Wednesday, April 28, 2010

Hitler reacts to the Hitler parodies being removed from YouTube

Yes I know this is last week's news, but I'm pleasantly surprised to find this hilarious commentary on take down vs fair use is still available (though for how much longer?) (And given all the swearing, can I get away with showing it to the students??)

Of course, You Tube appears to have responded to Hitler's plaint: by providing a "put back, it's fair use honest guv" button. However note this only applies where take down has been automated by You Tube's Content ID system: so it wouldn't apply to the video above.. However, it's a step in the right direction (even if it has, say YT, been available since 2007, only no one noticed! ) so hurrah, say we all (even though I like cat videos too..)

There is of course currently no copyright exemption for parody in the UK (see current Gowers consultation, paras 16ff, indicating no prospect of change on this) - so if a video is streamed/watched in the UK, having been uploaded in the US, taken down via Content ID (or via overt notification), but then put back for fair use in US - quid iuris? or more accurately, what of You Tube and their claim to be exempt from liability under art 14 of the E Commerce Directive? have they received "notice"?? arguably yes, via their automated system or otherwise and yet they are still publishing a copyright infringing item. Can Google UK then block the video even though it remains available on the US site? and can the automation software deal with this? Google has, I'm sure, thought of this. Individual copyrights being inherently territorial, we are in deep waters for Pangloss. Comments welcome!

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 along with the powerpoint slides.

The slides are also available on Slideshare.

Tuesday, April 20, 2010

If it's tomorrow it must be Embra..

Another talk by me on the #debill, plus, more excitingly, Simon Frith!!

21 April 2010: Digital Economy Bill: Professors Simon Frith and Lilian Edwards (Universities of Edinburgh and Sheffield)

Speakers will address issues of copyright, plus “The Good, the Bad and the Ugly”, including abnegation of due process, “three strikes and you are out”, site blocking and EU issues, net censorship and so on in what is anticipated to be a very lively discussion. Lilian Edwards, currently speaking on the Bill at events across the UK, is also known for her blog Pangloss. Simon Frith is known for his ESRC Research Programme on Media Economics and Media Culture. . Iain Mitchell QC FRSA, who, it is anticipated may well enliven the debate from the floor. is Chairman of the Scottish Society for Computers and Law and has been Joint Editor of the E-Law Review. Join us and contribute to the debate! (£10 a head I'm afraid).

Wednesday, April 14, 2010

From ORG-list, useful update on Viviane Reding's progress on data protection directive reform . First stage of consulting is over and response being considered.

"Data Protection" [I have italicised most interesting parts]

On privacy and data protection I have initiated the process leading up
to the reform and modernisation of the 1995 Directive. In line with
the legal prerequisite introduced by Lisbon we have now a specific
provision (Article 16) to develop a comprehensive and coherent
framework for the protection of personal data. The new legal framework
should address new challenges of the information age, such as
globalisation, development of information technologies, the internet,
online social networking, e-commerce, cloud computing, video
surveillance, behavioural advertising, data security breaches, etc.

The Commission is currently analysing the over 160 responses to the
public consultation. I will present a legislative proposal reforming
the Directive before the end of the year and I will consider
establishing the principle of "privacy by design."

This is by no means an exhaustive list of the novelties I intend to
propose, but one thing is clear: reinforcing the confidence of both
citizens and businesses in data systems will lead to better protection
for individuals, as well as to trust and confidence in new services
and products. This will in turn have a positive impact on the

Monday, April 12, 2010

Life is very strange lately..

.. Pangloss, still detoxing from a week on Twtter, is somewhat flattered to find herself the actual centre of an op piece!! Even one by notorious troll Andrew Orlowski!

Orlowski reports that the BBC has received a complant about the impartiality of a (4 minute, on the hoof, non pre recorded) interview I gave on Radio 2 to Richard Madeley of Judy fame (this has made my mother very happy :-) the day that the Digital Economy Bill cleared House of Commons.

Having looked at his story I'm fairly amazed that any editor let this pass; not because it has scandalous revelations but because absolutely nothng said there is remotely controversial let alone false or deceptive. I'll reproduce in full so we don't up his hit count:)

"The BBC tells us it is to investigate how Richard Madeley told the nation that the Government was going to whisk away his computer last week.

The segment on Monday's Simon Mayo drive time heard Madeley, who is filling in for Mayo, say: "What a pain! I only got computer literate three years ago, just as I get wised up to it, they take it away."

We don't yet know how many car accidents were caused by the news of mass confiscations.

Madeley was following a segment of the show about the Digital Economy Bill (now Act). The sole 'expert' was Professor Lilian Edwards. Edwards was simply billed as "a Professor of Law" at Sheffield University.

Edwards made some curious statements about "disconnections" (not mentioned in the Act) and how libraries might have to put passwords on their PCs. Libraries already operate a pretty strict lock-down regime: requiring password authentication, firewalls, and prohibiting the installation of Third Party software. But she insisted: "Even if you do password protect it, policing it may get very expensive."

The impartial Lilian Edwards

Even this didn't raise any suspicions amongst the show's presenters. But then, why would it - Edwards was an unbiased expert.

