Tag: Digital Economy Act

Games and the Digital Economy Act: an Update

Earlier this year I wrote about the impact UK Digital Economy Act, which was passed by the Labout government earlier this year, and the impact the Digital Economy Act will have on games once it comes fully into force.  Now that has taken a step closer.  Read on for more… 
So what’s going on?
The Digital Economy Act is (among other things) a big change to UK law on copyright infringement, because it mandates a new system in which rights holders (e.g. developers and publishers) cooperate with ISPs to locate, identify and take legal action against copyright infringers, such as people who download pirated games.  The most (in)famous aspect of the system is the threat that rights holders and ISPs would together be able to use ‘technical measures’ against infringers’ internet access, i.e. to throttle down or even cut off their internet access (although in the event this was toned down and now the Government effectively has the power to give those powers to Ofcom if it feels it necessary once DEA is fully in force).  Against a spirited resistance from a number of angles, the Labout government passed the DEA in its last days and left it to the UK telecoms regulatory body, Ofcom, and the Department for Business, Enterprise and Skills (BIS) to put together codes of practice/ that will actually govern how DEA would work (you can read the DEA itself here).
Now Ofcom/BIS are taking serious steps towards setting up that framework in which DEA will work.  Earlier this year Ofcom released a draft code of practice (which you can see here) and now BIS has released guidance on one of the most important/contentious issues: who is going to buy for all this anti-piracy action?
Over to Technollama, who gives a good summary of the key points:
  • “The notification costs of ISPs and Ofcom as regulator are to be split 75:25 between copyright owners and ISPs…
  • There should be no fee for subscribers to appeal against a notification letter. However the Government retains the power to introduce one at a later date should it become clear that a large number of vexatious appeals result.
  • The deadline for Ofcom to complete the initial obligations code will be extended by 3 months to reflect the need to notify the cost regulation separately under the Technical Standards Directive.”
So rights holders will have to stump up 75% of the costs, ISPs have to stump up 25%, and consumers pay nothing.  Which will be not enough for the rights holders, too much for ISPs and just about right for consumers (though they don’t really want the DEA anyway).  And we’re probably going to be talking about a fair deal of money here – it’s not cheap to locate, identify (through a Court process) and then sue illegal downloaders.

Oh and, as importantly, Ofcom is given another bit more time in which to finalise the actual legal framework in which DEA will have to operate.

What does this mean for games?
For the games industry, fundamentally the position remains the same: once DEA is fully operational (a gold star to anyone who spots the film quote there), it will become a powerful weapon for all rights holders – including developers and publishers – to use against content piracy.  Now we know that, if developers and publishers want to use that weapon, they will not only have to to identify and pursue the pirates (in accordance with the rules that Ofcom hasn’t finalised yet), they will have to pay 75% of the costs as well.  Whether that operates as a brake on using the DEA powers against games pirates, well, we’ll have to see.
One other point which I keep making, that we don’t know the answer to yet, is whether DEA can/should apply to ‘innocent’ copyright infringement, in particular fan mods or games UGC.  I think legally it does apply to that kind of content, but will devs/publishers actually use the DEA to take action against that kind of content?  Really that’s the classic question about third-party content: yes, on the one hand it acts as a homage to your game and can even drive traffic etc, but on the other hand it is content which is outside your creative, legal and financial control.  We’ll have to see.
As and when there are further developments (probably when Ofcom releases the next draft or the final code of practice), I’ll write another update. 
[image author: Andrew Dunn, obtained via Wikipedia]
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Digital Economy Bill becomes law

The Digital Economy Bill was passed into law yesterday after a late night Third Reading and wash up procedure.  More details are here.
As we’ve discussed previously, the Digital Economy Bill has significant implications for the games industry (though admittedly the final form of DEB has changed somewhat as a result of the last minute Parliamentary debates).  We’ll write up more details shortly…

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Digital Economy Bill nears endgame

UPDATE (07/04/10):

The Digital Economy Bill passed its second reading yesterday afternoon, despite a rearguard action from the likes of Tom Watson, John Redwood and Don Foster. Here are more details of the second reading of DEB (via BBC).  Of particular interest is Harriet Harman’s claim that the controversial measures in DEB will be subject to further scrutiny in the next Parliament.

