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!

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.

Joined up thinking?

The Parliamentary Internet Conference held at Portcullis House, House of Commons, on 15th October was an interesting day - not just an opportunity to hear Ed. Richards (CEO Ofcom), Martha Lane Fox, Stephen Timms and others but also the opportunity for the All Party Communications Group (apComms) to release its report into its inquiry, ‘Can we keep our hands off the net?’

apComms called for evidence and submissions over the summer (during the Parliamentary recess - a period that most people link with lack of work and extra long foreign holidays for our elected servants) and has now put together a report and a series of key recommendations. There are 11 recommendations on a wide range of topics, from Privacy to dealing with illegal (or ‘unlawful’ as the noble Lord, the Earl of Erroll corrected) file sharing, from behavioural advertising to eSafety tuition in schools.

But, The Crusher was rather taken with two recommendations that appear to be at opposite ends of an argument.

There has been much discussion about the likelihood of Government mandating the filtering of child abuse sexual imagery at the network level by ISPs. In 2007, Ministers set a target of 100% consumer broadband circuits to be filtered - so far that target has not been reached although there is suggestion that the proportion of consumer circuits that are now subject to filtering is in the mid to high 90s% range.

Recommendation 7 is that the Government does not legislate to enforce the deployment of blocking systems based on the IWF lists. This has the potential to damage future attempts to fix problems through self-regulation and will thus, in the long term be counterproductive.

The thinking here is that all major ISPs already block access to child abuse images and that any action to force others to take action will be counterproductive as it militates against attempts to find self-regulatory solutions to other problems.

OK, that is fairly clear although there may be some issue with the perception of the extent of current filtering practice. Whilst the number of consumer circuits with filtering in place may be in the mid to high 90% range, these may well be as a result of the actions of fewer than 10 large ISPs. The Crusher understands that the number of ISPs currently implementing child abuse filtering may well only be in the order of 20 to 30 - with some 270 plus mainly medium to small ISPs not currently implementing any form of network level filtering.

The report then goes on to consider the problem of malware infected machines. Now machines that are infected with malware makes them likely to become part of a large scale ‘botnet’ and potential distributed sources of junk email and denial of service attacks. The problem is that the infected machines are not on the ISP network and are machines owned and used by end users who may have greater or lesser understanding of the security implications or needs of always on broadband Internet connectivity.

Recommendation 10 is that there should be a voluntary code for ISPs relating to the detection of and effective dealing with, malware infected machines in the UK. If this voluntary approach fails to yield results in a timely manner, then Ofcom should unilaterally create and impose sich a code on the UK ISP industry.

The report notes that ISPs have systems in place to proactively filter incoming junk mail but do not take actions to filter outgoing junk. The report continues, ‘a reduction in compromised end user machines is essential to make the Internet a dafer place, so the ISPs need to act voluntarily as a group to improve the situation ….. if the ISPs cannot voluntarily agree to act, the report sees Ofcom as the appropriate regulator to impose a compulsory regime.

Interesting stuff. Filtering out material from infected machines will not be easy and will not be cheap - so additional development and application costs for the ISP (and, ultimately the end user). But, note the sting in the tail here - if self-regulation does not work then a compulsory regime should be imposed.

The Crusher sees some lack of joined up thinking here. On the one hand the report suggests that mandatory child sexual abuse imagery filtering should not be applied as it militates against self-regulation in other areas - and then recommends a compulsory regime for filtering the output of malware infected machines, albeit in the event of a failure of self-regulatory approaches.

The Crusher is intrigued: a self regulatory approach has seen pretty well all ISPs implement filtering to identify and remove incoming junk mail and virus infected items. For most that has been a commercial decision but there is undoubtedly a cost for the ISP. Self regulation is now being proposed to require ISPs to filter and remove outgoing junk and infected items. There may also be actions in relation to unlawful (thank you Merlin!) file sharing. But, the one thing that is illegal is to view child sexual abuse imagery (it is a Criminal offence under the Sexual Offences Act to view obscene images of children) - there is self-regulation but mandatory filtering is not recommended. Yet it is for dealing with malware - and as far as I am aware it is not yet a criminal offence to leave one’s Internet connected computer unsecured, without anti-virus or firewall protection.

The apComms group seems to have have worked on elements individually and with application of specific evidence - but the linkage of items from one part to another seems to have failed. Joined up thinking in the final output would have been helpful.

The full copy of the apComms report can be found here

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.

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.