Disconnection or Suspension?

What’s in a word? Is there really a difference between ‘disconnection’ and ’suspension’? Are we now approaching an end game in which the Government will want to make small changes to the Digital Economy Bill in order to ensure that it passes through the Parliamentary process with the minimum of problems before the Prime Minister calls the General Election?

Well, the PM is the only one who knows the date of the election - or so we are led to believe. Smart suggestions have tagged the 6th May as the day, coinciding with the district council elections, but there have been suggestions in mid-February that the PM may decide to call the election earlier, particularly if there appears to be a double dip within the recession.

The Digital Economy Bill has been progressing through discussion in the House of Lords with a succession of amendments being laid before the House, withdrawn or incorporated. The Bill has now been through the Committee stage and will move on to the Report stage with further line by line examination on 1st March. After completion of the Lords stage, the Bill will move on to the Commons for further stages - 1st and 2nd readings, Report stage, 3rd reading and consideration of amendments. The Crusher continues to think that these stages have the possibility of taking more Parliamentary time than will be available.

However, it is noticeable that there have been changes to the Bill. Much trumpeted at the beginning of the process was the inclusion of powers to allow the disconnection of internet service for those found to have been engaged in file-sharing. There had been some suggestion, maybe incorrect but widely publicised at the time, that changes were introduced by the Secretary of State following a weekend meeting with a Hollywood producer, changes that would have hardened up the response to potential file-sharing.

Now, it seems that the Government is back-tracking. A response to a No 10 Petition sets out the Government’s position and that it considers there should be economic recompense for those engaged in creative production. No problem there, and the response goes on to indicate, “that [the Bill] require[s] ISPs to write to their customers whose accounts had been identified by a rights holder as having been used for illegal down loading of their material. In the cases of the most serious infringers, if a rights holder obtains a court order, the ISP would have to provide information so that the rights holder can take targeted court action.” Little difference there to the current procedures where most ISPs pass on notifications of potential abuse and discuss with their customers and where some (ISPs) have been the subject of court action to release details of customers to rights owners.

The interesting line comes later, “We will not terminate the accounts of infringers - it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal – cases.” This appears to be a step back from the previous position and may have more than a passing nod to the discussions emanating from Brussels - where it is clear that access to broadband internet is seen as a basic right.

“We will not terminate” - that is the interesting bit and really comes back to ‘disconnection.’ What’s in a word? If you terminate or disconnect an ADSL circuit then the ISP puts an order to the wholesale provider to physically disconnect the circuit at the exchange, to remove the inter-connect on the frame between the PSTN and the ADSL mux. BT raise a charge for this, a charge that is now passed on by most ISPs to end-users. Terminate and you will be charged - ISPs will not want to bear the costs of this and will probably find it difficult to recoup costs from either end user or from rights owner. When the end user wants to re-connect there will be a standard connection charge applied by the wholesale provider. Now, suspend and the link to the internet is removed at the ISP (block the authentication request) but the physical link remains in place. To the end user there is still no access but there is no charge for disconnection and no charge for re-connection (add those two together and you are talking about quite a susbtantial penalty) and the ISP only needs to permit the authentication again when the suspension is served. Depending on the terms of the service agreement, the end user could find themselves liable for on-going circuit charges during the suspension (the wholesale provider will continue to levy these).

In terms that the end user will understand there may be little effective difference (until the charges roll in), they will still be unable to access the internet. French legislation (the ‘Hadopi’ law) suggests that suspension may be applied for up to 12 months - that will pretty much seem like termination to the user - there does now need to be some indication within the UK process as to what the terms of suspension may be.

There do appear to be movements in other areas. An end user may wish to appeal against a decision to apply ‘technical measures’. There does now seem to be some change to the appeal process and to the way in whcih the measures will be applied by Ofcom. This may be particularly important where an end user has a wireless network and someone unknown accesses the network and uses it for file-sharing. If the subscriber can show that they took reasonable measures to prevent access (although the exact nature of ‘reasonable measures’ is not explained) then they may well have a good case for appeal.

There is now no option for the introduction of immediate suspension - technical measures will not be able to be introduced for at least 12 months after the coming into force of the initial obligations code. No suspensions until April 2011 at the earliest (and then likely to be another Government that will take the hit!).

It may well be that the politicians are playing with words before an election - but there are differences between termination and suspension. What we now need is some clarity as to what the intention is in relation to length of suspension - 1 week for first offence, 1 month for second etc.

Welcome to a New Year

Welcome to the New Year - 2010

This will be an ‘interesting’ year - not the least of which through the absolute knowledge that we will have a General Election here in the UK this year and that the outcome is likely to be a change of government.

When that election will be is still open to some form of guess work. It is probable that the only person in a position to determine the election date does not yet know which date he will choose and that the actual date may well depend on circumstances. Hints from recent interviews suggest that later rather than earlier may be the form - The Crusher suspects that the date will go long leaving the current administration to remain in power for as long as they can in the knowledge that they are unlikely to return in power. Enjoy it while you can!

The Crusher suggests that the most likely date for a General Election will be Thursday 6th May. This is the day already determined for local government elections - it simply makes economic sense to hold the General Election on the same day although this has not always been the case.

