BBC HD DRM timeline

I've done a rough timeline on Open University academics' open letters and freedom of information requests relating to Ofcom's consultation and decision on the BBC/Freeview HD signal DRM.

25 March 2010

Open letter to Ofcom objecting to HD signal DRM proposal signed by 50 OU academics

http://cloudworks.ac.uk/cloud/view/3199

Also sent as formal response to the Ofcom consultation.  (My esteemed colleague Blaine Price sent the submission and Ofcom filed it, as an individual rather than a group response to the consultation).

21 May 2010

OU academics Open letter to Michael Lyons, the Chairman of the BBC Trust

Published by OpenDemocracy 30 May 2010

http://www.opendemocracy.net/ourkingdom/petition-calls-on-bbc-to-reconsider-encryption

We received an acknowledgement of this letter from Mr Lyons’ personal assistant, June Prunty, (on 27 May 2010) but we never received a substantive response from Mr Lyons himself.

14 June 2010

Ofcom approve BBC/freeview HD DRM

http://stakeholders.ofcom.org.uk/binaries/consultations/content_mngt/statement/statement.pdf

The heart of the decision was in paragraphs 1.5 and 1.6 where they admitted to being persuaded by “confidential” i.e. secret information provided by BBC, ITV and Channel 4, as well as the story spun by rights holders.

There are many examples of confused thinking in the document, though, and their perspective on copyright law in 5.31 and 5.36 and the, shall we say, counterintuitive logical leaps made from that perspective, plus the reference to "fair usage rights" (lack of precision at best, ignorance of the law at worst) suggests a shaping of the decision by the content industry; (and the, 'if you only knew what I knew', secret details of secret meetings/negotiations held between the broadcasters and content industry).

26 August 2010

We sent a freedom of information request for the “confidential” information supplied by broadcasters to the Ofcom consultation via the whatdotheyknow website

http://www.whatdotheyknow.com/request/bbc_itv_and_channel_4_stance_on

This link contains copies of subsequent exchanges of communications with Ofcom right up to and including their most recent declaration on 7th February 2011, in response to our request for an internal review of their decision, that they were withholding the key information.

27 September 2010

Ofcom’s initial response to the FOI request.

http://www.whatdotheyknow.com/request/45799/response/117109/attach/html/3/1%20155429914%20final%20Ray%20Corrigan.docx.html (Firefox 4.0.1 seems to be having problems displaying this properly but it reads fine in Chrome)

The initial excuses for withholding the key confidential arguments that the BBC, ITV and Channel 4 used to convince Ofcom to permit DRM on the HD Freeview signal were sections 41 and 44 of the Freedom of Information Act and section 393(1) of the Communcations Act 2003; and that there is no public interest test to compel disclosure of that information under sections 41 and 44.  Ofcom’s letter dated 27 September 2010 said:

"This information you requested is being withheld as it falls under the following exemptions:

·            Section 41 of the Act, relating to information provided in confidence. Section 41 is an absolute exemption under the Act and does not require a public interest test.

and

·            Section 44 of the Act. Under this section information which we hold on this subject is exempt from disclosure since it was shared with us under our regulatory power and disclosure is prohibited under section 393(1) of the Communications Act (CA) 2003.  Section 44 is an absolute exemption under the Act and does not require a public interest test."

28 September 2010

Follow up request to Ofcom for withheld information

http://www.whatdotheyknow.com/request/bbc_itv_and_channel_4_stance_on#outgoing-86780

At this point we get into somewhat tedious regulatory alphanumeric soup.

We explained in this note that the courts have recognised that there is a public interest test in relation to Section 41 exemptions, despite Ofcom’s advice to the contrary. (This is explicit in paragraph 2.3 of the statute’s full exemptions guidance on how s41 should be interpreted http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/foi/guidance/exguide/sec41/chap02.htm).

It is our contention that the disclosure of the arguments of the BBC, Channel 4 and ITV in favour of DRM would be in the public interest and would significantly outweigh the interest in keeping the confidence. So a s41 refusal raises the possibilty that Ofcom are concerned about legal action by the BBC, Channel 4 and ITV if they were to disclose this information; and also the risk that a judge would rule that keeping the information secret was in the public interest, a pretty difficult argument to make I would have thought.  After all, if the confidential claims are in the public interest and so compelling as to be a key factor in Ofcom's decision to approve HD DRM (as stated by Ofcom in their decision to approve Freeview HD DRM in June 2010), how can the public possibly be harmed by having access to and understanding these arguments; and the detailed efforts the broadcasters are making on our behalf.

S44 of the FOIA + S393(1) of the Communications Act seem to indicate Ofcom is prohibited from disclosing information obtained about a business. But section 393(2) says this (i.e.section 393(1)) does not apply to any disclosure of information which is made “for the purpose of facilitating the carrying out by OFCOM of any of their functions”.

Additionally section 393(6) of the Act says section 393 cannot be used to limit matters included in an Ofcom report and, in particular, matters related to Ofcom's duty to publish and take account of research and to Ofcom's publication of information and advice for consumers; both of which arguably relate to the Freeview DRM decision.

