The slides are also available on Slideshare.
Deb Act Talk April 2010
View more presentations from lilianedwards.
Showing posts with label DEB. Show all posts
Showing posts with label DEB. Show all posts
Friday, April 23, 2010
Law and sausages: How Not to Legislate for the Digital Economy
The audio of this talk at Sheffield Cafe Scientitfique (an hour long, sorry!) is now here for those who wish at http://www.radio4all.net/index.php/program/42040&63509 along with the powerpoint slides.
The slides are also available on Slideshare.
The slides are also available on Slideshare.
Thursday, April 08, 2010
Social Media 1 : Democracy 1 (after extra time)
More fascinating fall out from last night's DEB debates: via a random tweet, Phil Gyford writes
"On the plus side — let’s end on an up note — I was cheered by some aspects of all this. I was pleased that there are MPs, in all parties, who understand these matters and try to change things. Too few, too late, but even so. Quite aside from this particular bill, seeing MPs stand up against their party whip and speak out against what they believe is right was encouraging. My opinion of MPs couldn’t have been much lower recently, and this glimmer of light was welcome. More of that please.
I’m also feeling positive personally about all this. I genuinely enjoyed spending two evenings watching the House of Commons. I found it interesting and would like to do that more. For the first time in a long time, after months and years of my opinion of politics and MPs and government withering away I’m interested and want to get involved somehow. Even if that just means paying more attention, a fraction of the attention we payed to this bill, that’s an improvement."
I feel a bit the same actually. So is democracy dead or isn't it? Discuss!
Anyway , I've realised this is the second half of my projected inaugural lecture, "Anti-Social Networking", on May 21.
First half: anti-social networking - all the stuff we Internet lawyers go on about in relation to the social networks people love: loss of privacy, data collection, targeted advertising, stalking, pedophile grooming, bullying, fraud, you name it.
But second half - PRO social networking - what we did last night. Common cause. Creativity. Information sharing. Community building. Future planning. From representational democracy to personal responsibility.
I think I have a lecture!
And that's all folks
The DEB has now officially passed and become law at 4pm 8 April 09.
Pangloss may now look at the shredded remnants of the rest of her duties..
Pangloss may now look at the shredded remnants of the rest of her duties..
Last night: the DEB passes in the Commons
And after the 3am tweetwake, the weary rise and totter towards their laptops..
Law
Well. Much has been covered elsewhere. There is a useful crib at the Guardian, which is, I think, mainly right except for cl 18, on which see below. What can I add? First two points: one, the DEB has not actually passed yet. Yes it was voted through (in as much noted, an almost empty Commons by 189 to 47. But it still has to go through Lords this afternoon. That will almost certainly happen on the nod.
Two, "clause 18" or "s 97B" - infamously allowing court orders to be sought to block sites which may conceivably be expected to assist in copyright infringement eg Google :-) - has neither been deleted not retained. There is much confusion on this. Despite Lib Dem opposition at the eleventh hour, the government & Tories did in esence force this clause through on the whip. However the form it now takes (or will, it seems take) is that there will NOT be an amendment to the Copyright D&PAct - but instead a power is given the Minister to introduce regulations - NOT new primary legislation - to achieve this, next session.
I have already written about substantively the same clause at length before, saying it made matters worse not better, but the interesting formulation I did not highlight before is this:
Note that "may". This doesn't have to happen. Indeed, it is specifically not to unless the measures are shown to be proportionate AND use of the internet for activities that infringe copyright is shown to be having a serious adverse effect on businesses or consumers . See subs 3 of amendment 7. No new law has been inserted into any other currently existing law. The next government - absolute majority or hung - can decide to bury this. All those MPs who wrote back saying they didn't like cl 18 - and especially the Lib Dems, if they do take the balance of power next session, who promised to take cl 18 out - this is something to consider. Indeed if no such resistance is organised at the next Parliament, especially by the Lib Dems, serious questions should be asked.
Other basic points: clause 43 on orphan works, not much liked but believed by some to be better than nothing, went, as the Tories channelled the photographer's lobby. I still sort of wonder why they have more clout than the entire rest of the non-music digital economy. (Perhaps the parties were worried if they opposed them , no one would take photos of them campaigning? :-) A few other tweaks were made. But basically the Bill goes through as per 2nd reading.
But. There still needs to be a consulation by Ofcom as to whether disconnection is really a good idea and a vote in both Houses. There still has to be consultation on whether web blocking is a good thing and a similar vote. There is still a great deal to play for here. The message to those who opposed to the DEB is not to go home with their ball - not yet anyway. Which brings me to -
Politics
In some ways this is a much brighter section. As much discussed round the blogosphere, the last two days have been something of a revelation - albeit an unpleasant one - to thousands of British people who have never stepped into the palace of Westminster or attended a hustings meeting. Via the miracles of iPlayer and Parliament TV, we have all seen the pitifully under occupied Commons debate chamber and yet the sudden flood of MPs from bars and offices when a vote is called; and via the equal miracle of Twitter, we have discussed, mocked, and revenged ourselves on those MPs and their invisible friends and financiers.
This is, ironically, the surveillance (sousveillance?) society in action: those in power who are used to being largely secluded from those governed, have found themselves watched from above, criticised and found wanting. Last night, as intelligence flowed at the speed of fibre round the Twitter network, was the most fascinating political occasion Pangloss has ever seen. This may come to be seen as the first battle of the social media vs old style democracy wars: our own Battle of Canary Wharf, if you like.
Creativity flowed, as geeks expressed their horror at apparent contempt for their views in the only way they know how : via software. See eg here, here and here. (This Slapometer is also not DEB specific but kind of fun if you've had a hard few days.)
Meanwhile, the #debill hashtag became the second busiest tag in the world (not just the UK) last night - attracting the attention not just of Brits but of people worldwide to what was going on. Tweets came in at about one a second. At least 8 times as many people tweeted on the DEB as about the general election as a whole. This is political engagement with a vengeance - just what the parties have said for years they wanted, especially from the young. Well, beware getting what you ask for, appears to be the bottom line , because these people are not happy with (non?) representational democracy. At all.
Where will this go? Internet naming and shaming of last night's rollcall has grown like topsy. One suggestion is that voters should vote against DEB yes-votes or absentee MPs where they inhabit marginal seats, as a kind of Sicilian revenge. Naturally the list of MPs this would apply to is already up there. Many are also likely to respond by not voting at all, or voting for marginal parties like the Greens. Others take the view that it is time to engage with power, not via party poitics but in online fora, such as the newly announced ORG regional fora.
Will we see one-cause or one -time MPs beginning to emerge more widely? or is UK politics too resistant to this for any headway to be made, pace the Greens, the Pirates? We will see. I almost wouldn't mind finding out myself, perhaps.
But what this DEBacle (ho ho) has indubitably shown up is (a) the techno-illiteracy of most MPs, and indeed, most front bench ministers (with a few glorious exceptions, hello Tom Watson) and (b) the regulatory capture of all major parties in this smug bankrupt Parliament by vested and cash rich interests.
One way or another, I think the DEB will go down in history as having been a turning point about a lot more things than downloading.
Law
Well. Much has been covered elsewhere. There is a useful crib at the Guardian, which is, I think, mainly right except for cl 18, on which see below. What can I add? First two points: one, the DEB has not actually passed yet. Yes it was voted through (in as much noted, an almost empty Commons by 189 to 47. But it still has to go through Lords this afternoon. That will almost certainly happen on the nod.
Two, "clause 18" or "s 97B" - infamously allowing court orders to be sought to block sites which may conceivably be expected to assist in copyright infringement eg Google :-) - has neither been deleted not retained. There is much confusion on this. Despite Lib Dem opposition at the eleventh hour, the government & Tories did in esence force this clause through on the whip. However the form it now takes (or will, it seems take) is that there will NOT be an amendment to the Copyright D&PAct - but instead a power is given the Minister to introduce regulations - NOT new primary legislation - to achieve this, next session.
I have already written about substantively the same clause at length before, saying it made matters worse not better, but the interesting formulation I did not highlight before is this:
The Secretary of State may by regulations make provision about the
granting by a court of a blocking injunction in respect of a location on the
internet which the court is satisfied has been, is being or is likely to be used
for or in connection with an activity that infringes copyright.
Note that "may". This doesn't have to happen. Indeed, it is specifically not to unless the measures are shown to be proportionate AND use of the internet for activities that infringe copyright is shown to be having a serious adverse effect on businesses or consumers . See subs 3 of amendment 7. No new law has been inserted into any other currently existing law. The next government - absolute majority or hung - can decide to bury this. All those MPs who wrote back saying they didn't like cl 18 - and especially the Lib Dems, if they do take the balance of power next session, who promised to take cl 18 out - this is something to consider. Indeed if no such resistance is organised at the next Parliament, especially by the Lib Dems, serious questions should be asked.
Other basic points: clause 43 on orphan works, not much liked but believed by some to be better than nothing, went, as the Tories channelled the photographer's lobby. I still sort of wonder why they have more clout than the entire rest of the non-music digital economy. (Perhaps the parties were worried if they opposed them , no one would take photos of them campaigning? :-) A few other tweaks were made. But basically the Bill goes through as per 2nd reading.
But. There still needs to be a consulation by Ofcom as to whether disconnection is really a good idea and a vote in both Houses. There still has to be consultation on whether web blocking is a good thing and a similar vote. There is still a great deal to play for here. The message to those who opposed to the DEB is not to go home with their ball - not yet anyway. Which brings me to -
Politics
In some ways this is a much brighter section. As much discussed round the blogosphere, the last two days have been something of a revelation - albeit an unpleasant one - to thousands of British people who have never stepped into the palace of Westminster or attended a hustings meeting. Via the miracles of iPlayer and Parliament TV, we have all seen the pitifully under occupied Commons debate chamber and yet the sudden flood of MPs from bars and offices when a vote is called; and via the equal miracle of Twitter, we have discussed, mocked, and revenged ourselves on those MPs and their invisible friends and financiers.
This is, ironically, the surveillance (sousveillance?) society in action: those in power who are used to being largely secluded from those governed, have found themselves watched from above, criticised and found wanting. Last night, as intelligence flowed at the speed of fibre round the Twitter network, was the most fascinating political occasion Pangloss has ever seen. This may come to be seen as the first battle of the social media vs old style democracy wars: our own Battle of Canary Wharf, if you like.
