Each session, some of the Bills promised in the Government’s programme begin their passage in the Lords. Among those being introduced in the House this session is the Digital Economy Bill. It had its Second Reading today. The Bill itself is not massive in size – 49 clauses and three schedules – but it nonetheless covers a lot of ground: its long title encompasses eight separate purposes. It has attracted a great deal of interest, not least because of the provisions covering online infringements of copyright. I have been struck by the number of briefings I have received (mostly, and appropriately, by e-mail), well in excess of the number one normally receives. It is clearly a Bill that is going to require a great deal of attention in committee. I am just starting to examine it detail, so any comments from readers are welcome.
One aspect of the Bill that interests me is to do with its form. Other than the final clauses that form the General clauses (45-49), every clause amends an earlier piece of legislation (mostly the Communications Act 2003), making it difficult to grasp fully the change made without going back to the earlier legislation. It is another case where a Keeling-like schedule (showing the original legislation and how this Bill changes it) would doubtless be valuable.
Charlie Stross, science fiction author, has commented on this bill.
From his blog here
And, also, here.
One suspects that he is unhappy with the bill as it stands.
Cory Doctorow, of the Open Rights Group, is similarly scathing:
Of course, we all know how this is going to go. The government has decreed, the bill is written, and bar a few amendments for window dressing this awful bill will pass. The Lords will do its best I’m sure, but it won’t be able to throw the whole thing out wholesale.
Lord Norton, I suspect that the structure you’re so interested in might well be as much design as anything else. By making bad law complicated and impenetrable, a government is able to get away with passing much more bad law – which is to say, law which everyone except them, their lapdog advisers and their friends in high places thinks is bad, which means from their point of view good law that nobody understands and which the electorate must be made to understand is good, with a bludgeon if necessary – in plain sight, because nobody knows what it really says except the activists who can be bothered to read it.
And, as was true with the Police and Crime bill, we all know how much this government listens to those representing the people it proposes to screw over.
Mandating ISPs to snoop on their own customers is a deeply concerning privacy issue. The so called ‘three strike’ rule within the Digital Economy Bill is what I find most alarming and unworkable though. To disconnect a user upon accusation of an illegal act, without provision of proof, evidence or fair trial is quite wrong.
In Hull we only have one residential landline ISP. They tried a very similar policy out. If accused of downloading copyrighted material, your internet connection was promptly disconnected. To regain access the user would wait for a letter informing them of the material alleged to be downloaded, and then must return the letter. Upon receipt of the letter the ISP (Karoo Broadband) would reconnect the user, although with notable delay. It’s been reported that some delays have been up to a month.
There are several problems with this sort of action which are quite apparent in Hull and I believe would apply to the country as a whole. If a suspected user is disconnected, the whole household is without internet. This is quite problematic in that the punishment is applied to people within the house whom did not commit the crime. A particular problem in student accommodation where you may have up to ten individuals living together. A problem which relates to this is that of a technical nature. How do you prove who has committed the act? If it’s as simple as one out of ten individuals committing the act, how do you prove who it is and punish them appropriately? Additionally there has been a mass uptake of wireless routers, some of which are unsecured and easily accessible, others are secured and easily crackable. If an external user were to obtain a means of connecting to somebody else’s internet connection, is the owner of the connection to be punished for something they have not committed? They have merely acted unknowingly as a tunnel, of which many servers around the world do.
These are the issues that immediately strike me. If I think of anything else I’ll be sure to comment.
I run a small IT company, self employed, reparing computers etc. I will refer in this only to the parts of the bill that include internet and copyright content.
This bill is being forced upon us by an industry that is massive and holds lots of sway with Parliament. We could see this yesterday at the second reading by those Lords who had a declared interest. The industry failed to get it right and now it`s lavish lifestyle is being hurt seeks to find someone else to foot the bill to protect it`s profits. This bill is not the answer it will only serve to see people who are innocent lose internet connection which the Government see`s on par with having a phone, gas or electric. The basics of life.
People WILL lose the right to internet without a fair trial and with flimsy evidence based upon peoples say that are not trained as our Police Forces are. The people who are prolific pirates will gain extra income from this bill, I shall explain later.
There is certain evidence I cannot put forward to my Lords due to the fact it would establish how to commit a criminal act of copyright theft but I will do my utmost to explain without actually providing the certain knowledge.
About 99% of the machines I have in for repair contain content that I would suspect is copyright infringed. Most of this content was downloaded by children without their parents (the person responsible for phone and ISP contracts)knowledge or consent. When I have on occasion stated this is an illegal act very little is said or done, the adult thinking my child is safe in their bedroom not out roaming the streets in danger or causing trouble.
A repair I did recently on a childs laptop, the child(approx 12 years old) was at performing arts college, resulted in me being asked a question that changed his life. His tutor had asked the whole class to download specific tracks and stated where he could aquire these tracks. It was an illegal source, this was a performing arts college, and the child was asking me how to use this source. Needless to say I gave him a lecture stating how would he like his future work stolen and for him not to be paid properly. He repeated the lecture both to tutor and classmates. The problem is however that copyright theft is rampant and in my opinion will not be stopped by this absurd act.
The recording industry would like this bill because it means they get protection for nothing. Instead of them Policing they force ISP`s to police for them and the costs are forced onto ISP`s unfairly and will take a good deal on manpower and resources to get the required evidence. ISP`s are merely the conduit used to access the internet, no one stated they would be forced to dig into their profits for the sake of an industry more lavish than theirs when they started. The cost`s will ultimately be pushed to the consumer and I expect profits to be hit inhibiting further investment into broadband which the Government states as extremely vital.
How will ISP`s police this ? Computers are known on the internet by their IP addresses, which are frequently spoofed in other words I could use the IP address of Lord Norton`s home to download anything. There are proxy servers which again hide the computers true IP address. There are a miriad of software that hides all your details available.
So one would presume the ISP would be forced to intrude further than IP address. Let`s say they look at the amount you download, now lot`s of us use BBC iplayer and the like. This uses a lot of bandwidth but is perfectly legal and there is a lot more things people do that involve heavy bandwidth that is perfectly legal. Storage facilities for backing up your computers content is being used more and more. So we can rule out how much bandwidth you use as evidence of piracy.
Peer to peer (Nothing to do with my Lords) sharing is very seldom used nowadays. Music canbe downloaded a lot simpler and quicker. Let`s take Youtube which now has music videos back onsite. Once you have found your favourite track in video form there are many sites you can then visit put in the URL from youtube and it converts it to MP3 which is then downloaded. I can`t of course give you an example but please take my word it is extremely simple. The track is downloaded not as it would be entitled but with a coded name, you simply change it when it`s on your machine if you require.
So the ISP would need to see exactly what you are downloading to know it was act of piracy. They would have to literally open everything to see. Now I have to adhere to law that keeps the content of a computer private provided it is not knowingly illegal. On the occasions where I have come across illegal content, alleged child pornography, I report it to the Police. I am charged as a matter of course for viewing said content and the hard drive taken away for Police forensic investigation. The forensic investigation can take 3 months or more due to the fact we haven`t the resources and the lab is inundated with work. The Police are not allowed to view the content, this is a crime. Presumably if the ISP`s have a copy of what a pirate downloads this will also be a crime ?
If the ISP`s have to look at the content of files being downloaded this would be a criminal offence. Many people storing their private files on the internet keep personal photographs and video on storage facilities and when I say personal I often mean of a sexual nature. These can include girls and boys of 12-15 years of age. If the ISP`s view this content they have commited a criminal offence. The Police then HAVE TO be bought in, now they are not coping now and are being forced by recent Government view to make savings of £500m. Personal pictures and videos of Law abiding citizens will be open to criminal acts by staff of ISP`s who will be forced by this bill to trespass personal content.
Content that is copyrighted is often nowadays downloaded is encoded and passworded. We have seen with the advent of Windows 7 that Police will no longer be able to interogate hard drives as they did with the new encryption processes involved (I won`t go into detail for obvious reasons). ISP`s will not be able to access content in these files, there will be no proof either way.
Before all recent ways of downloading the criminal element of society were making a killing. They knew the ways to download, the ways to hide and had the ability and finance to multicopy for back market sales. The opening up of the internet and knowledge has taken it out of criminal hands but made criminals of a large part of our society. This law will do nothing to stop piracy but it could make it lucrative once again for the professionals who are prepared to invest in selling CD`s and DVD`s on the cheap.
This bill must not become law, it will criminalise most of our children who won`t stop downloading I can assure you. It is being bought about by a massive industry to protect their profits who are not prepared to police their own content, it is being foisted upon ISP`s who will have to foot the bill and cannot be made to sit in judgement when they have not got the ability.
What urks me most is the fact the Government bring this forth in priority, and from this you can see an industry`s influence, when pornography is being viewed by teenagers, social networking results in bullying and real violence and children as young as 12 are putting up on the net pornographic pictures of themselves all of which remains unpoliced by the Social Netwoking sites etc.
This bill puts the profits of a lavish industry before the Nations people, it elevates certain individuals to extreme power which will be used unjustly and unwisely and demotes Government yet again in the eyes of the people.
It has long been forward by these massive industries that business should be allowed to self govern. The market regulating the market, in this instance I feel this is fair. Let them find the answer this is not it.
L Norton’s lament about the form of the bill referring back to the previous one, is probably on account of the velocity of change, and newness, of the industry. Most bills do refer back to the previous one, say ten or fifteen years before.
How to read the changes in the Bill in the light of the previous Act must be open to examination. I wonder whether they can be opened on a divided desktop, assuming that the last one is on-line? It must be. Then the comparison might be much easier.
Has the Communications Act 2003 been more or less renamed as the Digital Economy Bill, or does this DEB refer to more than one previous Act?
Dividing the desktop in to three is, I agree, sometimes quite tricky!
Andrew Barrett
Andrew Barrett:
“Mandating ISPs to snoop on their own customers is a deeply concerning privacy issue”.
They just won’t do it, any more than they do already, on the basis of pornography and crime.
As I understand it, the bill is concerned with the ISP provision of Web space to Web site owners, not to the individual residential retail customer.
On the basis of my understanding :
“In Hull we only have one residential landline ISP” this cannot be so.
You may only have one telephone line supplier, but you have as many retail ISP suppliers as there are on……earth, or W3!
For a telephone line supplier to cut you off for alleged misdeeds on the internet/web, would almost certainly be an infringement of your rights or civil liberties!
It is all too easy for say, L Norton, mod of the Learnéd Lord of the Blog, to install a cookie on your hard disk, to prevent you from using his site again if that is his desire.
However if there are ten other people using the Wireless router in your home and they all want to write to L. Norton on lords of the Blog, then that is their hard luck and yours!
