The ISPAs 2010

Thursday night (8th July) was a glittering night for the Internet industry - the annual ISPA Awards bash at the Marriott Hotel in Grosvenor Square. After all the testing and all the submissions it was time to hear the judges verdict.

The awards are the Internet industry’s chance to recognise good practice and good performance. Over the last 12 years they have changed with new categories and new means of assessing performance in the ISP Division. The ISP Division recognises best practice across hosting, customer service, consumer and business broadband etc. The Times noted that the ISPAs were, ‘The awards that could have the most direct bearing on your life’ and the Daily Mirror called it, ‘The Internet event of the year’. Whatever, it is without doubt keenly awaited by those in the industry and keenly commented by customers and others.

Congratulations to all those who won. The Crusher was pleased to see the team at NewNet picking up another piece of acrylic to add to the two previous awards - this year in the class of Best Dedicated Hosting. Well done to the NewNet team and to all those who won in the ISP Division.

But, it is the Special Awards that arise more interest. New categories here for digital inclusion (Bolton Literacy Trust) and for Internet Safety (Childnet), Access Innovation (The Alston, Cumbria, CyberMoor project with a special commendation to SW Internet CIC) and Corporate Social Responsibility (Orange).

At the end of the evening there are two awards that evoke much wider interest - the Internet Hero and the Internet Villain award. Now, in years past The Crusher was pleased to nominate someone who was then awarded the Internet Villain prize so there is always a little more than minor interest here.

What was interesting this year was that both awards recognised different sides of the same thing - the passage through Parliament of the Digital Economy Bill to become the Digital Economy Act. ISPA Council members bestowed the Internet Hero Award upon Tom Watson MP for leading the opposition to the parliamentary fight against the Digital Economy Bill and continuing the campaign to ensure an informed approach to the Act. Well done Tom - your actions in the House of Commons and your speech in the final parts were an inspiration and made it clear that there was not a common cross-party consensus.

The passage of the Digital Economy Bill was fraught and was not helped by changes being made during the consultation period and then by inclusion within the final ‘wash-up’ stages before the end of the parliamentary session and the General Election. There were a number of nominations for the Internet Villain award, all in their own right quite worthy recipients, but in the end, the winner was a shoe-in for the award. It was the Dark Lord himself, Lord Mandelson, formerly Secretary of State for Business and Skills, who had steered the Digital Economy Bill through the various processes. The change that was made during the consultation phase coincided with a weekend meeting with a major rights owner and the final stages were a sham, forcing through legislation that was deeply unpopular and which made fundamental changes to the due process of law.

So, a worthy villain. Sadly, Lord Mandelson was not available to collect his award in person. What a shame - would have been a great appearance and a great acceptance speech!

The new coalition governement has now invited the public to suggest law that should be removed, replaced or amended. Inviting the public to comment is always a risk (a request to introduce a law ‘to allow me to marry my horse’) but sometimes shows popular unrest and resentment. No surprises really to see that some of the largest number of comments and requests related to repeal of the Digital Economy Act. So, it is over to you government, you asked and now you have been told. DEA must go!

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?

Data retention - still some unhappy states

The Data Retention Directive was introduced into European law back in 2006 - with a requirement that member states transpose the first phase by September 2007 and the second phase by March 2009 (where the State took advantage of a derogation in rellation to IP based traffic).

Interestingly, both Belgium and The Netherlands advised the European Commission of their intention to take advantage of the derogation in relation to IP. That still meant that they were expected to transpose in relation to fixed line and mobile telephone traffic by September 2007 but that had opted, like the UK, to leave IP based retention until the later date.

A group of Belgian organisations have now raised a petition to protest the local transposition of the Directive. In August, the Belgian Minister of Justice proposed a retention period of 2 years (the maximum within the range of the Directive - 6 months to 2 years) . The UK settled on 12 months - interestingly the Belgian Data Protection Supervisor felt that the 2 year period was too long and disproportionate and should be reduced to 12 months. The Belgian petitioners felt that there was not sufficient evidence to justify the retention of traffic data which they felt was not a solution to security issues.

Just to the north, the Netherlands government is also engaged in discussion. A few wees ago, government agencies held meetings with ISPs to provide some clarification of terms within the new Data Retention Act - EDRI-News reports that after the meeting there was still confusion as to what was required and for how long. As currently implemented, both telcos and ISPs are required to retain data for 12 months but discussion in the upper house of the Netherlands parliament (Senate) has suggested that the Minister may be prepared to reduce the ISP requirement to just 6 months (as was suggested in the UK, bearing in mind the low level of requests of user data in relation to IP based traffic).

A full description of the Netherlands law (2008) can be found at the site for Agentschap Telecom, the Dutch telecoms regulator.

There has also been discussion in the Netherlands about the possibility of centralised retention of traffic data. ‘Bits of Freedom’ in the Netherlands reports that some 3 Million requests for traffic data were served by the Netherlands police in 2008 - on a population of some 16 Million. That is a very high figure when compared against the reported request rate in the UK - Surveillance Commissioner reported 0.5 Million requests in 2007 against a population of some 60 Million. If the UK rate were the same as the Dutch then that figure would be in the order of some 11 Million requests!