Creativity flowed, as geeks expressed their horror at apparent contempt for their views in the only way they know how : via software. See eg here, here and here. (This Slapometer is also not DEB specific but kind of fun if you've had a hard few days.)
Meanwhile, the #debill hashtag became the second busiest tag in the world (not just the UK) last night - attracting the attention not just of Brits but of people worldwide to what was going on. Tweets came in at about one a second. At least 8 times as many people tweeted on the DEB as about the general election as a whole. This is political engagement with a vengeance - just what the parties have said for years they wanted, especially from the young. Well, beware getting what you ask for, appears to be the bottom line , because these people are not happy with (non?) representational democracy. At all.
Where will this go? Internet naming and shaming of last night's rollcall has grown like topsy. One suggestion is that voters should vote against DEB yes-votes or absentee MPs where they inhabit marginal seats, as a kind of Sicilian revenge. Naturally the list of MPs this would apply to is already up there. Many are also likely to respond by not voting at all, or voting for marginal parties like the Greens. Others take the view that it is time to engage with power, not via party poitics but in online fora, such as the newly announced ORG regional fora.
Will we see one-cause or one -time MPs beginning to emerge more widely? or is UK politics too resistant to this for any headway to be made, pace the Greens, the Pirates? We will see. I almost wouldn't mind finding out myself, perhaps.
But what this DEBacle (ho ho) has indubitably shown up is (a) the techno-illiteracy of most MPs, and indeed, most front bench ministers (with a few glorious exceptions, hello Tom Watson) and (b) the regulatory capture of all major parties in this smug bankrupt Parliament by vested and cash rich interests.
One way or another, I think the DEB will go down in history as having been a turning point about a lot more things than downloading.
Wednesday, April 07, 2010
Yesterday's debate
is now up on Hansard and will, i think, be a fascinating historical record of parliamantary attitudes to technology c 2010 :-)
From Austin Mitchell, Lab MP's speech:
and from the ever excellent Tom Watson, Lab MP:
From Austin Mitchell, Lab MP's speech:
I heard all the Secretary of State’s answers about how the House of Lords has devoted its usual frenzied, hectic consideration to the Bill, full-time, for months and months, and how the Government have conducted a full consultation with all the outside interests. However, I am suspicious, because if it has had such full consideration, why are so many of my hon. Friends upset at the speed at which it is going through? Why am I getting more e-mails than I can competently deal with now that I am in half-campaigning mode, saying, “This is a bad Bill. Stop it. We don’t want it and we are threatened”, from people more active and interested in the internet than I am?
The e-mails are mainly from young people, who feel threatened by the Bill. They may be wrong, they may not be threatened by it and the procedures for cutting off their access through the service provider may be fair, just, wholesome and very effective, but they still feel threatened. It will take time to explain things to them, and to examine their worries and discuss them. When I have replied to their e-mails, their answer has always been, “This is a Bill on which the big boys, the big corporations and the big businesses, which are now involved in the internet, have all been well consulted. Their voices have been well heard and they have dominated the consideration of the Bill. It is far too favourable to them and far too unfavourable to the little guy.” The little guy—in particular, the people indulging in harmless file sharing out of interest—is how the people writing to me see themselves.
That is a complex argument, but it is true that the big corporations and big business have loud voices and that the House of Lords is a natural forum for the expression of those loud voices and opinions. When discussing the Bill we have talked about peer-to-peer transfers, but peer-to-vested-interest transfers are a major part of the process.
...Logic says to the Government and the precautionary principle says to me, “If it is doubtful, if you are not sure, if you have not consulted and if there are voices that need to be heard, do not rush into doing anything. In particular, do not rush into legislation.”
and from the ever excellent Tom Watson, Lab MP:
I know that the worthy intention of those on all three Front Benches is to defend our creative industries. Everyone in this Chamber wants to do that... However, more enlightened members of both main parties privately tell me that they know that the copyright measures in this Bill are nonsensical. They say that they will give the big publishing interests that dominate the debate in this country a period of respite, during which they can compose themselves while they consider their next moves in the internet age.
I admire the Bill’s motives in respect of copyright, but there is an opportunity cost associated with defending old publishing interests. Innovations will not stop in our competitor countries while we give the UK record industry time to think.
There is a less charitable, more sinister view of this Bill. I readily admit that it might play into the conspiracy theories so ably portrayed by the previous two speakers, but the attempts to create artificial scarcity with information goods represent a second enclosure movement in this country. The intangible assets of our society are being packaged up in a contemporary expansion of intellectual property.
..
It is hard to describe to colleagues how our digital natives—the people who entered the world of work without thinking of the internet as a “new” technology—think about the anachronistic ideas that underpin the thinking behind this Bill. They understand the power and the beauty of the serendipitous hypertext link, and believe that it is part of human nature to take an idea and use it—to play with it and remix it into something new, as the hon. Member for Mid-Worcestershire (Peter Luff) described.
If hon. Members are beginning to think that I have taken leave of my senses with that comment, they should think about the Gene Hunt poster. What are the barriers to entry for young people who want to make a political statement? To take control of two images, they would have to sign a cumbersome licensing deal so that they could remix them and thus spark a debate, but in fact the remix event that took place caused thousands of young people to talk about the future. If we do not accept that that represents a cultural change in Britain, we will be forever doomed to holding debates that will appear merely futile to those young people.
ps has there ever before been a Parliamentary debate with quite so many mentions of Star Wars?? Not to mention Charles Stross, C Shirky and Christopher Brookmyre..!
DEB 2nd reading, HC (& a few musings on party politics & Twitter)
The Digital Economy Bill has passed its Second Reading in the Commons and goes to its final vote tomorrow.
Today in Parliament was not inspiring viewing, although Tom Watson and John Redwood, inter alia, made commendable good sense. Austin Mitchell , Lab MP , (who had earlier tried to get an early day motion re the Bill) was declared King of the Internet for the Day, for actually knowing about things like Charlie Stross and the "long tail". Pete Wishart, ex Runrig & now SNP, ranted. They weren't very good as a band either.
Despite these gems, as some tweeted, 20,000 people wrote to MPs,646 Members of Parliament, 36 turned up : not a good advert for democracy, especially in respect of eleventh hour still intensely disputed legislation. The Tories suddenly decided they didn't like the orphan works clause for its mysterious but unfortunate effects on photographers (who clearly have more hit points than geeks - one tweeter suggested this was because lots of old people take photos, whereas young people, who dislike the rest of the Bill, don't vote) ; the Lib Dems stuck to their guns in opposing the clause they themselves invented (sorry! I meant the BPI invented); and Labour, largely, wasn't there. it was most edifying.
Pangloss went on Radio 2 drivetime, spoke to Richard of Judy fame (I believe, m'lud) and tried to explain all this to people stuck in gridlock. This was less than simple.
A very large number of ordinary people appeared to watch the debate on iPlayer. Mostly they came away appalled to mutinous about the empty House, the bad Star Wars jokes apparently tailored for the nerds who must surely be the only people interested in the future of the digital economy, and the strange Parliamentary habit of dissing the Bill but then voting for it anyway, as per the whip.
It will be interesting to see longterm what effect widespread live-Tweeting plus iPlayer/Parliament TV access to debates may have on arcane Westminster procedures. Some, one hopes. Certainly it will be fascinating to see if MPs becomes aware that their actual constituents (and voters in a month's time) can see them waving their cock tails in their weird and wonderful natural habitat - and, judging by the backstream, come away largely unimpressed. Certainly the Lib Dems lost a lot of techy votes today. Tom Watson MP on the other hand, who sat reading tweets between speakers, came away with a lot of new supporters.
Twitter/iPlayer/blogs give individual MPs, not just parties, access to the public consciousness, and thus a chance to resist the uniformity of the whip, in a way not seen since the rise of party politics - plus a chance for the public, largely disenfranchised except every five years in the current system, to very easily know what the MPs they vote for are actually up to, and to respond angrily if they don't like it. Representational democracy is morphing here, assisted by other grassroots enablers such as TheyWorkForYou.com, Whatdotheyknow.com and 38 Degrees. This may do remarkable things for the Commons - I hope I will see this. (Interestingly the first two of these were created by the excellent MySociety whose founder Tom Steinberg is now advising the Tories in this campaign.)
Oneof the more far out suggestions tonight was that the House should have had a "tweetfall" screen in the background on which appalled tweets could have unfurled. This is a common device at conferences these days, and perhaps , as at least a salutary reminder of the electorate, not such an insane suggestion after all?
Meanwhile, back at the DEB, the Law Society of Scotland - hardly a hot bed of radical copyright abolitionists and technonerds - has issued an interesting statement that they view the DEB disconnection provisions as in breach of the ECHR. Refreshing for this expat Scot:-) (Thanks to Scott Wortley for this.)
Mo McRoberts, one of those people listening in as @nevali on Twitter, has been moved to write an open letter to the MPs who spoke in favour of the Bill in Second Reading. It is a really excellent letter from a non party political but very astute person.
ADDED: There is now a long long list of IT people, academics, artists and just ordinary folks who have signed on to this letter, and it is being RT ed by the demi celebs of Twitter. It is a quite remarkable piece of spontaneous grassroots bottom up participation - the sort of thing political parties long for and never get. I wonder why? Worthy of note anyway.
It looks to me that the future of the digital economy would be a lot better safeguarded if we had more input from the very involved public out there, including related professionals (technical or legal, for example), and less from MPs who have largely shown themselves (with some very welcome exceptions) to be technologically illiterate. Something to start working on after the election? One place to go may be the new Open Rights Group Forum which is designed to encourage discusion in the digital community generally, not just in ORG. I will be speaking a bit about this at the Cafe Scientifique meet in Sheffield on April 21 (at the Showroom).
A demain..
PS Someone rather funnier than me - Nick Doody of the Now Show on the DEB.
Today in Parliament was not inspiring viewing, although Tom Watson and John Redwood, inter alia, made commendable good sense. Austin Mitchell , Lab MP , (who had earlier tried to get an early day motion re the Bill) was declared King of the Internet for the Day, for actually knowing about things like Charlie Stross and the "long tail". Pete Wishart, ex Runrig & now SNP, ranted. They weren't very good as a band either.
Despite these gems, as some tweeted, 20,000 people wrote to MPs,646 Members of Parliament, 36 turned up : not a good advert for democracy, especially in respect of eleventh hour still intensely disputed legislation. The Tories suddenly decided they didn't like the orphan works clause for its mysterious but unfortunate effects on photographers (who clearly have more hit points than geeks - one tweeter suggested this was because lots of old people take photos, whereas young people, who dislike the rest of the Bill, don't vote) ; the Lib Dems stuck to their guns in opposing the clause they themselves invented (sorry! I meant the BPI invented); and Labour, largely, wasn't there. it was most edifying.
