Ofcom gives details of three-strikes process in draft code

Ofcom has published a draft code for the first stages of the Digital Economy Act's implementation, describing how copyright holders and ISPs will identify suspected unlawful file-sharers.

The draft initial obligations code was revealed on Friday and is open to consultation until 30 July. It confirms early reports that suggested ISPs with fewer than 400,000 customers, as well as mobile operators, would not have to participate in the copyright crackdown for now. The draft also confirms that three notifications will be sent to suspected file-sharers before their details are passed back to rights holders for further action, and it also provides some clarity around the issue of operating open Wi-Fi networks.

The initial obligations code will not cover the penalties for unlawful file-sharing, which might include bandwidth throttling or account suspension — these sanctions will be a matter for the business secretary to establish, once infringement notifications have been tried out for a year.

According to the draft code, rights holders will send ISPs copyright infringement reports (CIR), indicating the levels of infringement on their networks and listing the details of those thought to be responsible. These details, including the relevant IP address, port number and the start and end of the relevant session, would have to be sent to the ISP within 10 working days of the evidence being gathered.

CIRs would have to be accompanied by a report detailing the processes and systems used by the rights holder to gather evidence, and Ofcom says it may require these processes and systems to be audited by "an appropriate independent party".

ISPs will have to notify subscribers whose details have been mentioned in a CIR. The second notification would be triggered by the first CIR to be received at least a month after the date of the notification, with the same gap being necessary between the second and third notifications. "This time-based notification approach essentially provides a means to make subscribers aware of reported infringements and to allow escalation if they continue to be identified engaging in online copyright infringement," Ofcom said.

If a subscriber is notified three times within a year, they can be included on a copyright-infringement list — this anonymised list can be requested by any copyright holder who has made at least one infringement report about the relevant subscriber. Once they have received the list, the copyright holder would have to apply to a court to obtain specific subscribers' identities.

"In order that the identification process is sufficient to ensure that subscribers receiving notifications have been reliably identified, we propose that ISPs should have in place effective technical systems to match IP address allocation to subscribers," Ofcom said.

Mobile networks are being excluded for now, because of the low levels of infringement believed to take place on them, and because operators would have to install expensive new systems just to be able to identify who is downloading what over their networks.

The initial obligations code will also exclude ISPs with fewer than 400,000 subscribers because, in Ofcom's words...