The last day that an election may be held is 3rd June. The 2005 General Election was held on 5th May with Parliament meeting for the first time on 11th May 2005. The last date that a notice may now be issued to call a new Parliament (requiring an election) is 10th May - the election would then be held 3 weeks later on 3rd June.

However, for the election to be this late the current Parliament would have to run to the end of its statutory period and would expire. Parliaments in recent years have not expired and elections have been called before the last date.

For an election to be held on May 6th, the Prime Minister would have to ask the Queen to dissolve Parliament some 3 weeks before this date. Notice of the election would thus have to be given around 10th April - one week after the Easter holiday.

Now these dates are not so far away and the short period makes the current legislative programme all the more interesting.

Currently high on the agenda is the Digital Economy Bill with its provisions for restrictions on Peer to Peer file sharing etc. The Bill was in second day of committee stage in the House of Lords yesterday (12th Jan) with a large number of tabled amendments. As expected, many of those have now been withdrawn but there have been further significant additions.

The Bill must progress through committee and then formal reading stages in both Houses of Parliament. That takes times and The Crusher suspects that Parliamentary time will not be sufficiently available to allow passage before Parliament is prorogued and an election is called. If the Bill has not then completed all of its stages then it will fail. The Crusher suspects than an incoming administration will not feel that the Digital Economy Bill will be its first priority - rather that will go to more traditional economy. If the Bill does not pass through Parliament before March it may well be some time before it is brought back.

That may be fortuitous - current amendments tabled by the Secretary of State for Business suggest that technical measures could be applied to all subscribers rather than particular subscibers. That could, if implemented and passed, provide for content filtering for all with specific sites identified by copyright owners. A further amendment provides for discussions and representations between the Secretary of State and rights owners to remain confidential - in order to protect their business interests.

Difficult - and not promoting transparent government. The current developments have seen a number of meetings and representations which have changed the way in which the Bill has been presented leaving a hint of some opacity. If there are to be future changes to the Copyright legislation then the reasons for requiring a change should be transparent and open to all.

Whither ‘mere conduit’?

‘Mere conduit’ is a defence - laid down within the European e-Commerce Directive and transposed to UK law within the Electronic Commerce (EC Directive) Regulations 2000 - that allows an intermediary, typically an Internet Service Provider, to limit liability for illegal activity. This follows on from the accepted position that a mail carrier (Royal Mail etc.) is not liable for the contents of mail that it carries - provided that it does not know what is in the package.

Article 12 of the European Directive sets out the position:

‘Mere conduit’

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:

(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.

2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.

So, that seems reasonably clear. An Internet Service Provider (ISP) is an intermediary - they carry traffic across their network, they do not initiate the traffic, they do not select the recipient and they carry it without selection or modification. Provided they adhere to the conditions then they may claim a defence of mere conduit and cannot be held liable for, say, the transmission of illegal criminal content (child abuse content) or unlawful content (Peer 2 Peer file sharing). The problem for the ISP comes when they are told about the traffic or otherwise become aware. Once an ISP is ‘put on notice’ then they must take action.

OK, so why is there a question mark over ‘mere conduit’, what appears to be a well established point of law. The problem, as so many affecting ISPs today, has derived from the peer 2 peer discussion. We know that pressure from the industry has resulted in the ‘3-strikes and you’re out’ process - shortly to be incorporated within the UK Digital Economy Bill. Now it seems that the rights industry has been able to exert pressure in other areas and the outcome of this could be important for the intermediary.

The problem area is ACTA. AC what you say - ACTA stands for the Anti-Counterfeiting Trade Agreement. OK, what has that got to do with ISPs. Governments have been engaged in a series of discussions, the most recent of which have taken place in Seoul, South Korea, to look at the updating of laws to protect intellectual property. Most readers will be familiar with actions brought against online auction houses (e-Bay) alleging collusion in the sale of counterfeit goods diluting the trademark interests of well known luxury brand names. Other actions have been taken by Customs and Trading Standards officers to confiscate counterfeit goods - sunglasses, handbags, rip-off DVDs etc. That all seems fairly straight forward and expected.

The problem comes with the extension of the counterfeiting argument to copyright infringement in the electronic environment. Hints of the nature of the Seoul discussions appeared in leaked preparatory papers. An European Commission (DG Trade) document in September indicated that the EU and US had engaged in discussion in Washington as part of the Intellectual Property Rights Work Group. Within those discussions, a side meeting had been held to discuss the US preparation of the future Internet Chapter of the ACTA. At that time the US delegation indicated that they had been working for some while on the chapter and had engaged in discussion with other Govt. agencies and with interested private stakeholders (not defined or named as these were bound by NDAs). The US delegation gave an oral presentation to the EU Trade group. It is now clear that discussions in Seoul have followed the inital oral advice and that the US drafted chapter appears to follow the provisions of the US Digital Millennium Copyright Act (DMCA)

ACTA requires that ACTA members (Government/member state signatories) have to provde for third-party liability; Safe-harbours for liability regarding ISPs to be based on Section 512 of the Digital Millennium Copyright Act and to benefit from safe-harbours, ISPs will need to put in place policies to deter unauthorised storage and transmission of IP infringing content (these might include making changes to customer contracts to allow a graduated response - ie, ‘3-strikes and you’re out’).