Pangloss went on Radio 2 drivetime, spoke to Richard of Judy fame (I believe, m'lud) and tried to explain all this to people stuck in gridlock. This was less than simple.
A very large number of ordinary people appeared to watch the debate on iPlayer. Mostly they came away appalled to mutinous about the empty House, the bad Star Wars jokes apparently tailored for the nerds who must surely be the only people interested in the future of the digital economy, and the strange Parliamentary habit of dissing the Bill but then voting for it anyway, as per the whip.
It will be interesting to see longterm what effect widespread live-Tweeting plus iPlayer/Parliament TV access to debates may have on arcane Westminster procedures. Some, one hopes. Certainly it will be fascinating to see if MPs becomes aware that their actual constituents (and voters in a month's time) can see them waving their cock tails in their weird and wonderful natural habitat - and, judging by the backstream, come away largely unimpressed. Certainly the Lib Dems lost a lot of techy votes today. Tom Watson MP on the other hand, who sat reading tweets between speakers, came away with a lot of new supporters.
Twitter/iPlayer/blogs give individual MPs, not just parties, access to the public consciousness, and thus a chance to resist the uniformity of the whip, in a way not seen since the rise of party politics - plus a chance for the public, largely disenfranchised except every five years in the current system, to very easily know what the MPs they vote for are actually up to, and to respond angrily if they don't like it. Representational democracy is morphing here, assisted by other grassroots enablers such as TheyWorkForYou.com, Whatdotheyknow.com and 38 Degrees. This may do remarkable things for the Commons - I hope I will see this. (Interestingly the first two of these were created by the excellent MySociety whose founder Tom Steinberg is now advising the Tories in this campaign.)
Oneof the more far out suggestions tonight was that the House should have had a "tweetfall" screen in the background on which appalled tweets could have unfurled. This is a common device at conferences these days, and perhaps , as at least a salutary reminder of the electorate, not such an insane suggestion after all?
Meanwhile, back at the DEB, the Law Society of Scotland - hardly a hot bed of radical copyright abolitionists and technonerds - has issued an interesting statement that they view the DEB disconnection provisions as in breach of the ECHR. Refreshing for this expat Scot:-) (Thanks to Scott Wortley for this.)
Mo McRoberts, one of those people listening in as @nevali on Twitter, has been moved to write an open letter to the MPs who spoke in favour of the Bill in Second Reading. It is a really excellent letter from a non party political but very astute person.
ADDED: There is now a long long list of IT people, academics, artists and just ordinary folks who have signed on to this letter, and it is being RT ed by the demi celebs of Twitter. It is a quite remarkable piece of spontaneous grassroots bottom up participation - the sort of thing political parties long for and never get. I wonder why? Worthy of note anyway.
It looks to me that the future of the digital economy would be a lot better safeguarded if we had more input from the very involved public out there, including related professionals (technical or legal, for example), and less from MPs who have largely shown themselves (with some very welcome exceptions) to be technologically illiterate. Something to start working on after the election? One place to go may be the new Open Rights Group Forum which is designed to encourage discusion in the digital community generally, not just in ORG. I will be speaking a bit about this at the Cafe Scientifique meet in Sheffield on April 21 (at the Showroom).
A demain..
PS Someone rather funnier than me - Nick Doody of the Now Show on the DEB.
Monday, April 05, 2010
DEB: the Final Countdown
Gordon Brown goes to the Palace tomorrow to dissolve Parliament, and the Digital Economy Bill goes to the House of Commons for its second, and almost certainly its last, reading. These are not unconnected. As most readers of this blog will know, the DEB is headed for "wash up", a hasty process for pushing Bills through at the end of a Parliament's lifetime, without any of the normal Commons scrutiny, and thus in theory reserved for legislation whose shape is in the main settled and whose content is uncontroversial.
If there is one thing that can be said about the DEB it is that it is not without controversy and that its many flaws have not been ironed out yet. Almost 20,000 people have now written to MPs expressing their disquiet about the Bill - a remarkable number compared to other prominent campaigns, such as the 6,000 who wrote to save Radio 6 and received endless media attention. (By contrast, most the media except the Guardian have been oddly silent on the DEB) From Twitter, from blogs and from published or reported replies to constituents, it is clear many decent, conscientious constituency MPs then went and looked at the issues, and have also been convinced the DEB's provisions on copyright enforcement are bad, ill drafted and need further work. It is also clear though, sadly, that many of these honest MPs are being pointedly ignored by their own front benches or have received false information. For many have written back to constituents saying the Bill would definitely not pass at wash up due to lack of consensus and controversy. Yet in the end this now looks to be the likeliest outcome tomorrow, with the two main parties obdurately claiming against the evidence that the Bill must go through before the end of this governmet, even despite the fact that the Liberal Democrats have, late but admirably, said they would not support the Bill in its current form at wash up.
This Bill is not fit for passing into law and should not be. As both Labour and Tory front benches have reiterated their commitment to it in principle, there seems absolutely no reason why at least the most controversial parts of the Bill - on "three strikes", disconnection, website blocking (cl 18) and to a lesser extent, orphan works and domain name management, could not be removed from wash up and reconsidered properly after the election - ie in around two months time maximum- not exactly an eternity. Since this is clearly not the current intent, it is hard to avoid the conclusion that the intention is to push through a bad and unpopular law in a rush, against the wishes of the public and of a large number of MPs, while most of both are distracted by the combo of the election itself and the aftermath of the Easter holidays. This is not democracy; it is a farce masquerading as such.
A number of academics, from IT, intellectual property and public law fields, and including myself, have written a final letter conveying our deep concerns about the DEB, both the process of passing it and the substance. It should be published in the Times tomorrow, but if not , I will reproduce it here.
In the meantime I strongly recommend reading the blog post of my former colleague, Scott Wortley, a property law academic at Edinburgh University who also teaches statutory interpretation, and a qualified practicing lawyer. He is not a "copyright activist" nor an IP lecturer; he is someone who is plain and simply worried about the creation of badly drafted laws which will not work and will need repealed or reformed after causing endless difficulty . His post is salutary reading.
My own "open letter" to MPs says simply: please demand proper debate tomorrow, and in particular ask for the holding over of cls 4-18 until after the election. The flaws I identified with cl 18, , in particular, are still all there. Similarly, many of the issues I raised about the whole of cls 4-17 are still outstanding, such as the harmful effects on public free wi fi, on universities and libraries, on small business, on digital inclusion and access to knowledge. These are real problems. This is not about "net libertarianism", or a demand for abolition of copyright. It is simply a desire for laws that work, that benefit artists and the public alike,and that will not make a mockery of the law by introducing unenforceable regulations dictated unilaterally by partisan interests.
Like the new eleventh Dr Who, whom many of us will have enjoyed watching emerging over Easter, the DEB has not yet "finished cooking". There is plenty of time to put it back into the oven of democracy after the election - whoever wins.
If there is one thing that can be said about the DEB it is that it is not without controversy and that its many flaws have not been ironed out yet. Almost 20,000 people have now written to MPs expressing their disquiet about the Bill - a remarkable number compared to other prominent campaigns, such as the 6,000 who wrote to save Radio 6 and received endless media attention. (By contrast, most the media except the Guardian have been oddly silent on the DEB) From Twitter, from blogs and from published or reported replies to constituents, it is clear many decent, conscientious constituency MPs then went and looked at the issues, and have also been convinced the DEB's provisions on copyright enforcement are bad, ill drafted and need further work. It is also clear though, sadly, that many of these honest MPs are being pointedly ignored by their own front benches or have received false information. For many have written back to constituents saying the Bill would definitely not pass at wash up due to lack of consensus and controversy. Yet in the end this now looks to be the likeliest outcome tomorrow, with the two main parties obdurately claiming against the evidence that the Bill must go through before the end of this governmet, even despite the fact that the Liberal Democrats have, late but admirably, said they would not support the Bill in its current form at wash up.
This Bill is not fit for passing into law and should not be. As both Labour and Tory front benches have reiterated their commitment to it in principle, there seems absolutely no reason why at least the most controversial parts of the Bill - on "three strikes", disconnection, website blocking (cl 18) and to a lesser extent, orphan works and domain name management, could not be removed from wash up and reconsidered properly after the election - ie in around two months time maximum- not exactly an eternity. Since this is clearly not the current intent, it is hard to avoid the conclusion that the intention is to push through a bad and unpopular law in a rush, against the wishes of the public and of a large number of MPs, while most of both are distracted by the combo of the election itself and the aftermath of the Easter holidays. This is not democracy; it is a farce masquerading as such.
A number of academics, from IT, intellectual property and public law fields, and including myself, have written a final letter conveying our deep concerns about the DEB, both the process of passing it and the substance. It should be published in the Times tomorrow, but if not , I will reproduce it here.
In the meantime I strongly recommend reading the blog post of my former colleague, Scott Wortley, a property law academic at Edinburgh University who also teaches statutory interpretation, and a qualified practicing lawyer. He is not a "copyright activist" nor an IP lecturer; he is someone who is plain and simply worried about the creation of badly drafted laws which will not work and will need repealed or reformed after causing endless difficulty . His post is salutary reading.
My own "open letter" to MPs says simply: please demand proper debate tomorrow, and in particular ask for the holding over of cls 4-18 until after the election. The flaws I identified with cl 18, , in particular, are still all there. Similarly, many of the issues I raised about the whole of cls 4-17 are still outstanding, such as the harmful effects on public free wi fi, on universities and libraries, on small business, on digital inclusion and access to knowledge. These are real problems. This is not about "net libertarianism", or a demand for abolition of copyright. It is simply a desire for laws that work, that benefit artists and the public alike,and that will not make a mockery of the law by introducing unenforceable regulations dictated unilaterally by partisan interests.
Like the new eleventh Dr Who, whom many of us will have enjoyed watching emerging over Easter, the DEB has not yet "finished cooking". There is plenty of time to put it back into the oven of democracy after the election - whoever wins.
Wednesday, March 31, 2010
Clause 18, DEB redux
Pangloss is back from Vienna where she hugely enjoyed BILETA 2010, courtesy of Erich Shweighofer and the Vienna Law Faculty and was amazed at the palatial Hapsburg museum they work in :-) More on BILETA later, I hope.