THEY MAY NOT! (unless of course one of you is a programmer good at removing cookies from
your own hard disk)
Some of these Server side gadgets may actually use the landline phone number to prevent any more communication with their websites, but to prevent connection with the whole of the W3 would not be lawfully possible, in my opinion.
“If accused of downloading copyrighted material, your internet connection was promptly disconnected.”
This is an infringement of the right of the individuals concerned. It is NOT for the individual NOT to download copyrighted material but for the wholesale ISP not to provide the space.
There is absolutely nothing that anybody can do to prevent OXFAM selling copyrighted books, second hand in second hand bookshops.
Likewise there is absolutely nothing the copyright owner can do to prevent friends swapping second hand books or CDs.
It is the SAME OLD MICROSOFT SPIV argument.
THANK GOODNESS FOR LINNUX AND OPEN SOURCE.
Thank goodness for Labor campaigners for Open ,folk source in everything.
The Song rights business may have chnaged for ever. Most singers, songwriters acknowledge that their earnings come from gigs and not from CD/online sales.
An online publisher who wants to earn a crust ONLY makes the book/novel available on the server side, and you get your ten pen’orth every time you log on to their Site where the book is located. Only you can log in with your book reading pass word.
You can not copy the book to your own PC, thanks to their carefully designed program.
That is reasonable.
There are probably vast numbers of ridiculous and reactionary inconsistencies in the Bill, which is getting its second reading, deliberately there so that big business can take the customer to court for what he has NOT done,and then the case law becomes the effective determinant of future proceedings whether in the criminal or civil court.
“You have done that!”
“No I have not!”
“We’ll see about that”
…… and on to change the case law at the great expense of the poor, innocent,retail customer.
ONLY the ISPs should be prosecuted in such circumstances, and then there would be far less argument.
Insecure Networks
A lot of people have insecure networks, no security. This is because network keys can be forgotten or mislaid or simply because security causes problems. I personally know plenty of open networks. All these networks can be found using devices that cost a mere couple of pounds. You can then merrily download whatever content you want on someone elses account.
Public Networks
McDonalds have open networks as do a miriad of other companies, this is a service to the public. You can go to McD`s with your laptop and merrily download whatever you want without fear of being found out.
Mobile Broadband
Buy a pay as you go sim install it in your dongle. Download whatever you want from wherever anonymously.
The industries that are pushing for this law are the industries providing the easy copying facilities. Sony, big film producer, also make CD/DVD copiers and writers and so it goes for most. They also make the computers for downloads.
How many of these industries put on their computers parental Software as default so kids cannot download porn, music, films ? I recently tried to start a campaign through schools to get parents to take charge through parental software, no one listened or was interested.
These companies can put on software that limits the ability to download copyrighted material but they don`t. You have to ask why not ? Because of their profits, they want to be seen as friends to the people and make Government the enemy, all the while accruing profits.
If this Bill is passed it will prove to the public that Government are the pawn of industry and do not put it`s people first.
Well I was going to launch into a long post about the problems with this bill but Carl’s post has rather stolen my thunder.
Lord Norton: As I’m sure you are getting lobbied by the content creators you might find this interesting. Indeed as we’re on the guardian site they touch on the issue of wi-fi nicely as well.
On other points I find the idea that the government can amend copyright with a parliamentary resolution worrying (Clause 17 ) as it almost guarantees little scrutiny.
In the USA, academics have rigorously demonstrated that copyright infringement notices may be issued to printers, routers, and items of hardware that have not had any contatct with anything copyrighted.
In the light of this, I surmise that the lack of any appeal process, and the ability for the authorities to require that someone is disconnected from the Internet without even an accusation of copyright infringement, is because it is known that finding legally admissible evidence is difficult or impossible.
This is considerably more open to abuse than the anti terrorist legislation, which has notably been used against political opponents. When the government of the day has in place an easy mechanism to disconnect from the internet any effective oponents, with no appeal and no need for an excuse, it is improbable that they will not win any election they wish to win.
Gareth Howell,
It is indeed true that the people of Hull have only one landline residential ISP. The network is owned by Kingston Communications rather than BT, and despite being ‘open’ to competition on its lines, has done its best to remain a monopoly player. This however slightly strays from the Digital Economies Bill. I mentioned it only as an example of problems which I foresee with the bill.
It is indeed possible for a website owner to ban an individual user’s IP address, thus blocking the entire household. That is unfortunate for the other 9 individuals, but you cannot compare the scale of the removal of access to one website, to that of a disconnection from the internet itself, for which the Digital Economies Bill legislates for.
When I talk of disconnection from the internet itself, I refer to the ‘three strike rule’. Your internet provider must disconnect you as a subscriber under the bill, if accused of repeated copyright infringement. I discussed the problems I see relating to this in my first post.
I think that the “three strikes” is a misunderstanding. Only one is needed, and there does not even need to be an accusation of copyright infringement. The simple requirement from the Secretary of State for a connection to be withdrawn is all that is needed.
I sent my comments on this bill to the members of the House of Lords Science and Technology Select Committee. I also posted them on my blog. Someone who read that post left a comment with a link to this post so I thought I would reciprocate by drawing my letter to your attention.
You can read my concerns about the Digital Economy Bill here:
http://www.richardskingdom.net/my-digital-economy-bill-letter-to-the-the-house-of-lords-science-and-technology-committee
Apparently the police are worried that users will turn to encryption due
to this bill. This would make it a lot harder for them to spy on criminals
and terrorists. Although i would of thought the technology is so well
known that they would be encrypted all their stuff already.
With ISPs forced to monitor their users they will no doubt pass the cost on to us. Why do I have to pay to be monitored when i do not want it and all to benefit the rich media industry?
Anthony please see the link below.
http://answers.yahoo.com/question/index?qid=20080701034822AA8wq5T
“The website in question will not know who you are or your IP address and your ISP will not know what you are viewing.”
Is that post confirming what I am saying?
Not sure what your comment refers to.
thanks
Anthony, as you can see encryption processes have been available for a long time and should a person wish to not be traceable they can make it awfully difficult for anyone to see them or what they are up to.
What the industries, which are combined could/should have done and are still able to do is something like the following. They know at present that every teenage kid is able to download music & films and frequently does. They are able with the computer industry to make default a piece of software such as K9 http://www1.k9webprotection.com/
on every new computer sold. This software filters websites and its list of forbidden sites is constantly updated. The industry knows most of the sites that downloading comes from. This software has been around a long time, the industry has no excuse it just doesn`t want to be the bad guy or put it`s hand in it`s pocket. It will not protect itself because it`s on both sides of the fence, as long as it`s making profits it has no morals.
Now the software is not perfect, for those of us that are computer literate we can get around it BUT that would be a deliberate act. The software could be made more difficult for the average kid to get around if necessary but the industries concerned are not even bothering.
I want to ask all the people who are in favour of this bill why is the industry not doing anything such as the above to try to protect content ?
These same people crying for protection by Law are the ones building /selling computers that should have this type of software by default. Instead of legislating against every teenage kid we should be making sure these producers put protection FOR our children on their products.
And yes you may hear the freedom lobby cry “censorship” over this type of software. I`m sorry that I want to protect them from illegal content such as “child pornography”, downloading copyrighted material and other illegal material. With the bill as it is at present we are going to get a form of censorship by the ISP`s forced upon them and us and they are not setup for it.
The existing computer,music and film industry is setup for it and can do this relatively easily. They`re not doing it.
Analogy
A pusher will first give away his drugs to get the kids hooked. Then when they are hooked, addicted he starts charging.
The industry has let this happen and done nothing, don`t let them fool you. They have the system, the software and the ability. They just want someone else to be the bad guy so it doesn`t affect profits.
Cant see what you are suggesting helping much since as you pointed out it will be removal by the majority of the people downloading who have the skills. Of course it can be worked around by using a linux livecd which wont have it installed
There is also the issue of web filters and the unelected filtering things that might not cmply with their views but do with the customer. There are content blocking software that has had the involvement of the right wing christians that has been castigated for being too politically motivated on what it filters, Alot of content related to biology is blocked due to fear of porn. Also gay material is blocked that is not porn.
Filtering is fraught with danger.
I dont have a solution but i know the current bill will not work and plenty of innocent people will be criminalised due to pressure from media companies.
“Protecting content” is a duffer’s game. Or, more specifically, it turns out to be a game that is entirely in favour of, as Stross says, “rent seekers” rather than artists.
Given that the point of copyright is to protect the ability of artists to make and profit from their work, the laws should indeed reflect that this is what is going on.
I draw your attention to “the graph the record industry doesn’t want you to see”. The middlemen – record industries who have insisted that their efforts are invaluable, have indeed been losing revenue due to filesharing. But the artists themselves have seen their revenue increase at the same time.
This, frankly, should be another nail in the useless flack’s coffins. If there is no direct link between record label profits and returns to artists, or indeed if the link appears to be inverse, then copyright law and rights protection laws do not need to concern themselves with record industry profits at all. The massive bloated recording labels are a historical aberration, and have no reasonable expectation that the late 20th century gravy train should be kept on the rails solely for their benefit.
Further.
The software industry has/had a similar problem of copyright. They got together with anti-virus makers to ensure the cracks used to break codes and enable illegal use was flagged by anti-virus software and deleted. The list is updated reguarly and it has made inroads to all but the hardest criminal users.
Microsoft, similar tale. They`re not running to the Government they`re doing something about it. All these industries have the ability and sections like Trading Standards to back them up.
The problem will never be completely eradictated but Law criminalising nearly every teenager is not the answer. Taking away something the Government is stating necessary to modern life and learning is not the answer.
I had a problem with my 13 year old daughter, posting innappropriate pictures, getting involved with alcohol, being involved with bullying and all other teenage stuff about a year ago. I imposed the software mentioned, cutting off her social networking and made strict curfews. You have never seen such a turn around, she is excelling at school, excersises more reguarly and is a pleasure to be around (most of the time).
She still has the internet, the software just forbids most illegal acts and really UNsocial networking. Sitting in the bedroom 24/7 being crude with boys is not social and as someone who see`s a lot of machines it is no different for any teenage girl.
So the industry has the tools to limit the problem. I have to ask them why are they not using them ?
To the Artist`s, the Patrons please look to the people who SAY they have your best interest at heart and ask why they have done nothing.
So, unlike (I assume) many of the previous commenters, I have read the text of the Bill.
The Bill does not as many have stated give ISPs the obligation to police the activities of people.
However, it does give them the obligation to sever, or otherwise disrupt the internet service provided to someone
“if it appears to a copyright owner that a subscriber to an internet access service has infringed the owner’s copyright; or a subscriber to an internet access service has
allowed another person to use the service, and that other person has infringed the owner’s copyright”
who has been reported by the copyright owner along with evidence.
My first problem with this is that either it goes by logic which would imply that if someone broke into my house it would be my fault for “allowing them” by not living in an impenetrable fortress.