The government will now take steps to get DEB through the final legislative stages on the way to Royal Assent in the next couple of days. Expect another update shortly…

ORIGINAL POST:

The Digital Economy Bill is nearing its endgame, with the BBC reporting that its second reading will start this afternoon amid wide predictions that the government will try to rush the Bill into law before Parliament is adjourned on Thursday 8 April 2010 for the forthcoming general election. As we’ve written about before, the Digital Economy Bill is likely to have a great impact on the games industry (indeed, all creative industries) if/when it becomes law.

Where are we now?

The Bill has passed the House of Lords and is due to go before the House of Commons for its first detailed debate (the ‘second reading’) this afternoon.  After a bill’s second reading, there is usually a committee and report stage where the bill is gone through with a fine-tooth comb.  Then there is a (less substantive) third reading and finally the Bill will have to go back to the House of Lords – where it started – so that the Lords can review the changes proposed by the Commons.  The Lords can either then accept the changes, or reject them – which can lead to a sort of legislative ping pong between the two Houses (though ultimately the House of Commons will have the final legal say).

But, this process is being severely curtailed due to the very short timeframe left in which to pass the Digital Economy Bill – literally a matter of days now.  As a result, the government’s strategy has been to hold the second reading in the shortest possible time (i.e. a few hours) and then try to deal with all the other legislative stages in one go.  As a result, it is not clear (at least, not to me) whether the committee/report stage will happen at all, or will be given the shortest possible time (again, a few hours) in which to carry out their work.

This has proven increasingly contentious to say the least, with pro-DEB groups supporting the plan while anti-DEB groups have continued to attack both the Bill’s proposals itself as well now as the accelerated timeframe for their passage into law.  Last week, for example, Tom Watson MP vociferously attacked the Bill and described the government’s strategy for making it into law this term as “potentially a constitutional impropriety“.  As he pointed out, laws made quickly generally turn into bad laws.  (On the other hand, in fairness, Ed Vaizey from the Tories and Don Foster from the Lib Dems both argued the Bill had already been adequately debated).

More recently, the BBC reports that one of the major opposition groups to the DEB, the Open Rights Group, has urged people to write to their MPs expressing concern over the DEB and has taken out a full page advert in the Guardian and Times newspapers, headlined “20,684 of us demand a proper debate on the Digital Economy Bill”.

What next?

Watch this space.  The government is under heavy pressure from both sides, both to delay and to accelerate the Digital Economy Bill’s passage into law.  How the government behaves at the second reading in Parliament today will give a good indication as to in which direction it is now leaning. 

[image author: Andrew Dunn, obtained via Wikipedia]

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Digital Economy Bill may become law before election

A quick one: the Guardian reports that “senior media industry figures believe” that the Digital Economy Bill will become law before the forthcoming general election (expected in April/May 2010).
Interesting to speculate who these unnamed sources are, or why they think the Bill will be pushed through soonish.  To us, at the moment, there seems to be a healthy amount of opposition to the Bill in the House of Lords, and it hasn’t even got to the House of Commons yet – all of which suggests it may take longer than expected for the Bill to get through.  Still, the point is that the Bill genuinely could become law in the next few months.  Our thoughts on the Digital Economy Bill and its implications for games are here.  Since we wrote that post, matters have moved on somewhat, since the controversial clause 17 has been voted down.  This has led to fresh controversy however over whether its replacement is even worse!
We’ll report more on the Bill and games as and when there is a further, more ‘final’ version of the Bill (and once it becomes clearer if the Bill is actually like to become law before the next election).

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[image author: Andrew Dunn, obtained via Wikipedia]

Need to Know: Games and the Digital Economy Bill

The UK Digital Economy Bill has real implications for all UK creative industries, including games, meaning gamers and the UK games industry should be paying attention to the Bill’s progress through Parliament.  This post summarises what the Bill is and why it matters.