However first, because several people have asked, a few words (ha!) on the newly published government version of clause 18 of the Digital Economy Bill on website blocking (formerly amendment 120a). (NB this is not an amendment of the old cl 18 - it is entirely withdrawn and a new section inserted. It is not clear to me what this new section would be numbered but it is not 97B of the CDPA (edited))
Mainly because most (sensible!) people are only reading the accompanying letter from Mandelson, and not the text itself, the new version is getting a fairly good reception in some parts. The new section itself is however, like the famed curate's egg, good and bad in parts, but overall a complete waste of time, and should be dropped entirely before the election. Let me go through some points.
First, the original amendment 120a (as famously drafted by the BPI) defined an online location as " a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible,"
and then essentially added a power for the courts to force ISPs to block such.
Now we have a power to block (subs(4))
"(a) a location from which a substantial amount of material has been, is
being or is likely to be obtained in infringement of copyright,
(b) a location at which a substantial amount of material has been, is
being or is likely to be made available in infringement of copyright, or
(c) a location which has been, is being or is likely to be used to
facilitate access to a location within paragraph (a) or (b)."
Notice all these "likely"s? Much much wider. In essence this is a power in principle to block any site on the Internet, any search engine and any P2P clent site, however legal. Of course the govt will say this is limited by all the other things a court has to consider before making an order. Which is true. But there seems no reason at all to make this definition so much wider, especially given the government's ostensible purpose was to narrow the scope of clause 18 and make it "enforceable".
If you recall previous posts on this matter, my principle worry was that the safeguards on court orders under am 120a as-was would in fact be entirely irrelevant, as requests would simply be made for ISPs to block by rightsholders, without any need to go to court. Why would an ISP agree to do this? Well in the original version of 120a, because if they refused to block on demand, and things went to court, all the costs of the action would be dumped on the ISP - despite the fact they are merely piggy in the middle here between rightsholder and alleged infringing site.
Mandelson pledges in his open letter that this has now been changed in the interests of due process. To quote, "ISPs should not be expected to pay court costs" .
Great! but if you look at the actual regulations, all it says in subs (7)(c) is that there MAY be regulations to this effect. Or there may not. Nothing may be said in the regulations (quite likely, quite usual) in which case it will be left to courts to develop their own rules - and who knows how that might go. The Norwich Pharmacal jurisprudence on allocating costs where ISPs are asked to disclose subscriber identities might be adopted - or might not. Still pretty risky therefore for ISPs to force the obtaining of an injunction, and still likely to incentivise extra-legal website blocking by all but the most committed ISP (read for the big 6: Talk Talk?).
Which leaves me wondering why the amendments that were proposed by the Lib Dems at 3rd reading, to try to control pre-judicial blocking, and which were backed generally by civil liberties groups, are conspicuously NOT in the list of things to be included in the future regulations, either optionally or mandatorily.
No specification of what form a notice requesting blocking should take (a la DMCA) so an ISP can at least find the right site (or part of a site) and know the request comes from genuine rightsholders, with genuine grievances, and not A N Other. No need to notify a site if it is blocked without court order. And no provision for a site to go to court and demand it be unblocked or at least demand to know why it has been blocked ("stay up" a la DMCA "put back" . A model for these already existed. Why has it been pointedly ignored in favour of a profusion of "mays" and "likely"s?
As I have noted before, an ISP will not disclose the ID of a subscriber in the UK without a court order for fear of breaching the Data Protection Act. Isn't access to an entire web site or a search engine or mobile operator for *everyone*, arguably more important than one person's anonymity? The comparison makes this all seem very strange. Would we be happy if BT
could randomly decide to block phone numbers because it (or someone else) suspected the owners of those numbers of crimes, or even of the likelihood they would one day commit crimes?
But frankly if there's to be first-stage consultation on this whole huge question of website blocking after the election, why not wait till that time to decide what shape the enabling law, if any, should take? If court ordained website blocking is to be introduced it is a vast and unprecedented step. Maybe the constitutional position of the IWF should be reconsidered at the same time? Certainly its practical success in getting ISPs to block sites should be relevant - technical experts have said all along that most UK ISPs can't, in fact, reliably block at all. So should the new EC draft Directive on web blocking for child porn, announced yesterday. This is all completely cart before horse now. Cl 18 should simply be withdrawn for now, and stop wasting everyone's time in the run up to Big E-Day.
Finally all this is given especial piquancy by the fact that the English High Court, in an important case called Newzbin yesterday, decided, on its first encounter with s 97 A CDPA blocking (oh don't ask), that blanket blocking orders - asking a search engine site to block access to all sites and files everywhere - as opposed to an orders to block access to particular named copyright works which were being , demonstrably, being downloaded in reach of copyright, is illegal. This principle makes it look very likely that the new clause as proposed has in fact just been declared unlawful by the courts. To quote Kitchin J:
Parliamant can, of course, over rule the courts. Parliamentary supremacy rules OK. But really, given the vast mess the DEB and clause 18 has become, should it? Can't we wait till after the elcection and sort the whole damn thing out then with proper attention, research, consultation and decent drafting, as opposed to lobbying, intrigue, hurry and back room deals?
As a mere academic, that's how I'd like to see the legal system run. But what do I know? :-)
EDIT: Apparently not alone in this - as I pressed PUBLISH this appeared ! See Guardian, lawyer Robin Fry quoted:
"It's alarming that these blocking injunctions are to be wheeled out against websites and search engines which are not contravening any laws," says Fry. "This is a chaotic response to massive industry pressure."
However first, because several people have asked, a few words (ha!) on the newly published government version of clause 18 of the Digital Economy Bill on website blocking (formerly amendment 120a). (NB this is not an amendment of the old cl 18 - it is entirely withdrawn and a new section inserted. It is not clear to me what this new section would be numbered but it is not 97B of the CDPA (edited))
Mainly because most (sensible!) people are only reading the accompanying letter from Mandelson, and not the text itself, the new version is getting a fairly good reception in some parts. The new section itself is however, like the famed curate's egg, good and bad in parts, but overall a complete waste of time, and should be dropped entirely before the election. Let me go through some points.
First, the original amendment 120a (as famously drafted by the BPI) defined an online location as " a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible,"
and then essentially added a power for the courts to force ISPs to block such.
Now we have a power to block (subs(4))
"(a) a location from which a substantial amount of material has been, is
being or is likely to be obtained in infringement of copyright,
(b) a location at which a substantial amount of material has been, is
being or is likely to be made available in infringement of copyright, or
(c) a location which has been, is being or is likely to be used to
facilitate access to a location within paragraph (a) or (b)."
Notice all these "likely"s? Much much wider. In essence this is a power in principle to block any site on the Internet, any search engine and any P2P clent site, however legal. Of course the govt will say this is limited by all the other things a court has to consider before making an order. Which is true. But there seems no reason at all to make this definition so much wider, especially given the government's ostensible purpose was to narrow the scope of clause 18 and make it "enforceable".
If you recall previous posts on this matter, my principle worry was that the safeguards on court orders under am 120a as-was would in fact be entirely irrelevant, as requests would simply be made for ISPs to block by rightsholders, without any need to go to court. Why would an ISP agree to do this? Well in the original version of 120a, because if they refused to block on demand, and things went to court, all the costs of the action would be dumped on the ISP - despite the fact they are merely piggy in the middle here between rightsholder and alleged infringing site.
Mandelson pledges in his open letter that this has now been changed in the interests of due process. To quote, "ISPs should not be expected to pay court costs" .
Great! but if you look at the actual regulations, all it says in subs (7)(c) is that there MAY be regulations to this effect. Or there may not. Nothing may be said in the regulations (quite likely, quite usual) in which case it will be left to courts to develop their own rules - and who knows how that might go. The Norwich Pharmacal jurisprudence on allocating costs where ISPs are asked to disclose subscriber identities might be adopted - or might not. Still pretty risky therefore for ISPs to force the obtaining of an injunction, and still likely to incentivise extra-legal website blocking by all but the most committed ISP (read for the big 6: Talk Talk?).
Which leaves me wondering why the amendments that were proposed by the Lib Dems at 3rd reading, to try to control pre-judicial blocking, and which were backed generally by civil liberties groups, are conspicuously NOT in the list of things to be included in the future regulations, either optionally or mandatorily.
No specification of what form a notice requesting blocking should take (a la DMCA) so an ISP can at least find the right site (or part of a site) and know the request comes from genuine rightsholders, with genuine grievances, and not A N Other. No need to notify a site if it is blocked without court order. And no provision for a site to go to court and demand it be unblocked or at least demand to know why it has been blocked ("stay up" a la DMCA "put back" . A model for these already existed. Why has it been pointedly ignored in favour of a profusion of "mays" and "likely"s?
As I have noted before, an ISP will not disclose the ID of a subscriber in the UK without a court order for fear of breaching the Data Protection Act. Isn't access to an entire web site or a search engine or mobile operator for *everyone*, arguably more important than one person's anonymity? The comparison makes this all seem very strange. Would we be happy if BT
could randomly decide to block phone numbers because it (or someone else) suspected the owners of those numbers of crimes, or even of the likelihood they would one day commit crimes?
But frankly if there's to be first-stage consultation on this whole huge question of website blocking after the election, why not wait till that time to decide what shape the enabling law, if any, should take? If court ordained website blocking is to be introduced it is a vast and unprecedented step. Maybe the constitutional position of the IWF should be reconsidered at the same time? Certainly its practical success in getting ISPs to block sites should be relevant - technical experts have said all along that most UK ISPs can't, in fact, reliably block at all. So should the new EC draft Directive on web blocking for child porn, announced yesterday. This is all completely cart before horse now. Cl 18 should simply be withdrawn for now, and stop wasting everyone's time in the run up to Big E-Day.
