Wednesday, March 31, 2010

DEB: heavens

Reproduced from Boing Boing

"UK Labour MP Austin Mitchell has had a change of heart on the dread Digital Economy Bill and has produced a nearly day motion asking to have all 24,000+ words of it subjected to scrutiny and debate, rather than being hidden away in the undemocratic, secretive "wash-up" process: "That this House believes that the Digital Economy Bill [Lords] is too important to be taken further in the last days of a dying Parliament; and considers that a bill with so many repercussions for consumers, civil liberties, freedom of information and access to the internet should be debated and properly scrutinised at length and in detail, with a full opportunity for public discussion and representation in a new Parliament after the general election and not rushed through in the few days that remain in this Parliament." Write to your MP and support the motion!"

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 (NB this is not an amendment of the old cl 18 - it is entirely withdrawn and a new section inserted.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."

Thursday, March 25, 2010

Google Wins on Adwords in ECJ

Google is not in principle breaking EU law by selling AdWords to competitors of those who own associated trade marks in those keywords - official! World's Biggest Search Engine, not facing bankruptcy after all, sighs with relief..

Advertisers who buy AdWords themselves, however, basically receive a stern warning from the ECJ not to try and dupe searchers by buying deceptive adwords and using them in a confusing way in the ads served next to search queries - so expect lots of litigation against fake-goods advertisers, not Google, to follow?

Google itself however also gets a warning that if it had basically drafted the served advert text for the competitor - and so must have known it was essentially part of a deceptive practice - then things might be very different (see para 118 below).

Although IP lawyers will mainly be interested in the findings specifically on trade mark law, this is going long term, I think, to be a more important, indeed crucial decision, on intermediary liability and the ECD, arts 12-15; a clear signal from the ECJ that it is unwilling to let the intermediary status of both search engines and other hosts and conduits such as ISPs be compromised- along with the public interest in a functioning Internet - in the interests of ever more maximal exercise of IP rights.

Particular attention should be paid to this para of the judgment, on Google's liability and immunities under the ECD as a "service provider";

114 Accordingly, in order to establish whether the liability of a referencing service provider may be limited under Article 14 of Directive 2000/31, it is necessary to examine whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores. "
Thebig question will be if this is taken as merely restating what arts 12-15 already in essence say - no liability without actual or constructive knowledge if host, or at all if mere conduit, or if merely caching - or whether the word "neutral" - not found in the ECD and invented by the AG in his pre-match opinion - imports more-than-statutory qualifications. I guess we will find out when the eBay cases come along.

For these, these paras will also be crucial, and (so excited am I)! I have emboldened the most important parts:

115 With regard to the referencing service at issue in the cases in the main proceedings, it is apparent from the files and from the description in paragraph 23 et seq. of the present judgment that, with the help of software which it has developed, Google processes the data entered by advertisers and the resulting display of the ads is made under conditions which Google controls. Thus, Google determines the order of display according to, inter alia, the remuneration paid by the advertisers.
116 It must be pointed out that the mere facts that the referencing service is subject to payment, that Google sets the payment terms or that it provides general information to its clients cannot have the effect of depriving Google of the exemptions from liability provided for in Directive 2000/31.
117 Likewise, concordance between the keyword selected and the search term entered by an internet user is not sufficient of itself to justify the view that Google has knowledge of, or control over, the data entered into its system by advertisers and stored in memory on its server.
118 By contrast, in the context of the examination referred to in paragraph 114 of the present judgment, the role played by Google in the drafting of the commercial message which accompanies the advertising link or in the establishment or selection of keywords is relevant.
119 It is in the light of the foregoing considerations that the national court, which is best placed to be aware of the actual terms on which the service in the cases in the main proceedings is supplied, must assess whether the role thus played by Google corresponds to that described in paragraph 114 of the present judgment.
120 It follows that the answer to the third question in Case C‑236/08, the second question in Case C‑237/08 and the third question in Case C‑238/08 is that Article 14 of Directive 2000/31 must be interpreted as meaning that the rule laid down therein applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned."
So:

(1) just getting paid for a service somehow associated with the potential for IP infringement does not seem to automatically remove arts 12-14 protection. eBay will be pleased to hear this one.

