The Piracy Code, episode 47

The Digital Economy Act seeks to curb rising rates of online piracy

Today's news of the latest phase in the war against internet piracy takes me back to my O-Level history lessons. As we learned about the Schleswig Holstein question our teacher told us of the quote from Palmerston - only three people understood it, one was dead, another was mad, and he himself had forgotten what the question was.

That's how I feel about the Digital Economy Act (DEA). The passage of this controversial law through Parliament in the dying hours of the last government was marked by fevered arguments. To copyright holders in the music, TV and software industries the legislation was a much needed protection against what they saw as the scourge of online piracy. To web freedom campaigners and Internet Service Providers it was an expensive and illiberal assault on consumer rights that would cripple the open internet.

Two years on they've both been proved wrong because the law hasn't been put into effect. But today Ofcom has published the code which sets out how the letters to alleged copyright infringers - the key measure in the act - will be sent out. So now we will finally see who's right about the benefits/dangers of the legislation.

Err, no - the first letters will not be sent until 2014 and there is still room for plenty of argument because we now get another consultation process on the code, after which it gets sent to the European Commission.

Within a couple of hours of the code's publication, Consumer Focus was objecting to the £20 fee that consumers will have to pay to challenge accusations of copyright infringement. For its part, the Open Rights Group said Ofcom had been asked to put lipstick on a pig, and predicted that some people would end up in court having done nothing wrong.

Amongst the most vociferous - and effective - critics of the DEA so far has been BT, which as an Internet Service Provider has been unhappy about what it saw as the act's assault on the freedom of its customers. Along with TalkTalk, BT mounted a judicial review of the legislation. That failed eventually, but it played a big part in delaying the law's implementation.

Last week Ed Vaizey, Minister for Culture, Communications and Creative Industries, criticised BT for its delaying tactics. He mused that its approach might change now that it had spent a huge sum on Premier League football rights which it might want to protect from online piracy. No word yet from BT on those new rules on the piracy letters - which will not arrive at households until after its new football service is launched.

So, expect plenty more arguments before we finally discover whether the Digital Economy Act really has the potential to be as good for the creative industries or as bad for the consumer as the different lobbies claim.

Meanwhile you could argue that the whole enterprise already looks obsolete. The copyright holders have found that existing laws enable them to take action against piracy sites, with court rulings forcing ISPs to block access to Newzbin and the Pirate Bay.

And the focus seems to be switching from targeting consumers to going after the money - cutting off the funds to piracy sites which are becoming very big businesses.

Later this week I'm expecting to see some interesting research on the business models behind these sites, which collect large sums from advertising and through legitimate payments systems. The government is beginning - extremely slowly - to contemplate legislation to cut those connections, in the form a Communications Act due by the end of this parliament.

So by the time the Schleswig Holstein question of the Digital Economy Act is resolved, we may have another law to fight over. If we're not all mad or dead by then…