Stasis until 2 February 2011

At this stage Ofcom effectively went into lockdown with the re-organisation brought upon them by the coalition government cuts. Trying to be sensitive to the traumas associated with such circumstances we decided not to press for further answers until the new year. We sent them a reminder on 2 February 2011 and, in fairness, they then responded within a week.

7 February 2011

Ofcom’s final response withholding the key information.

http://www.whatdotheyknow.com/request/bbc_itv_and_channel_4_stance_on#incoming-148902

They ignore our section 41 FOIA arguments and reject our section 393 CA arguments. They add that disclosing information in breach of section 393(1) “may constitute a criminal offence”.

Sections 393(4) and (5) give lists of “functions”, “enactments and instruments” relevant to section 393. The Freedom of Information Act is not included in these lists. This enables Ofcom to deduce, bizarrely if logically, that (and I quote):

“disclosure under FOIA is not a function for which Ofcom can disclose information”  

Hilarity ensues.

They also advise us to take it up with the Information Commissioners Office if we’re still not happy.  It is fair to say we are not happy, even if the their final conclusion, taken in isolation, is rather amusing.

In brief –

Open letters to Ofcom and BBC Trust Chairman (March – May 2010)

Ofcom approve HD lockdown (June 2010)

FoI ping pong (Aug 2010 – Feb 2011) –

Us: We’d like to see the secret BBC, ITV and Channel 4 information that convinced Ofcom to lock down HD Freeview with DRM please.

Ofcom: No. S41 & s 44 of the FOIA and s393(1) of the Communications Act say we don’t have to disclose this, even if it’s in the public interest to do so.

Us: Er courts and statutory guidance say s41 doesn’t have an absolute public interest exemption; and s393(2) of the Communications Act says you can’t use s393(1) as an excuse for withholding information if you’re fulfilling your public interest obligations by doing so.

So we’d like to see the secret BBC, ITV and Channel 4 information please, especially since you mentioned how keen they were to protect the public interest with their submissions.

Ofcom: No. S41 is complicated so let’s ignore that (implicit not explicit). WARNING – it may be a CRIME to tell you what you want to know. S44 FoIA provides a great excuse not to tell you anything because “Section 44 is an absolute exemption under the FoIA and does not require a public interest test” Anyway we see your s393(2) Communications Act loophole and raise you a s393(4)&(5) slam dunk. And (with a very straight face can say) therefore “disclosure under FOIA is not a function for which Ofcom can disclose information.”  

Now I realise the "In brief" summary of the FoI communications with Ofcom is a little colourful and I certainly wouldn't want to impugn the motives of dedicated public servants in Ofcom who are doing a tough job in straitened circumstances.  I would like to know, however, what happened within Ofcom in late 2009 to make them change their long standing opposition to BBC/Freeview DRM, to the extent that they then quickly launched a public consultation about how brilliant DRM was. Also, if the secret arguments of the BBC, Channel 4 and ITV are so compelling as to be a primary factor in convincing Ofcom that DRM is in the public interest, why can't the public have access to these documents? 

If you're interested in a little more detail on the saga, my blogpost reactions as it unfolded are here. We haven't decided yet whether to take the matter up with the Information Commissioner.

Update: Apparently there was a problem with the hyperlinks in this post.  Hopefully that is now fixed.

Arsenal 1 - Aston Villa 2

My younger son and I went to Arsenal's final home match of the season yesterday, only to witness them losing miserably to Aston Villa. It's hard to believe that 3 weeks ago they were still in with a chance of winning the league.  There were no tickets available for the Villa match at that stage.  Then we lost to Bolton, killed off any hope of leading the final standings and a number of ticket holders made their tickets available for sale on the Arsenal ticket exchange.

Yesterday, Arsenal looked more like exhausted relegation candidates than title contenders.  After 5 minutes Villa had had three attacks and Darren Bent had been left in acres of space on each occasion.  By 11 minutes Bent had had the freedom of the Arsenal box on 5 occasions only this time Kyle Walker decided to give him the ball which he duly despatched into the net. 0-1 Villa. 4 minutes later, roaming free for the 6th time Bent was given the ball again, this time by Ashley Young, who had figured out that Bent + space + time + clueless defence = goal.  15 minutes in, 0-2 to Villa.

Thereafter Villa retired into their own half and didn't see much of the ball except as it got passed around them, and occasionally directly to them, by a group of Arsenal players who were jogging around in slow motion, looking in most cases as if it was all too much like hard work and they didn't want to be there.  With the notable exceptions of Robin Van Persie and Jack Wilshere the rest of this erstwhile honours chasing squad were woeful, particularly in the first half.  Early on Villa had been playing a pressing game high up the pitch - really dangerous against pacy attackers like Walcott but they needn't have worried as the Arsenal speed merchant had left his accelerator at home. This is a moot point anyway since no one even attempted to give him a ball over the top to run onto.

After the break some Arsenal players upped their pace from a deliriously slow walk to a hesitant jog though mostly they seemed to be standing around hoping the ball would be passed to someone else, almost all completely devoid of energy.

