British ISPs Lose Attempt to Quash Three Strikes Law

Updated: European telecoms companies may be celebrating a Brussels ruling on net neutrality, but it turns out they don’t always get their way. Witness Britain’s biggest ISPs, who have just lost their bid to overturn an incoming “three strikes” law aimed at filesharers.
BT and Talk Talk, the two largest providers in Britain’s competitive broadband market, had taken the government to court to try to block the Digital Economy Act, a highly controversial piece of legislation that was snuck through parliament just before the 2010 election. Under the act, a slate of new rules are due to come into force, largely aimed at curbing unauthorized downloading,
They include:

  • the blocking of websites where copyright infringing material can be found;
  • tracking of IP addresses to find alleged infringers;
  • formal warnings sent to those accused of illegal filesharing;
  • the court-sanctioned identification of persistent offenders;
  • limitations and possible suspension of connections used for downloading bootlegged material; and
  • making the appeals process against all of these accusations something that happens outside the courts.

All of this, the ISPs had argued, was disproportionate, unwieldy and potentially invasive — and should have been put before European regulators before being signed into the statute books.
Not so, according to High Court Judge Mr. Justice Parker, who rejected nearly all of the claims on Wednesday and said the law should stand untouched, more or less.
The law is wildly unpopular in the technology industry, and there have been plenty of questions over similar actions taken recently to stem illegal filesharing that have ended in calamity — most notoriously, legal firm ACS:Law. That company profited from accusing individuals of illegal downloading, and threatening legal action if they didn’t pay a substantial fine. When those who refused to pay out were taken to court, the company suddenly gave up its case and didn’t provide evidence against them — which led the judge in the case to accuse them of bringing the legal profession into disrepute and trying to avoid judicial scrutiny.
However, the court’s decision was welcomed by content lobby groups, which see it as an important way to protect their income. Music industry lobby chief Geoff Taylor of the BPI, said “This judgment gives the green light for action to tackle illegal downloading in the U.K.”
So what next? Well, the ISPs are considering an appeal, but it’s unclear whether they have any new evidence or arguments that would change the court’s decision. They did score one small victory, however. Update: The law — as it was suggested — required Internet providers to pay 25 percent of the costs of of setting up the system and notifying users of possible infringement. They won’t have to do that now, putting the cost burden on They are no longer liable for the setup costs, though they will still have to share the cost of enforcement with copyright claimants.
Does this mean anything outside the U.K.? Certainly the law — even though it isn’t reality yet — has already become a model for other countries, such as New Zealand and France, which have their own three strikes policies. Not everyone has followed that path, however — there doesn’t seem to be a great appetite for cutting off alleged file sharers in the U.S., for example — but it’s very possible that the rights-holder lobby groups will feel emboldened by this victory.
In the meantime, it looks like the writing is on the wall, and insiders suggest the mechanism for tracking people accused of filesharing will be in place by spring 2012.