What is the Digital Economy Bill?
The Digital Britain Bill (“DEB” for short) is essentially the UK Government’s attempt to bring UK technology/IP law up to speed with the challenges of modern technology, particularly online piracy.  The Government’s Explanatory Notes give further helpful background here.
DEB actually covers a whole range of reforms, from IP to digital infrastructure to digital radio switchover.  But the aspects of DEB which are most relevant to games, and which also happen to be the most controversial generally, are these:
  • A new online copyright infringement regime (known popularly as Three Strikes, but it’s not really – see below) and
  • Proposed new Government powers to amend copyright laws without Parliament’s prior approval
DEB also proposes a new games classification system – more on that here.
New copyright infringement regime
The old deal…

Under the existing law right now, if a dev/publisher (i.e. the rights holder(s) for a game) wants to take legal action against a illegal downloader of that game (call him/her ‘X’), very basically the dev/publisher needs to:
  • Identify how and where the illegal downloading took place;
  • Find out the IP address of X;
  • Get a Court order forcing the relevant ISP to disclose the account details for that IP address, so that it can work out who X actually is; and
  • Commence legal action against X and prove to a judge that s/he did the illegal downloading and therefore infringed its copyright.
This can be expensive, difficult and lengthy because: (i) ISPs have historically refused to help rights holders to sue their own customers (hence the need for a court order); and (ii) actually finding the illegal download requires the rights holder to expend IT resources.  (It is mainly for this reason that the music industry in particular has tried to use these kinds of lawsuits to make examples of high profile pirates, rather than trying to sue everyone who downloads copyright materials illegally).
The new deal…

DEB now proposes a new legal regime which would go something like this:
  • When a rights holder (i.e. the games dev/publisher) believes that an ISP customer has infringed copyright (e.g. by downloading a pirated game), the rights holder can send a “copyright infringement report” to the suspected pirate’s ISP.
  • The ISP will then send a notification letter to the account holder and must add that account to a register of customers who are believed to have infringed copyright.
  • The Government would then be able to require ISPs to take “technical measures” against the suspected pirate.  This seems likely to include wide reaching action like broadband throttling or ultimately even account suspension (though the Government doesn’t intend to specify exactly what “technical measures” means or how they will actually work until after DEB has become law).
This proposed new regime is meant to be easier and cheaper because: (i) rights holders and ISPs work together; and (ii) a lot more action can be taken against pirates, potentially even suspending their net access altogether.  However, there is no suggestion that the Government is proposing a ‘three warnings and then we cut you off’ scheme.  So DEB does not = Three Strikes; it’s more complicated/nuanced/vague than that.

Anyway, the proposed new regime has caused a great deal of controversy in both mainstream media and teh internets, to say the least…(that much is clear from a quick Google of “Digital Economy Bill” if nothing else).  Here’s why…

Practical issues
  • How exactly would the new ‘technical measures’/three strikes regime work?
  • How will rights holders actually find pirates?  If it is through technology like deep packet inspection, that will itself cause a lot of controversy (remember BT and Phorm?)
  • Who will pay for all of this?  The rights holder or the ISP, or both?  What about the legal costs if cases are taken to court?
  • Even if you can get the address of the account from which the piracy took place, how do you prove on the evidence who the person in front of the pc actually was? (Remember the complaints against Davenport Lyons?)
  • What rights of compensation (if any) will customers have, particularly if technical measures are taken against them wrongly?
  • What impact will this have on rights holder/ISP/customer relations in the long term?
  • How will the ‘technical measures’, like broadband throttling, actually work?  Who will be accountable for their use?
Humans Rights issues/The right to a fair hearing?
How is the customers’ side of the story to be heard when ‘technical measures’ are taken against him/her?  The right to a fair hearing is a fundamental human right and is given legal force in the UK by the Human Rights Act 1998 and European Convention on Human Rights, but – so far – DEB has little to say about this.  This report from Parliament’s Joint Select Committee on Human Rights explains the issue succinctly:
“We do not believe that such a skeletal approach to powers which engage human rights is appropriate. There is potential for these powers to be applied in a disproportionate manner which could lead to a breach of internet users’ rights to respect for correspondence and freedom of expression. We set out a list of points that the Government should clarify in order to reduce the risk that these proposals could operate in a manner which may be incompatible with the [European Convention on Human Rights…“
And:
“There is little detail about the right to appeal in the case of copyright infringement reports or decisions about the inclusion of certain individuals’ information on copyright infringement lists. We consider that statutory provision for a right to appeal to an independent body against inclusion on any infringement list would be a human rights enhancing measure.”
In fairness, we should point out that attempts have been made to address these issues so far; it is not at all as if DEB has sailed through Parliament so far.  For example, Lord Lucas in the House of Lords has been active in trying to reform DEB generally, and particularly regarding this new ‘technical measures’ regime (more here).

