The Digital Economy Bill factsheet on Online Infringement of Copyright: Libraries, Universities and Wi-Fi Providers [PDF] (context) raises some serious questions about the legislative competence and technical expertise of the people drafting the Digital Economy Bill. It also describes a bleak future for public access networks.

One of the significant problems raised by the factsheet is the fact that, whilst the bill divides the world into subscribers and ISPs, the real world is less sharply delineated. People and organisations that might reasonably be considered to be providing an internet service may nonetheless be subscribers in the reductive world of the bill. This leaves them open to the risk of sanctions for infringement perpetrated by others using their network, and makes it an unattractive proposition to run a public access network.

Here are some quotes from the factsheet, annotated with my comments and analysis. The first section of the factsheet looks at libraries.

[Library] Firewalls do not allow access to a number of sites, such as those containing Flash technology (these firewalls are generally for security rather than file-sharing reasons)

Do they even know what firewall means in this context? What has Flash got to do with copyright infringement? Why are they bringing this up? It’s just filler.

Libraries will have a filter system, which should block access to known unlawful sites—although it is difficult to update filters often enough to keep up with new file sharing sites

Given that it is difficult to implement effective filtering (even the Chinese government struggles, and it has significantly greater resources than a local library), it’s impossible to rely on filtering to prevent infringement.

Where access is via a library fixed terminal the key factor is that library machines do not have P2P software and are set up to block attempted downloads and installation of the software. For fixed library terminals it is unlikely therefore they can—or could—be used for copyright infringement via P2P networks.

Why this obsession with P2P? The internet is inherently a network of peers, but let’s skip over that to the widely-accepted definition of what peer-to-peer means. P2P technology is orthogonal to copyright infringement. Copyright infringement occurs via non-P2P means, just as P2P is also used for non-infringing purposes. There are many ways to infringe copyright over plain old HTTP. Want me to show you some?

The factsheet moves on to the particular issue of wireless access in Libraries.

There are measures that can be placed on wireless networks to either restrict access to sites or restrict use of certain technologies or protocols (for example routing all traffic through a proxy server which did not support the use of particular technologies).

Except that they’ve already accepted the difficulty of comprehensive filtering, and, as I’ve said, copyright infringement can still take place over pedestrian protocols like HTTP and HTTPS.

We have considered the extent to which an exemption [for libraries] might be provided in the legislation. We cannot give blanket exemptions for any such establishment. This would send entirely the wrong signal and could lead to “fake” organisations being set up, claiming an exemption and becoming a hub for copyright infringement.

‘We are too incompetent to draft an effective bill. We consider “sending signals” to be more important than access to learning and the free exchange of ideas.’

The next section addresses universities.

Without examining the situation for each university and their relationship with JANET, it is not possible to say whether JANET is acting as an ISP or not; nor is it clear whether a university is a subscriber, ISP or is simply not in the scope of the Bill.

It is hard to believe that the authors of the bill did not consider the existence of universities. It’s easier to believe that they simply ignored everything that doesn’t fit into the simplistic ISP/subscriber model, leaving it to universities—in this instance—to clear up the mess.

Finally, we find out about public access wireless networks. This is where the bill’s ISP/subscriber model fails particularly badly. The factsheet is overly concerned with available bandwidth, and seems to misunderstand the nature of internet provision in this country and to assume that infringing files are always large files.

The type of free or “coffee shop” access is a basic bandwidth service which offers users access to e-mail and web browsing.

It’s frequently a bog-standard ADSL line hooked up to a consumer router. This is a cheap and effective way of providing wireless access in a small establishment. There’s no substantive difference between this and a home connection.

It is seems [sic] unlikely that the type of free broadband service currently available would be sufficient to support any file-sharing or could be used for significant copyright infringement.

Even if bandwidth is an issue (which it probably isn’t; see above), how much bandwidth is needed to copy a book? Electronic book readers (and rapacious pricing of e-books themselves) have made this an appealing form of copyright infringement. The bandwidth argument is both short-sighted and ignorant.

Under our proposals such a service is more likely to receive notification letters as a subscriber than as an ISP.

There are two main problems:

  1. It’s not completely clear whether a public access network is an ISP or a subscriber for the purposes of the bill, but
  2. A subscriber is responsible for any infringing activity that takes place on its network.

The factsheet offers no solutions to this, apart from some lukewarm suggestions.

Enabling the privacy/security features of the router, if these are available.

This may be useful for other reasons, but will not prevent infringement.

Installing Firewalls that do not allow access to a number of sites, such as those containing Flash technology

What’s Flash got to do, got to do with it?

Filters to block various sites

Again, this might be a good idea—porn browsing can put off other customers—but it’s not going to prevent infringement taking place.

Acceptable conditions of use policy – a “conditions of use” policy, which users have to agree to before getting access to the network, for example no unlawful activity including copyright infringement is permitted.

Hahahahahaha. Oh. That’s a serious suggestion? They’re actually relying on the honour principle now?

The only seriously useful suggestion is this:

One option is to route all traffic via a proxy server which does not support or allow (eg) use of file-sharing technologies.

Unfortunately, this is technically complex to set up and does not actually remove the risk of infringement.

In summary, people and organisations running public access networks are put in a difficult position. They may well be subscribers under the terms of the bill, even though they are providing internet access to others. As subscribers, they take the risk for copyright infringement carried out on their network. This risk cannot be eliminated by any technical or social measure.

There are likely to be two outcomes from this bill:

  1. Many small establishments offering free Wi-Fi turn it off, and
  2. £5/hour paid-Wi-Fi companies take over some of the market that used to be free.

To put it another way: say goodbye to free Wi-Fi.