Asked why some Twitterers were upset about the Bill, Edwards replied: "I've been thinking about this. It's a hard thing to say on a music station, but the House of Commons thinks most important thing here is the music industry - which is of course important - but these people think the most important thing is the future of the internet, and I tend to agree with them."

The problem for Radio 2 is that the show breached the Corporations' editorial guidelines. Edwards is a member of the Open Rights Group's Advisory Council, and she relentlessly blogs about the coming armageddon - not always accurately - here. As an ORG advisor her duties include to "Fundraise and/or make fundraising introductions" and "Be available for media contact if required".

By failing to declare Edwards' partisan affiliations, the show fell foul of the guideline, which states:

...we should not automatically assume that academics and journalists from other organisations are impartial and make it clear to our audience when contributors are associated with a particular viewpoint

"We are aware of the issues you have raised with us and are currently looking into the matter," a spokesperson told us on Friday.

It's amazing what the title 'Professor' can do. If you can find the right production staff, you can get away with anything. ®"

A few points for legal reasons (if already bored you are quite welcome to stop reading now)

(1) Orlowski has elided the fact that the discussion about the impact on wi fi of the DEB had included small businesses, especally cafes offering free public wi fi, as well as libraries. In all cases, however, I had said , correctly as far as I know, the language of the bill clearly ascribed liability to those who "allow" their Internet connection to be used for infringing acts; then said that of course there were options to minimise risk such as password protection. Then I tried to summarise (in a very short intervew) what is well known: namely that password protection does not remove liability, merely excludes those not allocated passwords and allows tracking of those truely culpable - but this latter would stll requre detailed marrying up of log ins and time stamps wth reports of infringing downloading ("Copyright Infringement Reports in the language of the DEB) from rightsholders.

This is a technical process many small businesses would not be equipped to perform, so they might (as big companies like MacDonalds etc regularly do) feel required to bring in help, from companies like The Cloud who provide wi f hotspots. Unfortunately that would be prohibitively expensive for many cafes etc. leading to a general reduction in the amount of free public wi fi available (password protected or otherwise).

(2) I had nothing to do wth Madeley's comments about them coming to take away hs computer - was already off air by then (or I mght have corrected him!). the fact I've heard nothng about this "BBC investigation" until this piece, makes me suspect (if it even exists - ref please Mr Orlowski) that it is restricted to what Madeley said, not what I did.

(3) I am a bit perplexed at what the inverted comments round "a Professor of Law" and "expert" indicate. I do hold that post. For what it is worth, I prevously held that title at Southampton. These are and were both respected Russell Group Universities; Soton was a 5* law department. Although I do not so self style, yes, within academe I think I am regarded as an expert on the Digital Economy Bll. I also (and this is hardly a surprise or a secret) am on the ORG Advisory Councl (as are several other academics). This fact is on an open web site available via Google (and often mentioned on this blog). They do not pay me or employ me (if only! :-) It would be dfficult to find an academic who was an expert on any subject and of any standng who did not advise external bodies or sit on Advisory Boards - this is part the job of being a senior academic.

(4) Though not really my fight, I note the BBC guidelines and quote the following back :
"we strive to reflect a wide range of opinion and explore a range and conflict of views so that no significant strand of thought is knowingly unreflected or under represented."

Since the BPI's views on the DEB were widely reported in the press and media at the time, while opposing views were largely only reported in the IT trade press and the Guardian tech section at the time, it seems to me the Rado 2 show was gallantly doing its bit to redress the balance as per BBC rules. In any case nothing said above is anything other than a reasonable interpretaton of the legal rules along with a final personal sentiment - which I absolutely stand by.

(5) I suspect the final line may in its implications well be libellous. I was asked to speak on the show and have absolutely no idea who the producers were nor did I have any prior relatonship with them. I have no intention of gettng involved in libel suits under current dreadful UK libel law, but would warn Mr Orlowski (and his publishers) to be careful when messing with someone who is not only an expert on the Digital Economy Bll but started off as an early expert in Internet libel law :-)

(6) Finally is all this alleging of bias one way only? Are we entitled to know if Orlowski is beng paid off by the BPI or other rightsholder groups for his relentlessly dull would-be-scare-stories about ORG? I wonder what the Press Complaints Commission thinks. Ah, reciprocity, doncha love it :->

Saturday, April 10, 2010

GIKII V : last reminder!

GikII V, Edinburgh 2009

GikII V, The Voyage Home
28-29 June 2010

John McIntyre Conference Centre

Call for Papers expires April 15!

Abstracts send to moi at AND, please.

We may accept abstracts after this if space but last time we were full with papers received before deadline!

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!

ps TV still on - it's a bit funny to hear mention of Tom Watson and realise it's a golfer:)

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..

Last night: the DEB passes in the Commons

And after the 3am tweetwake, the weary rise and totter towards their laptops..


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 -


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:

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, 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.

Thursday, April 01, 2010

Singh libel win in Court of Appeal

Dr Simon Singh has succeeded in persuading the Court of Appeal that a defense of fair comment is applicable to his critical comments on chiropractic practice - ie they are not excluded as "fact" not "opinion".
  1. The present case is not in this class: the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:
  2. "I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."

    That is a pass to which we ought not to come again."