Wednesday, March 03, 2010

Tories Lib Dems push to block sites suspected of copyright infringement

According to ORG the Conservatives and Liberal Democrats are proposing an amendment to the digital economy bill in the House of Lords that would facilitate the blocking of websites suspected of hosting or distributing copyrighted materials without permission.

Amendment 120a
Leave out Clause 17 and insert the following new Clause—
   "Preventing access to specified online locations for the prevention of online copyright infringement
   In Part 1 of the Copyright, Designs and Patents Act 1988, after section 97A insert—
"97B Preventing access to specified online locations for the prevention of online copyright infringement
(1)   The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court for the prevention of online copyright infringement.
(2)   In determining whether to grant an injunction under subsection (1), the Court shall have regard to the following matters—
(a)   whether a substantial proportion of the content accessible at or via each specified online location infringes copyright,
(b)   the extent to which the operator of each specified online location has taken reasonable steps to prevent copyright infringement content being accessed at or via that online location or taken reasonable steps to remove copyright infringing content from that online location (or both),
(c)   whether the service provider has itself taken reasonable steps to prevent access to the specified online location,
(d)   any issues of national security raised by the Secretary of State.
(e)   the extent to which the copyright owner has made reasonable efforts to facilitate legal access to content,
(f)   the importance of preserving human rights, including freedom of expression, and the right to property, and
(g)   any other matters which appear to the Court to be relevant.
(3)   An application for an injunction under subsection (1) shall be made on notice to the service provider and to the operator of each specified online location in relation to which an injunction is sought and to the Secretary of State.
(4)   Where—
(a)   the Court grants an injunction under subsection (1) upon the application of an owner of copyright whose copyright is infringed by the content accessible at or via each specified online location in the injunction, and
(b)   the owner of copyright before making the application made a written request to the service provider giving it a reasonable period of time to take measures to prevent its service being used to access the specified online location in the injunction, and no steps were taken,
  the Court shall order the service provider to pay the copyright owner's costs of the application unless there were exceptional circumstances justifying the service provider's failure to prevent access despite notification by the copyright owner.
(5)   In this section—
  "copyright owner" includes a licensee with an exclusive licence within the meaning of section 92 of this Act,
  "infringing content" means content which is produced or made available in infringement of copyright,
  "online location" means a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible,
  "operator" means a person or persons in joint or sole control of the decisions to make content accessible at or via an online location, and
  "service provider" has the meaning given to it by section 97A(3) of this Act.
(6)   Subsections (1) to (5) shall come into force on such day as the Secretary of State may by order appoint not less than 3 months and not more than 12 months after subsections (1) to (5) have been notified to the Commission of the European Communities ("the Commission") in accordance with the obligations of notification imposed by Directive 98/34/EC.
(7)   If any comments are received from Member States of the European Union or the Commission after subsection (1) to (5) have been so notified and the Secretary of State reasonably considers amendments are necessary to give effect to such comments, he may make the necessary regulations within the period referred to in subsection (6)(a), to amend subsections (1) to (5)."""
I've written a short note to Lords Razzall and Clement-Jones, as follows:
"As a technology academic who has been studying these issues for some years, I'm writing to ask you to withdraw your amendment 120a to the Digital Economies Bill.  Experience in the US and around the world has demonstrated that this kind of legal regime has little or no impact on the level of copyright infringement happening on the Internet and lots of innocent individuals and businesses get unfairly affected by having Internet materials blocked.

Just a couple of days ago a talk by the world renowned digital copyright expert and Harvard law professor, Lawrence Lessig, was taken down by YouTube due to unfounded allegations of copyright infringement.

The kinds of blocking and software filters that get employed tend to be relatively crude and don’t do value judgements.  Perfectly legitimate sites become collateral damage and illegal ones just move to avoid the blocks. 

In 1999 a big US internet service provider, IDT, shut down all internet traffic originating in the UK because of a spam problem they traced to a computer at Leeds University. There is little reason to suppose if an allegation - and remember all it takes is an allegation for ISPs to act in order to avoid any liability - is made of mass copyright infringement originating from a particular source that similar kinds of blockages will not occur under the kind of regime you are proposing.

The takedown regime in the US under the digital millennium copyright act has been widely documented as disproportionately affecting innocent individuals and businesses by organisations as diverse at the Electronic Frontier Foundation and Google.

Despite your clause asking that due consideration be given to human rights the proposed amendment is likely to have a chilling effect in practice as website owners and ISPs act to avoid potential liability on the basis of mere accusation as in the case of the Lessig speech in recent days.

Thanks for taking the time to consider my necessarily brief thoughts (due to pressure of other commitments) on your amendment."
Update: My note had no effect. They passed amendment 120a.  Lilian Edwards does a lovely job of explaining the problems with it.

Update 2: Francis Davey has further sensible analysis.