UPDATE:

In a nutshell, not a great deal has happened to address these concerns.  DEB provides that a consumer has a right to appeal to court if “technical measures” are made against him, but there is a great amount of detail about how this is meant to actually work that just isn’t clear yet.

Changes to copyright law
DEB also proposes to give the Government the power to amend copyright law through a shortcut procedure that bypasses Parliamentary scrutiny (this proposal is known popularly as ‘clause 17’).  The Government’s reasoning seems to be that it needs to be able to act fast in order to meet the increasing technological challenges to copyright protection. Example off the top of my head: the Government changes the law to make it easier to sue and heavily punish people who attempt to circumvent DRM protection.
This proposal has also come under heavy fire, so much so that the Government has had to back down and water down its original proposals.  Even so, it is not enough for some.  Again, the Joint Select Committee summarises the issue:
“The broad nature of this power has been the subject of much criticism. In correspondence with us, the Secretary of State explained that the Government intended to introduce amendments to limit the power in Clause 17 and to introduce a ‘super-affirmative’ procedure. The Government amendments would limit the circumstances in which the Government could use their powers to amend the Act by secondary legislation and would provide a system for enhanced parliamentary scrutiny.”
Despite the proposed amendments we are concerned that Clause 17 remains overly broad and that parliamentary scrutiny may remain inadequate. We call for a series of clarifications to address these concerns.”

UPDATE:

Under heavy criticism, the Government appears now to have effectively shelved clause 17.  However, at around the same time, the Lib Dems proposed a new section which would give a court the power to take actio against web sites which host “substantial” amount of copyright-infringing material, potentially forcing the entire site offline.  Critics pointed out that this could mean sites such as YouTube being shut down.  Then, further controversy was caused when it emerged the amendment had in fact been drafted by the BPI.  You couldn’t make it up, eh?

The Current status of the Digital Economy Bill

UPDATE:

On 15 March 2010, the Bill passed the House of Lords and has now gone to the House of Commons.  In theory, a bill is first introduced to the Commons (the first reading, which is really a formality), then properly discussed for the first time in the second reading, then it goes to a committee/report stage for a fine tooth-comb analysis, before finally it has a third reading (essentially a closing debate).  Then, if the bill came from the House of Lords in the first place (which DEB did), it goes back to the Lords so they can review what the Commons have done for the bill, and then finally there is a vote.

BUT, there are several reports that the Government intends to ram DEB through before the general election, by having an extremely short second reading and dispensing with the committee/report stage altogether.  You can make up your mind as to whether having DEB brought into law before it has gone through the normal parliamentary process is a good or bad thing.  So far, the games industry and gamers seem pretty divided on the issue.

Of course, even if for some reason DEB doesn’t become law this term, then a new Labour or Conservative government would just have to deal with it after the general election.

Why is all this important for the UK games industry?