(2) liability does however depend on whether the service provider "has not played an active role of such a kind as to give it knowledge of, or control over, the data stored." "Active" = non neutral, it seems? Again this adds a new qualification to what was already in art 14. Does this - or is it meant to - describe (in order it sems to me of descending likelihood) eBay's listing service? You Tube's upload service? Tiscali's provision of access to P2P clients to its subscribers as disputed by SABAM (see below)? We shall see.

If a service is not taking an "active role", all rights holders can ask for is traditional post factum notice and takedown. Art 14 is clearly restated in para 120. If it is.. then filtering and prior monitoring may be legal to ask for, if national law so allows, is the obvious implication. Although of course that too would be mediated by other instruments such as the Data Protection Directive and the ECHR arts 6, 8 and 10, as well as national laws.

I hope eventually to do a fuller analysis (for my views on the AG's opinion which preceded this see here) but in the meantime I'll merely note that this probably points the way forward for the equally important cases on who should be primarily responsible on the Internet for IP protection - the rights holder or the conduit - queuing for the EC - including the cases against eBay from luxury brand holders, as well as the Belgian P2P filtering case of SABAM (which we have just heard is scheduled for 2012!! given the crucial EU importance of this case, which willl in essence determine if 3 strikes legislation is legal in the EU, could it not be fast tracked?). On the other hand there is still (of course) a degree of ambiguity here in what the ECJ has said: in particular, re neutrality in para 114 above.

Anyway from ZedNet, a useful summary:

"In 2003, Vuitton, Viaticum and CNRRH sued Google because their competitors had bought AdWords for trademarks owned by the plaintiffs. In the case of Vuitton, the AdWords sent users to sites selling imitation Louis Vuitton goods, while the trademarks corresponding to Viaticum and Eurochallenges trademarks sent users to competitors' sites.

A French court found in the plaintiffs' favour, ordering Google to stop providing the AdWords in question and pay a fine. The case made its way to the French Court of Cassation — France's highest court for final appeals — which asked the ECJ for its opinion.

The ECJ said on Tuesday that an advertiser purchasing an AdWord that corresponds to someone else's trademark was using that word "in relation to its own goods or services".

However, the ECJ said, trademark holders can take action in national courts against advertisers who "arrange for Google to display ads which make it impossible, or possible only with difficulty, for average internet users to establish from what undertaking the goods or services covered by the ad originate".

The court added that the provider of an automated referencing service such as AdWords cannot be held liable for advertiser data stored on its systems — unless it is made aware that the data is unlawful, in which case it becomes liable if it does not take the data down."

Wednesday, March 24, 2010

Today not in Parliament but in Manchester

In pub in Manchester after yes, an interesting panel on the DEB! No time yet to write it you (though you could try looking at Twitter on #counter2010.)

But in the meantime from Boing Boing:

"Richard Mollett, Director of Public Affairs for the BPI (the UK record industry lobby) has gone on record saying that Parliament shouldn't debate the Digital Economy Bill. This is the same Richard Mollet who wrote the infamous internal memo that said that if Parliament were to debate the Bill, it would die. Way to subvert democracy, record industry. (Thanks, Jim!)"

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.

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.

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.


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."




LORD CLEMENT-JONES


LORD RAZZALL

21

Page 22, line 38, l[e]ave out from beginning to end of line 4 on page 23 and insert—

"(4)

Where the Court grants an injunction under subsection (1), the Court shall make an order as to costs having regard to all relevant considerations."

22

Page 23, line 4, at end insert—

"(4A)

Where a service provider has blocked access to an online location in response to a notice under subsection (1A)—

(a)

any person aggrieved may apply to the court on notice to the copyright owner and service provider to require the service provider to remove or vary the nature of the block; and

(b)

on an application made under paragraph (a), the court must order that the block be removed if it considers that it would not have made such an order, had an application been made under subsection (1).

(4B)

Where a court makes an order under subsection (4A)(b), it may also on request make an order if it sees fit requiring the copyright owner to imburse any loss or damages, including costs and legal fees, incurred by the applicant in subsection (4A)(a), or by the service provider, as the result of the service provider being asked to block the online location by the copyright owner."





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!)

Sunday, March 07, 2010

GiKII V : The Voyage Home!

Very happy to have some GOOD news to report for once!

