Wednesday, March 10, 2010

More on the Digital Economy Bill

The FT reports unease over the bill is growing ever more widespread:
"The House of Lords passed the amendment last week, replacing a clause that would have given broad powers to ministers to change the copyright act to respond to new forms of online infringement without the need for primary legislation. Internet companies had also opposed that clause but said the amendment, which would allow rights holders to apply for a court injunction forcing broadband providers to block public access to offending websites, was no better. Because the clause proposes that ISPs should bear the legal costs of defending each accused site, they are likely to accede to rights holders' requests to block them without a judge ever being involved, web companies argue." (Internet law 'threatens free speech')
I guess "broadband providers" in the above means everyone, so any successful injunction would require LAs, RBCs, JANET etc to ensure offending sites are blocked. That'll drive the kind of user behaviours we all want to see I'm sure. And whither YouTube, with all its Government channels (DCSF, No.10 etc)?

Surely any dispute over copyright is primarily between the rights holder and the individual or individuals using an ISP's (or anyone else's) facilities to distribute copyright materials? Metallica didn't sue ISPs, they sued Napster (in its original incarnation), becoming the most hated band on the Internet in the process. But should they have sued the individuals using Napster instead/as well? Though I guess the fact that Napster was  developed expressly for locating and sharing MP3 files, almost all of which infringed copyright, counted against it. The P2P services which followed were developed to distribute a much broader range of content, much of which is entirely legitimate (Linux distributions, BBC iPlayer downloads etc). This makes it much harder to bring a legal challenge against the developers of P2P services or their users, especially given the decentralised manner in which P2P services operate.

It's interesting that in the recent Pirate Bay case, the main ISP (Black Internet) was also sued, according to Wikipedia:
"On 13 May 2009 several record companies again sued Neij, Svartholm, Sunde and also The Pirate Bay's main internet service provider Black Internet. They required enforcement for ending The Pirate Bay's accessory to copyright infringement that had not stopped despite the court order in April, and in the complaint listed several pages of works being shared with the help of the site. The suit was joined by several major film companies on 30 July. The Stockholm district court ruled on 21 August that Black Internet must stop making available the specific works mentioned in the judgment, or face a 500,000 SEK fine. The company was notified of the order on 24 August, and they complied with it on the same day by disconnecting The Pirate Bay. Computer Sweden noted that the judgment did not order The Pirate Bay to be disconnected, but the ISP had no other option for stopping the activity on the site. It is the first time in Sweden for an ISP to be forced to stop providing access for a website, and the ISP is appealing the ruling. Due to the cost of the appeal process, a public support fund fronted by the CEO of the ISP was set up to cover the legal fees. Pirate Party leader Rickard Falkvinge submitted the case for Parliamentary Ombudsman review, criticising the court's order to make intermediaries responsible for relayed content and to assign active crime prevention tasks to a private party."
Difficult one this, as it's clearly nonsense to suggest that Black Internet had no knowledge of what the Pirate Bay was doing. In such blatant cases as this, does a "mere conduit" ISP defence cease to apply? If so, what precedent does this set? Has the "mere conduit" defence ever applied? Who makes the judgement call as to whether an ISP should be held accountable or not in such cases? Is this dictated by the scale of the copyright infringement? If so, how do you measure the scale of the infringement? By amount of material, value, number of users, volume of traffic? Could the Pirate Bay itself make a "mere conduit" defence, as its function is to index BitTorrent files? It's the individuals making illegal content available via BitTorrent (which has many legitimate uses) that are the real copyright infringers in such instances?

All of these questions need answers if any new legislation is to be successful. But I guess what constitutes success in this context is a moot point. My definition would include something about ensuring an additional law - the law of unintended consequences - was given the fullest consideration possible in developing any solution. Also, to what extent does current UK legislation address these issues? Again, an interesting question: while the Pirate Bay's founders were found guilty of assisting in making copyright content available (and are currently appealing their one year prison sentences and fines), the site itself, having been sold, continues to operate as far as I can see. Which, in the eyes of copyright holders, can hardly constitute success?

Returning to the issues at hand, there are two aspects of immediate concern here:
  1. The originally proposed mechanisms to deal with individuals downloading copyright materials - these could have a significant impact on education providers (in its broadest sense, to include schools, universities, libraries etc). There are both operational (how to identify individuals, how does an institution know if it's done all it's expected to do to prevent access) and strategic (the risks to open access networks) issues here.
  2. The newly proposed mechanisms to deal with "offending websites" - clearly the free availability of copyright infringing materials can't be advocated, but a mechanism which doesn't follow an appropriate legal and governance framework is not the right solution. There are operational issues here too, in how to ensure education broadband providers abide by injunctions.
While I wouldn't argue for a moment that copyright owners don't have a point about the scale and impact of online copyright infringement, this seems an ill-drafted legislative sledgehammer to me. The fact that crafting an appropriate solution is complex and difficult is no excuse for bad legislation. As with all things broadband, it's more important to do it right than to do it right now. But unfortunately the Guardian report that the bill is likely to be pushed through before the election. We can only hope...

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