The second issue that arises that I didn’t address is the significance of the difference between having reason to act, and acting rationally. A negligently unseen note on the fridge door saying there is no avocado is a reason not to act on my desire to eat avocado for breakfast, according to Clayton. I’ll have to think more about how that applies to my view above.

Would the perceived irrationality come down to the fact that we all, whether we like it or not, have some differing level of knowledge, morals, beliefs etc etc and those background attributes would influence our perception of a decision.
IE, humans are not able to perceive the universe as 1+2=3. So therefore it is perfectly acceptable for us to regard one person’s “rational” decision as being irrational, but at the same time we should also accept that we are not perfect beings and that perhaps our own rationality is flawed?

Eg, in your examples, while we know that computer games are bad, there is also the variable of laziness and unwillingness to change. Therefore, based on a more complex equation involving those predispositions in a given circumstance, wouldn’t the decision in fact be rational, even if it defies the stated (simplified) logic?

WorldxChange Xnet, for example, already has a policy that customers be disconnected after 3 infringement notifications which has been in effect for several months now.

People need to keep up the pressure on their ISP to move towards a more balanced CoP, and on the government to influence the negotiations in the same direction rather than sitting back.

My issue with the extensive use of the word “guilt” especially in the phrase “guilt on accusation” is that it is misleading. Yes there is a sense in which guilt is an appropriate word, but the subject is hand is law and particularly legislation. So bandying the g-word about everywhere suggests there’s a law that has been passed that makes people guilty as in guilty-of-a-crime (http://dictionary.law.com/default2.asp?selected=847&bold=||||) not guilty as in deserving-of-punishment.

I don’t mean to come across as supporting the CoC – but I do think the ISPs are in a very hard position and have very reasonably taken their lawyers’ advice to tread carefully, and would probably have acted in a similar way were I in their shoes. The fault lies in the Act, not the CoC.

As for the legal significance of the CoC, it’s not irrelevant since terms and conditions of party ISPs will have to be changed to give effect to its provisions, and terms and conditions are generally part of one’s contract with their ISP. As for disputes under it, I’m not exactly sure on what grounds someone could challenge it, since my reading of the Act says that there must be a policy and it must be reasonably implemented (ie, the policy can’t be challenged because it is unreasonable, only because it might be implemented unreasonably – another mark against the Act). There’s always the TDR, or a breach of contract suit (depending on how it’s integrated).

As for other ISPs, it remains to be seen how they will approach their responsibilities, but I look forward to seeing some alternative policies floating around. I’m a little skeptical though and don’t expect a more consumer-focussed stance from any of them. On the other hand, is there any reason they couldn’t interpret “repeat infringer” to mean “repeat” as in 20 times? I think this is possible, if a little extreme. But I don’t think they’ll change “infringe” to require a court ruling since 92C doesn’t require that and they’d be too scared to risk such a stance.

I don’t think the week and a bit delay between the Act coming into force and public consultation ending will pose much of a problem. I imagine (hope?) those ISPs party to it will delay taking any action on receipt of copyright holder notices until the code is finalised, since there is a bit of leeway there. Just because it’s still in draft and won’t be final on the 28th, I don’t think we can just discard its relevance – ISPs are very likely to adopt it or at least a substantially similar code.

How many laws allow punishment without guilt? One rather expects that unless one has committed an offence there will not be punishment. I suppose the case you are making is that in the absence of a court judgement there is no guilt. Cool, shame that there is however punishment.

And I’m interested to know more about your confidence in the TCF’s Code of Practice (CoP). Given that it will be still in draft at the onset of S92A, public consultation not closing till March 6 what possible help will it be?

Given that it per se forms no part of the legislation, doesn’t have 100% sign up from rights holders or ISPs (telecommunication or downstream) it seems completely irrelevant and yet great faith is placed in it to mitigate the abnegation of responsibility Government demonstrated in its vague language, delegating this matter to ISPs & rights holders. In my humble opinion they completely failed the remainder of their constituency.

Perhaps it is as Shakespeare wrote:

When workmen strive to do better than well,
They do confound their skill in covetousness;
And oftentimes excusing of a fault
Doth make the fault the worse by the excuse,
As patches set upon a little breach
Discredit more in hiding of the fault
Than did the fault before it was so patch’d.

Shakespeare – King John, Act IV, scene II

(In the public domain, until the covetous retrospective extension of copyright engulf everything.)