In fairness whatever the manager said at half time Song partly awoke from his slumbers and Gibbs, who had been exposed defensively, along with the rest of the back four, in the first half, injected a modicum of entropy and heat into his performance going forward.  Ironically Song did more attacking once he had been moved to centre half (at half time Chamakh had come on for Squillaci, with Song moving to the back and Van Persie into the middle).  This was partly because Villa had given up attempting to get the ball or to get into the Arsenal half of the field though Young and Downing made two or three forays forward, getting a couple of shots in on Szczesny.

Darren Bent was looking an increasingly frustrated lone figure up front, as even on the few occasions his team did venture forward they didn't give him the ball in spite of the continuing lack of attention he was receiving in the vast open wilderness he continued to occupy on the Emirates pitch. Clearly they'd forgotten the Bent + space + clueless defence = goal formula. Honestly if Arsenal had a natural goal scorer like Bent in the team along with a fit Van Persie for a full season (which, remember, has never happened), scoring at the rate of 20 goals every 21 games as he had done, we could almost get away with the other structural weaknesses in the side. (And I say that as someone who has never been a big Van Persie fan)

Part way through the second half the stadium announcer declared the attendance for the day to be 60k+ and that the team would be doing 'a lap of appreciation' at the end. This was met with boos and a sarcastic chant from the crowd, "You're havin' a laugh, 6%, you're havin' a laugh, 6%" presumably in "appreciation" of the board's decision to hike the ticket prices by 6.5% for next year.

Diehard supporters will point to the two disallowed Arsenal goals, the stonewall penalty the ref inexplicably missed in the first half (Ramsey through on goal, poleaxed by Dunne on the edge of the six yard box), the inescapable red card that would have accompanied that penalty. And, you know, they're right.  On another day those things would have gone Arsenal's way, we could have comfortably taken the points with a three or four goal margin and we could have papered over the cracks of a tired, washed out performance. The only energy most players showed was in threatening to pick fights and complaining to the ref about Villa's time wasting tactics, as Villa laughed behind their sleeves at the extra time the Arsenal guys were wasting, squaring up to them and arguing with the ref!

People began leaving the ground about 10 minutes from the end, so they missed Van Persie's consolation goal 90 seconds from the end of normal time.  Most of those remaining left on the final whistle, declining to hang around for the lap of appreciation.  It's been a poor end to a promising season and sad to see some of the remaining fans booing the squad as they came round the pitch, largely unenthusiastically. In this regard Van Persie should be picked out again - he brought his two kids with him and got them to wave to the crowd too.

Players and managers are real people too though with their huge salaries and lives in bubbles they don't see the world through the same lens as the rest of us and we sometimes forget that. They're disappointed to have come so close but missed out on multiple medals in the past couple of months and that disappointment shows in their game and demeanour. Arsene Wenger also looked tired and depressed traipsing round the pitch with the rest of them.  Hopefully they can close the season on a positive note next week and, whatever the summer brings in terms of changes, get a decent restful break, enabling them to approach the new season with some renewed energy, passion, vigour and confidence.

To the disappointed and even angry supporters, fuming at the lack of another season without silverware it's worth remembering that, next to Man U., Arsenal have been the most consistent side in the Premier League for 15 years.  That kind of longevity in football deserves respect and there are 90 other clubs and sets of supporters in the top four divisions of english football and many more from around the world who would love to be in the Gunners' situation. So whilst decrying the lack of success and the insipid frustrating performances like that against Aston Villa, we should pause too and appreciate what we've got.  So thanks to Arsene Wenger and the players and backroom staff at Arsenal for another season of ups and downs. Have a good break and good luck with preparations for next year.

Another MEP responds on copyright term extension

I've had another response, to join the earlier ones, to my note to MEPs about the music copyright term extension approved by the EU parliament. This time from the Green Party's Keith Taylor, who opposes such an extension.

"Dear Ray,

Thank you for your email expressing your concern about the possible passing of the directive to extend the term of copyright protection for sound recordings from 50 to 70 years.

I share your concern on this matter, and have already signed the request for a renewed referral tabled by MEP Christian Engstrom to give the European Parliament a chance to reconsider its decision from April 2009 to extend the copyright term for musical recordings from 50 to 70 years. You can find further details of those who have signed up to this request here:  http://christianengstrom.wordpress.com/2011/04/21/names-of-the-40-meps-supporting-review-of-the-copyright-term-extension/ . Green MEPs actively oppose the proposed extension of the copyright term.

The final vote was 317 MEPs in favour of extending the copyright term with 178 against. There is, however support against the extension of the term, with four out of the seven main groups voting to reject the proposal to extend the term.

The proposal now moves forward to the Council of Ministers (made up of Member State Governments) where it is currently blocked by certain Member States (We understand the blocking minority is currently made up of Slovenia, Portugal, Austria, Netherlands, Sweden, Slovakia, Denmark, Belgium, Finland, Romania).

Furthermore, the widespread condemnation in the press, among stakeholders, and in the European Parliament demonstrates that the public is against extending the copyright term. This shows the strong feelings that Europe should create a balanced and fair copyright if it wants a system fit for purpose in the 21st century. Please be assured that I will continue to do all I can to work for a fair copyright system and to oppose the extension of the copyright term.