Finally all this is given especial piquancy by the fact that the English High Court, in an important case called Newzbin yesterday, decided, on its first encounter with s 97 A CDPA blocking (oh don't ask), that blanket blocking orders - asking a search engine site to block access to all sites and files everywhere - as opposed to an orders to block access to particular named copyright works which were being , demonstrably, being downloaded in reach of copyright, is illegal. This principle makes it look very likely that the new clause as proposed has in fact just been declared unlawful by the courts. To quote Kitchin J:
I do not believe it would be appropriate to grant an injunction of the breadth sought by the claimants for a number of reasons. First, it is apparent from the terms of Directive 2001/29/EC that it is contemplating the grant of an injunction upon the application of rights holders, yet the claimants are seeking an injunction to restrain activities in relation to all binary and all text materials in respect of which they own no rights and about which I have heard little or no evidence. Second, I do not accept that the defendant has actual knowledge of other persons using its service to infringe all such rights. Therefore I am not persuaded I have the jurisdiction to grant such an injunction in any event. Third, the rights of all other rights holders are wholly undefined and consequently the scope of the injunction would be very uncertain. In my judgment the scope of any injunction under section 97A(2) should extend no further than that to which I have already concluded the claimants are entitled, namely an injunction to restrain the defendant from infringing the claimants' copyrights in relation to their repertoire of films. "
Parliamant can, of course, over rule the courts. Parliamentary supremacy rules OK. But really, given the vast mess the DEB and clause 18 has become, should it? Can't we wait till after the elcection and sort the whole damn thing out then with proper attention, research, consultation and decent drafting, as opposed to lobbying, intrigue, hurry and back room deals?
As a mere academic, that's how I'd like to see the legal system run. But what do I know? :-)
EDIT: Apparently not alone in this - as I pressed PUBLISH this appeared ! See Guardian, lawyer Robin Fry quoted:
"It's alarming that these blocking injunctions are to be wheeled out against websites and search engines which are not contravening any laws," says Fry. "This is a chaotic response to massive industry pressure."
Wednesday, March 17, 2010
DEB: write to MPs campaign launch
My views on the DEB are I think relatively plain:-)
38 Degrees are trying to get 10,000 people to write to their MPs in next few days to make a real impact that might lead to a debate in the Commons over the Digital Economy Bill. I feel it is an insult to democracy as well as bad for the digital economy (sic) for this Bill to pass without effective further Commons .scrutiny. See my summary here: (now confirmed by Hansard).
I imagine many people who read this blog have already written to their MPs (though I also know some readers support the Bill, which is their opinion) - but if you oppose it and haven't, please do: a form letter can be found in various places, notably here but please do tweak it to your own ends as multiple identical letters are usually discounted by MPs.
Please write via the 38 Degrees page which can count the letters sent - it's here.
What you can also do is repost this on your own blogs, social networks etc . If you follow @OpenRightsGroup (whose Advisory Council I sit on) on Twitter you will get tweets about this which are easily re-tweetable.) Please think about doing this. The Guardian comments on the campaign here. Some MPs have already said they are going to insist on having a say. About 1-3,000 people have already written.
I have just heard that the Government has already rushed through the First Reading in the Commons and the Second Reading is being scheduled. After Second Reading it is likely Committee will be skipped, as constitutionally the Bill can then be dumped in wash-up and put through in an hour. This is how sausages are made, not laws. Which reminds me..
Upcoming speaking venues
COUNTER Conference (EC FP7 funded event) Manchester, March 23rd-24th, http://www.counter2010.org/; I am on a panel Wed 24th at 1.30 which includes Richard Miollett of the BPI and looks rather interesting .
I will be speaking at Cafe Scientifique in Sheffield at the Showroom, on April 19th (not the usual date due to Easter) on "Law and sausages: how not to legislate for the Digital Economy." Free. 7-9pm. Contact C.Kuppuswamy@sheffield.ac.uk for details.
BILETA 2010, March 29th -30th, Vienna: speaking with Andreas Ruhmkorf of Sheffield University on web rating sites for teachers, doctors etc, and their legal issues in Europe. Fab looking programme.
Oxford Internet Institute, 12th-13th April, privacy event, no details yet.
IISS Cyber Warfare Workshop, London, 20 April 2010: speaking on cyber crime and cyberwar, legal aspects.
MY INAUGURAL LECTURE, Sheffield, May, 21st : "Anti-Social Networking" - all welcome , free, with drinks reception after; 5pm, St George's Church, . Please email if you're coming and want to let me know in advance!
A couple more events to add shortly in Edinburgh, London and Estonia - I must be mad..
Oh and
GIKII V: the Voyage Home - Edinburgh, 28th-29th June. Contact me or a.guadamuz@ed.ac.uk.
38 Degrees are trying to get 10,000 people to write to their MPs in next few days to make a real impact that might lead to a debate in the Commons over the Digital Economy Bill. I feel it is an insult to democracy as well as bad for the digital economy (sic) for this Bill to pass without effective further Commons .scrutiny. See my summary here: (now confirmed by Hansard).
I imagine many people who read this blog have already written to their MPs (though I also know some readers support the Bill, which is their opinion) - but if you oppose it and haven't, please do: a form letter can be found in various places, notably here but please do tweak it to your own ends as multiple identical letters are usually discounted by MPs.
Please write via the 38 Degrees page which can count the letters sent - it's here.
What you can also do is repost this on your own blogs, social networks etc . If you follow @OpenRightsGroup (whose Advisory Council I sit on) on Twitter you will get tweets about this which are easily re-tweetable.) Please think about doing this. The Guardian comments on the campaign here. Some MPs have already said they are going to insist on having a say. About 1-3,000 people have already written.
I have just heard that the Government has already rushed through the First Reading in the Commons and the Second Reading is being scheduled. After Second Reading it is likely Committee will be skipped, as constitutionally the Bill can then be dumped in wash-up and put through in an hour. This is how sausages are made, not laws. Which reminds me..
Upcoming speaking venues
COUNTER Conference (EC FP7 funded event) Manchester, March 23rd-24th, http://www.counter2010.org/; I am on a panel Wed 24th at 1.30 which includes Richard Miollett of the BPI and looks rather interesting .
I will be speaking at Cafe Scientifique in Sheffield at the Showroom, on April 19th (not the usual date due to Easter) on "Law and sausages: how not to legislate for the Digital Economy." Free. 7-9pm. Contact C.Kuppuswamy@sheffield.ac.uk for details.
BILETA 2010, March 29th -30th, Vienna: speaking with Andreas Ruhmkorf of Sheffield University on web rating sites for teachers, doctors etc, and their legal issues in Europe. Fab looking programme.
Oxford Internet Institute, 12th-13th April, privacy event, no details yet.
IISS Cyber Warfare Workshop, London, 20 April 2010: speaking on cyber crime and cyberwar, legal aspects.
MY INAUGURAL LECTURE, Sheffield, May, 21st : "Anti-Social Networking" - all welcome , free, with drinks reception after; 5pm, St George's Church, . Please email if you're coming and want to let me know in advance!
A couple more events to add shortly in Edinburgh, London and Estonia - I must be mad..
Oh and
GIKII V: the Voyage Home - Edinburgh, 28th-29th June. Contact me or a.guadamuz@ed.ac.uk.
Tuesday, March 16, 2010
Yesterday in the Lords: DEB
Hansard is out on yesterday's Third Reading and I am going to take the opportunity to quote extensively from the eloquent summary of Lord Whitty.
"
"
I regret to say that during the course of our consideration of the Bill, we have seen one of the worst examples in my memory of the political parties being captured by a producer interest. That applies not only to the Government and the bringing forward of the Bill, but to the opposition Front Benches as well. Indeed, we had the extraordinary position of the Liberal Democrat Front Bench, including the noble Lord, Lord Clement-Jones, who I know to be a decent and liberal chap in most of his political endeavour, bringing forward an amendment-which is now Clause 18-that is actually more draconian than the Government's Clause 17. I hope that at some point, when we reach that stage, they will recognise the error of their ways.Unfortunately, in terms of the balance of debate within this House, we seem to have a near unanimous position in support of the government proposals. Apart from the noble Earl, Lord Erroll, the noble Baroness, Lady Miller, myself and one or two others who have appeared maverick in this debate, this House seems to have accepted the wisdom of going through a whole range of changes in our approach both to the law and to the way in which our digital media operate. We have imposed police powers on ISPs which are reluctant to accept them. We have threatened several millions of our citizens with exclusion from the internet by administrative decree, with dubious means of identifying who was actually the perpetrator of the alleged
infringement. We have seen the Government, putatively this House and other political parties backing protectionism rather than competition and innovation, moving towards an exclusion of people from digital access rather than the inclusion that the rest of the Bill-which I fully support-provides. It has landed us with a pretty much unenforceable law that will get a penny back to the rights owners whom the legislation was intended to support. Out there, however, there is no unanimity at all. There is a very widespread opposition to the Bill from individuals who feel threatened, from parents who are concerned that measures will be taken against them because of their children's use of the internet and from employers who are worried about the same thing in relation to their staff. Surveys conducted by my organisation, Consumer Focus, indicate that 75 per cent of the population do not understand what is lawful and unlawful in this context and that a rather higher proportion, when told what is lawful and unlawful, do not support those laws.
There are alternative ways of moving to a different system of accessing copyright material on the internet. Lawful systems of file-sharing exist in the music industry and elsewhere; it is just that they have a very low recognition by the public. The survey that we conducted showed that, of the 20 such systems that are or have been in operation, none has received an awareness level above single figures in percentage terms. Yet, ultimately, at various points in this debate, we have all agreed that a move to lawful systems of file-sharing is the aim of this measure.
Anxieties about the throttling or suspension of their internet connections have been expressed by people who will not be perpetrators. This includes not only businesses and parents, as I mentioned, but also the hotel trade-which provides access to the internet as part of its services to guests-libraries, colleges and other institutions whose students use the internet and wi-fi facilities. The Government have sort of acknowledged those anxieties but they have done nothing about changing the Bill to recognise them. They say that it will all be taken care of in the wash, as Ofcom develops its code with the industry, and that all these things will be clarified and no one needs to be anxious about them.
However, despite a few ameliorations, this is still a bad Bill. It is bad for the digital rights holders to press their interests in this way, when there are alternatives, and it is bad for the Government to risk alienation of a very significant part of the population by enforcing these measures. "
Well said.
Monday, March 15, 2010
The Day Democracy Died: DEB
Disclaimer: this is is based on somewhat confused reporting via Twitter (especial thanks to Glyn Wintle) and should not be regarded as final and correct till Hansard comes out. However something needs to be said quickly.
The Lib Dem amendments I mentioned in my previous posts - alongside some equally sensible amendments designed in particular to stop every search engine being blocked under clause 18 - were rejected by the Government this afternoon in the Lords, on what appeared to be legally spurious grounds, to the clear dismay and disquiet of the Lords.
Shortly thereafter it appears some kind of deal was done whereby the Government announced they would bring forward unspecified changes to the disputed clause 18 at "wash up" - the pre election stage where legislation is pushed through with no opportunity for MPs to propose amendments or even , perhaps, make comments in debate, let alone scrutinise. It seems all opportunity for democratic amendment to the Bill has now come to an end.