GikII V, Edinburgh 2009

http://www.law.ed.ac.uk/ahrc/gikii/2010.asp

GikII V, The Voyage Home
28-29 June 2010
John McIntyre Conference Centre
Edinburgh

Call for Papers

GikII returns to its place of birth for its Fifth Edition. GikII is a workshop concerned with exploring the legal interaction between popular culture, speculative fiction, and new technologies. It has been described unimaginatively as trail-blazing, innovative, fun and informative. We like to think of GikII as the legal workshop equivalent of a Pan-Galactic Gargle Blaster, in other words, it is “like having your brain smashed out by a slice of lemon wrapped round a large gold brick”. GikII is where the bravest, fun-est (not to be confused with funniest) and zaniest ideas about law and technologies are discussed. In some instances we explore technologies so new that in fact there is not even a term to describe them, while some other times we have discussed technologies long gone. We only ask that you are imaginative and think of your fellow travellers instead of yourself. GikII is all about giving legal scholars the opportunity to engage in blue skies thinking (variations of the visible electromagnetic radiation spectrum may occur depending on which planet you may currently inhabit). If you have a paper that is languishing at the bottom of your hard drive and is crying out to see the light of a USB stick, GikII is the place for you. We laugh in the face of tradition and make rude comments about scholarly convention.

Application process

Please send an abstract not exceeding 500 words to Professor Lilian Edwards (Lilian.Edwards@sheffield.ac.uk) or Mr Andres Guadamuz (a.guadamuz@ed.ac.uk). The deadline for submissions is April 15 2010, and please bear in mind that we do not hold with the Adamsian theory of deadlines (“they make a pleasing whooshing sound as they go by”). We will try to have them approved and confirmed as soon as possible so that you can organise travel and accommodation.

Registration

As with previous years, GikII is free of charge, and therefore there are limited spaces available, so please make sure you submit your paper early. Priority is always given to speakers, but there are some limited spaces available for students and non-speakers. Registration will be open shortly.

(By the way, we are perfectly aware that “The Voyage Home” is Star Trek IV, we’re just testing your trekkie knowledge).

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GiKII V : The Voyage Home!

Very happy to have some GOOD news to report for once!

GikII V, Edinburgh 2009

http://www.law.ed.ac.uk/ahrc/gikii/2010.asp

GikII V, The Voyage Home
28-29 June 2010
John McIntyre Conference Centre
Edinburgh

Call for Papers

GikII returns to its place of birth for its Fifth Edition. GikII is a workshop concerned with exploring the legal interaction between popular culture, speculative fiction, and new technologies. It has been described unimaginatively as trail-blazing, innovative, fun and informative. We like to think of GikII as the legal workshop equivalent of a Pan-Galactic Gargle Blaster, in other words, it is “like having your brain smashed out by a slice of lemon wrapped round a large gold brick”. GikII is where the bravest, fun-est (not to be confused with funniest) and zaniest ideas about law and technologies are discussed. In some instances we explore technologies so new that in fact there is not even a term to describe them, while some other times we have discussed technologies long gone. We only ask that you are imaginative and think of your fellow travellers instead of yourself. GikII is all about giving legal scholars the opportunity to engage in blue skies thinking (variations of the visible electromagnetic radiation spectrum may occur depending on which planet you may currently inhabit). If you have a paper that is languishing at the bottom of your hard drive and is crying out to see the light of a USB stick, GikII is the place for you. We laugh in the face of tradition and make rude comments about scholarly convention.

Application process

Please send an abstract not exceeding 500 words to Professor Lilian Edwards (Lilian.Edwards@sheffield.ac.uk) or Mr Andres Guadamuz (a.guadamuz@ed.ac.uk). The deadline for submissions is April 15 2010, and please bear in mind that we do not hold with the Adamsian theory of deadlines (“they make a pleasing whooshing sound as they go by”). We will try to have them approved and confirmed as soon as possible so that you can organise travel and accommodation.

Registration

As with previous years, GikII is free of charge, and therefore there are limited spaces available, so please make sure you submit your paper early. Priority is always given to speakers, but there are some limited spaces available for students and non-speakers. Registration will be open shortly.

(By the way, we are perfectly aware that “The Voyage Home” is Star Trek IV, we’re just testing your trekkie knowledge).

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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?

"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.

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


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).