Many thanks again for raising this crucial issue with me and let me know if you have any further questions. For more information on my work in the European Parliament please do have a look at my website: http://www.keithtaylormep.org.uk/ .

Best wishes,

Keith Taylor

Office of Keith Taylor, Green MEP for SE England"

The story, the whole story and nothing but the story...?

It's interesting how the press interprets things.  They can't cover everything because no one has time for that, so they're forced to simplify, abbreviate, inform and simultaneously avoid distorting the truth.  The trouble is these requirements can be incompatible.  A small example arises out of the reports on the Mosley defeat at the European Court of Human Rights.  The Guardian says:

"The court ruling noted that Mosley had not managed to cite a "single jurisdiction in which a pre-notification requirement as such is imposed".
"In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it," the court said."

The Court did indeed says those things (at paragraph 124 for the legal geeks to check) but it followed up immediately, in the same paragraph, by saying:

"The Court recognises that a number of member States require the consent of the subject before private material is disclosed."

Then:

"However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned."

Or in full the paragraph says:

"124.  Third, the Court highlights the diversity of practice among member States as to how to balance the competing interests of respect for private life and freedom of expression (see paragraphs 62-63 above). Indeed the applicant has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned. Nor has the applicant pointed to any international instruments which require States to put in place a pre-notification requirement. Indeed, as the Court has noted above (see paragraph 119), the current system in the United Kingdom fully reflects the resolutions of the Parliamentary Assembly of the Council of Europe (see paragraphs 56-59 above). The Court therefore concludes that the respondent State’s margin of appreciation in the present case is a wide one."

The Guardian story, through selective quotation - and note that I'm not saying this is deliberate distortion, rather a function of the need to abbreviate - gives the impression that there is no pre-notification regime anywhere, since Mosley's legal team didn't cite one; and that the general consensus, therefore, is that no one wanted it.

Yet the paragraph in full tells a much more complicated story:

• Mosley didn't cite any examples of pre-notification
• This suggests such schemes are not in favour
• However there are some jurisdictions where prior consent is required before publication of private material
• The fact that such schemes do exist is not evidence of consensus that they should be implemented everywhere
• UK protections comply with the the resolutions of the Parliamentary Assembly of the Council of Europe, (implicity implying that this is the closest thing to an international consensus on the broad principles governing conflicts between privacy and free speech)
• The UK's "margin of appreciation" (ie freedom to regulate as it sees fit) should be wide and by implication not constrained by the specific facts of the Mosley case or his wish to have a prior notification regime

Now I recognise that the press has a limited amount of time and space (and readers' attention spans) to tell stories like the outcome of the Mosley case.  And actually the Guardian report I've cited does a reasonably good job of telling the story in a fair and balanced way, as does the BBC and others.  They have neither the time, resources or economic incentives to dissect each and every one of the 132 paragraphs of the decision in this kind of way. 

But the details are important and though journalists can't necessarily tell the story, the whole story and nothing but the story they do need to be careful not to distort it.  Unfortunately distorting di story (sorry!), by accident or design, is all too common.

Mosley loses at ECHR

Max Mosley has lost his case at the European Court of Human Rights. The Court's press release on the judgment is here (links to downloadable pdf).  The judgement in full is also available but since the links are dynamic the simplest way to find it is to type "Mosley" into the Court's HUDOC search portal.
(Update: Scribd has a copy of the decision now)

It's an interesting decision ultimately concluding that Mr Mosley's request for a prior notification regime, whereby subjects of press stories would be informed in advance of publication, would have a disproportionate chilling effect on freedom of the press.  It's not entirely bad news for the applicant Mr Mosley, however, as the Court ruled that his case was admissible, disagreeing with the UK government's argument that it was ill founded. They also agreed with Mr Justice Eady's decision in the UK High Court that there was no public interest in the News of the World's publication, in print, of stories about Mr Mosley's sex life, in addition to audio and video recordings of his activities and that on the facts of the case there was a clear invasion of privacy under Article 8 of the European Convention on Human Rights.

Nevertheless the key question they had to decide was whether a pre publication notification regime would be required to facilitate the balance between privacy (Article 8 of the Convention) and free speech (Article 10). And the answer was no.

Sensibly they say (paragraph 114) that sex stories do not attract the same protection as "reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society" but that the Court must be careful about imposing restraints on speech (paragraph 116); particularly so about prior restraint (para 117).

At paragraph 119 - 121 they explain that the UK remedy of post publication damages can be reasonably expected to act as a check on press behaviour and that the ECHR precedent dictates that damages provide an adequate remedy; also that in making the decision they need to be particularly aware of the wider implications:

"While the specific facts of the applicant’s case provide a backdrop to the Court’s consideration of this question, the implications of any pre-notification requirement are necessarily far wider. However meritorious the applicant’s own case may be, the Court must bear in mind the general nature of the duty called for. In particular, its implications for freedom of expression are not limited to the sensationalist reporting at issue in this case but extend to political reporting and serious investigative journalism. The Court recalls that the introduction of restrictions on the latter type of journalism requires careful scrutiny."