In other words we are now completely dependent on the good will of the party front benches to make this Bill fit for purpose and responsive to consumer needs and the public interest - even though time and again so far it has been shown to be completely subject to regulatory capture by the sectoral interests of the music industry. The BPI strategy leaked a few days ago, namely, to crash their Bill through by avoiding at all costs public debate and parliamentary scrutiny, has been shown to be successful.
This is simply disgraceful. It is law making by industry, for industry, on the nod of all three major political parties (and against the grassroots sentiment of at least one of them). This is no longer just about copyright, or downloading, or even freedom of speeech and due process. It is about democracy, and whether this country is run by MPs or by lobbyists and Big Capital. It is a day when as a democrat, and a lawyer, (and not as a "copyright activist" as one commenter wrongly called me - I believe in copyright, I just don't believe in destroying the legal system to enforce it) ) I am deeply , deeply disappointed.
There is one way forward for here for democratic scrutiny to be restored, and that is for MPs to demand a debate at the Commons stage of the Bill and refuse to allow this messed up mockery of legislation to pass on the nod. Write to your MP and demand this. Go on one of the rallies and flash mobs planned for next week by ORG. Write to the BPI and tell then that you did not vote for them to run the country. Make your voice heard.
I know this will seem like purple prose, and I hope to revert soon to writing about Internet law matters in a more traditional academic fashion. But today, I am simply too appalled.
The Lib Dem amendments I mentioned in my previous posts - alongside some equally sensible amendments designed in particular to stop every search engine being blocked under clause 18 - were rejected by the Government this afternoon in the Lords, on what appeared to be legally spurious grounds, to the clear dismay and disquiet of the Lords.
Shortly thereafter it appears some kind of deal was done whereby the Government announced they would bring forward unspecified changes to the disputed clause 18 at "wash up" - the pre election stage where legislation is pushed through with no opportunity for MPs to propose amendments or even , perhaps, make comments in debate, let alone scrutinise. It seems all opportunity for democratic amendment to the Bill has now come to an end.
In other words we are now completely dependent on the good will of the party front benches to make this Bill fit for purpose and responsive to consumer needs and the public interest - even though time and again so far it has been shown to be completely subject to regulatory capture by the sectoral interests of the music industry. The BPI strategy leaked a few days ago, namely, to crash their Bill through by avoiding at all costs public debate and parliamentary scrutiny, has been shown to be successful.
This is simply disgraceful. It is law making by industry, for industry, on the nod of all three major political parties (and against the grassroots sentiment of at least one of them). This is no longer just about copyright, or downloading, or even freedom of speeech and due process. It is about democracy, and whether this country is run by MPs or by lobbyists and Big Capital. It is a day when as a democrat, and a lawyer, (and not as a "copyright activist" as one commenter wrongly called me - I believe in copyright, I just don't believe in destroying the legal system to enforce it) ) I am deeply , deeply disappointed.
There is one way forward for here for democratic scrutiny to be restored, and that is for MPs to demand a debate at the Commons stage of the Bill and refuse to allow this messed up mockery of legislation to pass on the nod. Write to your MP and demand this. Go on one of the rallies and flash mobs planned for next week by ORG. Write to the BPI and tell then that you did not vote for them to run the country. Make your voice heard.
I know this will seem like purple prose, and I hope to revert soon to writing about Internet law matters in a more traditional academic fashion. But today, I am simply too appalled.
Third Reading DEB
Very happy to note that the Liberal Democrats, with some input from lobby groups including independent academics such as myself, Francis Davey and Simon Bradshaw, have tabled amendments today which alleviate the worst excesses of amendment 120a. Good to see that even in the time-compressed framework of the run up to the general election, a party can still speedily take account both of external criticisms and its own grassroots and party concerns. I would still rather see both am 120a and clause 17 (now 18) go, since both raise dangers of fundamentally interfering with due process, proper scrutiny and civil liberties; but if not that, this is a step forward. Now let's see what happens today.
Amendment 14 introduces some requirements of specificity into a notice to block by a copyright owner - so an ISP can at least know what they're blocking, where it is and who is asking, and why :-)
Amendment 21, crucially, removes the presumption that just because an ISP chooses not to block without court order, it should then be held responsible for the costs of any subsequent court proceedings - something which would indubitably have had a highly chilling effect and commanded default take down.
Amednment 22 provides that if an ISP still chooses to accept a request to block without insisting on a court order, the site to be blocked must receive notice of this, and then has the option of going to court for a "stay up" order - essentially an opportunity to demand proof in open court that they are truely doing anything illegal. In such proceedings the court is asked to take into account the factors it would have considered if it had originally been asked to make a blocking order - including freedom of speech. Effectively therefore, extralegal requests for blocking should meet the same standards of process & human rights as those sought via court order.
Further more in such proceedings, the court has the option of making an order for damages against the copyright owner if either the site to be blocked , or the ISP, has suffered loss as a result. Hopefully, this should act as a disincentive to frivolous or erroneous demands for blocking.
There are other useful amendments up, notably from the Earl of Erroll, but still far, far fewer than would be needed to make any sense of this retrogressive legislation.
More later.
Amendment 14 introduces some requirements of specificity into a notice to block by a copyright owner - so an ISP can at least know what they're blocking, where it is and who is asking, and why :-)
Amendment 21, crucially, removes the presumption that just because an ISP chooses not to block without court order, it should then be held responsible for the costs of any subsequent court proceedings - something which would indubitably have had a highly chilling effect and commanded default take down.
Amednment 22 provides that if an ISP still chooses to accept a request to block without insisting on a court order, the site to be blocked must receive notice of this, and then has the option of going to court for a "stay up" order - essentially an opportunity to demand proof in open court that they are truely doing anything illegal. In such proceedings the court is asked to take into account the factors it would have considered if it had originally been asked to make a blocking order - including freedom of speech. Effectively therefore, extralegal requests for blocking should meet the same standards of process & human rights as those sought via court order.
Further more in such proceedings, the court has the option of making an order for damages against the copyright owner if either the site to be blocked , or the ISP, has suffered loss as a result. Hopefully, this should act as a disincentive to frivolous or erroneous demands for blocking.
| | Clause 18 |
| | LORD CLEMENT-JONES |
| | LORD RAZZALL |
| 14 | Page 22, line 16, at end insert— |
| "(1A) | The copyright owner applying for an injunction under subsection (1) shall first have given notice to the service provider in accordance with subsections (1B) to (1F). |
| (1B) | The notice must be in writing, deliverable electronically, contain the name, registered address and contact details of the copyright owner claiming infringement, and prove, by digital signature or otherwise, that it comes from the said copyright owner. |
| (1C) | The notice must be addressed to the address or agent designated by the service provider for the receipt of such requests. |
| (1D) | The copyrighted work of the owner claimed to have been infringed must be stated, or, if multiple copyrighted works at a single online location are covered by a single notification, a representative list given of such works at that site. |
| (1E) | Information must be included reasonably sufficient to permit the service provider to locate the online location to be blocked. |
| (1F) | The copyright owner must also take reasonable steps to deliver a copy of the notice to the operator of the online location."
|
There are other useful amendments up, notably from the Earl of Erroll, but still far, far fewer than would be needed to make any sense of this retrogressive legislation.
More later.
Wednesday, March 10, 2010
Sometimes I Wish I was American..
So while we continue merrily to sail ahead imposing unmanageable legal liability on those who dare offer free public wi fi, in America par contraire the FCC are thinking of rolling it out nationwide as part of their national broadband plan - says the Huffington Post.
Guess the US doesn't have any of those pesky downloaders, huh??
As part of public record, though I'm hardly the first to do so meanwhile, let me also point you at the Open Letter to the Liberal Democrats in the FT today, from many Great and Good, including various ISPs and telcos, Google, Facebook, ORG, leading academics and of course, Stephen Fry :-) Let us hope that the Liberal Democrats, who I know, are taking criticism of their amendment very seriously, will make appropriate further amendments as soon as possible.
(As for "Internet up for Nobel peace Prize" - um, is it April already? my how time flies! or is this a subtle Italian attempt to currypublic favour after the Google fiasco?! Mamma mia!)
Guess the US doesn't have any of those pesky downloaders, huh??
As part of public record, though I'm hardly the first to do so meanwhile, let me also point you at the Open Letter to the Liberal Democrats in the FT today, from many Great and Good, including various ISPs and telcos, Google, Facebook, ORG, leading academics and of course, Stephen Fry :-) Let us hope that the Liberal Democrats, who I know, are taking criticism of their amendment very seriously, will make appropriate further amendments as soon as possible.
(As for "Internet up for Nobel peace Prize" - um, is it April already? my how time flies! or is this a subtle Italian attempt to currypublic favour after the Google fiasco?! Mamma mia!)
Friday, March 05, 2010
Yesterday Not Quite in Parliament
Putting some links here today and yesterday as one-stop shop for people interested in the ongoing debate on DEB
Faintly worrying interview with L Clement-Jones of the LibDems re am 120a - is this er really how laws should be made? By trying to read the mind of ministers?
I am begining to think this lack of pror obligation on the rightsholders to meet a standard of proof of evidence before sanctions are taken is the key point for all parts of the DEB : whether it's the BPI (say) sending 1 million allegations of filesharing to ISPs to pass on to users as notifications, or the same body asking ISPs to block a site without any need for proof of its "business model" being based on piracy, in the sure knowledge that 99 out of 100 ISPs will not demand a court order where they could get stuck with the costs.
Take another area of law. UK ISPs uniformly refuse to give out subscriber details without a court order (a "Norwich Pharmacal" order) because they believe to do so would breach the data protection act. Would it be so difficult to devise a law which made it illegal for an ISP to be bullied into blocking a site (or "online location") without a court order? Then the safeguards in am 120a would actually have some traction. Of course this opens a whole can of worms about non-court ordained blocking of sites by ISPs for other purposes; notably because they appear to be spammers or distributors of malware, or , controversially, as a result of the extralegal IWF blocklist for sites hosting images of child sexual abuse. But it is still, I think, worth a thought.
Faintly worrying interview with L Clement-Jones of the LibDems re am 120a - is this er really how laws should be made? By trying to read the mind of ministers?
"What is the purpose of Amendment 120a?
A: The purpose is very clear — it's to prevent copyright infringement.It replaces Clause 17, which the Lib Dems opposed, does it not?
