25 Mar 2012 by Dave.

In Feburary, TechDirt discovered that one of it’s key anti-SOPA polemics had been deleted from Google’s index as a result of a bogus DMCA takedown notice. The article goes onto detail similar dirty tricks on Torrentfreak.

In my article, “More on the Newzbin2 affair”,  I comment on BT’s attempt to clarify the initial injunction and the issue of false notifications and liability for acting on them. The judge said there was no evidence that false notification would be significant. Despite the well documented existence of speculative invoicing scams, this would seem to add to the evidence that while accusing innocent infringers is free of consequence, some at least will do it.

Posted in copyright, newzbin2, culture, digital economy, internet, politics | No Comments »

31 Dec 2011 by Dave.

Now that BT’s DNS service has been reviewed by a Court and the newzbin2 site been deleted, can I assume that all sites within the DNS database are permitted by the copyright holders and courts?

I feel that we as the ISP’s customers need some “certainty”.

Posted in copyright, newzbin2, digital economy, uk, internet, law, technology | No Comments »

05 Nov 2011 by Dave.

The Guardian ran a story yesterday which states that a coalition of music publishing corporations have threatened BT with court action to get them to “block” the Pirate Bay since they feel they have a legal precedent in the newzbin2 judgements.

They’re wrong!

A key part of the judgement is that newzbin2 charge fees under terms for the right to use their NZB program, which permits the assembly of usenet posts into usable content. This is deemed by the court to be an inducement to infringe copyright, despite the fact that newzbin2 do not know if their program is used to assemble copyrighted material without permission and host no content themselves.  I discuss this in passing in my blog article, “Censoring the Internet”, published earlier this year.

The Pirate Bay is a linking site. It doesn’t charge, it has no commercial relationship with its users i.e. those individuals who may infringe copyright.

Under UK & EU law, link sites are legal.

In order to get an injunction, the copyright holders, and their agents will need to prove that the Pirate Bay induces copyright infringement by actions other than publishing the links, and that they i.e. the copyright holders suffer financial loss. In the newzbin2 case, newzbin2’s fees are a demonstrable loss to the copyright holders. Pirate Bay don’t charge pirates, they are a search engine, they host no content and can claim a common carrier defence.

The newzbin2 judgements are not a precedent for the Pirate Bay.

James Firth, on his digital rights blog, also comments on this insidious action and has previously argued that UK civil courts do not have easy access to public interest arguments and there is little doubt that this is needed here.

In my article More on the Newzbin2 affair, I begin to explore the equity in allowing Industrial Content to victimize BT and its customers. At the moment the financial cost is quite low, but free speech is about access to ideas as well as the right to promulgate them. As a BT customer I and millions of others are now disadvantaged because a court has permitted copyright holders to discriminate against us. (It’s only BT customers who can’t access newzbin2.)

In the second judgement, the court stated that there was no evidence that copyright holders would notify BT of sites that were not the subject of the injunction. I argued that the behaviour of the bulk of corporate copyright holders has never been to underestimate web publishers and users complicity in infringement, and never to underestimate their financial loss, despite never having proved it, at least not in UK courts.  This letter to BT is yet more proof that except under financial penalty or some other court supervision, they will and always have overstated their rights.

Basically they assume that the only alternative to piracy is payment of monopoly prices, and that’s not true, and they’ve made up the figures as to how much they lose. If a pirate would not buy the content, then the copyright holders have not lost out financially and UK law requires them to prove loss.

This is bullying. As a BT customer I’d prefer to fight them. So if you get to read this, Ian Livingston, you know what I think!

As a postscript, it says something that a group of people can make one feel sorry for or even supportive of BT.

Posted in copyright, newzbin2, news, digital economy, uk, internet, law, politics | No Comments »

05 Nov 2011 by Dave.

Last week, BT and the Movie Studios returned to court to discuss the terms of the newzbin2 injunction. The judgement is a pretty much a  victory for the Studios. BT must use Cleanfeed to block notified sites, they must use it to block all addresses notified by the applicants, the proposal that only sites that ‘predominantly’ induce copyright infringement should be blocked was rejected, they can’t turn the blocking off for operational reasons without the permission of the applicants, they can’t terminate the injunction in circumstances where the applicants don’t injunct BT’s competitors in a reasonable time frame, BT have to pay for the enforcement, BT have no right to claim damages against the studios for consequential liability,  BT have to pay the studio’s court costs to the point of the initial newzbin2 injunction, costs incurred after the injunction are born be each side.

It should be noted that all the Studio’s are US based companies.

The blocking technology, Cleanfeed, was built and designed to block unacceptable pornography. This court backed pursuit by the studios will lead to technical evolution that will make restricting unacceptable pornography harder. More people will adopt VPN technology. Pornographers will be harder to fight.

Probably dedicated downloaders will leave BT while it remains the only injuncted UK ISP. The costs are not large, and certainly not large in terms of the number of BT Retail customers.  I am unclear if BT Global Services have to apply Cleanfeed to the majority of their business customers who don’t currently subscribe to this service, and what this might cost.

It’s the point about equitable treatment that I feel is unfair to BT, and creates a market distortion. The judge has permitted the Studios to victimize the largest UK ISP and as such means that it is now in an uncompetitive position to trade. It’s not just that deemed illegal activity is unavailable at BT while remaing so at its competitors; BT’s customers have to pay the additional cost of enforcing the injunction.

In the discussion about whether BT could claim damages against the Studios for loss of business, the judge drew the conclusion that the only damages BT would suffer would be claims from customers about loss of service, which since the judge deems the service lost to be an illegal one, he’s not too fussed. The second cause of loss might be liability caused by wrongful blocking due to mistakes made by the Studios.  He states that he considers the risk of the Studios over-notifying candidates for blocking to by negligible or minor. (Actually, the judgement states there is no evidence that this would occur). I’d suggest that the behaviour of the customers of some law firms in the USA and Europe, such as ACS Law shows that some copyright holders have little interest in the accuracy of their data when asking for remedy, shown by the number of people caught in their trawl who plausibly claim complete innocence. Bad behaviour is pervasive enough for the term Copyright Troll to have come into existence,  The Judge says that he accepts mistakes can be made, if so why doesn’t he support BT’s right to claim damages in circumstances that a notified candidate for blocking is wrong. While making mistakes remains cost free, they are more likely to happen, even more so in a profit making organisation.

Also in looking at counter damages, the Judge missed the lost business caused by people that don’t want to subsidise the Studios profits moving to non-injuncted providers. He also maintains that the decision to apply for injunctions against other ISPs is that for the Studios.  If BT consider that the Studios are using the courts in an anti-competitive manner, they’ll have to return to court, presumably on the basis of changes in market and/or the Studio’s behaviour after the site blocking is implemented.

Posted in newzbin2, digital economy, uk, politics | 1 Comment »

03 Aug 2011 by Dave.

In August, earlier this year, Vince Cable announced the Government’s response to the Hargreaves Review aka the Google review into intellectual property law. Some of the IT companies and many economists, including Google strongly believe that the current intellectual property laws in the UK inhibit innovation and persuaded Cameron to launch a review into the intellectual property laws which published its report “Digital Opportunity, A review of intellectual property and growth” earlier in the year.

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.)

This article was written slowly over the period follwoing 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.

Posted in newzbin2, digital economy, law, politics, technology | 1 Comment »