There follows an interesting discussion on the "margin of appreciation" - the freedom of the State to implement it's obligations under article 8 in any ways it sees fit. The wide diversity of practice amongst member states in the balancing of article 8 privacy and article 10 speech requirements of the convention means there is no general consensus in this area and therefore no general obligation to mandate a prior notification regime.

"124.  Third, the Court highlights the diversity of practice among member States as to how to balance the competing interests of respect for private life and freedom of expression (see paragraphs 62-63 above). Indeed the applicant has not cited a single jurisdiction in which a pre-notification requirement as such is imposed. In so far as any common consensus can be identified, it therefore appears that such consensus is against a pre-notification requirement rather than in favour of it. The Court recognises that a number of member States require the consent of the subject before private material is disclosed. However, it is not persuaded that the need for consent in some States can be taken to constitute evidence of a European consensus as far as a pre-notification requirement is concerned. Nor has the applicant pointed to any international instruments which require States to put in place a pre-notification requirement. Indeed, as the Court has noted above (see paragraph 119), the current system in the United Kingdom fully reflects the resolutions of the Parliamentary Assembly of the Council of Europe (see paragraphs 56-59 above). The Court therefore concludes that the respondent State’s margin of appreciation in the present case is a wide one."

Crucially, I think, on the question of the clarity and effectiveness of a pre-notification regime, (paras 125 - 129) they suggest that it can probably be defined clearly because the concept of "private life" is well understood (even by journalists!) but 

• it would have a de facto chilling effect on freedom of the press and 
• even if such a scheme was in place the News of the World would still have published their stories about Mr Mosley because they had unjustifiably convinced themselves that there was a Nazi element to the affair
• the effectiveness of a pre-notifcation scheme would depend on associated sanctions for breaching it -  punitive measures would create "a chilling effect which would be felt in the spheres of political reporting and investigative journalism, both of which attract a high level of protection under the Convention."

They conclude:

"iii.  Conclusion

130. As noted above, the conduct of the newspaper in the applicant’s case is open to severe criticism. Aside from publication of the articles detailing the applicant’s sexual activities, the News of the World published photographs and video footage, obtained through clandestine recording, which undoubtedly had a far greater impact than the articles themselves. Despite the applicant’s efforts in a number of jurisdictions, these images are still available on the Internet. The Court can see no possible additional contribution made by the audiovisual material (see paragraph 115 above), which appears to have been included in the News of the World

131.  The Court, like the Parliamentary Assembly, recognises that the private lives of those in the public eye have become a highly lucrative commodity for certain sectors of the media (see paragraph 57 above). The publication of news about such persons contributes to the variety of information available to the public and, although generally for the purposes of entertainment rather than education, undoubtedly benefits from the protection of Article 10. However, as noted above, such protection may cede to the requirements of Article 8 where the information at stake is of a private and intimate nature and there is no public interest in its dissemination. In this regard the Court takes note of the recommendation of the Select Committee that the Editors’ Code be amended to include a requirement that journalists should normally notify the subject of their articles prior to publication, subject to a “public interest” exception (see paragraph 53 above).

132.  However, the Court has consistently emphasised the need to look beyond the facts of the present case and to consider the broader impact of a pre-notification requirement. The limited scope under Article 10 for restrictions on the freedom of the press to publish material which contributes to debate on matters of general public interest must be borne in mind. Thus, having regard to the chilling effect to which a pre-notification requirement risks giving rise, to the significant doubts as to the effectiveness of any pre-notification requirement and to the wide margin of appreciation in this area, the Court is of the view that Article 8 does not require a legally binding pre-notification requirement. Accordingly, the Court concludes that there has been no violation of Article 8 of the Convention by the absence of such a requirement in domestic law.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 8 of the Convention."

It's a thoughtful, carefully constructed opinion and imho they came to the correct conclusions.  Although the decision is readable, for those less inclined to wade through the legalese the press release outlines all the key elements of the decision in slightly more accessible language. Recommended.

Digital privacy gordian knot

Living in the catchment area of a teaching hospital I get letters on a semi regular basis asking me or members of my family to participate in some medical research survey/trial. I always refuse on privacy grounds but occasionally send the form back asking them to take our details off their mailing lists (with little expectation that this will be done).  All modern technological, social, economic and organisational systems that process and store sensitive personal data are leaky, in many cases seriously so. HMRC 25 million debacle of 2007 and the Sony Playstation mess of recent weeks and others repeatedly remind us of this yet we see little progress on the privacy front.

One of the issues with improving these systems is that independent researchers with the capacity to help public and private sector organisations improve them rarely have direct access to the systems to the extent that sufficient robust empirical evidence can be generated and analysed with a view to expediting such improvements. Yet the granting of such researcher access fundamentally breaches the privacy of the individuals whose personal data is already compromised by virtue of the fact that it is held and processed on these leaky systems by these leaky organisations.