It's a much more specific way of replacing Clause 17. We took objection to the fact that the government would change copyright law by order.We kept saying: "Show us a situation where you think you're going to need this kind of power." The government, frankly, didn't come back, but we came to the conclusion with the Conservative front bench that this was a matter of doing something now to prevent some of these overseas websites infringing copyright and getting away with it. It's a growing problem.:"
And also apparently from the LibDem camp an interesting piece by Lee Griffin defending am 120a - some points I vigorously disagree with (no bad law should pass on the assumption the courts will be too sensible to enforce it, an idea which seems to permeate this debate)l but also some good sense:
"What 120a doesn’t tackle in any way shape or form is the current problem which is of the copyright owner having to pass a burden of proof before they are able to send threatening legal literature. The same can be said for our libel laws."
I am begining to think this lack of pror obligation on the rightsholders to meet a standard of proof of evidence before sanctions are taken is the key point for all parts of the DEB : whether it's the BPI (say) sending 1 million allegations of filesharing to ISPs to pass on to users as notifications, or the same body asking ISPs to block a site without any need for proof of its "business model" being based on piracy, in the sure knowledge that 99 out of 100 ISPs will not demand a court order where they could get stuck with the costs.
Take another area of law. UK ISPs uniformly refuse to give out subscriber details without a court order (a "Norwich Pharmacal" order) because they believe to do so would breach the data protection act. Would it be so difficult to devise a law which made it illegal for an ISP to be bullied into blocking a site (or "online location") without a court order? Then the safeguards in am 120a would actually have some traction. Of course this opens a whole can of worms about non-court ordained blocking of sites by ISPs for other purposes; notably because they appear to be spammers or distributors of malware, or , controversially, as a result of the extralegal IWF blocklist for sites hosting images of child sexual abuse. But it is still, I think, worth a thought.
Thursday, March 04, 2010
More Clarity at T'Bill
Terrific piece explaining very clearly why the LibDem amendment is a bad thing and can be abused to stop press freedom at Francis Davey's blog.
Comment on web lockers and why users have the right to store their own data privately and confidentially, without being presumed to be copyright pirates (among other points) at Boing Boing
The Guardian has picked up the story, with quotes from moi.
Comment on web lockers and why users have the right to store their own data privately and confidentially, without being presumed to be copyright pirates (among other points) at Boing Boing
The Guardian has picked up the story, with quotes from moi.
Wednesday, March 03, 2010
(More) Trouble At T'Bill
Remember that stuff about the road to hell being paved with good intentions? Well here's a worked example for modern times...
The Lib Dems, in an apparent good-faith attempt to avoid supporting the Government's proposed unlimited power to change any law on IP, any time, any where, without proper scrutiny, in clause 17 of the Digital Economy Bill, came up with an alternative which almost everyone BUT the LibDems and the Tories thinks is probably even worse. It's a remarkable day indeed in the DEB saltmines when you see the government minister and the fabulous Earl of Errol agreeing on anything. But also a rather disturbing one.
So now it seems that pro tem at least amendment 120a has passed, at least according to live tweeter Glyn Wintle (no Hansard text up yet - but confirmed by ORG), stating:
"Amendment 120a
So there we are. Let's be positive and start with..
(4) Note the above 2 points assume that only the ISP is empowered to defend the action, if they so wish. Yes, the provision does say that notice should be given to the site owner (s 97(3)). But it does not say they are entitled to defend the action - that would be left for rules of court to decide. And in the more than likely event that no court order was needed anyway, because the ISP just agreed to block on notification, there would be no chance for the blocked site either to demand notice or demand a hearing in court. This has already happened with the IWF blocklist: remember when the IWF told ISPs to block a picture of a record cover by the Scorpions hosted by Wikipedia? Wikipedia didn't get notice (they found out when complaints flooded in ) nor a route to appeal to the courts. The banned site is a third party in this dispute , not a defendant - a really bad situation for due process rights.
Take proof of "innocence" again. Of course it's only the blocked site itself which really knows if it is a haven for copyright infringement or not, not the ISP. Yet it's the ISP who's meant to put up a defense, not the site. This is just plain silly. (And that's before we get to considering sites where content is encrypted. Do we just presume that that MUST mean pirated music files? What if it's legitimate corporate trade secret material in cloud storage?? What if it's confidential client data?)
(5) Scope of who gets blocked. This isn't just about web sites, still less about these far famed cyber lockers. Did they really mean to include an entire mobile network in the definition of an "online location"? Does that means if little Johnny uses his smartphone and 02 connection to share infringing downloaded music, Sony can get a court order to somehow block the whole 02 network? God knows. Sounds like very bad drafting to me. A location is also somewhere "via which copyright infringing content is accessible". Does that include Google?? Bye bye Google. it's been nice knowing you.
If any of this sounds dodgy to you, take action. Write to your MP or local paper. Follow ORG's advice here.
Finally -
Alternative aproaches:
if we're going to do this, let's do it half well. We can learn a lot from the US DMCA experience here. Some quick thoughts.
(a) Make the site to be blocked explicitly co-defendant with the ISP.
(b) Provide an appeal to courts or tribunal for sites blocked without court order, possibly via DMCA type put-back provisions (though these have not been much if at all used in the USA).
(c) To balance things out, allow rights holders and their trade bodies rights to join as parties in any such put-back litigation.
(d) Leave the normal discretion to the courts to allocate court costs as seems fair; no presumption ISP pays all, simply because they don't and can't know who's telling porkies.
(e) Provide a good faith safe harbour for ISPs who block with or without an order, and then find themselves sued for tortious interference with business, libel, breach of contract or similar.
(f) Consider restricting ability to apply for s 97B order to public body required to consider public interest NOT any industry player or other person - OFCOM might be the appropriate body. Rightsholders would apply to OFCOM (say) t take their case, rather as with criminal prosecutions.
(g) If not (f) at least consider sanctions for rightsholders making unfounded applications for s 97B court orders (as is true in DMCA without sky falling).
The Lib Dems, in an apparent good-faith attempt to avoid supporting the Government's proposed unlimited power to change any law on IP, any time, any where, without proper scrutiny, in clause 17 of the Digital Economy Bill, came up with an alternative which almost everyone BUT the LibDems and the Tories thinks is probably even worse. It's a remarkable day indeed in the DEB saltmines when you see the government minister and the fabulous Earl of Errol agreeing on anything. But also a rather disturbing one.
So now it seems that pro tem at least amendment 120a has passed, at least according to live tweeter Glyn Wintle (no Hansard text up yet - but confirmed by ORG), stating:
"Amendment 120a
LORD CLEMENT-JONES
LORD HOWARD OF RISING
Leave out Clause 17 and insert the following new Clause—
"Preventing access to specified online locations for the prevention of online copyright infringement
In Part 1 of the Copyright, Designs and Patents Act 1988, after section 97A insert—
"97B Preventing access to specified online locations for the prevention of online copyright infringement
(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court for the prevention of online copyright infringement.
(2) In determining whether to grant an injunction under subsection (1), the Court shall have regard to the following matters—
(a) whether a substantial proportion of the content accessible at or via each specified online location infringes copyright,
(b) the extent to which the operator of each specified online location has taken reasonable steps to prevent copyright infringement content being accessed at or via that online location or taken reasonable steps to remove copyright infringing content from that online location (or both),
(c) whether the service provider has itself taken reasonable steps to prevent access to the specified online location,
(d) any issues of national security raised by the Secretary of State.
(e) the extent to which the copyright owner has made reasonable efforts to facilitate legal access to content,
(f) the importance of preserving human rights, including freedom of expression, and the right to property, and
(g) any other matters which appear to the Court to be relevant.
(3) An application for an injunction under subsection (1) shall be made on notice to the service provider and to the operator of each specified online location in relation to which an injunction is sought and to the Secretary of State.
(4) Where—
(a) the Court grants an injunction under subsection (1) upon the application of an owner of copyright whose copyright is infringed by the content accessible at or via each specified online location in the injunction, and
(b) the owner of copyright before making the application made a written request to the service provider giving it a reasonable period of time to take measures to prevent its service being used to access the specified online location in the injunction, and no steps were taken,
the Court shall order the service provider to pay the copyright owner's costs of the application unless there were exceptional circumstances justifying the service provider's failure to prevent access despite notification by the copyright owner.
(5) In this section—
"copyright owner" includes a licensee with an exclusive licence within the meaning of section 92 of this Act,
"infringing content" means content which is produced or made available in infringement of copyright,
"online location" means a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible,
"operator" means a person or persons in joint or sole control of the decisions to make content accessible at or via an online location, and
"service provider" has the meaning given to it by section 97A(3) of this Act.
(6) Subsections (1) to (5) shall come into force on such day as the Secretary of State may by order appoint not less than 3 months and not more than 12 months after subsections (1) to (5) have been notified to the Commission of the European Communities ("the Commission") in accordance with the obligations of notification imposed by Directive 98/34/EC.
(7) If any comments are received from Member States of the European Union or the Commission after subsection (1) to (5) have been so notified and the Secretary of State reasonably considers amendments are necessary to give effect to such comments, he may make the necessary regulations within the period referred to in subsection (6)(a), to amend subsections (1) to (5)."
So there we are. Let's be positive and start with..
Upsides:
(1)There's a strong argument that the UK courts may have had, or some parties may have thought they had this power already at common law or otherwise (see the Irish case of Eirecom for some interesting persuasive comments re inherent jurisdiction - thanks to T J Macintyre for this comparison); and that what this amendment does, therefore, is build in a statutory framework of some certainty, with some safeguards, before the copyright lobby start mounting campaigns of litigation to close down alleged pirate host sites. We now do at least have the courtrequired to need to consider the impact on human rights, including freedom of expression, before making an order (though one may argue any order granted by a court must already be ECHR compliant, since they are a public body.)
(2) At least this involves the publicity and transparency of a court action. This is infinitely preferable to a worst case scenario of seeing covert pressure to add URLs of alleged "copyright infringement online locations" to an encrypted undemocratic non accountable blacklist taken under pressure by 90% plus of the ISP industry - and yes I am referring to the Internet Watch Foundation blocklist here. See my earlier work for descriptions of why this is absolutely the way to be avoided.
(3) This is not actually an entirely novel idea. This is not, as some have said, "the UK gets the DMCA for the first time evah!!". We already have statutory enabled take down of content on host sites in the shape of the E-Commerce Directive Regulations. If a host is notified of illegal or infringing content and does not take down, it becomes legally liable for that content. This incentivises take down. This has been true since (at least) 2002.