The clause does not require proof that the subscriber did it. Just that it appears that someone did it through their line.
Following the previous logic, this would mean that if someone broke into my house, it would not only be my fault, but assumed that I did it because it would “appear” that it happened and that as it’s my house, either I must have done it, or allowed it to happen.
Either way. The Internet Service Providers (ISPs) are obliged to take action.
Unfortunately, I can already see how this could be abused. As it is the subscriber who is considered to be breaking the law, regardless of the actuality, all it would take would be for an individual to make a copyrighted piece of work, upload it to the internet, download it through someone else’s internet connection, then report them to their ISP.
The required evidence would be there and easily supplied.
Whilst copyright infringement would not be taking place, “apparent” infringement would, allowing action to be taken against the subscriber.
The subscriber might be their employer, a local pub, or any other person who has upset them.
However, the parts I think are more underhand, are those contained within Topic 3.
This is akin to the power to remove any publication in the public domain from it, because the Secretary of State (or designated individual) find it objectionable.
The section gives powers to take action against any website’s host if it has or may have an adverse affect on the UK public.
As I gather, the same powers (more or less) allow mass censorship of the internet in China.
I agree with other’s comments that wireless “wardrivers”, people who drive around searching for wireless access points that are easy to enter, would be able to commit criminal activities and have the blame placed on their victim.
Also, the requirement being only that punishment is dealt out on “apparent” infringements side-steps the requirement that a person be punished after being proven guilty.
A further objection I have to this, is that it is analogous to a photographer photographing a painting, then the camera manufacturer confiscating the camera.
The punishment may be fitting, but it seems bizarre and side-steps the issue. The issue is not the camera, it is the person. The person can always get another camera. If they borrowed the camera, they just have to borrow another.
It may not even be the person that should be to blame. If the person does not see enough value in the painting to want to possess and to pay to possess the painting or replica, then this reflects on the painting, rather than the person. To explain, it would suggest that the painting was not worth owning beyond an inferior replica in the form of a photograph. Or ownership was beyond the person’s means.
If the former, then the argument of “Stealing by not paying for it where they should have, therefore inferring a virtual loss” does not hold, as the person would not have purchased the artwork regardless. If the latter, the person could not have bought it, therefore there is still no virtual loss.
Whilst I do not advocate copyright infringement, I would point out that the type being prevented here allows for free, rapid and effective advertisement of products which relies solely on the quality of the product to propagate, meaning a better product will be advertised further and faster.
One example would be Spiderman 3, the movie. It broke records for box office earnings. It was also one of the most widely pirated movies over the internet recorded, making a profit of close to £500m. This would appear to indicate that the film suffered little (if any) detriment as a result of the piracy.
Christian, I apologise, there was I thinking proof would be needed hence the assumption that ISP`s would have to Police.
If you are correct then all these “moody” law firms who at present send out letters to thousands of people for downloading pornography will have a field day. The fact hardly anyone is guilty of such is neither here nor there.
In actual fact as the owner of numerous websites which are, as a matter of fact, protected under present copyright law I could have a good time too. If what you are saying is correct I need not supply a burden of proof to have peoples internet disconnected.
Topic 3 as you call it gives the right to total censorship to one person, as you say very like China. Totally against democracy and freedom this one.
Going back to the origional issue, how exactly will a copyright owner KNOW someone has downloaded their content ? Peer2Peer as I stated earlier is not the general way people get music, films etc. What they do is visit a forum which gives them links to something like megashares. Now megashares contains millions of GB of legitimate stuff too. So if the Copyright owner finds out a person (ISP contract holder) visits a forum (with some legitimate content) with links on is he guilty or appears so? If he downloads files from Megashares is he guilty or appears so ?
If it is as you say every company that setup fake anti-virus sites will now move to sending out letters to every one of the population, threatening to have them disconnected if they do not pay a small fine. Result = Millions of pounds to real criminals.
I at least thought, the fair & just, British Government would require some burden of proof, evidence of some consequence.
Still if it goes through at least I can see McDonalds being happy with the extra income they`re sure to get from peopled parked around and about. And stations, airports and businesses but I don`t suppose those with open Networks will be too happy…No they`ll have nowhere to park.
Remind me again how King Mandelson got to be in The Lords ?
So let`s deal precisely with the Bill
“124A
Section 3
(3)
A “copyright infringement report” is a report that—
(a)
states that there appears to have been an infringement of the
owner’s copyright;
(b)
includes a description of the apparent infringement;
(c)
includes evidence of the apparent infringement that shows the
20
subscriber’s IP address and the time at which the evidence was
gathered; and
(d)
complies with any other requirement of the initial obligations
code.”
I`ve already discussed further up that IP addresses can be spoofed, the use of Proxies and a mention of TOR. Many of these are being built into browsers so people can have security whilst online.
I`ll give you a little demonstration a screenshot showing that I`m using two IP addresses at the same time. The one on the left is my true IP issued by my ISP, on the right I am using a CGI (Web,PHP)Proxy.
http://www.ccs-rochford.co.uk/bits/ip.jpg
Changing my IP this way is a matter of simple click onto a site and using that to do my internet stuff. Now there are way`s to see through the one on the right to my true ip if these companies have the tech to get it right. A lot of peer2peer is now going to be running Tor which they will NOT be able to see through.
Here`s what is said about full proxy servers.
Fully anonymous (elite or high anonymous) proxies. Such proxies do not change request fields and look like real browser. Your real IP is also hidden of course. People that administrating internet servers will think that you are not using any proxies.
Organisations such as MI5 of course can easily see through these but I think with Tor even they would struggle.
Here`s what is said about Freenet peer2peer
“Freenet is free software which lets you publish and obtain information on the Internet without fear of censorship. To achieve this freedom, the network is entirely decentralized and publishers and consumers of information are anonymous. Freenet is a Peer-to-peer (p2p) network, which is both decentralized and anonymized. The nodes that you connect to only knows its nearest neighbours and has no idea about how the network as a whole is structured.”
Of course if this bill looks like being made law more and more built in tools will be available. A hacker or reverse engineer will look at how the IP address is being obtained and create a tool for avoidance.
Of course copyright theft is a problem but this bill approaches it from the wrong end. The prolific pirates will not be caught by this bill, our children, who the Government state NEED internet, will be caught. Or should I say their parents will. If we say there are on average 5 people in a typical family 4 may suffer innocently. Now if my Lords are happy with the American term “collateral damage” and are prepared to see 80% of a household punished when they are innocent, then they will pass this bill. However I do not believe them so naive to let a multimillion dollar industry or a Grand Pooh-Bah bully them into something that is ultimately unjust.
To the Lords who have a declared interest and are concerned about copyright I say let`s not have a kneejerk reaction. This bill is not the answer, it is tantamount to bombing the whole of Afghanistan just to win.
There are far better ways using software as I have already shown that can limit copyright theft. Indeed, if all the industries involved got around the table they would be able to virtually solve the problems themselves I believe.
I hope this evidence has helped to prove that section 124a para 3c is not reliable enough to be implemented into British Law. Using just an IP address is not reliable or reasonable evidence of someones guilt.
Section 17
302A
Power to amend Part 1 and this Part
This section bestows limitless power on the Secretary of State. He can amend, repeal, order persons to pay fees and numerous other things.
The Secretary of State at present is not a member of the commons therefore not answerable to the electorate. He can do any of the above based purely on what would “appear” to be infringement. Now I ask my Lords to take into account if the same rule applied to the present Secetary of State would he still be in office ?
Let me quote some from the wiki, though I cannot vouch for it`s accuracy:
1)”Mandelson had bought a home in Notting Hill in 1996 with the assistance of an interest-free loan of £373,000 from Geoffrey Robinson, a millionaire Labour MP who was also in the Government, but was subject to an inquiry into his business dealings by Mandelson’s department.Mandelson contended that he had deliberately not taken part in any decisions relating to Robinson. He should have declared the loan in the Register of Members’ Interests and he resigned on 23 December 1998. Mandelson had also not declared the loan to his building society (the Britannia) although they decided not to take any action, with the CEO stating “I am satisfied that the information given to us at the time of the mortgage application was accurate.” Mandelson initially thought he could weather the press storm, but had to resign when it became clear that the Prime Minister thought nothing else would clear the air.”
2)” 24 January 2001 Mandelson resigned from the Government for a second time following accusations of using his position to influence a passport application.[19][20] He had contacted Home Office minister Mike O’Brien on behalf of Srichand Hinduja, an Indian businessman who was seeking British citizenship, and whose family firm was to become the main sponsor of the “Faith Zone” in the Millennium Dome. At the time, Hinduja and his brothers were under investigation by the Indian government for alleged involvement in the Bofors scandal. Mandelson insisted he had done nothing wrong and was exonerated by an independent inquiry by Sir Anthony Hammond which concluded that neither Mandelson nor anyone else had acted improperly.”
3)”During the Parliamentary expenses scandal of 2009 the Daily Telegraph raised questions about the timing of Mandelson’s second home allowance claim, dating from 2004, saying, “Lord Mandelson billed the taxpayer for almost £3,000 of work on his constituency home in Hartlepool less than a week after announcing his decision to stand down as an MP.” Lord Mandelson said in a statement, “The work done was necessary maintenance. All claims made were reasonable and submitted consistent with Parliamentary rules”
4)”On 22 November 2004, Mandelson became Britain’s European Commissioner for Trade.
On 22 April 2005, The Times revealed that Mandelson had spent the previous New Year’s Eve on the yacht of Paul Allen, the co-founder of Microsoft, which was at the centre of a major EU investigation, although it did not allege impropriety.
During the summer of 2008, Mandelson had a widely publicised disagreement with Nicolas Sarkozy, the President of France.Sarkozy accused him of trying to sell out European farmers and appeared to blame his handling of the Doha round of trade talks for the “no” vote in the Irish referendum on the Treaty of Lisbon. Mandelson said his position at world trade talks has been undermined and told the BBC he did not start the row but: “I stood up for myself, I’m not to be bullied.” He said he believed the row was over but renewed his warnings on protectionism.”
5)In October 2008, Mandelson was reported to have maintained private contacts over several years with Russian oligarch Oleg Deripaska, most recently on holiday in August 2008 on Deripaska’s yacht at Taverna Agni on the Greek island of Corfu.[31] News of the contacts sparked criticism because, as European Union trade commissioner, Mandelson had been responsible for two decisions to cut aluminium tariffs that had benefited Deripaska’s United Company RusAl.[32] Mandelson denied that there had been a conflict of interest and insisted that he had never discussed aluminium tariffs with Deripaska.[33] On 26 October 2008, the Shadow Foreign Secretary William Hague claimed the “whole country” wanted “transparency” about Mandelson’s previous meetings with Deripaska. In response, Prime Minister Gordon Brown said Mandelson’s dealings with Deripaska had been “found to be above board.