We already know a lot about improving these systems in ways that would respect privacy but don't implement these principles in practice.  So I'm pessimistic that even if we could cut the gordian knot of facilitating empirical research of real world systems without compromising the privacy of the data subjects on those systems it would necessarily help our progress towards a privacy enhanced future.  Privacy is complex and difficult especially faced with the forces undermining it:

• technology, 
• economics, 
• convenience and 
• bureaucracy.

The first law of technology is that if it can be done it will be done - basically fatal for personal privacy

Commercial sector (not just Facebook's and Tesco's) profits depend on undermining personal privacy

Our own addiction to convenience beats everything, including personal privacy

And the obsessive digital Taylorism of the public (and private) sector bureaucrat - the mindset that there is value only in that which can be measured and controlled - is also fatal for personal privacy.

Actually, faced with such forces the mythical, ethical, superhero researcher with the absolutely secure empirical research system, which enables said researcher to know everything about the commercial/public sector system under examination without knowing anything about the data subjects in that system, is something of a minor problem. Cheery thoughts for a Monday morning.

EU copyright term extension in sound recordings again

Prompted by Jim Killock of the Open Rights Group I wrote to my MEPs yesterday (all ten of them) on the matter of copyright term extension. I've had 3 responses so far.  First off the mark was Andrew S. Reed of UKIP writing on behalf of Nigel Farrage. They oppose the measure.

"Dear Ray Corrigan

Your letter, opposing the copyright-term-extension, is one of many such, sent to Mr Farage, including one from the European Bureau of Library-Information and -Documentation Associations (EBLIDA) objecting to the EU's proposed copyright-legislation, which includes the extension of the term of copyright to the disproportionate length of 95 years, because this will benefit, above all, large, corporate copyright-holders, will reduce the cultural value (to the public) of works-of-art and will not materially augment the return-on-their-work for artists.

EBLIDA' message furnishes further arguments against the proposal, pointing to a torrent of ill-effects.

Such effects are characteristic of EU-legislation, which is largely designed by big business (in this case, by four large media-companies) and produced, by the EU, primarily to increase its own power.  It does this in an entirely non-democratic process. That the EU's largely powerless, consultative assembly (the so-called "parliament") is elected - by 27 separate and mutually uncommunicative electorates - does not make it democratically elected, and the real powers of the EU (in the Commission, Council and Court) are not elected at all.

This is why the UKIP votes against every piece of EU-legislation - for all the effect that has, in an assembly dominated by EU-imperialists - and bitterly opposes Britain's continued entanglement in the EU-structure.

The assembly is much lobbied, by the relevant interests, during the prelude to its voting on any particular subject; but only a few, out of many thousands of EU-Commission proposals, have been substantially amended, in the past five years, and only two have been rejected.  Indeed, lobbyists (who profit from lobbying) collude with assembly-members (who profit from appearing to be doing something) in giving the impression that the assembly is a free agent, worth lobbying.  In fact the assembly is an appendage of the Commission and either does what it's told or is not allowed to do anything.

The chances of withstanding the current proposals on copyright are, therefore, slim.

The dangers of such a system, and the damage its legislation is doing, should be pretty obvious to most people, by now; and the only way to avoid them, is to repeal the European communities Act (ECA)

UKIP is the only party genuinely dedicated to achieving the repeal of the ECA, and I hope you will consider supporting us in our campaign to achieve it.

Please see below a more detailed objection, with which UKIP agrees, to the EU's proposals on copyright, from Mr William Heath of the "Open Rights Group".

Yours sincerely,

Andrew S. Reed

(Office of Nigel Farage, Strasbourg, www.ukip.org )"

Next was Peter Skinner of Labour, who doesn't really state what his position is but he appears to support it and says that the Parliament supports the proposal and there's nothing that can be done about it.

"Dear Mr Corrigan,

Thank you for your email concerning copyright term extension. The position of the European Parliament on the Commission's proposal to amend Directive 2006/116/EC was adopted on 23 April 2009 in a vote of the full plenary of the Parliament. Full information on the legislative process and texts adopted is available at:
http://www.europarl.europa.eu/oeil/file.jsp?id=5667672

The Parliament supported the proposal, with certain amendments including a thorough review clause, with 387 votes in favour and only 152 against. This first reading position was confirmed by the Legal Affairs Committee of the newly elected Parliament in September 2009. It is not possible for the Parliament to recall the dossier, as was sought by Mr Engström, because the Parliament's first reading was re-confirmed by the new Parliament in September 2009. The legislative process was therefore concluded in the Parliament at first reading and it is now for the Council of Ministers to adopt a position on this proposal.

With best wishes,

Peter Skinner"

Then came Richard Ashworth of the Conservatives who support the proposal and produced what I presume is the standard Consrvative party response.

"Dear Mr Corrigan,

Thank you for your email in which you raise concerns with regard to the proposed Copyright Extension Directive.

I, together with my fellow Conservative MEP's, have actively followed and been involved in the debate on copyright duration, believing this is actually issue one of the major parameters for establishing the amount of protection accorded authors and other owners of copyright and I very much understand the elements you put forward. However, issues surrounding copyright extension are controversial and the level of copyright, and copyright term, are matters that have been of importance to policymakers over the last decade and together with colleagues, we support extending the copyright period.