The European Parliament has now voted against the ‘3-strikes’ approach - there is development within the new Telecoms Package to be agreed between the European Council and the European Parliament. That is likely to reach consensus with provisions to allow a ‘3-strikes’ approach but perhaps subject to appeal or judicial oversight.

There is more amongst the discussion from Seoul. It would appear that rights owners will be able to initiate proceedings against intermediaries alleging that they have allowed their networks to be used for unlawful activities. European ISPs have long known that US based rights owners would like to see the European protection removed and brought into line with the US DMCA practice. In order to claim safe-harbour protection the European intermediaries would need to ensure that they, ‘put in place policies to deter unauthorized storage and transmission of IP infringing content.’ That is a wholly different approach to the current status, transferring the onus to the ISP. The EDRI newsletter notes, “European citizens should be concerned and indignant. As reported, the ACTA Internet provisions would also appear to be inconsistent with the EU eCommerce Directive and existing national law, as Joe McNamee, the European Affairs Coordinator of EDRi notes: “The Commission appears to be opening up ISPs to third party liability, even though the European Parliament has expressly said this mustn’t happen, ACTA looks likely to erode European citizens’ civil liberties.”

There has been real concern about the nature of the discussions - and the secrecy within which they have been conducted. The EU leaked paper noted, ‘As agreed among ACTA participants, the negotiating papers are not public documents’. The Washington Post noted that civil rights organisations had written to President Obama to complain about the lack of transparency.

The Washington Post article noted. ‘The groups, which include Public Knowledge and the Sunlight Foundation, wrote in a letter that the secrecy of the process – and on an issue that could have broad implications for Web users – could unfairly the benefit content providers that are most actively involved in the process.

“We applaud your promise of a more transparent, collaborative and participatory government,” the groups wrote. “However, multiple aspects of ACTA fail to meet these standards.”

The Swedish Presidency has published a note about the 6th round of negotiations. The Swedish note notes, ‘discussions at the meeting were productive and focused on enforcement of rights in the digital environment and criminal enforcement.’ The note continues, ‘Participants also discussed the importance of transparency including the availability of opportunities for stakeholders and the public in general to provide meaningful input into the negotiating process.’

The opportunity for the public to ‘provide meaningful input’ is important. The next stage of the ACTA negotiations will take place in Mexico in January 2010. With the Lisbon Treaty in full force from 1st December, the EU will represent all member states and any decisions accepted will be implemented for all. The current (Swedish) presidency of the European Union notes that ACTA hopes to reach agreement and implementation early in 2010 - there is not much time left before we might see major changes that will affect ISPs and other third parties. Where will be the opportunity for public consultation and input in this timescale?

Amendment 138 falls out into the Grand Place…….

For some time the European Commission and the European Parliament have been in discussion in relation to the development of a new Telecoms Package, a raft of new laws with the intention of revising and updating the regulatory control of the telecoms industry. Included within the package were updates to the Privacy and Electronic Communications Directive that would impact on the receipt of cookies (commonly used by advertisers and others) by a web browser.

But, the passage of the Telecoms Package was held up by the introduction of an amendment, Amendment 138 which aimed to control the move towards the ‘3 strikes and you’re out’ approach to the regulation of peer to peer file sharing.

The rights industry has been pushing hard for national governments to adopt the ‘3 strikes’ approach as a way of trying to contol the use of file sharing and unlawful copying of rights protected materials. The idea is that users identified as engaged in unlawful filesharing will receive a letter from their ISP to advise that the sharing is unlawful and (in pretty much most cases) in contravention of the ISP acceptable use policy. Experience suggests that the first letter had some effect in about 50% of cases. Many of those responded to confirm deletion of infringing materials and that they would not engage in any further file sharing. For those that continue, a second, stronger letter would be sent before a third letter and then disconnection of internet service.

It is the disconnection that is the problem. Many now consider access to broadband as a basic human right - alongside access to water, power etc. There was political support for the view, including from Mdme Reding, European Commissioner for Information Society. The problem was (is) that disconnection would take place without judicial review and potentially without the option for the accused user to defend their position and argue their innocence. When the Telecoms Package came before the European Parliament it was amended by Amendment 138 to require judicial intervention and oversight before disconnection.

The Amendment provided the clear requirement for a judicial role and in so doing acted as a brake on the proposals by certain European governments to press ahead with legislation to enable ‘3 strikes’. Before any disconnection could take place a rights owner would have to go before a judge and plead a case for disconnection of the user. And, of course, the user would have the opportunity to defend his position. In France, President Sarkozy promoted the ‘Hadopi’ legislation and in the UK, the Digital Britain report and the Business Secretary, Peter Mandelson, engaged in discussions to push ahead with a ‘3 strikes’ approach. It is notable that Peter Mandelson appears to have come out strongly in favour of ‘3 strikes’ since a weekend meeting with a leading producer.

For the European bureaucrats and politicians the groundswell of public support for Amendment 138 provided a problem. Whilst the Amendment was debated it held up progress on the whole Telecoms Package and with the imminent arrival of the Lisbon Treaty conference there was a political need for progression.