6)In October 2008 he left his post as Trade Commissioner to return to UK politics. As a former EU commissioner, Lord Mandelson is entitled to a £31,000 pension when he reaches the age of 65 years. This, however, is contingent on a “duty of loyalty to the Communities” which applies also after his term in office. The Taxpayers’ Alliance, which uncovered the potential threat to his pension, demanded that he should declare it as a conflict of interest, and either forgo his EU pension payments or resign as a minister. “When one considers that his new ministerial post deals specifically with Business, Enterprise and Regulatory Reform – all areas that are intimately involved with EU legislation, regulation and policy –” the group said, “the conflict of interest is even more stark.” However, Mandelson’s spokesperson denied there is a conflict of interest: “He has always had a clear view of British interests and how they are best secured by our EU membership”.
7)In August 2009, The Independent reported that unnamed Whitehall sources had said Mandelson was persuaded of the need to try to reduce illegal file-sharing after an intensive lobbying campaign from influential foreign people in the entertainment and banking industries.The Independent also reported that this included a meeting with DreamWorks co-founder David Geffen at the Rothschild family villa on the Greek island of Corfu. Lord Mandelson’s spokesperson said that there had been no discussion of internet piracy during the Corfu dinner. The Times reported after the Corfu meeting that an unnamed Whitehall source had said, “Until the past week Mandelson had shown little personal interest in the Digital Britain agenda. According to The Times, their unnamed source further speculated that apparently Mandelson returned from holiday and effectively issued this edict that the regulation needs to be tougher.”Mandelson denied that the two events were linked.”
Now I know how all this may “appear” to some people but we cannot judge people guilty on on what it “appears” transpired.
The software industry has a problem, you say? This would explain why Adobe, which owns the verbed product “Photoshop” is also the one with the best copy protection. Oh, no, in fact that’s wrong isn’t it. Photoshop is notoriously easy to pirate, which is why it’s on every student graphic designer’s laptop whether they’ve paid for it or not, and why it is and remains the de facto industry standard.
Microsoft, likewise – does that really have a problem with piracy? I don’t mean “does Microsoft like pirates”, but does it impact their bottom line? Since they are the owners of the industry standard software and one of the most profitable software manufacturers out there, I would take their complaints with a smidgeon of salt.
There is a difference between a copyright holder’s right to protect their work, and proof that a violation of copyright has done material harm. There is also a difference between the business of a multi-billion dollar industry and a private artist, and it does not follow that what is bad for a freelance photographer is bad for Microsoft of Adobe.
The legislature should be careful not to fall under the spell of the giants in a fast-evolving industry who wish to lock their most profitable business models into law for a few more years. If the times they are a-changing – and remember, Microsoft’s biggest competition consists of people giving away operating systems for free, these days – do we really want to be writing laws that stand athwart history yelling “stop”?
The Digital Economy Bill: where to start?
One of my main concerns is that it gives the Secretary of State the power to amend copy right laws for the “Prevention or reduction of online infringement of copyright” (Clause 17). This is supposedly because of “technological developments that have occurred or are likely to occur.” So in future, there will be no chance for Parliamentary scrutiny of further draconian copyright laws as they will be sneaked through as Statutory Instruments.
The argument is that technology moves so fast that they need to be able to keep up with it. However, the rights of artists do not actually change at all, whatever the technology: they are entitled to have their works protected by copyright. The big corporations want new laws not to protect artists’ right, but rather to enforce their unfair marketing practices – which includes price-fixing and artificial barriers to free trade – through the use of technological measures. There is no reason why copyright on the internet needs special laws. Technology should not be used as an excuse to place more and more restrictions on consumers, and to limit people’s freedom of artistic expression.
As for disconnections, there have already been some excellent posts on this, in particular the practicalities as far as multiple-occupancy households are concerned, and also whether an internet connection – now fast becoming an essential utility – should be disconnected at the whim of a record company.
Unfortunately, this bill also highlights one of the worst aspects of the unelected House of Lords. The bill wasn’t originally to contain such draconian measures, but Lord Mandelson apparently intervened personally, shorty after dining with the owner of a record label in Corfu. Cabinet ministers absolutely should not be in the House of Lords, and ministers should not be holding portfolios when they are so friendly with wealthy individuals who could benefit from new laws. However much good work is done to improve the image of the Lords, Lord Mandelson is single-handedly undoing it. The House could redeem itself by amending the Bill to remove the clauses that introduce draconian measures confer Lord Mandelson and his successors with new law-making powers for which they can not be held to account.
I think there are significant conceptual and practical problems with the intended copyright provisions contained in clauses 4 – 17 of the Bill.
I thought it might be interesting to look at what these propose in legal terms, and also to think about what practical effects legislation along these lines might have.
I have set out my assessment and conclusions below, starting with the base position, which I consider to be the contractual relationship between the customer and his ISP, and an (inexpert) assessment of the law of non-commercial copyright infringement, followed by a selective assessment of the intended provisions of the Bill, broken into an “initial obligations” phase, and the potential “denial of service” phase. After that, I look at some of the possible practical implications of this Bill should it become law, and follow up with some comments about clause 17.
The base position – a contract of service
A customer makes an agreement with an Internet Service Provider (“ISP”), whereby he gets access to the Internet, which includes provision of an IP number (whether on static or dynamic basis), in return for payment (“the contract”).
The terms of the contract will set out how much and how often a customer must pay, and may also set a fixed duration for the contract. The contract may also include an undertaking on the part of the ISP to provide a certain quality of service.
Customers are referred to as “subscribers” in the Bill, but I think the term ‘customer’ more clearly reflects their relationship with their ISP.
More on this later.
Infringement of Copyright
The law of Copyright is set out in [1988, c 48] Copyright, Designs & Patents Act 1988 (“the Act”). Unless otherwise stated, all section numbers refer to this Act.
The most commonly understood form of infringement of copyright is done by making unauthorized or “infringing” copies of a work (ss 17, 27). Another primary form of copyright infringement, is issuing (non-infringing) copies, which have not previously been in circulation, to the public (s18).
There are also second-tier infringements, such as distributing something one has reason to believe is an infringing copy of a work, otherwise than in the course of a business, and to such an extent as to affect the copyright owner prejudicially (s 23(d)).
For the most part, infringement of copyright is NOT a crime. It is a tort. That is, a ‘civil wrong’. The copyright owners get their remedy, if they can, by bringing a civil action to recover damages from the evil-doer. (Some criminal offences as are created under the Act (e.g. ss 107 – 110), but these are mostly concerned with activity undertaken on a commercial basis). The criminal courts are not implicated in the kinds of infringement described in ss 17 or 23.
Copyright owners face significant difficulties in succeeding in such actions. Even if they can show real loss resulting from the infringement (& this could pose problems), litigation is expensive, and the home Internet user who might copy a few songs now and then tends to have shallow pockets. Further, it is difficult for the owners to gather evidence, for example about exactly who did what and when, because the kind of evidence that would be acceptable to a court is in the hands of the copier and a third party, the copier’s ISP. It is therefore hard for the owners to know whether it is worthwhile pursuing a particular person.
The proposed Bill
The Bill proposes to make life rosier for copyright owners by forcing ISP’s to help them. Two stages to this process are envisioned.
The “initial obligations” phase
In the first phase, the “initial obligations” phase, a copyright owner would identify the IP number and time of an alleged infringement, and provide this to the relevant ISP in form of a copyright infringement report (CIR). This will trigger a duty on the part of the ISP to send a notice to its customer stating that he is suspected of infringing copyright in some work, and advice on copyright and access to legal downloading. (See clause 4 of the Bill).
Also during this phase, if requested by a copyright owner, an ISP would have to supply the copyright owner with a list of the CIR’s over an undefined “period”, which are linked to their customers, where the accounts of these customers have been linked to more than the threshold number of CIR (the threshold is undefined, but there must be two or more CIR’s against a customer account for the customer to be included in the list). The customers are identified in the list by number only. (See clause 5 of the Bill).
From there, the plan is that the copyright owner can assess whether or not to proceed to the stage of bringing civil action, and it might seek a court order to force the ISP to reveal the customer’s identity.
I am not sure what requirements the courts would place on granting such an order, but it is to be hoped that at least a prima facie case of infringement would have to be made out. The ISP would of course be entitled to oppose the application, but might not be motivated to spend the money to do so, and the customer, who would at least be interested as a potential intervener, might not even know about the action. It would be hard for the copyright owner to serve the customer with documents as an interested party, when they do not know who they are. (The answer to this is probably to be found in the law on data protection and privacy, which I have not looked at!).
Let us assume that a prima facie case of infringement must be made out before the customer’s identity can be revealed. This may not be as easy to make out as it seems if the CIR’s are based on the kind of activity specified in the explanatory notes to the Bill. Paragraph 45 of the explanatory notes says:
“Copyright owners are currently able to go on-line, look for material to which they hold the copyright and identify unauthorised sources for that material. They can then seek to download a copy of that material and in doing so capture information about the source including the IP address along with a date and time stamp. However, at present they do not have the ability to match this information to the broadband subscriber to whom that IP address was allocated at that precise time. This information is only held by the subscriber’s ISP. Therefore, the copyright owner relies on the ISP’s ability to match the IP address to the name and address of the subscriber concerned.”
If this is going to be an authorized method of gathering evidence, where is the infringement?
• Unauthorized copying is an infringement (s 17), but any copying done in this situation is being done by the copyright owner or its agent.
• Copyright is also infringed where copies, which have not previously been in circulation, are issued to the public (s18). If the unauthorized source is itself a legitimate copy, it would first be hard to argue that it was being “issued”, and even if it were, it cannot be the case that it has not previously been in circulation.
• We do not know whether the ‘unauthorized source’ that the copyright owner found is itself an infringing copy or not. For argument’s sake let’s say it is reasonable to assume it is, then there is another possible (non-business related) method of infringement, in which a person distributes something he knows or has reason to believe is an infringing copy, to such an extent as to affect the copyright owner prejudicially (s 23(d)). The extent of the distribution is going to have to be very high, and prejudice is going to have to be demonstrated concretely.
Others may have a different view, or know of provisions I have not found, but is not clear to me that a prima facie case of any infringement can be made out based on the evidence that someone had a copyright work available for unauthorized download. It seems to me there should at least be a prima facie case of an infringement.
The requirements as to the means the copyright owners can use to obtain evidence to support a CIR would be set out in the “initial obligations code”. (See clauses 6 – 8 of the Bill, esp. cl 8). This should be regulated very carefully, for example in the circumstance outlined in paragraph 55 did constitute an infringement, the copyright owners might just make multiple hits on an otherwise unused repository of copyright protected works, until whatever threshold the law sets, is reached.