The games industry will be at the forefront of these developments. If the UK Government adopts via DEB a legal regime that permits technical action to be taken against the net access of suspected online pirates/copyright infringers, it would give the UK games industry a powerful weapon to deploy against games piracy/copyright infringement – which is of course often said to be the single greatest threat that the industry faces. So, in principle it would be possible to deploy ‘technical measures’ against individuals who repeatedly download and distribute illegal copies of games – which could for example prevent a repeat of Spore, said to be one of the most pirated games in history.
In fact, it may cover rather more than that – in principle, it may in the future be possible to take technical measures against all forms of online copyright infringement relating to a game, including individuals who distribute unauthorised game modifications (eg additional game levels or a total conversion mod) and/or who create user-generated content relating to games (eg unauthorised in-game footage posted on YouTube).
So the person who distributes a brilliant but unauthorised mod of a defunct but well-loved game, or the person who repeatedly posts unauthorised footage of upcoming or released games online, could potentially face technical measures against his/her internet access in the future. Obviously, the devil would be in the (legal) detail but, clearly, if this kind of action was possible it could transform the games industry.
BUT, and it’s a big but, time and again gamers have shown themselves to be hostile to what can be seen as attempts by the games industry to impose limitations on the way in which they can play and interact with games (as seen recently for example the continuing DRM saga).  The games industry would likely have to tread a fine line between relying on technical measures to protect their games but, at the same time, not alienating their customers or stifling the enjoyment and innovation derived from the creation and use of mods and other post-release user generated content.  It’s worth noting on that front that many games industry figures have already spoken out in favour of market-driven solutions to games piracy for example, rather than just relying on a legal regime.  But, one way or the other, in an industry which depends heavily on the loyalty and enthusiasm of its customers, this is likely to become an issue of great importance in the future. 
Ultimately, the question for the games industry may not be whether they can legally deploy these strategies to defend their games, but whether commercially they can risk it.
[image author: Andrew Dunn, obtained via Wikipedia]

New House of Lords proposal could water down Digital Economy Bill

A new proposal by the House of Lords could weaken the effect of the most contentious aspects of the Digital Economy Bill, being: (i) obligations on ISP to assist in curbing online infringement; and (ii) the Government’s ability to modify the Copyright, Designs and Patents Act 1988 by order. (Thanks to Tom Watson for this tip.)

According to the House of Lords website, the following addition has just been proposed to the Bill by the Lib Dems:

“Compliance with fundamental rights

In drafting or amending any code, laying any statutory instrument, or taking any other action under sections 124A to 124L of the Communications Act 2003 or under section 302A of the Copyright, Designs and Patents Act 1988, the Secretary of State must demonstrate before such action is implemented that he has considered whether such action is—


(a) necessary and proportionate to the goal of protecting and enforcing copyright, and


(b) that it appropriately balances the interest of rights holders and the interests of the public in due process, privacy, freedom of expression and other fundamental human rights guaranteed by inter alia the European Convention of Human Rights and the EC Charter of Rights.”

What does this mean?

Any way you look at it, this proposal (if enacted) would restrict the power of the Government to act unilaterally in taking measures intended to curb copyright infringement. 

With the first condition (“necessary and proportionate to the goal of protecting and enforcing copyright“), the hook is of course that the Secretary of State must demonstrate that the proposed action is “necessary and proportionate“.  This kind of wording has been the cause of much litigation over the years, particularly over similar concepts in EU law.

With the second condition (“balances the interest of rights holders and the interests of the public in due process, privacy, freedom of expression and other fundamental human rights…“), the Secretary of State would effectively have to certify that the proposed action complies with relevant human rights law – in particular, the European Convention on Human Rights, which enshrines such rights as: the right to fair trial; privacy; and freedom of expression.  (Interesting that the HL proposal does not refer to the Human Rights Act 1998, which imports the ECHR principles directly into English law – I wonder why not?)

A third condition, which is more subtle, is that the Secretary of State must “demonstrate before such action is implemented” that the proposed action complies with the above conditions.  So, the Secretary of State must do something to show he has complied with these conditions.  It is not clear what at present:  perhaps making a declaration or issuing a statement of compliance.