Now, at the last minute and just before the conference, there has been agreement in Brussels to accept a watered down version of the amendment Pressure from national governments that will allow them to introduce disconnection for persistent file sharers (and who else the Crusher wonders?).

Jérémie Zimmermann, spokesperson for La Quadrature du Net,(quoted on ISPreview) said: “Amendment 138 was in haste dissolved into useless legalese and soft consensus. The Parliament hurried to get rid of the safeguards of citizens’ freedoms because it knew that with the imminent coming into effect of the Lisbon treaty, both institutions will soon share the legislative power in the field of judicial affairs. And the bad excuses we have heard these past few days to justify to abandon amendment 138 will then be totally obsolete. In the end, the Parliament was not brave enough to stand against the Council to defend citizens’ freedoms.

Ministers of Member States, who want to be able to regulate the Net without interference from the judiciary, were rushing to kill amendment 138 and put an end to the negotiations. It is a shame that the Parliament’s delegation, and especially rapporteur Catherine Trautmann, was not determined enough to use the political context to assert its authority in the European lawmaking process in order to protect European citizens. Even though it has been an interesting and constructive discussion, amendment 138 has turned, by the lack of courage of the delegation, into the emblem of the powerlessness of the Parliament.”

So, in the face of political pressure to reach agreement before the meeting of Heads of State/Prime Ministers to conclude ratification of the Lisbon Treaty and the appointment of a new President of Europe, the Council has over-ridden the European Parliament (which had previously voted substantially in favour of Amendement 138) which has now accepted the reduced version limiting the rights of the citizen.

The way is now clear for those member states who wanted to introduce ‘3-strikes’ to do so. In the UK, Lord Mandelson has now announced actions to be taken against repeat piracy offenders and procedures will be included in the Digital Economy Bill expected to be included in the Queen’s Speech (18th November) with passage through Parliament before the end of the current session.

Lord Mandelson met with Internet industry representatives before the announcement was made. Mandelson asked the Internet industry to consider the proposed ‘3-strikes’ process in the context of the wider business economy (in iother words, consider the impact of filesharing on the revenues of the music industry) and to realise the importance of creativity. The Crusher understands that Lord Mandelson was fairly combative in his approach to the Internet industry but that the industry did make him aware of their concerns about proportionality, cost, options for alternative modes of contents delivery, due process etc.

The devil, as they say, will always be in the detail so it remains now to see how the Digital Economy Bill is drafted in order to see exactly how the ‘3-strikes’ approach will work in the UK. It would seem likely that the rights industry will contribute to the costs of the ISP in communicating with users and that there will be a likely lengthy process before any disconnection take place. It is likely that Ofcom will set up a dispute panel procedure to hear appeals from consumers targetted for disconnection and that Ofcom will collate information relating to the issue of notifications.

But - time is now running out for this Government. A full General Election must be held before June 2010 at the latest. As we are now clearly in the run up to the election and campaigning has been going on for some time, The Crusher wonders whether the Govt. will actually be able to progress the Digital Economy Bill to the Statute Book before dissolution.

The other matter, of course, is in Brussels. The actions there point to the ineffectiveness of the European Parliament. The elected representatives of the European citizenry are over-ruled and kicked into touch by member states acting in the European Council. The European Parliament has no ability to initiate legislation and can only comment and amend - it seems now that their ability to amend has been curtailed in the face of opposition from member states.

The word of a Minister should not be taken as binding ……

It is clear that the word of a Minister should not be regarded as binding, perhaps merely an expression of the state of policy at the time that he (or she) opened their mouth but nothing more than that.

Back in April, the then Minister with responsibility for Intellectual Property, David Lammy, made it clear that the option to implement a ‘three strikes and you’re out’ policy for peer to peer filesharers had been dropped from Government plans incluyding the Digital Britain report. The Minister said that ‘cutting off users was not “the right road” for UK law makers’. David Lammy told ‘The Observer’ that, ‘”It is for the French to determine what is right for them, (referring to the Hadopi law) but for us here we do not believe that would be the right road to go down.”

Then, in June, came the publication of Stephen Carter’s Digital Britain report. This discussed the issue of perceived piracy and the problems of file sharing and suggested that Ofcom should be tasked with the setting up of technical measures to combat persistent filesharers including restricting access etc. At this time, Stephen Carter’s report reflected the thinking espoused by the Minister.

It is now a couple of months later and it would appear that Government policy has taken something of a ‘U’ turn. It would seem that this Government is for turning with the announcement of policy changes that would see Ministers given the power to order the cutting off of Internet access for identified file sharers.

Now this is a major step in a different direction and completely at odds with previous announced policy. Clearly a Minister’s word counts for little (did we really think that it did anyway?). An announcement by the Department for Business Innovation and Skills (Tuesday 25th August) suggests that thinking in relation to policy has now changed and there is a requirement for a faster process than previously discussed together with the addition of the option to cut off Internet access as part of the technical measures. The announcement says, ‘Accordingly a thorough examination of the proportionality and effectiveness of the measure (as with any of the other measures) would have to be undertaken before ISPs would be required to implement it, even if the decision to move to technical measures is taken. As ever we would need to ensure any such measure fully complied with both UK and EU legislation.’