The standard of evidence required should also be at least as high as a judge would require before ordering the release of the identity of a customer. After all, the reason for going through this process is to provide the copyright owner with evidence he can use against the infringer in court.
This part of the Bill is all about the ISP helping the copyright owner to gather evidence against, and in particular officially identify, a potential defendant in a civil action.
The “denial of service” phase
In the second phase, which I am choosing to call the “denial of service” phase, is intended to be brought into action by the Secretary of State if the initial measures prove ineffective in curbing infringements of copyright. In this phase “technical obligations” would be placed on ISP’s to impose “technical measures” on certain of their customers identified as “infringers”.
The kinds of “technical measures” contemplated are limiting the speed or other capacity of the connection; preventing or limiting access to certain types of material; suspending or otherwise limiting service. (See clause 10 of the Bill).
There is no 3-strikes provision in this Bill. The number of “infringements” (if any) required to trigger second phase action against a customer is not specified – that would be set out in another code of practice, and any action of this nature taken is required to be proportionate (See clause 12 of the Bill).
The Bill is very woolly about when and if such measures would be imposed. Surely, they should not be imposed in situations, such as those described in paragraph 55 of the explanatory notes, in which there may not even be any prima facie infringement.
I also note that existing law allows copyright owners to seek an injunction to prevent an ISP from continuing service to someone the ISP knows to be using its service to infringe copyright (s 97A). The oversight of the courts in these matters should perhaps not be completely sidestepped.
Sanctions against ISP’s
Clause 14 of the Bill provides for sanctions in the form of a fine to be imposed against ISP’s that fail to meet its initial or second-phase obligations.
Whilst this could be described as a criminal sanction in the form of a regulatory offence, and with the ISP playing the part of the defendant, the Bill does NOT criminalize the activities of customers. Their criminal liability (if any) is described by existing law.
Practical matters
The Bill allows for the possibility that the Secretary of State might force copyright owners to “pay contributions towards the costs incurred under the copyright infringement provision” (clause 15 of the Bill).
ISP’s could incur very significant costs even in basic compliance. Even if limits are placed on the number of CIR’s a copyright owner can lodge in any period, there would be considerable administrative costs, and quite possibly expenses related to litigation as well, such as when the copyright owner seeks an order to release the customers identity. They will also lose customers, it is not clear that the Bill intends ISP’s to be compensated for this very predictable loss.
I wonder if some ISP’s may not seek to change the terms of their contracts so as to allow them to terminate if even one CIR is received.
Even if ISP’s would rather incur the costs than lose even one customer, the customers might well choose to jump ship. The Bill seems to assume that the customer is just going to want to stay with the ISP. Whether or not he is bound to a fixed term contract, he may just choose to leave on receipt of the infringement notice, and the trite advice on copyright and legal downloading. There is nothing in this Bill that prevents a customer from setting up a new account with a new ISP. And if he set up the new account in his wife’s name what could these provisions achieve except inconvenience?
Others could suffer too, as ISPs would have to pass on the costs not picked up by the copyright owner to other customers.
The Bill provides for customers against whom technical measures are imposed to appeal to an independent tribunal. (See clause 13 of the Bill). Customers who want to, or have to, stay with their ISP could face considerable expense in taking the matter before the tribunal, and legal aid would be unlikely.
It is also an open question whether an ISP that is forced to impose technical restrictions upon a customer, might find itself in the situation where its contract of service with the customer is impossible to perform. Again the allegedly infringing customer can just walk away, to another service provider.
Clause 17
Clause 17 of the Bill would grant the Secretary of State the power to amend copyright law so as to define what is being done as an infringement of copyright – although it would not allow him to define them such as to make them criminal offences. This means for example, he could define an infringement that met the standard of behaviour discussed in paragraph 55 of the explanatory notes (discussed above).
The existence of this clause seems to be an acknowledgement that much disapproved of on-line behaviour fails to breach the law of copyright. However, lowering the standards in this way could cause all kinds of behaviour on- and off-line to suddenly become infringement of copyright. Any such amendment should first be considered very carefully by both Houses.
Conclusion
Amendment to existing copyright law may be a good idea. It is not clear that it is a good idea to force ISP’s to imperil their contracts with their customers in situations where it is not clear that the customer has in fact infringed copyright. In particular, any legislation along these lines should not be allowed to be used by copyright owners as a cheap alternative to court, particularly in cases they would not have a hope of winning. This is particularly so, as this Bill can only possibly benefit a particular class of copyright owner, that being the class of copyright owner best placed to protect their rights under the law as it stands.
Jana: May I say that I thought your post was a focused critique on the subject at hand.
As for some other comments, sorry, they fall into what is politically known as ‘bull-**** baffles brains’ and there are an awful lot of brains in the HoL to be baffled. I think it is true to say that peers are generally competent users of IT, however not many if at all any, are in possession of an MCSE and/or a CCNA vocational qualification and neither are they likely to be.
One of the technical issues not touched upon would be the need for ISP’s to assign static IP addresses to their customers in order to comply with the act or its regulation. The problem for ISP’s is that this represents a waste of address space in just the same way as a static address would be a waste within a greenside network infrastructure. DHCP is a much better use of such a space. The other problem is that customers with a static IP address could use them to run web server bit torrents which would escalate illicit downloading and defeat the bills aims and objectives.
All this talk of IP addresses on the blog is certainly going to frighten people as to their privacy when blogging here. To give some reassurance, Hansard must comply with Central Office of Information rules in how information is to be used by peers running the blog. There are issues however with WordPress as its servers and log files are located in the US outside of UK legal jurisdiction.
Ref: COI: Privacy: Additional Information
http://coi.gov.uk/privacy.php
@Senex: which part requires ISPs to allocate everyone static IP addresses? In Clause 4 it states an infringement report must contain “the subscriber’s IP address and the time at which the evidence was gathered”. ISPs have records who had a particular dyniamic IP at a certain time.
“One of the technical issues not touched upon would be the need for ISP’s to assign static IP addresses to their customers in order to comply with the act or its regulation.”
Senex there is no need to issue static IP addresses. Dynamic IP addresses are all logged by ISP`s.
As for the BS allegation can you clarify exactly what it is you disagree with in the technical sense ?
Rant about finding & accessing Bills on parliament website:
All statutes, SI’s and so forth are easily locatable http://www.opsi.gov.uk. However, anyone foolish enough to want to read a Bill has to deal with http://www.parliament.uk.
To get to the text of this bill one has to follow several links which are secreted in odd places on fussy, messy, ridiculously cramped and very ugly pages.
When one at last tracks down one’s prey, one is rewarded with the discovery that the Bill cannot be accessed as a simple, single document, say in .pdf or .rtf, rather, it has been split up into 7 or 8 bizarre, seemingly arbitrary portions, which are presented only as html pages.
It is little wonder so few people actually bother to read these things.
Yes, some kind of schedule that showed all amended legislation might be useful. And if you are accessing the Bill on-line why not just link through to the original text – come on guys, how hard would it be?
A good summery Jana.
I think on a pure point of principle I find the notion that we must pay our ISPs to spy on our usage (as the costs of any monitoring will certainly be added to our bills) and that it can disconnect our access on the basis of unproven allegations objectionavble. I certainly agree with comments above that ISPs (as past history with websites takesdowns shows ) have little interest in fighting for their users as it costs them money.
A more fundamental point to much of this argument is that Britain, unlike many other countries, has no single fair use doctrine in law but rather a series of unconnected exemptions – academic copying an so on. A strong statue based fair use doctrine would assuage many concerns and represent something of a quid pro quo for tighter property protections but government and the industry have never shown any willingness to move in this areas and tend to offer little more than a ‘well that short of copying would never be prosecuted’ argument. If they believe this as they have said in commons committee hearings in recent times then they can’t object to a legal definition of such things they say they would never act upon being protected in law.
‘Objectionable’ is certainly a mild word for it.
On the ‘fair use’ idea, I am not sure how much help such a doctrine would really be.
I have heard quite a compelling argument that the US doctrine of fair use is in fact part of the problem not the solution. It goes something like this: Americans are used to having this right to copy for “fair use”, they do not want to give it up, and no elected politician wants to get his votes slashed by taking it away from them. This prevents them from implementing more sensible and radical law changes that would in fact beef up copyright law per se.
‘well that short of copying would never be prosecuted’
That’s right, it’s not a crime. It’s a civil matter, a matter for two parties to argue about as individuals, not for state involvement. As well, in such civil cases there is a thing called the “de minimus” rule, which means if the harm you are alleging has happened to you is absurdly small the court will not waste its own time hearing it.
In relation to small infringements, even genuine infringements, copyright law is rather like a wet bus ticket.
Fair use is no panacea but it does give a clear and practical way to limit copyright creep and protect reasonable use and manipulation of material. For all its problems the US has a vastly larger area of protected ‘fair use’ than the UK and because of its strong legal foundation it has proved fairly resilient to congressional salami tactics.
If you think the “de minimus” rule will help then I fear you will be disappointed.
This maybe worth looking at in the context of legality.
http://www.computeractive.co.uk/computeractive/news/2254389/privacy-international-fight
The next links intimate that the origin of the bill was from the American Film industry itself.
http://www.wired.com/threatlevel/2009/11/america-catering-to-hollywood/
http://www.wired.com/threatlevel/2009/11/policy-laundering/
http://www.wired.com/threatlevel/2009/10/specialinterests-peek-at-copyrighttreaty/
http://wikileaks.org/wiki/Proposed_US_ACTA_plurilateral_intellectual_property_trade_agreement_%282007%29
IP Justice may well be worth looking at too.
http://ipjustice.org/wp/campaigns/acta/
Carl Holbrough, Jonathan: Ok! I’m in retreat. The BS comment was inappropriate I should have used the word gobbledygook instead.
How many times have you engaged someone in conversation when it has been necessary for him or her to understand what you are saying only to find later that they did not understand at all but gave every indication that they did? Result calamity.
From the recipients viewpoint what is being said may be BS or gobbledygook depending on how receptive they are? I’m fairly sure that peers would speak up and say that did not understand a technical issue because they have the personal confidence to do so, but is my assumption reliable?
As for the technical content of what was actually said it was a perfectly acceptable technical critique of the issues at hand so in this respect none of it was BS but it may have been gobbledygook to some.
Have I extricated myself?
I mention static IP addresses because I am puzzled just as to how the IP is going to monitor customer activity associated with illicit sites. Given that DHCP servers are running and may be Apache or Microsoft with IP allocation proprietary to the OS, I cannot see a practical way to achieve this short of issuing static IP addresses and parsing the log file for non compliance. The work might be done at the Cisco router level but again I’m sceptical. I think the house would have to see a practical demonstration of what is required but regardless such detail really belongs in the regulation and not in the bill.