Copyright is extremely important because it is the way artists are rewarded; businesses make their money and invest in the future. But, duration of copyright is also the principal dividing line between the property rights of these owners and the public domain - that is, the domain of unprotected works which are available to the public for unrestricted, uncompensated use. Hence, we need a copyright framework that is both flexible and accessible and the Commission proposal meets many of these requirements. In the digital age, music is readily available online and copyright provisions need to take account of market changes. Extending the term of copyright to 95 years is essential if we expect performers and the music industry to carry on investing, innovating and creating and it is only right that they are given greater protection for their investments.

In economic terms, the copyright extension would also be beneficial. We believe that the available evidence suggests an extension of the copyright term is likely to benefit consumers rather than harm them and that overall social welfare is also likely to be increase.  Longer terms  will help to encourage digitisation  of much more of existing back catalogues of music , ensuring  a cultural legacy for  thousands of recordings which would otherwise be lost as physical copies are lost or left tucked away never to be heard again.   Further, based on a review of the academic literature and the available empirical evidence on record company investment behaviour (which suggests new music is, in fact, financed out of current earnings) there are strong grounds to believe that a retrospective increase in the copyright term will enhance these benefits.

In a Price Waterhouse Report, it was shown that an extension could boost the lagging music industry by £3.3 Billion over the next 50 years. The extension would also address the distortion of competition between the United States and the EU. At a time when creative industries based on intellectual property are generating an increasing percentage of GDP in the EU, the current disparity between the term of protection in the EU and the US clearly puts British record companies and performers at a competitive disadvantage. The extension to 95 years would therefore help the competitiveness of British music industry in the global marketplace.

Furthermore, a significant gap between the length of term of protection in the EU and the US facilitates piracy, particularly in the online environment where technology enables recordings in Europe to be transmitted over the Internet to countries where recordings are still in copyright. 

The extension would also improve the social situation of performers, who have been disadvantaged by the existing 50-year term which often does not cover their lifetime. While Composers have benefited from a term of copyright that extended to the composer's life and 70 years beyond, performers have been disadvantaged but this new proposal brings parity to those involved in the music industry. 

The UK has a very strong music industry and safeguards must be put in place if we are to maintain our position in today's marketplace. The copyright extension is a first step in this direction and should be supported.

Yours sincerely,

Richard Ashworth MEP"

I've responded to all three thanking them for their prompt attention (and support in the case of UKIP) but in slightly more detail to Mr Ashworth given his claims about empirical evidence supporting the need for term extension:

"Dear Mr Ashworth,

Thank you for your prompt though disappointing reply. As an academic who has studied the technology and intellectual property story for some time I can confirm that copyright is important and that issues surrounding copyright extension are controversial.

Copyright is important for artists but if the Commission’s proposal was really aimed at performers, it would link the term to the performer’s life (or a close proxy) and it would not grant the extended term to the producers of sound recordings. It would give it to the performers themselves.

You say a review of academic literature supports music copyright term extension. I'd appreciate it if you provide me with specific references to said literature supporting term extension.

I'm not sure if you're familiar with discounted cash flow calculations, where you work out the present value of future cash flows (in a kind of a reverse compound interest calculation). Frankly a basic discounted cash flow model calculation demonstrates that a copyright term of 95 years provides very little extra economic incentive today (compared to a term of 50 years) to invest in copyrighted works. Nevertheless I would still appreciate the opportunity to examine the academic literature you believe states otherwise, so I would still appreciate those citations.

You also say that "empirical evidence on record company investment behaviour (which suggests new music is, in fact, financed out of current earnings) there are strong grounds to believe that a retrospective increase in the copyright term will enhance these benefits."  Again I'd really appreciate a reference to this evidence. Part of the problem with intellectual property policymaking has been the absence of empirical evidence informing the process.

You cite the unpublished Price Waterhouse Coopers report produced for the British Phonographic Industry (music industry trade association) in 2006 to suggest that "an extension could boost the lagging music industry by £3.3 Billion over the next 50 years". The methodology of that study has been found to be wanting in several respects. Just one example is that it suggested a range of potential losses that varied by a factor of 20 and it is risky to rely on such figures for policy making. You also suggest extension of copyright term will benefit consumers.

In addition to a paper I produced with Mark Rogers of Oxford University in 2005** indicating that consumer and social welfare is not served by copyright term extension, an eminent collection of my academic colleagues around some of Europe’s most prestigious educational institutions have concluded in an open letter to the Commission,*

"It strains credulity to claim that a term extension will provide

large benefits to the record industry, as the Commission does, while having

no impact on consumers. The record industry holds the data that would

enable an independent empirical study to settle this issue."

I look forward to hearing from you regarding the citations to academic literature and empirical evidence supporting copyright term extension in sound recordings.

Thanks for your time.