Now this is where we get interesting. Any decision to cut off Internet access could remove access for entirely innocent parties - such as other members of a family using a circuit. The European Parliament and the Commission have made it clear that they view Internet access as an essential human right. Commissioner Redding responding to questions in Brussels said, “The fourth element I would like to underline is the recognition of the right to Internet access. The new rules recognise explicitly that Internet access is a fundamental right such as the freedom of expression and the freedom to access information. The rules therefore provide that any measures taken regarding access to, or use of, services and applications must respect the fundamental rights and freedoms of natural persons, including the right to privacy, freedom of expression and access to information and education as well as due process?”

Now that seems to have made the Commissioner’s view quite clear. Internet access is a fundamental right and any rules must respect fundamental rights and freedoms. Any action to restrict Internet access must be taken by a judge in a court procedure - at which the end user will be the defendant with the right to defend his position and any proposed actions. It cannot be that removal of access is the result of an order by a Secretary of State or by Ofcom without the right of the affected user to challenge the decision. At present, any evidence to suggest illegal activity seems to be based on the detection of an IP address by automated systems operated by or on behalf of rights owners. There are well publicised indications that systems may be open to abuse and that not all IP addresses may be users engaged in illegal activity. There may well be circumstances where the person carrying out infringing activity is doing so using an unsecured wireless connection without the knowledge or permission of the actual circuit owner. Yet, if evidence based on the detected IP address were to be used it would be the innocent user subject to cut-off rather than the actual perpetrator.

So, it appears to be European policy that Internet access is a fundamental right. That cannot be removed without due process - and the process suggested in the revised consultation would not appear to give sufficient safeguards for those not involved in the infringing activity. Any actions taken would seem to face the immediate possibility of a challenge under UK Human Rights legislation and then action in the European Courts.

There is another interesting facet to this new disclosure. A few weeks ago BIS announced consultation on the proposals of the Digital Britain report. The consultation paper was produced and a deadline set for responses. Now, the Dept. has announced that it wishes to change the consultation during the period set for stakeholders and others to respond and has suggested that an extended response period should now be allowed. To change the nature of the consultation after publication would seem to fly in direct contravention of the Government advice and code of practice for consultation.

‘The Crusher’ has to ask why this change has come about. The Government will deny that there is any relation between this announcement and a private dinner at which the Secretary of State, Lord Mandelson, met with US film mogul David Geffen. Geffen is known to have views on piracy and the effects of file sharing on the creative industries. It remains somewhat disconcerting that such a major policy change announcement comes just a few days after such a meeting. Coincidence or just bad planning?

Whatever the real reason this is a real policy blunder by the Government. It is almost certain that any actions to remove Internet access for alleged file-sharing, and by order of the Secretary of State or by Ofcom, would be seen to be highly disproportionate and likely to impact on he human rights of the end user and others. It would appear that the Government has now decided to announce policy changes in the midst of a consultation exercice - contrary to its own guidelines.

This is guaranteed to annoy large swathes of voters - and in the last few months running up to a general election that really is a rather silly thing to do. Perhaps this demonstrates the arrogance of the politicians responding to the views of a rich business interest over those of the electorate. That will be determined no later than June 2010.

However, all of this may be irrelevant - except for the verdict of the electorate on the conduct of this Government - with the imminent decision at the European Court of Justice in a case referred from the UK involving L’Oreal and eBay. The legal news site ‘Outlaw.com’ reports that this case may make any proposed actions by Ofcom irrelevant if it orders that a rights owner can bring an action to injunct an innocent party. The case centres around a possible injunction brought by L’Oreal against eBay to require that party to remove access to infringing materials. If the ECJ is in favour of L’Oreal then it is likely that a music rights owner would simply apply to the UK courts for an injunction against the ISP providing service to an end user. Any costs in defending their position would then fall on the ISP - I suspect that many would simply accept the injunction without the end user having any involvement.

Summer is passing by …..

After a period of quiet, summer seems to be passing by and the news is beginning to fill with other than the normal ’silly season’ stories. Parliament may still be in recess (will be for some while) and Ministers and others are well away from Westminster - where is the Prime Minister (Alastair Darling is stepping in in Gordon’s absence) and has he had to obtain a CRB clearance to engage in social projects…… umm!

But, work does go on for some and there are a few stories making the headlines.

Back in June, Stephen Carter published the final version of the Digital Britain report. That was much trumpeted and covered elsewhere - we chose to look at another digital report that appeared around the same time, or rather, the Digital Manifesto published by the Childrens Charities Coalition on Internet Safety. Now we have the arrival of the implementation plan for Digital Britain and we can see how the legislation is being planned in order to put into place the various recommendations.

