs offered little resistance and handed over the account holder’s details.

The letters sent weren’t very polite and could be said to demand a monetary payment with no guarantee that further legal action would be ruled out even if the fee was paid.

When pensioners started to receive letters alleging that they were sharing pornography the media coverage, reputation battering of these companies and backlash started.  Complaints were made to the media, techie websites, Which and the Solicitors’ Regulatory Authority.  It wasn’t long before websites and support forums appeared, providing information and a support network to those in receipt of these letters.

It seems that none of these cases has ever been brought to court; the methodology behind whatever product is used to identify these alleged infringing IP addresses has yet to be thoroughly and openly examined in a Court of Law.  Without due scrutiny before informed authority how can the claims of the likes of ACS:Law be accepted as correct?

Davenport Lyons stopped their campaign (having been previously dumped by Atari after a similar scheme) but ACS:Law continued, its head Andrew Crossley famously saying that he considered the online backlash against him insignificant.

Having opened his mouth and in effect challenged/enraged the online community, activists from 4chan and Anonymous decided they had had enough of Crossley and those who make similar claims and statements.  They launched “Operation Payback Is A Bitch”, and commenced a series of DDOS attacks against ACS:Law, MPAA, RIAA, Gene Simmons’ website and more in attempts to take those sites offline.

ACS:Law’s site went down under the DDOS attack.  In an attempt to get the ACS:Law website back online, a backup copy of the ACS:Law e-mail system ended up being posted on their website.  This can only have been done by someone working for or on behalf of ACS:Law.  The DDOS attacks did not post that file to the ACS:Law website.  Someone did, however, post that file on the internet.

According to reports, this e-mail backup contained some very interesting information.  Personal and private details of people wanting to make payments to ACS:Law was one thing.  It soon came to light that the unencrypted personal information of BT Internet and Plusnet customers was also contained therein.  That’s right, two large ISPs had, in breach of a court order, sent private and personal details in an open, unprotected format to ACS:Law.

More of BT later.

Thanks to the efforts of Which, Andrew Crossley must now appear before the Solicitors’ Disciplinary Tribunal for a third time.  Yes, a third time, having previously been found guilty of conduct unbecoming of a solicitor.  Solicitors have a clear code of conduct and there are arguments against Crossley’s behaviour compared to the requirements of the code.  The e-mail leak may well have added fuel to that particular fire though the date for Crossley’s second appearance has yet to be confirmed.  Davenport Lyons are also up before the same tribunal in 2011.

The e-mail files also showed the money Andrew Crossley was making through his operation, one e-mail reportedly mulling over choices between two expensive sportscars.  See this interesting article on how Crossley’s firm operates.

The data breach (posting the e-mail backup onto the front page of the ACS:Law website) rides a cart and horses through the Data Protection Act.  Quite whether the ICO has the balls to levy a severe fine on Andrew Crossley I doubt.  I believe a severe fine must be imposed but this is the ICO we’re talking about.  I’m not holding my breath.

Read this excellent article about ACS:Law on TorrentFreak.  It’s brilliant from start to finish.  One paragraph in particular challenges Crossley, just as I have challenged Kent Ertugrul, Iain Livingston and Neil Berkett.

While ACS:Law and Andrew Crossley have made many questionable statements in the course of their settlement letter business, there is one big one that still hasn’t come to fruition. Time and again they promised to bring a case to court – a full, proper, bona fide contested case against one of the dozens of innocents they have wrongfully accused.

Cramer Pelmont are another legal firm who were looking at using the Digital Economy Act as the basis for some of their work.  Not any more though.  Terence Tsang, formerly a paralegal at ACS:Law who had jumped ship to work for them suddenly left.  The reasons cited are interesting.  Words like “self defeating” and “shooting yourself in the foot” are mentioned.  And here’s the killer: “A model needs to be thought up whereby file sharers are not targeted”

Even the courts were getting tired of the demands of companies like ACS:Law, as Chief Master Winegarten warned.  Now we have the Judicial Review into this Act.  This was coming; it’s a pity the ISPs didn’t put up more of a battle earlier or this may have come a lot earlier.

Now let’s look at BT and TalkTalk, supposedly the good guys in this particular battle.

That is, of course, absolute b******s.

As any regular reader here will already know, BT are one of the ISPs who were involved with Phorm and whose secret and illegal tests of Phorm’s product on thousands of unsuspecting customers was a huge breach of the Regulation of Investigatory Powers Act 2000.  I have already written about the mendacity and hypocrisy of Ian Livingston, BT’s CEO and the senior executive responsible for proceeding with the illegal Phorm tests.  It should come as no suprise that BT sent personal and private customer information in a completely unprotected format.

TalkTalk are believed to have been using DPI technology to monitor their customers’ internet use and have earned the nickname StalkStalk.  They were also initially named as a potential partner of Phorm (along with BT andVirgin Media) before pulling out after the backlash against Phorm started to gain momentum.

Neither BT nor TalkTalk are as clean as they would have people believe.  I’m also surprised that Phorm continues to trade despite seeming to be out of cash.  Like a nasty case of Irritable Bowel Syndrome Phorm somehow hangs on, somehow stays a going concern.  Despite no evidence of its legality.

Recent announcements of continued profits in the record industry contradict the assertions of “rampant piracy” made by the likes of the BPI.  In fact I’ve never been offered “knock off” DVDs any time I’ve been in the pub by anyone, never mind a “Knock off Nigel” type character.  Where is this rampant piracy of which they speak?  Rampant suggests that it is everywhere.  Have their figures been scrutinised as the methodology of ACS:Law deserves to be?

Be sure on this – the Digital Economy Act is an abysmally poor piece of legislation and always has been.  From conception through to implementation, those involved should be held to account for very bad law.  The judicial review is a right and proper thing.  Which cannot be said of the activities of BT, TalkTalk, the previous “government” and rights holders (and their lawyers) who pursue individuals based on unverified methodology and threatening behaviour.

The business of government should not be to protect a business model which refuses to evolve with the changes around it.  You move with the change or you die out.

The music and movie industries are not moving with the fast pace of change the internet has started.  They do not want to admit they can’t handle this and they don’t want to change their ways to sensibly engage with customers.  The middle mens’ cash cow is dying.  That’s what they don’t like about this situation.

By the way, I’d love to go and see Iron Maiden on their upcoming tour.  However their label is EMI,  is a signatory to the BPI.  As I’m boycotting all BPI linked labels I won’t be going to see Bruce and the boys.

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