Censoring the Internet

In August, earlier this month, Vince Cable announced the Government’s response to the Hargreaves Review aka the Google review into intellectual property law. Some of the UK’s IT companies, including Google together with many economists, strongly believe that the current intellectual property laws in the UK inhibit innovation and growth and persuaded Cameron to launch a review into the intellectual property laws. The review was chaired and directed by Professor Hargreaves and it published its report “Digital Opportunity, A review of intellectual property and growth” earlier in the year. This article looks at the Hargreaves Review’s recommendations and reactions to the report and comments on Cable’s speech which de-committed the Government from pursuing the web bocking clauses of the Digital Economy Act.

The Government plan to accept all the proposals in the report and while they plan to study the proposal for  a digital rights exchange they plan to adopt the rest of the report. The headline changes are that format shifting i.e. copying your CD’s and DVDs onto mp3 and mobile dvd players and sharing within a family will now be legal, and satirists will not need to pay royalties.

In his speech, Cable also stated that they planned to shelve the web site blocking clauses of the Digital Economy Act, since they were “unworkable”. This was a couple of days after the UK courts had injuncted BT to block a “Usenet” index site, newzbin2, which pointed to and enabled the download of unauthorised copyrighted digital content. The success of the injunction is based partly on the judged complicity of the site in copyright infringement, but the court hearing has convinced the Government, if not copyright holders that the additional DE Act provisions are not required, since the current law provides right holders with a court supervised route to blocking web sites. Ofcom also recommend that these clauses of the DE Act are unenforceable.

This must come as a huge relief to the Liberal Democrats, one of whose peers introduced the web site blocking clauses in the House of Lords having been drawn like moths to a lamp to Lord Mandelson’s original proposals that would have allowed the Government to vary copyright law using “Orders in Council”. Ever since the web blocking clauses were introduced into the then Bill, albeit amended by the then Labour government, the Liberal Democrats have opposed these clauses, seemingly to the exclusion of opposition to the “3 Strikes” clauses. The Liberal Democrat amendment during the House of Commons debate was to delete the “Site Blocking” clauses. During the 2010 election, Nick Clegg promised the repeal of the DE Act if they won the election, but it’s not in the Coalition agreement. The Liberal Democrat parliamentary party has never seemed as committed to opposing all the provisions of the DE Bill as has their conference and some leading activists. It seems the Tory led government have no plans to back down on the 3 Strikes clauses. They are planning that ISPs will write to the first tranche of allegedly infringing customers next year. They have also decided that the potentially innocent will need to pay a returnable deposit of £20 to appeal first notices. (This is to stop the frivolous. Also having described it as a returnable deposit, it doesn’t seem so bad.)

However the contention that we should pay each time we consume a piece of digital content, at the threat of losing our internet connection without a fair trial, and without the presumption of innocence is unacceptable. The current copyright settlement is unfair, the rights holders pursuit of their fans subsidised by the public, without a need to prove a loss is also outrageous. How much more money do Bono & Simon Cowell want? We should all continue to oppose this law. Maybe we should get behind this e-petition, which calls for the Repeal of the DE Act, but until the ground work is done to undermine the political consensus there’s no point having a parliamentary debate.

Some explanations

Jeff Lynn is the Chairman of COADEC, the Coaliton for a Digital Economy, which convened a public workshop on the Hargreaves review at which Professor Hargreaves spoke. Jeff presented a short slide set to kick off the meeting, which he has represented as a blog article, called “Hargreaves, a great set of ideas….” at the ORG’s ‘zine site. I mention what I consider to be the headlines above, but the report also recommends that research workers’ use of copyrighted works should be excepted i.e. permitted with or without permission and that copyright exceptions cannot be excluded by contract.

The BBC report the MPAA vs BT court case on their web site. Newzbin2 charged for the ability to assemble usable content, mainly video from the massivly distributed usenet content store, and was judged to encourage its members to copy unauthorised copyrighted content. You’d best read the judgement yourself, but the key seems to be that there is an agreement between Newzbin2 and their premium members and that has explicit and implied terms. These terms are judged illegal and place newsbin2 in a relationship with their member’s ISP. The MPA needed to convince a judge that copyright infringement occurs, that it is performed or “authorised” by newzbin2, the rights holders suffer loss, and that the ISP is not protected by the EU and UK telco and information society Directives and laws.

James Firth at Slightly Right of Centre in his blog article, “Parliament needs to act….” also argues that a British Court in settling a dispute between two parties such as Rights Holders and an ISP, have no duty, nor an ability to take into account any public interest arguments. He argues,

Essentially, the public interest is not represented under the ‘Newzbin’ arrangement, and it needs to be. A public defence against each such blocking order must be funded on a statutory basis.”

Having read, some of the judgement I don’t know if it’d have helped; I don’t think newzbin2 make heroic defenders of free speech, they are more than just a links site and at the least, in my opinion, collude in copyright infringement.

I have tried to summarise the newzbin2 case, but I am not a lawyer.

Will Tovey also writes about the newzbin2 case on his blog, and is pessimistic on the impact of these events.

Orders in Council change the law, without requiring a parliamentary vote or debate. (They are the British equivalent of the US Executive Orders, except of course we don’t elect the Queen or the Prime Minister.)

ooOOOoo

This article was written slowly over the period following Cable’s announcement on the 3rd August and published in October as part of my response to the MPAA’s return to court to agree supplementary terms of the newsbin2 injunction on BT. I have backdated it to the 7th August.

I revisited it in Feb 2015 and made minor changes to the article. I considered changing the title, since by 2015, the critical issue seems to me to be the right to make derived works, not censorship and 3 strikes.

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