The provisions of faster broadband and universal access have been much covered in the media. The reality is that faster access can only come through a fundamental change in the delivery infrastructure - and that means moving to direct fibre. The plans for a ‘digital tax’ (a levy of 50p per month on all fixed line telephone circuits) seems to have gone quiet……

Other areas have more direct impact on ISPs in the short term. The music industry has campaigned about the problems of piracy and the losses that it suffers as a result of peer to peer file sharing etc. There are more immediate pressures for changes in this area and we can now see that part of the implementation group has been tasked with:

Consultation on proposals to legislate to give Ofcom a duty aimed at reducing copyright infringement

Consultation on the trigger mechanism which needs to give both rights holders and ISPs strong incentives to make the notification system work

There have already been some agreements between ISPs and rights owners and these have resulted in letters being sent to users identified as uploaders of file share materials. This - an implementation of the ‘three strikes’ approach - provides for a step approach when a user is identified as being involved in peer to peer sharing. Practically, identification means users uploading (advertising) materials for download by others. However, the identification is somewhat fraught - there are well recognised possibilities of false seeding of IP addresses and other techniques to swamp rights owners search processes. There are also problems where users have unsecured networks (wireless routers) and are held liable for use by unauthorised users. It is not a legal requirement to secure a network - it may be negligent but that definition may be dependent on the user’s understanding and knowledge of their system.

It seems that the approach recommended by Digital Britain is for ISPs to adopt active packet shaping in order to restrict the performance experience of those identified as being persistent or regular peer to peer users. Whilst this may have an immediate attraction, the reality may well be that larger ISPs may have the capacity and the capability to make this happen - but that the smaller providers may not. Smaller providers may have just one, or perhaps a small number of central pipe connections which may make it difficult to route users to a particular ‘bad boys’ pipe. Some of the smaller users have made specific marketing decisions not to packet shape or to block traffic in order to differentiate themselves - there may be problems in implementing technical solutions which are not currently provided for within the network equipment.

There are other actions within the Digital Britain report to look at the funding structure of the Internet Watch Foundation - and to incorporate its work within pan-European approaches to child abuse content identification and blocking.

Of course, the summer period would not be summer without media scare stories. On Monday 17th August the Daily Telegraph reported that a file sharer had been ordered to pay damages and disbursements of £16,000 by the Patents County Court in London. The Telegraph went on to suggest that parents cold find themselves with substantial charges as a result of file sharing and downloading by their children. The case against the Internet user was brought forward after action on behalf of their client (a games producer) by solicitors Davenport Lyons. Davenports had persuaded the High Court to grant orders requiring ISPs to divulge details of users of particular IP addresses - ISPs will normally be reticent in any such disclosure for fear of contravening the data subjects rights under the Data Protection Act. Davenports had previously acted for a number of rights owners including Atari but this case does now seem to have gone further with a strong deterrent level of fine and disbursement applied.

Other media reports (Daily Mail) suggested that the Business Secretary, Lord Mandelson, had agreed to impose fines on those found to be abusing their Internet access. This story was rapidly denied, ‘A spokeswoman at the Department for Business Innovation and Skills (BIS) told The Register that it was “nonsense” to “speculate” that Mandelson would target teenagers who illegally download music and films.’

It is worth noting that fines can only be issued by a court after a hearing in which the accused has the right to submit a defence. Penalty charges may be applied in other circumstances but these are not ‘fines’. The Magistrates Association expressed concerns (19th August) that the police might ‘abuse’ proposals for new powers to award fixed penalty notices (comments strongly rejected [of course] by the police) - the thought passes our minds that Ofcom may be given powers to impose fixed penalty notices on end users accused of infringing copyright. The Magistrates Association made the comment that fixed penalties are fine for absolute offences but are problematic where there is a subjective interpretation involved. In the case of copyright infringement there may well be good defences - a hijacked network, use by other without the service owners consent or knowledge etc.

But all of the legislative changes to be implemented as part of the Digital Britain Bill are dependent on the
Bill receiving parliamentary time for debate and passage. It is in the Government draft legislative programme for the final session of this parliament - but an election is due by June 2010 (bring it on we say!) and there must be reservations over actual passage of large scale legislation before then.

It does still seem to be ’silly season’.

French farce

A few postings ago we reported on the vote in the French Senate that introduced the ‘Hadopi’ law, providing for the 3-strikes and you’re out principle to be adopted by rights owners seeking the disconnection of persistent file sharers. After the initial vote in a sparsely attended house, the law passed on to the National Assembly where a rather larger house voted it down. Now it seems that the French authorities have adopted the European approach - if at first you don’t get the result you want, ask them to vote again until they give the right result!

The law was returned to the National Assembly for another attempt and this time it seems that there was a rather fuller attendance. Perhaps some ‘persuassion’ by the French equivalent of the Whips? There is clear intention by the French Government to push the law through and in advance of voting in the European Parliament on the Telecom Reform package.

A large number of amendments to the Bill made it impossible to proceed through the voting process by 5th May and the Bill must now return for further debate. It is seen as likely that this will be by mid-May so it is quite possible that President Sarkozy will see the new legislation in force by the end of the month. This will allow the setting up of a new agency (the HADOPI) which will deal with copyright infringement notices submitted by rights owners and will decide whether to warn or to disconnect users and place them on a list of blocked persons.

Quite clearly this will not be a popular piece of legislation. Civil rights campaigners will be campaigning and asserting that the law will be an infringement of the rights of the citizen. But the campaigners will have some powerful allies. MEPs voting in the European Parliament in Brussels and Strasbourg have indicated that they view internet access as a fundamental service and have voted down 3-strikes approaches.

When the Telecom Package came up for 2nd reading in the European Parliament, MEPs voted 407 to 57 for initial amendment 138 rejecting the Trautman report and reverting to the initial text which provided that only judicial authorities would be able to make decisions on cutting off users. The reversion to judicial authorities means that users accused of infringement would be able to submit a defence and to appeal any decision. It would seem that the HADOPI proposed in France would not be accepted as a judicial body and would not be acceptable under the European package.

