Friday, March 19, 2010

Digital Economy Bill passed by the Lords


The BBC reported on Tuesday that the bill has been passed by the Lords, despite continuing criticism. The Guardian suggested that the bill, which the Conservatives support (as evidenced by comments from shadow culture secretary Jeremy Hunt), was likely to face little further scrutiny as the election approaches:
"The government is planning to introduce controversial measures, backed by the Conservatives, that would force internet companies to block websites that host substantial amounts of pirated content as it scrambles to get its digital economy bill through parliament. But because of the truncated timetable for getting the bill into law before a looming general election, the government's as-yet unwritten clause is unlikely to face any major scrutiny before coming into force. It will be the product of a deal done behind closed doors between the government and opposition in the so-called "wash-up" of legislation hurried through before the dissolution of parliament."
It's still not clear what form this "as yet unwritten clause" will take, and timings are very (too?) tight for the bill to be complete prior to the election:
"...the government's new clause 18 would allow for new regulations to be introduced that dealt with websites and other services that allow access to unlawfully copied material...Hunt reckons a solution has been found that would see the content industry pick up the bill for any court action needed to block certain websites with ISPs only picking up the bill if "they act unreasonably". But while Lord Young suggested in the House of Lords on Monday that a new clause could be introduced before the bill went to the Commons, where it will receive its first reading in the next few days, parliamentary procedure does not allow for amendments to bills until the committee stage. The bill will not reach committee if an election is called for 6 May. Instead, the new clause will be thrashed out behind closed doors by party whips in the "wash-up" of legislation. The wash-up, however, only facilitates unopposed legislation so the fact that the clause seems to have Conservative support is absolutely crucial."
There are also procedural issues within the EU which could derail the bill:
"The technical standards directive, otherwise known as the transparency directive, calls for any member state to submit to Brussels any law which introduces regulations that go beyond regulation demanded by EU law, three months before it is enacted. It is designed to stop countries giving local companies an unfair advantage over businesses from other member states."
So, still a fair way to go and a number of obstacles to overcome yet. Andrew Cormack of JANET(UK) offers very good advice on his blog: that we should now seek "to persuade Ofcom to fit us into the Bill’s definitions and Code in a way that does not do too much harm either to rights holders’ interests or ours."

On a related note, the BBC reported on Wednesday that mobile operator O2 has expressed its condemnation of the letters being sent to alleged UK file-sharers by ACS:Law and its client DigiProtect. There have been a number of reports in the media that many people have been wrongly accused of file-sharing and that the letters are bullying in nature. The letters offer recipients to settle out of court for around £500 per infringement, which seems particularly cynical given that some of the content people are accused of downloading is hardcore pornography.

Finally, YouTube (which is often mentioned in coverage about the bill, as a site that would need to be blocked for containing copyright infringing content) is in the news again on a related matter: the ongoing $1bn copyright infringement filed against it by Viacom, owner of the Paramount film studio and MTV Networks.

According to the FT (YouTube ‘knew of copyright violations’) and the BBC, Viacom claim that YouTube was aware early on that large amounts of copyright material was being uploaded to the site, as evidenced by email exchanges between the site's founders. Viacom claim this is indicative of a deliberate strategy to encourage the flouting of copyright to drive traffic to the site.

Google (which bought YouTube for $1.65bn in 2006) has responded by accusing Viacom of "hiding the origins of videos it posted itself for promotional purposes by hiring 18 marketing agencies to post them and deliberately “roughing them up” to make them look stolen or leaked." Viacom responded that the number of clips posted by employees or agents working for Viacom was only in the hundreds, while virtually all of the roughly 63,000 clips the company had found on the site were unauthorised.

Interesting one - were Viacom uploading their own content to support their claim that YouTube had a cavalier attitude to copyright and lacked appropriate self-regulation mechanisms? Or simply because they wanted to use YouTube as part of their marketing strategy, as its number of users made it too good an opportunity to miss? Or perhaps both? Do Google have some form of entrapment defence in relation to this, or does their defence simply rest on the claim that Viacom wanted to have its cake and eat it?

YouTube has insisted that it acted in accordance with the law, by taking down more than 100,000 clips at Viacom's request a month before the lawsuit. Both parties have until 30 April to file opposing arguments to each other's motions, and all the arguments are expected to be completed by June.

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