(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).