HOWEVER:
Downsides
(1) This is new in moving beyond simple take down of individual items of content (aimed at UK sites), to requirements of blocking access to entire sites (aimed at foreign hosts), and , apparently, indefinitely. (How long do these injunctions last? Forever? Who knows? How do you get them revoked??)
In other words, for the first time, Sony and the rest can now go to court and demand that every ISP in the UK blocks You Tube (forthe most obvious example). (See s 97B(2)(a) ) Or eBay. Or possibly Amazon. (Those reader reviews - don't they quote an awful lot? isn't that maybe copyright infringement??!! As for Google Library.. and libraries with digitised orphan works sites.. oh my..!)
(2) How is an ISP possibly going to prove that YT (say) does not have a "a substantial proportion of [its] content" infringing copyright? What does that mean anyway? The majority of its content? Probably not. A majority of the most viewed part of its content? A few GBs of materia,l regardless of percentage?)
(3) The biggy. Pace upside (2) above, there will in reality be no, or few, court applications, just non-publicised notifications. End of story. This is essentially legislation for covert extralegal censorship for the benefit of entrenched private interests. Why? you ask.
As Francis Davey has cogently pointed out, the threat that an ISP will be stuck with all the costs of the court action (see 97B(4) above in bold) will effectively nullify almost any ISP putting up resistance, when notified to block a site. What incentives do ISPs have to resist? Talk Talk may, because they've taken a stance of principle. But many many most small and large ISPs will just do sensible risk assessment and say "we have no idea if that's a pirate hosting site or legit; we can't afford the consequences if we don't block and get taken to court; ok, block it guys." Defending Internet freedom is not after all their core business model.
This is what the Americans call "chilling effects" on free speech. We are about to become very, very chilled (man). If you don't believe me, look at studies on notice and take down conducted in the UK, US and Europe - they unanimously show that ISPs and hosts faced with take down notices and potential legal liability, take down first,and worry about freedom of speech, or the true legal facts, very far second if at all. (In one amusing study , an Oxford team posing as rightsholder asked ISPs to take down a chapter from John Stuart Mill's On Liberty - out of copyright for several centuries. All the ISPs complied without a murmur.)
(4) Note the above 2 points assume that only the ISP is empowered to defend the action, if they so wish. Yes, the provision does say that notice should be given to the site owner (s 97(3)). But it does not say they are entitled to defend the action - that would be left for rules of court to decide. And in the more than likely event that no court order was needed anyway, because the ISP just agreed to block on notification, there would be no chance for the blocked site either to demand notice or demand a hearing in court. This has already happened with the IWF blocklist: remember when the IWF told ISPs to block a picture of a record cover by the Scorpions hosted by Wikipedia? Wikipedia didn't get notice (they found out when complaints flooded in ) nor a route to appeal to the courts. The banned site is a third party in this dispute , not a defendant - a really bad situation for due process rights.
Take proof of "innocence" again. Of course it's only the blocked site itself which really knows if it is a haven for copyright infringement or not, not the ISP. Yet it's the ISP who's meant to put up a defense, not the site. This is just plain silly. (And that's before we get to considering sites where content is encrypted. Do we just presume that that MUST mean pirated music files? What if it's legitimate corporate trade secret material in cloud storage?? What if it's confidential client data?)
(5) Scope of who gets blocked. This isn't just about web sites, still less about these far famed cyber lockers. Did they really mean to include an entire mobile network in the definition of an "online location"? Does that means if little Johnny uses his smartphone and 02 connection to share infringing downloaded music, Sony can get a court order to somehow block the whole 02 network? God knows. Sounds like very bad drafting to me. A location is also somewhere "via which copyright infringing content is accessible". Does that include Google?? Bye bye Google. it's been nice knowing you.
If any of this sounds dodgy to you, take action. Write to your MP or local paper. Follow ORG's advice here.
Finally -
Alternative aproaches:
if we're going to do this, let's do it half well. We can learn a lot from the US DMCA experience here. Some quick thoughts.
(a) Make the site to be blocked explicitly co-defendant with the ISP.
(b) Provide an appeal to courts or tribunal for sites blocked without court order, possibly via DMCA type put-back provisions (though these have not been much if at all used in the USA).
(c) To balance things out, allow rights holders and their trade bodies rights to join as parties in any such put-back litigation.
(d) Leave the normal discretion to the courts to allocate court costs as seems fair; no presumption ISP pays all, simply because they don't and can't know who's telling porkies.
(e) Provide a good faith safe harbour for ISPs who block with or without an order, and then find themselves sued for tortious interference with business, libel, breach of contract or similar.
(f) Consider restricting ability to apply for s 97B order to public body required to consider public interest NOT any industry player or other person - OFCOM might be the appropriate body. Rightsholders would apply to OFCOM (say) t take their case, rather as with criminal prosecutions.
(g) If not (f) at least consider sanctions for rightsholders making unfounded applications for s 97B court orders (as is true in DMCA without sky falling).
Sunday, February 07, 2010
HL Committee on the Digital Economy Bill
Yes, that again:-)
As Twitter and ORG resders may know, I'm meaning to write some kind of interim summary of what the Committee stage in the House of Lords has "fixed" in the Digital Economy Bill with respect to the file-sharing and copyright provisions (A: not a lot) and what still needs urgently brought up at Report Stage and if necessary all the way to and through the Commons (A: an awful lot). This despite the best efforts of some exceptionally knowledgeable and persistent Lords, including though not limited to Lord Lucas, L. Howard of Rising, Lord Clement-Jones and the Earl of Errol.
However it seems my job has possibly been done for me - by the Lords' own Human Rights Joint Committee. Their executive summary makes very, very interesting reading and is worth quoting in full:
"
As Twitter and ORG resders may know, I'm meaning to write some kind of interim summary of what the Committee stage in the House of Lords has "fixed" in the Digital Economy Bill with respect to the file-sharing and copyright provisions (A: not a lot) and what still needs urgently brought up at Report Stage and if necessary all the way to and through the Commons (A: an awful lot). This despite the best efforts of some exceptionally knowledgeable and persistent Lords, including though not limited to Lord Lucas, L. Howard of Rising, Lord Clement-Jones and the Earl of Errol.
However it seems my job has possibly been done for me - by the Lords' own Human Rights Joint Committee. Their executive summary makes very, very interesting reading and is worth quoting in full:
"
The Digital Economy Bill has been introduced to update the regulation of the communications sector. Due to time-constraints we focus on a single issue in the Bill: illegal file-sharing.Copyright infringement reports
The Bill establishes a mechanism whereby holders of copyright will be able to issue a 'copyright infringement report' to an ISP where it appears that the ISP's service has been used by an account holder to infringe copyright. ISPs will be required to notify account holders when a copyright infringement report is received in connection with their account. The ISPs will also be required to maintain a list of account holders who have been the subject of such reports.
We consider that it is unlikely that these proposals alone will lead to a significant risk of a breach of individual internet users' right to respect for privacy, their right to freedom of expression or their right to respect for their property rights (Articles 8, 10, Article 1, Protocol 1 ECHR). However, we call on the Government to provide a further explanation of why they consider their proposals are proportionate.
The Bill provides for the Secretary of State to have the power to require ISPs to take "technical measures" in respect of account holders who have been the subject of copyright infringement reports. The scope of the measures will be defined in secondary legislation and could be wide-ranging.
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 Convention.
The Bill provides for provisions for appeals in codes. 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.
Without a clear picture of the criteria for the imposition of technical measures it is difficult to reach a final conclusion on the fairness of the process for the imposition of technical measures. This is a further argument against the skeletal nature of the technical measures clauses. We ask for further information about the quality of evidence to be provided and the standard of proof to be applied to be provided on the face of the Bill.
Clause 17 of the Bill provides the Secretary of State with the power to amend the Copyright, Designs and Patents Act 1988 by secondary legislation. 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."
Delightful to see such plain and clear and unadulterated good sense. I particularly applaud the second section: "We do not believe that such a skeletal approach to powers which engage human rights is appropriate." Put that on your tee shirt and smoke it.
In the meantime, all kinds of odd and eddying currents are flowing around the whole filesharing mess, here and abroad. In Blighty, we're seeing more and more sectors of industry, like the hoteliers, coming to the realisation of how bad the DEB will be for them as providers of public wi fi to the public; in Europe, the Belgian SABANE case, which imposed an impossible to fulfil filtering obligation on a Belgian ISP in the interests of rightsholders, is going on appeal to the European Court of Justice, with strong backing in evidence from trusted computer industry experts ; and the first Ozzie case on intermediaries and file sharing since KaZaa has been heard, and as with Oink in the UK ,the music industry have done themselves no favours by bringing it (though this case, being civil, includes no room for accusations of perverse juries).
More on all of these to come, I suspect, but on the last, I direct you meanwhile to my colleague Technollama's very helpful comments on the Australian case. From Pangloss, it is bonne nuit.
Thursday, January 28, 2010
Life, etc
Via my very lovely colleague Judith Rauhofer;
Quote of the week by Lord Clement-Jones:
Quote of the week by Lord Clement-Jones:
" When a man is tired of the Digital Economy Bill, he is tired of life. I am sure this show will run for a long time."
And indeed, now the debates in HL Committee over the "three strikes" parts of the DEB have ended, watch this space for some thoughts on how the debates have gone, shortly. For now, interesting to note that legal process needs tweaking too: see the latest Which? report on the deluge of complaints against P2P ambulance chasing bully firm , ACS Law (creditably, much mentioned in the Lords debate.)
"
ACS:Law has sent thousands of letters to people claiming they have illegally downloaded material and offers them a chance to settle by paying around £500.Which? says it has been approached by some - including a 78 year-old accused of downloading pornography - who have no knowledge of the alleged offence.
ACS:Law said its methods were accurate.
The London-based firm said that it would send more letters soon."
In other news, I'd also like to comment on Google and China (interesting response here from the reliably interesting Bill Thompson, one of the few voices to be more realistic than triumphant here), connected cyberwar developments and public open data in the UK - to be continued!! (Oh and I'd really like to talk about whether full body airport scanning really constitutes distribution of child porn (eh?) as oposed to invading privacy (for sure). But chance would be a fine thing!
Also, the first review of Law and the Internet 3rd edn!! Thanks to Andrew Katz for preparing me, er, letting me know!!
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