A fourth condition, which is more subtle still, is that the mere existence of this provision in the Digital Economy Act (when it finally becomes law) would mean that, if the Secretary of State wants to take action but fails to comply with the above conditions, then it is theoretically possible that the Government could find itself the subject of a judicial review challenge in court.  Obviously whether or not any such challenges would succeed would depend on the court, but the fact they could happen at all may give the Government pause for thought.

What next?  Is this all a storm in a teacup?

The Bill has recently completed its second reading and is due to go to a HL committee on 20 December 2009. This proposal will need to be discussed by the committee and, even if it is kept in the Bill, there is no guarantee that it may not be struck out in subsequent readings. So it is quite possible that this proposal may not make it into law.  Or it may survive, but perhaps in an amended form. 

But, either way, it reinforces again the point that some of the Lords are working to curb the Government’s ambitions in the Digital Economy Bill.  Watch this space…

The fallback position for human rights campaigners

One very last thought.  As a result of the Human Rights Act 1998 (section 4 if you want to be precise), the Court has the power to declare that an Act of Parliament is incompatible with the fundamental human rights contained in the ECHR, at which point the onus would be on the Government to amend the Act to make it compatible (or risk the public controversy that may follow by the law being declared to breach fundmental Convention rights).

Getting that far would be difficult, since the Court will not easily make a declaration of incompatibility (in fact it has a legal obligation to read legislation in a way compatible with the ECHR so far as possible) – but it is possible.

SO, even if none of the above proposal makes it into law, then in theory it may still be possible for campaigners to bring a legal challenge against the Digital Economy Act (once it comes into force) on the basis of incompatibility with fundamental human rights.  Again, whether or not that ever happens and, if so, what the Court decides, we’ll have to wait and see…

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Analysis: Three Strikes Coming In?

This is the text of our guest editorial just published on gamesindustry.biz:

Fight the Good Fight

A battle is underway throughout Europe regarding the protection of online content (including videogames), in which governments, rights holders, ISPs and consumers are all weighing in and the resolution of which will have great importance for the games industry.

The genesis of this battle lies in the dissatisfaction of rights holders (from music and film companies to games developers and publishers) at the legal regime on which they must currently rely upon to protect their content. With court proceedings slow, lengthy and expensive, rights holders have been lobbying for legislation to compel ISPs to take ‘technical measures’ to curb online piracy/copyright infringement over their networks.

One well-known proposal has been to introduce a ‘graduated response’ (known rather better as ‘three strikes’), under which rights holders would work together with ISPs to identify individuals who are suspected of committing online copyright infringement/piracy, to serve them with warning notices and, if they do not cease their illegal activity, to take ‘technical measures’ against them including suspending their internet access.

This is a contentious proposal and ISPs in particular have resisted it, claiming that they are not responsible for policing the actions of their users or enforcing copyright. Furthermore, many consumers – particularly gamers – have also been hostile to the possibility of having their internet access suspended for any reason.

Most recently, there has been press coverage regarding a battle within the European Union over these proposals. In a nutshell, the EU is in the process of preparing new telecoms legislation (known as the Telecoms Package), as part of which it has been debating whether EU law should permit EU Member States to introduce into their domestic legal systems the ability to use technical measures to fight online copyright infringement/piracy – including games piracy. This proposal was championed by the Council of Ministers (the body which represents Member State governments) but was opposed principally by the European Parliament (the democratically elected body of the EU).

The battle coalesced around a controversial amendment to the Telecoms Package known as Amendment 138. This amendment was put forward by the European Parliament and would have required that any attempt to take technical measures against an EU citizen’s internet access could only be carried out pursuant to a Court order – which would make attempts by rights holders/ISPs to take direct unilateral action against suspected online pirates/copyright infringers very difficult.

