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:

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.

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:

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."