I assume the bill has originated from the Home Office and that ministers have been assured that what is required is technically possible. I sense though that this may be a King Canut scenario that is in fact impossible to implement. Static IP addresses are associated with bit torrents; they have to be otherwise nobody would find them.
I mentioned McKinnon in the other thread because his extradition has side issues related to this bill. If McKinnon is successfully tried and found guilty, key will be the capture of his IP address, then what is to stop copyright interests in the US from approaching the state department with a view to seeking extradition from the UK for copyright infringements based upon precedent? These extraditions could apply to the whole of the EU and may affect very ordinary families caught up in a trap of our own making. I’m not at all comfortable with this.
The other hopeful that the government pursues is to capture all URL and email addresses used by everybody. The government is being told that it can be done but I question the quality of the consultation they are receiving. It would be a simple matter to run a DOS type attack to overload the monitoring system. This is not to mention the general degradation of internet bandwidth. What the heck is going on with the government; are they in the hands of some mysterious hypnotising Svengali?
There is also the question of supplying a free wireless point.
Bit like being an ISP, if you get prosecuted for what someone does on the wireless link, why shouldn’t an ISP get prosecuted too
ie. It’s a very badly thought out law. The sole criteria seems to be how can the government get someone else to fund it.
@Senex. No extrication necessary, merely a clarification question. 😉
Gobbledygook is what I feared but I hoped my gobbledygook would result in the Lords asking reasonable questions to those who put their gobbledygook forward in favour of the bill.
“I mention static IP addresses because I am puzzled just as to how the IP is going to monitor customer activity associated with illicit sites.”
You`re absolutely right to question this. Which log are “the police”, whomever they are, going to interrogate ? They can monitor peoples IP`s who visit a particular site, easily avoided by proxy or anonymiser. Or they can implement software as with the comperactive article linked to above. Now this software is invasive and it`s legitimacy questionable at present. It would also have to be done by ISP in reality and this takes us back to my original posts of ISP`s becoming invasive Police.
What is worrying is the fact that this bill is exactly what is referred to in the links above bought about by billion dollar industry lobbying in the USA. It appears to be the international secret agreement that cannot be changed, repealed or altered by Government. I`m not into all this conspiracy theory stuff and we are getting extremely close to one here, I`m uncomfortable.
Of course many, that can do gobbledygook, realise that what is bought out today will be got around by tomorrow. The approach is from the wrong end and will result in more and more restrictive practices.It will also result in an underground movement that may go on to emulate Hollywood itself Matrix style.
Be it a Van Gogh, a banksy, a Beatles record,a Hitchcock classic or indeed a Shakespeare are we talking of protecting the “art” or those who think they have bought the pieces right to keep it away from the public ?
“They can monitor peoples IP`s who visit a particular site, easily avoided by proxy or anonymiser. Or they can implement software as with the comperactive article linked to above. Now this software is invasive and it`s legitimacy questionable at present.”
Exactly. I am very concerned at the source as well as the standard of evidence that may be relied on. Especially, as this evidence might never get to be tested before a court.
There is provision for a subscriber to ‘appeal’ a decision to implement “technical measures” against him, but this appeal is to a tribunal, in which (1) the rules of evidence demanded by a court probably won’t apply, and (2) the appellants will more than likely be stupid enough to try to represent themselves.
There does not seem to be any intended provision for appeal to a court. Someone who loses will be able to seek a judicial review, but these are not substitutes for appeals.
“What is worrying is the fact that this bill is exactly what is referred to in the links above bought about by billion dollar industry lobbying in the USA. It appears to be the international secret agreement that cannot be changed, repealed or altered by Government. I`m not into all this conspiracy theory stuff and we are getting extremely close to one here, I`m uncomfortable.”
A politician was on radio a couple of weeks ago here in NZ talking about this, and he stated quite plainly that the threat was that if they did not pass this stuff into law, the country would not be able to buy any of the media content these companies are selling. Personally, if I never saw another Hollywood film I wouldn’t lose any sleep, but there is a bit more at stake than just that.
He also said that the ISP’s here had rebelled against the “3-strikes” proposal. Good plan, and for the follow up, if I were an ISP, I think I would also have my hand out for a nice fat wad from these guys for implementing this rubbish.
What I mean to say is, what worries me most is not the law being an ass, but being made an ass of.
One thing I haven`t spoken of is the reason or need for this bill.
The record and film industry are at present apparently suffering big losses in comparison to previous years. Now they are wholly blaming piracy as to the reason for this. There could be other reasons.
Cost`s of buying online, downloading legitimately have come down due to some intense competition. As the internet has opened up consumers in the UK have demanded parity with US buyers regards price of CD`s and DVD`s. This year has not been the greatest for blockbuster films yet openings have seen record amounts taken at box offices.
So all may not be as it appears.
I`ve looked at the studies
http://news.bbc.co.uk/1/hi/technology/8337887.stm
http://arstechnica.com/media/news/2009/04/study-pirates-buy-tons-more-music-than-average-folks.ars
and I take them with a pinch of salt because of my personal experience but it occured to me that my own experience may not be disimilar.
I have a good collection of DVD`s and hundreds of Video`s all bought after watching them on TV or the cinema. All available free if I record them on video or my Sony DVD recorder, I could even record MTV if I wished to obtain my music for free. I don`t, I buy them because I want the quality and the genuine article. I don`t buy them as this is the legal way to obtain a copy, videoing or DVD-Recording from TV is acceptable use, though the legitimacy of such I`ve no idea.
So can piracy be the cause of this downturn ? It is of course an unknown but it is doubtful if proved not to be the case that intrusive regulation will be repealed.
I do believe that implementing this bill will not have desired effect of increasing profits.
@Carl Holbrough: of course “piracy” isn’t the cause of the downturn. This year there has been that thing called the recession, which I’m surprised the record company executives haven’t heard of. Even if they stopped all illegal fire-sharers overnight, it wouldn’t result in a significant increase in their profits. Their studies always assume every item downloaded would have been bought, which is obviously fallacious. As you say, in many cases, downloads encourage extra purchases, increase the reach of the media and therefore brand awareness, leading to future further sales.
Not that this is relevant anyway, as trying to ban one system will just push users to something new and more anonymous. (And we have to ask: should they really be putting all this effort into preventing sharing music when people are still able to share child pornography? Surely the priorities are wrong…)
Interestingly, as I understand it, recording films or shows off the TV is no more legal than downloading the same via Bittorrent. Recording off your digital radio and converting to MP3 is no more legal than downloading tracks. It’s just that once the internet is involved, companies assume technology should be used to control people’s behaviour in a way that simply wasn’t possible in the past.
I think a far better solution to the issue of file-sharing would be to grant individuals licences to file-share. That way the public would have access to the convenience and diverse range of titles that only peer-to-peer systems can offer, and I believe the music and movie industries would gain more income per user than they ever will simply by stamping out file-sharing.
http://jonathan.rawle.org/2009/04/18/give-us-file-sharing-licences/
As the internet has opened up consumers in the UK have demanded parity with US buyers regards price of CD`s and DVD`s.
I believe this would be called “capitalism” and we have been told it’s a good thing. Certainly, I see no reason to implement protectionist policies to protect a well established, multinational industry that requires no protection.
I do believe that implementing this bill will not have desired effect of increasing profits.
The bill should not be intended to increase record industry profits. It should be intended to protect the income of artists. As has been increasingly demonstrated in recent years, these things are not directly correlated – certainly not as much as the casual observer would expect, or as much as many people feel they should be.
If the record industry dies a slow death, it will be because of its own increasing irrelevance and immorality, not because of the nasty work of terrible pirates.
http://community.zdnet.co.uk/blog/0,1000000567,10014578o-2000331777b,00.htm
Jana, you might like this.
Canadian record companies have been putting out records without getting the rights first.
Now the artists are suing. However, they are using the fines the record companies got from individuals, and asking the record companies to pay at the same rate. It’s in the billions.
Hoist by their own petard.
For the Lords, read the Sunday times for a similar story
Nick
http://www.theregister.co.uk/2009/12/08/deb_amendment/
So where does your money go?
Tory peers to protect kids from anuses
I’m sorry I’m late to this but the proposals on copyright do worry me:
a) The whole thing reaks of guilty until proven innocent.
b) In order to get the evidence required to prove it requires an invasion of privacy (i.e. monitoring all data on that line) that goes beyond what is reasonable in a democracy.
c) IPs can be forged:
http://www.onthemedia.org/transcripts/2009/08/21/05
and
d) People with wireless routers may be in trouble:
http://news.bbc.co.uk/1/hi/technology/8305379.stm
Another issue related to the bill (but I can’t see in the Bill) is what protection should be offered to customers who buy things legitimately but have them removed?
See:
http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html?_r=1
This is worrying for me because I don’t feel at all comfortable with the thought that something I bought could be removed at a second’s notice without even asking my permission. I might be naive but I thought that if a mistake was made then it’s the person who made the mistake who suffers the legal consequences, not their customers.
Also the idea of books being deleted reminds me too much of the Nazis. I feel that a device that allows a remote server to delete a book (stored on a customers’s device) is an aid to any dictatorship.
I believe that, in the case of a book reading device, the technology should:
1) Make it up to the sole discretion of the user whether a book is deleted/revised or not, and
2) In the case of the a book being revised, making it so that the user can easily go back to old versions (i.e. the revision is reversible and all the information needed to have both versions is on the device).
People are telling me that downloads take place for personal consumption only. They admit that it may be wrong in principle but they also say that they do eventually buy legitimate copy to support and patronise the artist concerned.
The bill naively assumes that the capture of the IP address is significant in securing a prosecution and it also assumes that the ISP can identify a file as being illicit. It does not address the issue of somebody connecting to a Usenet server.
These servers carry all manner of content some of it illegal. The ISP’s are already challenged to remove prescribed content but they fight a loosing battle for uuencoded attachments that are broken up into smaller parts. It is debatable whether any single part represents a copyright infringement as its content cannot be enjoyed until all parts have been assembled.
Given this, the police would have to apply to a judge for a search warrant and the miscreant’s computer removed for forensic investigation, also very helpful to the security services. The police would need a substantial increase in funding to service the bill as would the courts which brings me onto the CPS actually securing a prosecution.
When we look at other infernal electronic based technologies used to fine or prosecute people, two stand heads above the others. Speed cameras and roadside breathalysers. The CPS is able to secure prosecutions in either case because the capture process is standard and subject to scrutiny in a scientific calibration process.
Let’s place this in the context of the ISP. The capture process would NOT be standard and issues surrounding integrity of electronic records pivotal. The ISP would have to demonstrate to the court that by ‘ordinary means’ it would NOT have been possible to falsify or tamper with records without the changes being logged to an audit trail of user activity. Given that log files are currently text based courtesy of the OS and not part of such a regime a court might feel compelled to reject the prosecution.
