March 22, 2011 5:13 pm

Web piracy showdown due in court

Broadband providers and content owners will square off in the High Court on Wednesday in a judicial review of the government’s attempts to control piracy online.

BT and TalkTalk are challenging the legitimacy of parts of the Digital Economy Act, which was passed in the dying days of the Labour government. Four of their five complaints over the legislation relate to legal technicalities over whether the law breaches European telecoms, privacy and e-commerce directives.

However, the heart of the legal battle will be fought over whether the act’s provisions against piracy are proportionate – allowing both sides of this highly polarised debate to air well-rehearsed arguments about the potential harm to telecom companies and their customers or the content industry and its employees.

As part of the hearings, trade bodies representing rights holders such as television producers, sports groups, record labels and movie studios are expected to intervene to defend the act’s long-sought measures to send warning letters and use other tactics against people caught downloading content illicitly.

“The DEA is the result of many years of discussion between government, industry and trade unions to try to provide a framework to legislate against online copyright infringement,” said Christine Payne, general secretary of the performers’ union Equity. “We believe we had no choice but to intervene to give the government support for this case.”

To attempt to demonstrate the need for tougher sanctions, rights holders – represented by media law specialists Wiggin – will point to reports such as the BPI’s digital music survey, which found that more than 1bn songs were illegally downloaded in 2010, and research by Tera Consultants that more than 1m jobs could be lost in Europe if piracy was not brought under control.

Professor Stan Liebowitz from the University of Texas, who has published research about file-sharing, will be called as an expert witness. The aim will be to provide evidence of piracy’s damage to the industry and portray as speculative arguments from internet service providers about the potential harm of the new law.

On the side of the ISPs, consumer organisations such as the Open Rights Group and Consumer Focus are also intervening, to further their arguments that the measures are disproportionate and will fail to prevent piracy.

ISPs and their supporters will argue that the act was rushed through parliament without opportunity for full debate and its provisions to allow suspension of persistent offenders’ internet access is incompatible with the government’s digital inclusion agenda.

The telecom groups hope to persuade Mr Justice Kenneth Parker that the content owners’ claims about the scale of piracy have been overstated. They will call on testimony from Christian Koboldt, of the DotEcon economic consultancy, to show that the basis of the government’s impact assessment was flawed.

Any ruling is likely to take at least six weeks, and could be subject to an appeal, which could take another six months, delaying implementation of the act into next year.

The judicial review comes at the same time as the Hargreaves Review into intellectual property and an investigation by Ofcom, the media regulator, into whether other proposals in the act, relating to blocking piracy sites, are workable

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