Going further, it is interesting to read comments by Commissioner Redding responding to questions in Brussels: “The fourth element I would like to underline is the recognition of the right to Internet access. The new rules recognise explicitly that Internet access is a fundamental right such as the freedom of expression and the freedom to access information. The rules therefore provide that any measures taken regarding access to, or use of, services and applications must respect the fundamental rights and freedoms of natural persons, including the right to privacy, freedom of expression and access to information and education as well as due process?”

Now that makes the Commissioners view quite clear. Internet access is a fundamental right and any rules must respect fundamental rights and freedoms. That will make it difficult to impose any 3-strikes approach without their being a judicial process. Even then, there must be compelling reason to act - and, I suspect, copyright infringment will not be there as the most compelling reason. Perhaps use of the internet to download paedophilic content might be there.

So, how will this impact on the UK. There is discussion in Govt. and we are awaiting the final version of Stephen Carter’s ‘Digital Britain’ report. Trails suggest that that may include details of a Digital Rights Agency - amongst other things. The report is now unlikely to arrive before mid-June - it will not be published in the run-up to local and European elections at the beginning of June - and will probably be after voting in the European Parliament. Any agency that is then set up will have to accommodate the European Telecoms Package - so we are unlikely to see any 3-strikes here. Unlikely anyway as Govt. Ministers have now indicated that this is not favoured by Govt.

Copyright in the news…….

Copyright is in the news - and for a variety of reasons. In Sweden, the founders of Pirate Bay have been found guilty of copyright infringement and have received a prison sentence, UK copyright law has been judged as ‘failing’ by a consumer group and the European Parliament is about to vote on the extension of copyright protection. It’s all happening!

OK, let’s look at the UK first. Copyright law was last updated in the Copyright and Design Patent Act 1988 - which replaced the Copyright Act 1956. Yes, it takes that long for changes to be made. Of course, there have been subsequent amendments to the 1988 Act, mainly as a result of legislation from Europe which now assumes competence in this area (is competence the right word to be used in a European context?). The UK Intellectual Property Office have a useful unofficial consolidated version of the CDPA here. The last major revision, the Copyright etc Act of 1988 predated the majority of home computing and electronic communications, web access, file sharing etc. Amendments have been made but the Consumer Focus group found that UK law was the worst in a survey of 16 countries - “UK copyright law is the oldest, but also the most out of date” said Ed Mayo of Consumer Focus.

The problem is that UK law does not provide any fair dealing exceptions that allow the type of actions commonly accepted by the majority of the population. Things like making copies of music that you ‘own’ on CD to play on a different system, PC or iPod etc. It is estimated that over 50% of the population do this and nearly 2/3 (over 60%) think that this is quite legal. There was a review of intellectual property in 2006/2007 published by Gowers - but there has not been a great deal of action in the areas that affect the public most directly. There have been changes in the background - changing the Patent Office to the Intellectual Property Office etc. - but, so far, it has not proved possible to introduce new legislation to permit the type of use accepted by the public. Perhaps it is that the rights industry view this as a major issue and see public action as a major loss of revenue - also that other groups such as ISPs etc. do not see it as part of their core business to introduce controls on their users. Stalemate really. We now await the publication of the final Digital Britain report to see where that points. Maybe it will help to answer some of the critiscisms levelled by Consumer Focus.

OK - so what about Pirate Bay. An interesting case. Pirate Bay itself does not host copyright materials, rather it seems to be a directory allowing users to find materials to download. In that respect it acts rather like other search engines on the web. Of course, it helps users to find materials that they can download and thereby infringe the copyright of the owners but is it itself infringing copyright. Maybe it might be held to be inciting infringement. Pirate Bay has rather set itself up, over some time it has invited actions from the rights owners - a sort of catch me if you can approach. With most of the rights owners in the US and the web site in Sweden there were likely to be problems but it does now look as if the rights owners have managed to persuade the Swedish authorities that the actions of the site are illegal. The original plea requested damages in the order of 100,000,000 SEK but this was reduced by the court to 30,000,000 SEK. That is still far more than the defendants are likely to be able to pay so it seems unlikely that the rights owners will get their damages. And, with the servers located outside Sweden it may be difficult for the court to enforce take down actions. So, what will the rights owners get - one might suggest that their approach could have been to raise awareness and to generate publicity about the illegality of the actions. Well, if that was the case they seem to have done that. Are the Pirate Bay crew down and out - somehow I guess that is not likely.

So, it is back to the European Parliament. The music industry has brought pressure for a review of the period of copyright - arguing that some musicians who produced work in their early years are now running the risk of seeing their work passing into the public domain whilst they are still alive. I suppose you could look at Cliff Richard with hit records in every decade since the 1950s. Some of the early works are now reaching the end of their copyright term. The European Parliament now has a proposal before it to extend copyright term in order to allow musicians to continue to benefit from their works. Interestingly, analysis suggests that it is not the musicians who will benefit from the change (26p per annum!) but the big 4 music publishers who stand to make millions.