Nice one Commons, another winner for Parliament.
Ref: Usenet: Binary Content
http://en.wikipedia.org/wiki/Usenet
Senex: the difference is that, while driving under the influence is quite rightly a criminal offence, downloading copyright material for personal use is not. The burden of proof is much lower in civil courts, and unless the accused wants to hire an expensive lawyer to argue his way out of it, he’s probably just going to pay up. Then there is this business of disconnection, which will also operate outside of the criminal justice system.
Thanks for all the comments. I will spending part of Christmas going through them in detail. In the meantime, please do keep the comments coming. I will be especially interested in more comments on the specific detail of the Bill – and indeed suggestions for amendments.
Possible amendments. (roughly)
The copyright holder shall ensure that the infringenment was NOT due to Fair Dealing (Copyright, Designs and Patents Act 1988 (c. 48) Chapter III or (section 31)Incidental inclusion , (Section 32) Instruction or Examination, or other statuatory acts contained in said chapter .
The copyright holder shall ensure that the infringenment was NOT due to legitimate use such as back up copies onto Internet Storage Facilities.
Chapter VI of the Act
“98 Undertaking to take licence of right in infringement proceedings (1) If in proceedings for infringement of copyright in respect of which a licence is available as of right under section 144 (powers exercisable in consequence of report of Monopolies and Mergers Commission) the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the Copyright Tribunal under that section—
(a) no injunction shall be granted against him,
(b) no order for delivery up shall be made under section 99, and
(c) the amount recoverable against him by way of damages or on an account of profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.
(2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.
(3) Nothing in this section affects the remedies available in respect of an infringement committed before licences of right were available.
Chapter IX
153 Qualification for copyright protection (1) Copyright does not subsist in a work unless the qualification requirements of this Chapter are satisfied as regards—
(a) the author (see section 154), or
(b) the country in which the work was first published (see section 155), or
(c) in the case of a broadcast or cable programme, the country from which the broadcast was made or the cable programme was sent (see section 156).
(2) Subsection (1) does not apply in relation to Crown copyright or Parliamentary copyright (see sections 163 to 166) or to copyright subsisting by virtue of section 168 (copyright of certain international organisations).
(3) If the qualification requirements of this Chapter, or section 163, 165 or 168, are once satisfied in respect of a work, copyright does not cease to subsist by reason of any subsequent event.”
http://www.opsi.gov.uk/acts/acts1988/ukpga_19880048_en_3#pt1-ch3-pb2-l1g29
This is very quickly, I will look in more depth soon.
Same Act Chapter III
Amendment to allow copies and transfer as per section 56 below:
56 Transfers of copies of works in electronic form (1) This section applies where a copy of a work in electronic form has been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to copy the work, or to adapt it or make copies of an adaptation, in connection with his use of it.
(2) If there are no express terms—
(a) prohibiting the transfer of the copy by the purchaser, imposing obligations which continue after a transfer, prohibiting the assignment of any licence or terminating any licence on a transfer, or
(b) providing for the terms on which a transferee may do the things which the purchaser was permitted to do,
anything which the purchaser was allowed to do may also be done without infringement of copyright by a transferee; but any copy, adaptation or copy of an adaptation made by the purchaser which is not also transferred shall be treated as an infringing copy for all purposes after the transfer.
(3) The same applies where the original purchased copy is no longer usable and what is transferred is a further copy used in its place.
(4) The above provisions also apply on a subsequent transfer, with the substitution for references in subsection (2) to the purchaser of references to the subsequent transferor.
Amendment allowing download online for playback in reference to Chapter III section 67
67 Playing of sound recordings for purposes of club, society, &c (1) It is not an infringement of the copyright in a sound recording to play it as part of the activities of, or for the benefit of, a club, society or other organisation if the following conditions are met.
(2) The conditions are—
(a) that the organisation is not established or conducted for profit and its main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare, and
(b) that the proceeds of any charge for admission to the place where the recording is to be heard are applied solely for the purposes of the organisation.
Amendment to allow download of Broadcast from abroad for the purpose of Time shifting. The Broadcaster being responsible for Copyright licence in his own Country.
Section 70
Recording for purposes of time-shifting The making for private and domestic use of a recording of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at a more convenient time does not infringe any copyright in the broadcast or cable programme or in any work included in it.
The proposed Bill in article 17 gives the Secretary of State power of actions without evidence of guilt that would be necessary to the Copyright Tribunal.
(Remedies for Infringement are covered in Chapter VI and are actioned by a Court of Law)
“Chapter VIII
The Copyright Tribunal
The Tribunal
145 The Copyright Tribunal (1) The Tribunal established under section 23 of the [1956 c. 74.] Copyright Act 1956 is renamed the Copyright Tribunal.
(2) The Tribunal shall consist of a chairman and two deputy chairmen appointed by the Lord Chancellor, after consultation with the Lord Advocate, and not less than two or more than eight ordinary members appointed by the Secretary of State.
(3) A person is not eligible for appointment as chairman or deputy chairman unless he is a barrister, advocate or solicitor of not less than seven years’ standing or has held judicial office.”
Copyright Infringement is a Criminal Offence therefore only a Court of Law can sit in Judgement.
“Chapter II
Secondary infringement of copyright
22 Secondary infringement: importing infringing copy
The copyright in a work is infringed by a person who, without the licence of the copyright owner, imports into the United Kingdom, “otherwise than for his private and domestic use”, an article which is, and which he knows or has reason to believe is, an infringing copy of the work.
If the above are as I think, applicable, then surely it needs legal attention to clarify if Copyright has been infringed or not?
To clearly state infringement has taken place evidence from a defendant would be necessary.
To propose a punishment, disconnection, without clear evidence and judicial process is against the British way especially as it maybe evident that Copyright Infringement has not taken place.
There are other Acts that must bear scrutiny regards this Bill.
RIPA (Regulation of Investigative Powers Act 2000) & DPA (Data Protection Act 1998).
As a freelance writer and editor, working mainly with small publishers, the provisions of the bill would affect my work and the industry around me in several ways, all negative, as well having more widespread chilling effects on the country as a whole without any compensating benefits.
Most obviously, the (popularly misnamed) “three strikes” section (clauses 4-15) allows the disconnection of individuals’ internet access for any reason. Not only is there no requirement for such disconnections to relate to a number of “strikes” there is no need for disconnection to be linked to infringement of copyright. Furthermore, there is no requirement for any evidence of the individual’s having committed any wrong, and no way for them to appeal. Since, like many other people in the creative industries, my work is now conducted almost entirely via the internet, in the form of files transferred back and forth between myself and the content publishers, such a disconnection would completely destroy my business, and could easily destroy or disable many others in the same way. In addition, of course, disconnection would deny the individual access to online government services; given the recent discussion of making the self-employed complete their tax returns online, any disconnection would automatically put many creative workers on the wrong side of the law. The idea that these disconnections would not be subject to any form of appeal or oversight is disturbing; the clauses that give the Secretary of State the power to allow others to authorize and conduct such disconnections for reasons of their own considerably enhance the problem.
These latter clauses form a part of the second major problem with the bill: secondary legislative powers are always potentially anti-democratic, but these seem particularly overpowered, especially with respect to the problems they are allegedly being imposed to counter.
The third major problem (of which I was made aware by a useful article on the booktrade website: http://www.booktrade.info/index.php/showarticle/24455 ) comes from the clauses relating to the registration and licensing of “any ‘organisation’ which licences any copyright material created by more than one different individual, or acts as agent for any such owners.” While this is presumably aimed at the ACLS and other large licensing organisations, the legislation as currently worded also includes small publishers, software companies (and free software organisations), photo libraries, scientific journals and learned societies, authors’ agents, and many others. Such companies are often operating on much smaller margins than their larger brethren, and to impose expensive registration and compliance regimes on them could make business difficult or impossible for many. While they are individually small, their large numbers make them an important part of the UK economy – in particular, since they have (generally) embraced the internet much more eagerly than their multinational counterparts, they form a major part of the UK’s creative digital economy. To cripple or destroy these forward looking companies in the name of protecting their (and my) rights is clearly not a sensible approach to the issue.
From my point of view, I’m afraid that the best way to correct the bill is simply to cancel the whole thing and start again; I can’t think of any suitable amendments that don’t begin “delete clauses…”.
Parliament have visited this or similar before it seems.
http://www.parliament.uk/post/pn185.pdf
“124H Obligations to limit internet access
(1)
The Secretary of State may at any time by order impose a technical obligation on internet service providers if the Secretary of State considers it appropriate in view of—
(a) an assessment carried out or steps taken by OFCOM under section 124G; or
(b) any other consideration.
[snip]
Any other consideration? One wonders what considerations would have to arise for the Secretary of State to decide to use these powers. One also wonders why the Secretary of State has deemed himself to be in a position to make such decisions.
Is there a particular reason for a complete lack of parliamentary (or indeed any other) oversight of these ‘technical obligations’?
Does the Secretary of State fully understand the implications of implementing these ‘technical obligations’? Large scale Deep Packet Inspection is not cheap and raises serious Data Protection Act and general privacy issues. Maintaining web proxy servers to implement blacklists (as ISPs do now for the Internet Watch Foundation child porn blacklists) is also not cheap. Would the Government be willing to re-imburse the ISPs for the cost of installing and maintaining these systems? Or does ‘technical obligation’ really just mean cutting off the customer (and his/her family’s) Internet connection.
Would “Cash for Considerations” make a good headline? No, I jest – Lord Mandleson’s political record is of course unblemished, and we have no reason to doubt his motives.
http://technology.timesonline.co.uk/tol/news/tech_and_web/the_web/article6797844.ece
Read this.
http://www.francisdavey.co.uk/2009/12/government-wants-new-powers-to-block.html
The Advent of 4G mobile phones next year allow for between 20MB-100MB download speeds, far faster than current average ISP speeds.
These speeds will probably be available to pay as you go customers so if the ISP cuts off internet you simply get another sim and most remain unregistered.
http://www.4gphones.co.uk/about-4g-phones.htm
“…if the ISP cuts off internet you simply get another sim…”
There’s a lot of things you can’t do with a mobile operator connection – no static IPs for example, so you can’t host your own services (websites, mail servers, shell access, etc). That’s not really the point though.
If your job requires a constant network connection (as mine does if I’m on-call), then being without Internet access for an extended length of time would be a problem. A you-don’t-have-a-job-any-more problem.
On top of that, as the Government moves more towards on-line services (DVLA, TV Licensing, Electoral Register, etc, etc) the ablity of a Secretary of State to summarily remove people from the Internet starts to look a bit sinister. The “Dark Lord” indeed.
