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.

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.