Will it go through? The Council of Ministers has blocked the action and there is a European Parliamentary election at the beginning of June. Maybe this is not the time to rock the boat - we shall see what the outcome of the vote is. As the Ministers are not minded to approve, I suspect the extension of term will not go ahead.

As the Chinese say, ‘may we live in interesting times’.

France steps back

A few days ago we reported that the French parliament had voted to adopt what was being called the ‘Hadopi’ law see here.

The vote in the Senate took place in a very sparsely populated house and introduced some ‘interesting’ clauses including the ‘Jonny Halliday’ clause that allowed for actions against file sharers to be held back if the recording artiste had moved elsewhere for tax evasion purposes.

Now it seems that a much more populated National Assembly has voted down the legislation which was championed by President Nicolas Sarkozy. The plan for ‘three strikes and you’re out’ has now fallen and cannot be introduced.

At least, it cannot immediately be introduced and must now be returned for further drafting before brought back to Parliament. The vote in the National Assembly saw some government members voting with the opposition - they were protesting about a clause that would have allowed ISPs to continue to charge users for their service even when they were suspended for copyright infringement.

So, it seems that it is back to square one (to use an old BBC expression!). Watch French space later in the year.

European states act to counter illegal downloads

Two members states within the European Union have now taken steps to try to curb the flow of illegally downloaded date - including peer to peer sharing of music, film, audio books, software etc. Whether or not the actions will be effective remains to be seen.

At the beginning of April, Sweden introduced new law based on the transposition of the Intellectual Property Rights Enforcement Directive (IPRED). The new law allows rights owners to apply to the civil courts in Sweden for an order to require ISPs to provide details of the users of identified IP addresses. The immediate effect was a substantial drop in Internet traffic as users cut back usage in the face of potential actions and identification. Before the new law came into effect, rights owners were forced to refer matters to the police who were somewhat reluctant to take actions. Now, the rights owners can go directly to the courts to force release of information identifying end users who may then face civil actions.

The likelihood is that usage will start to creep up again after a few weeks, perhaps as users work out how to use anonymous proxy services, shared wireless networks or other means to hide identity.

In the UK there has long been provision for a rights owner to go to the courts to obtain an order to require an ISP to release user data. If the ISP does release in response to an order then they are not breaking any obligations to data subjects under the Data Protection Act - but ‘The Crusher’ would always advise ISPs to ensure that their data protection statements are worded to allow them to release information to authorised parties - and, of course, to law enforcement, national security agencies and the like.

Practicallity suggests that action is only really likely to take place when an owner identifies a user with a number of files avalable for download. In Sweden, publishers took action on the first day of the new legislation to require release of details about a user with several thousand audio-book files available for download. The chances of actions being taken over individual file sharers remains pretty low - it just is not cost-effective!

Meanwhile, in France, members of the National Assembly have voted to adopt a ‘Three Strikes and You’re Out’ approach. The final vote seems to have taken place in an almost depleted assembly with very few members actually present. As it stands, a user identified as downloading illegal content will be issued with a note advising them to protect their circuit and to ensure correct usage. This is clearly intended to protect against the defence that ’someone else used my wireless connection’ - although it remains to be tested whether it is to be an offence to operate an unsecured wireless connection. If a further infringement is detected then a second letter will be sent to the registered address of the user. If there is then a further infringement within 12 months the ISP may be required to suspend or to cease service.

Of course, such actions will always cause problems. The Crusher is well aware that a number of business lines have been used by employees to download illegal content - are business to be deprived of their Internet connectivity because of the rogue actions of an employee? Maybe not as the French law provides for a ‘Haut Autorité’ which can review suspensions.

Very French is the addition of what seems to be referred to as the ‘Hallyday’ clause. Now, Johnny Hallyday is a French entertainer who lives in Switzerland for tax purposes (hear this Lewis Hamilton?). Hallyday is a popular singer with substantial revenues from sales in France - but very limited tax liability. The ‘Hallyday’ clause proposes that actions against downloads of materials issued by tax exiles should be treated differently from other artistes. That would be interesting in the UK!

But will the 3-strikes action be legal? With Europe looking towards introducing a universal service obligation for broadband service and with human rights legislation, it may well be that any action to suspend or terminate accounts is held to be in contravention of statutory provision. There really are no easy solutions.

The Crusher has some other reservations over the French law. It seems that notices are to be served on downloaders. How are these to be detected? Most notifications from rights owners are in relation to persons uploading. Uploaders are effectively advertising their files for others to download. It is the advertising that leads to detection. Most peer2peer systems automatically offer upload when a user downloads a file - that is part of the p2p concept. But, if a user elects to block uploads and only downloads then they are unlikely to be caught. Unless, of course, ISPs engage in traffic analysis and deep packet inspection to identify traffic types and services. But then, analysis at that level may also be held to be illegal!

Ireland too seems to be in the throes of actions. Rights owners there are looking for agreements with ISPs for a three strikes approach - and also seem to be wanting to look towards filtering. See discussion at Digital Rights Ireland.

Meanwhile, in the UK we await the publication of the final version of the Digital Britain report. Current approaches seem to be favouring the self-regulatory approach long adopted here - but will these actions elsewhere in Europe prompt rights owners to lobby hard for changes in the UK?