Finland and Spain both consider Internet access a legal right…
http://www.cnn.com/2009/TECH/10/15/finland.internet.rights/index.html
http://www.pcmag.com/article2/0,2817,2356014,00.asp
…any we’re considering legislation that would remove people’s Internet access for _alledged_ copyright infringement? Something is very wrong here.
But you’re right, Carl. Getting back on the Internet after being disconnected isn’t really that much of a hassle. The fact that this legislation can be circumvented so easily is an indication of how ridiculous this legislation is.
The HoL cannot block legislation from the Commons like it once could. It was a force to be reckoned with. Now the Commons is the farce to be reckoned with.
Senex venerabilis, congruo prorsus.
I hope this one gets past the censors, as we are not supposed to post in languages other than English.
All that I am trying to say – and probably badly, as I am no credit to those who struggled to teach me latin – is that I wholly agree.
Funny how this Bill is being started in the Lords, isn’t it? Why is that?
I need to make some corrections to my original post on 6th December 2009.
These concern the effect of the underlying Act, the Copyright, Designs and Patents Act 1988 (the Act). I was looking at the Act as originally passed, without considering amendments that have been made in the intervening time.
The gist of my first post, that the Bill seems to interfere in an unwarranted way in private contractual relations between the ISP and the customer, for the benefit of other private commercial parties, is unaffected.
The major change is:
Whereas, I suggested it might be hard for copyright owners to show even a prima facie case of infringement, this is not so. The current version of section 20 provides:
20. Infringement by communication to the public
(1) The communication to the public of the work is an act restricted by the copyright in—
(a) a literary, dramatic, musical or artistic work,
(b) a sound recording or film, or
(c) a broadcast.
(2) References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include—
(a) the broadcasting of the work;
(b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.
This means that in the event discussed in para 45 of the explanatory notes to the Bill, i.e. when a copyright owner finds a copy of something it holds the rights to available for download online, there will pretty much be a prima facie case of infringement.
This of course does not change the fact that they may still have no chance of proving it in court. And most importantly, there may in fact be no infringement, even if a prima facie case is made out.
Some of the section numbers I referred to have now changed, but that is not material.
A minor point is that I also said there were no non-commercial criminal offences, this is now not so, a criminal offence is created by s107(2A)(b), which mimics the civil wrong created under s20. It provides:
(2A) A person who infringes copyright in a work by communicating the work to the public—
(a) in the course of a business, or
(b) otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work.
This is punishable under subs 4A, as follows:
(4A) A person guilty of an offence under subsection (2A) is liable—
(a) on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment to a fine or imprisonment for a term not exceeding two years, or both.
The Bill is NOT concerned with the infringement of copyright as a criminal offence, and neither does it create any criminal offences (except perhaps as against the ISP). However, the existence of this offence does complicate matters conceptually, and maybe practically.
I am annoyed with myself for having made this mistake, and I apologize unreservedly to anyone who was put wrong by it. However, I am also annoyed with the Office of Public Sector Information for (still as of today’s date) not having this Act on its list of revised statutes for 1988, and for giving no warnings on the site that the Act has been updated. The Act is available in revised form on the statute law database, on which warnings are posted that the version available there still may not incorporate all amendments. I can only say in my defence that I am in New Zealand and so wholly dependent on the official publication sites.
I have some thoughts for actual amendments to this Bill, which I would like to post later, if I can be forgiven?
I am splitting this into two posts because it is very long (and boring). This post is an outline of the current position of copyright owners dealing with infringement, with a note on how the Bill fits into the existing legal regime, including the regulations relating to the liability of ISPs for unlawful material passing through their systems.
I will follow in a second post with a closer examination of the Bill itself, and some actual suggestions for amendment.
The current position of copyright owners in the battle against infringement
A typical scenario might go like this:
1. Sam, the Source, uploads a copy of a copyright protected work (track A) to a site administered by Horace;
2. Horace, the Host, makes track A available for download by other users of the internet;
3. Dave, the Downloader, accesses the copy Sam and Horace have made available, and copies it;
4. Owen Ink, the Copyright Owner, is aware of this and wants blood.
(In the interests of keeping it simple, all these guys are in the UK, and everything they do is done in the UK, and on servers located in the UK, etc.)
Let’s look at who has done what and how:
[Note: all section numbers refer to the Copyright, Designs and Patents Act 1988 (CDPA88), unless otherwise stated]
Dave:
There can be little doubt that Dave has committed a primary infringement of copyright under s17(2), by copying track A.
However, I am not aware of any lawful way in which Owen Ink can gather evidence against Dave, even if he catches him in the act. Not only does it not seem appropriate for the law to sanction private citizens or businesses spying on one another to the extent necessary to gather the required information, this looks like it would be an offence under s1 Regulation of Investigatory Powers Act 2000 (see also the wide definitions of “communication” and “person” in s81(1) of the same Act).
Sam:
In the act of uploading track A onto Horace’s site, a copy of it has been created, so like Dave, Sam may have infringed copyright under s17(2). This will depend on the courts’ interpretation of when the act of copying is said to take place, and who can be said to have done it. Section 24(2) may meet Sam’s actions better. Either way, Sam seems to have infringed Owen Ink’s copyright.
Owen Ink, however, has the same problem with gathering evidence against Sam as he had with Dave.
Horace:
Again, dependant upon interpretation, Horace may also have infringed copyright under s17(2) by copying track A when it arrived on his system. Further, by making it available for download by other internet users, it looks like he is infringing copyright under s20.
Even if Horace did infringe copyright under s17(2) when track A was uploaded to his site, Owen Ink, has the same problem gathering evidence against him as he had with Sam and Dave.
The section 20 infringement is a different matter, Owen Ink can visit Horace’s site and find track A available for download. Owen Ink can copy track A from Horace’s site, which he is perfectly entitled to do as: (i) Horace seems to permit others to access his system for this purpose, and (ii) Owen Ink has the right to copy track A.
In so doing, Owen Ink gets proof that track A was actually available for download at a particular time, and as part of the transaction, he naturally acquires certain other information about Horace’s system, including the IP address he is displaying.
Moreover, in reality, Horace is most likely to be all Owen Ink sees. Owen Ink does not know that track A originally came from Sam. For all he knows the copy Horace has made available might be his own legitimately purchased copy. Neither does Owen Ink know that Dave has downloaded it. All he knows is that a copy of track A is available for download on a certain site.
Horace is the target.
Owen Ink has a prima facie case against Horace, but first he has to find out who he is. Under current law he can apply to the courts for a Norwich Pharmacal order, which if granted forces the ISP to disclose its customer’s identity to the would-be plaintiff. In order to get such an order from the courts, Owen Ink must meet the standards outlined here, and more fully here.
Sadly, even if the court grants the order, Owen Ink may find that Horace is insolvent, or that he is pretending to be an 82-year-old grandmother.
Even if he succeeds in identifying the true Horace, Owen Ink then has to bring proceedings, in which he must prove every element of the infringement, which includes elements of other provisions such as s16(2).
A note about interpretation:
A lot turns on how the courts interpret the relevant provisions.
I note here that I only have access to UK case law through BAILII, and I have found nothing there interpreting s17(2) in any way relevant to this scenario, and nothing at all on s24(2). There is one case involving s20, which is of limited value, being an application for summary judgment granted in the absence of the defendant, who appears to have been unrepresented and who made admissions in the papers he put in.
How the Bill relates to all this:
The Bill does not change the law relating to how the copyright owners may gather evidence. They cannot unlawfully intercept communications.
Nor does the Bill propose any change to the procedure by which a copyright owner can lawfully find out the identity of an ISP’s customer (see clause 4(6)(a), which indicates this). They will still have to apply to the courts for an order forcing the ISP to release the name of its customer. I note here that although the CDPA88 makes provision for a criminal offence very similar to the infringement created under s20, exemptions on providing data about customers in relation to criminal offences, such as under s29 Data Protection Act 1998 (DPA98) do not apply. (The question of what obligation if any an ISP that has been made aware of its customer’s activities in this way might come under to inform the relevant authority regarding a customer’s criminal liability is a separate and confusing issue.)
The Bill adds a layer before the point at which they seek an order from the courts. This is the initial obligations phase, which subject to the code, forces the ISP to inform its customer that it has received a notice from a copyright owner that they are infringing copyright, and to provide the copyright owner with information about how many infringement notices related to individual accounts. This allows the copyright owner to assess whether it is worth pursuing civil action against a particular customer. Another benefit is that such notices might scare an infringer into stopping what he is doing.
One obvious problem is that it is difficult to make an assessment of harm done to the copyright owner under this somewhat artificial scenario, as it is the copyright owner’s own activity in accessing the material on the target site that is generating the information underlying the infringement notices. If no one other than the copyright owner is accessing it, where is the harm that might justify an award of damages? The copyright owner would also need to get further information from the customer’s system by means of a search order once proceedings have been instituted. (Search orders are sometimes called Anton Piller orders, these are described here and here).
A bigger danger is that, in a case where the copyright owner discovers that the infringer does not have deep enough pockets to make it worthwhile pursuing him through the courts, under appropriately set up codes, technical measures might be able to be used against the suspected infringer depriving him of internet access where, had the matter been properly litigated, no infringement would have been found. The copyright owner might be able to go from a few emailed “notices” of infringement to disconnection in a few short non-judicial hops, and all sense of proportion may be lost. This danger seems to fall most heavily on poorer people, who are least able to defend themselves in any case.
The potential liability of ISPs
The extent of an ISP’s liability for involvement with unlawful material once it is made aware of the suspected infringement by the copyright owner is not addressed in the Bill.
The Electronic Commerce (EC Directive) Regulations 2002 (ECR02) deal with the liability of ISPs for unlawful material carried through and cached and so forth on their systems. I am not sure of the extent to which these regulations apply (see r3(2), which limits prospective application). The Regulations clearly apply to the CDPA88, and should apply to any amendments made to that Act after 30th July 2002, such as s20 (I am not sure about this), but they should not apply to any powers that might be exercised under clause 17, which will be part of the Communications Act 2003 (I am not sure about this at all).
In any case, even if they apply, the Regulations may offer little protection, if any, to the ISP. The operation of the regulations is usefully discussed in Bunt v Tilley. The liability of an ISP is generally contingent upon knowledge, and advice by the copyright owner such as that provided in an infringement notice might constitute actual knowledge of the wrong, and therefore make the ISP liable.
It may be that an ISP would be wise to amend its contracts of service to allow it to terminate unilaterally should even one infringement notice be received. This would not only mean a loss of customers for the ISP, it would defeat the purpose of the Bill.
This aspect needs to be looked into closely.
Copyright needs to be protected, and those who wilfully infringe it should be held to account, but it needs to be done in a sensible and proportionate way. I will consider some possible amendments to the Bill in another, & final (I promise), post.