So, for example, action against a suspected repeat illegal downloader of games would have to be approved at a court hearing in which the individual could defend him/herself. The European Parliament proposed Amendment 138 twice and twice it was rejected by the Council of Ministers in controversial circumstances. There seemed to be a deadlock.
With All Thy Might


But it looks like that deadlock has been broken this month, with the European Parliament reportedly dropping Amendment 138 in favour of a compromise text. This seems to remove one obstacle to the EU adopting a regime which is friendlier to the kinds of action which rights holders would like to take against suspected online pirates/copyright infringers.
Of course, that is by no means the end of the story. Even if and when the Telecoms Package is finalised, it cannot on its own introduce a three strikes system into the EU. Rather, it will still be up to national governments to decide exactly what their own laws should say about any technical measures to be taken against suspected online pirates/copyright infringers. These national governments – two leading examples being France and the UK – are therefore pushing ahead with their own proposals to fight online piracy/copyright infringement independently of the EU debate.
In France, the French legislature famously passed ‘la loi Hadopi’ (albeit on a second attempt, the first having failed), which has implemented a graduated response system into French law. That law quickly became the subject of a legal constitutional challenge, although it now seems that that challenge may have fallen away with the announcement earlier this week that the French Constitutional Council has in principle approved la loi Hadopi.

Implications for the UK?

In the UK, the government’s final Digital Britain report (published in June 2009) set out several proposals intended to reduce unlawful file sharing. The key proposal would impose a legal duty on Ofcom to secure a significant reduction in unlawful file sharing (the government suggested this should be a 70 per cent reduction) by requiring ISPs to notify the holders of accounts suspected to have been used for copyright infringement and making available to rights holders (on the basis of a court order) data to enable serious repeat infringers to be identified and court action taken.
However, the government also proposed that if such significant reduction was not forthcoming within 12 months of that system coming into force, then Ofcom should be provided with backstop powers including the ability to compel ISPs to impose technical measures to reduce copyright infringement (such as protocol blocking, bandwidth restrictions and content filtering). The report stopped short of proposing a full ‘graduated response’ system.
Then in August 2009 the UK government issued a statement that it is now considering providing for Ofcom to be given the power to suspend the accounts of serious repeat infringers. Most recently, Lord Mandelson has made comments about the need to implement something like the French Hadopi system. All of this suggests the government may be somewhat closer now to proposing the introduction of a graduated response system, or at least something like it, into the UK.
That said, a key point about both the French law and British proposals (as well as the proposals of other governments) is that it remains to be seen what and when concrete technical arrangements will actually be put in place to combat online piracy/copyright infringement, how successfully they will work and, crucially, what consumers’ reactions to them will be.
And Implications for the Games Industry?

The games industry will be at the forefront of these developments. If governments adopt legal regimes which permit technical measures to be taken against suspected online pirates/copyright infringers, it would give the games industry a powerful weapon to deploy against games piracy/copyright infringement – which is of course often said to be the single greatest threat that the industry faces. So, in principle it would be possible to deploy technical measures against individuals who repeatedly download and distribute illegal copies of games – which could prevent a repeat of Spore, said to be one of the most pirated games in history.

But it may cover rather more than that – in principle, it may in the future be possible to take technical measures against all forms of online copyright infringement relating to a game, including individuals who distribute unauthorised game modifications (eg additional game levels or a total conversion mod) and/or who create user-generated content relating to games (eg unauthorised in-game footage posted on YouTube).
So the person who distributes a brilliant but unauthorised mod of a defunct but well-loved game, or the person who repeatedly posts unauthorised footage of upcoming or released games online, could potentially face technical measures against his/her internet access in the future. Obviously, the devil would be in the (legal) detail but, clearly, if this kind of action was possible it could transform the games industry.

On the other hand, time and again gamers have shown themselves to be hostile to what can be seen as attempts by the games industry to impose limitations on the way in which they can play and interact with games (as seen recently for example the DRM debacle or the reactions to the recent Pirate Bay case).
The games industry would likely have to tread a fine line between relying on technical measures to protect their games but, at the same time, not alienating their customers or stifling the enjoyment and innovation derived from the creation and use of mods and other post-release user generated content. In an industry which depends heavily on the loyalty and enthusiasm of its customers, this is likely to become an issue of great importance in the future.
Ultimately, the question for the games industry may not be whether they can legally deploy these strategies to defend their games, but whether commercially they can risk it.

Jas Purewal is an associate as Olswang LLP.