Clearly there remains considerable concern and disquiet across Europe.

The Directive provides for review of the retention policies in 2010. Clearly there is likely to be a lot to be discussed.

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.

Third strike?

The French ‘3 strikes and you’re out’ approach to Peer to Peer regulation is back in the news again. After the previous version was ruled unconstitutional by the French Constitutional Court the law passed back for further discussion and amendment.

Now, the amended version of the ‘Hadopi’ law has been passed by a vote in the French National Assembly - voting was 285 for, 225 against. However, that is not the end of the process. Although the law has now been cleared in the National Assemby it must still be approved by a commission drawn from both senators and deputies. The majority UMP voted in favour of the law which has the strong backing of President Sarkozy but the opposition Socialist Party has already indicated that it will make a further referral to the Constitutional Court.

The major problem, and the basis for referral, is the provision for withdrawal of Internet access on the order of a ‘‘Haut Autorité’ rather than by order of a judge in court. Opponents argue that a person charged with file sharing and subject to a third notice should be able to defend themselves in court and to challenge evidence presented by rights owners.

This is important as Internet access is now becoming regarded as a human rights issue. The European Parliament is investigating whether or not a withdrawal of Internet access is a breach of human rights - if that is upheld and, particularly, by the ECHR, then proposals such as the French ‘Hadopi’ law willl be ruled out. But the issue is much more fundamental than human rights - if a person is accused of carrying out an activity with a potential penalty then they must be given the right to defend their position and to challenge any evidence brought against them. That is a fundamental position for the courts and it should not (must not) be diluted through the creation of specialist agencies that may not provide the same level of protection for the accused.

Now, the French position is being carefully watched by others. Perhaps no more so than here in the UK where the Secretary of State for Business (Lord Mandelson) has made it clear that he favours a ‘three strikes’ and you’re out approach. Now this was initially rejected by the Digital Britain report and in previous Ministerial pronouncements but it is now back on the agenda. Sad to see that the re-launch of ‘3 strikes’ was as part of an amendment to documents under consultation - there really should be no option of moving the goalposts during consultation.

The outcome of the commission discussion and of the next referral to the Constitutional Court will be interesting and key to future progress of the ‘Hadopi’ law. 3 strikes may have risen again but may yet be pushed back down.

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’.

End of an era …… Kodachrome finally bowing out after 75 years

Every so often you come across something outside of the normal run of the blog and its focus on privacy, data retention and Internet regulation. One of those moments came today with the announcement from Eastman Kodak that it is to cease production of the iconic Kodachrome film stock. Kodak will not be producing any more Kodachrome stock and estimates that current stocks will last until late autumn 2009.

Kodachrome is 74 years old - it first appeared in 1935 and has survived through to 2009 as a result of its unparalled near achival stability and its minimal grain - you really could project a Kodachrome image across the side of a building and still not see the grain. Through the 1960s Kodachrome was the film of choice for many families - with processing included in the price you shot the film, loaded it into the yellow mailer and popped it in the post. A few days later a yellow box arrived with the mounted slides ready for viewing. Quality was superb, in good sunlight the colour rendition was outstanding.

Kodachrome was a difficult film to produce and required processing that was quite different to the ’standard’ E6 slide and C41 colour negative stocks. But this was the key to its longevity - Kodachrome film did not contain the colour dye couplers that were required to create the colour dyes in the 3 layer subtractive matrix. The colour dye couplers were introduced as part of the processing and were removed in that processing before final drying and mounting. It is the colour dye couplers that are particularly sensitive to oxidation and it is their presence in other film stocks, both before exposure and after processing, that has caused substantial problems, reducing stock shelf life and promoting subsequent image fade over time. Ektachrome and other similar stock shots from the 1970s and 80s are often now unusable whereas Kodachrome remain fresh and vibrant.

There will be many images that are remembered - but one will be Steve McCurry’s Afghan girl that stared out of the cover of National Geographic on countless bookstalls in 1985. Set to music, Paul Simon wrote:

Kodachrome
They give us those nice bright colors
They give us the greens of summers
Makes you think all the world’s a sunny day, oh yeah
I got a Nikon camera
I love to take a photograph
So mama don’t take my Kodachrome away

In the UK, Kodachrome K-14 processing was carried out by Kodak at their Hemel Hempstead plant. That closed some years ago exposed film sent for processing in Europe. Today their is just one remaining Kodachrome processing plant in the world - Dwaynes Photos of Parsons, Kansas, USA - Dwaynes have confirmed that they will continue processing Kodachrome until the end of 2010. Just check out the processing steps with its multi stage re-exposure with specific colours to carry out the reversal process perhaps to realise the complexity and cost in the modern age.

Visit the Kodak web site for the company release and stunning examples of the output - there is an online slideshow and further discussion at A thousand words -a tribute to Kodachrome and at The Kodachrome Project.

Undoubtedly the demise of Kodachrome is partly the result of the wholesale switch to digital imaging. Digital is fast, clean and effective - but there remains more than a sentimental memory of a film stock that recorded so much of the 20th century - and remains to display in vibrant colours.

RIP Kodachrome - I suspect we will still see your images in another 75 years time.