Yours sincerely,

Ray Corrigan,

Senior Lecturer in Maths, Computing and Technology, Open University; Mailing address: Open University in the South, Foxcombe Hall, Boars Hill, Oxford, OX1 5HR, UK; Tel +44 (01865) 327000; blog http://b2fxxx.blogspot.com/

* The Proposed Directive for a Copyright Term Extension – A backward-looking package

Centre for Intellectual Property Policy & Management (CIPPM, Bournemouth University), the Centre for Intellectual Property & Information Law (CIPIL, Cambridge University), the Institute for Information Law (IViR, University of Amsterdam), and the Max Planck Institute for Intellectual Property, Competition and Tax Law (Munich published).

http://www.cippm.org.uk/downloads/Term%20Statement%2027_10_08.pdf

**Corrigan, R. & Rogers, M. (2005) The Economics of Copyright World Economics Journal

Volume 6, Number 3, 2005, pages 153 – 174

http://www.world-economics-journal.com/Contents/ArticleOverview.aspx?ID=219"

I had a fourth response as I was typing this blog post, from Daniel Hannan, another Conservative:

"Dear Mr Corrigan,

Thank you for your e-mail.

You may not be aware that European constituencies were reorganised following the 1999 European elections, and MEPs were elected under a proportional representation system. Having opposed the proportional system, the four Conservative MEPs in the South East region have divided the area into four sub-constituencies, to guarantee a more direct representation for the people of the South East region.

James Elles MEP is the Conservative representative for your part of Oxfordshire.  I have, therefore, forwarded your correspondence to him for his information.

Yours sincerely,
Daniel Hannan"

I've thanked him for his response and mentioned James Elles will have heard from me directly. 

It's interesting that the Conservative Party in the EU Parliament is supporting term extension when there is a fair chance that the Prime Minister may well oppose it.

Obama proposes indefinite detention for suspected terrorists?

It is sad to hear President Obama apparently suggesting the construction of some legal instrument to facilitate indefinite detention for crimes people might commit, having spent so many years denouncing the worst excesses of his predecessor's administration's abuse of civil liberties.



Minority Report is here?

BT and TalkTalk lose challenge to DEA

The High Court has effectively completely rejected BT and TalkTalk's challenge to the Digital Economy Act. Typically it's come through when I'm having a few days off and today fixing the garden wall (now done though it's probably just as well I don't make my living as a bricklayer) and I've only had the chance to scan the decision but surprisingly they've lost on the 5 key arguments they've presented to the court.

"5.The Claimants advance five grounds of challenge in respect of the contested provisions. They contend that:

i) The provisions constitute a technical regulation and/or a rule on services within the meaning of the Technical Standards Directive (Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, OJ [1998] L No 204, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998, OJ [1998] L No 217). The provisions, it is said, should have been notified to the EU Commission in draft, but were not. The provisions are accordingly unenforceable.
ii) They are incompatible with certain provisions of the Electronic Commerce Directive ("the E-Commerce Directive") (Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, OJ 2000 L No 178).
iii) They are incompatible with certain provisions of the Privacy and Electronic Communications Directive ("the PEC Directive") (Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector, OJ [2002] L No 201).
iv) They are disproportionate in their impact on ISPs, consumers, business subscribers and public intermediaries. The requirement for the legislation to be proportionate in its impact on ISPs, businesses and consumers is said to be derived from a number of sources, including Articles 7, 8, 11 and 52 of the Charter of Fundamental Rights and/or general principles of EU law, pursuant to Article 6 TEU and the Human Rights Act 1998 and Articles 8 and/or 10 of the European Convention on Human Rights.
v) They infringe the Authorisation Directive (Directive 2002/20/EC of the European Parliament and of the Council on the authorisation of electronic communications networks and services OJ [2002] L No 108, as amended by European Parliament and EC Council Directive 2009/140, OJ [2009] L 337)."

From my brief scan they've lost i), ii) and v) on technicalities and iv) and v) through Mr Justice Baker's deference to parliament.  He rejects the notion that the DEA will lead to mass surveillance, for example:

"

1. In case C-236/08 Google France v Louis Vuitton Advocate General Maduro observed in his Opinion:

"142. To my mind, the aim of [the ECD] is to create a free and open public domain on the internet. It seeks to do so by limiting the liability of those which transmit or store information, under its Articles 12 to 14, to instances where they were aware of an illegality.

143. Key to that aim is Article 15 of [the EC], which prevents Member States from imposing on information society service providers an obligation to monitor the information carried or hosted or actively to verify its legality. I construe Article 15 of that directive not merely as imposing a negative obligation on Member States, but as the very expression of the principle that service providers which seek to benefit from a liability exemption should remain neutral as regards the information they carry or host."

2. In my judgment, there is nothing in this further material which would tend to suggest that "monitor" (or in French, "surveiller") has other than its ordinary and natural meaning, that is, to inspect or examine some phenomenon. In the context of information society services, that means inspecting or examining the information that is being, or has been, transmitted, with a view to checking whether the information may lawfully be transmitted, or whether the transmission complies or complied with some other norm regulating the nature of information that may be transmitted. A "general" obligation refers to a systematic arrangement whereby the putative "monitor" is inspecting or examining information randomly, or by reference to particular classes of information or subscribers, and is not focusing on a specific instance that has for apparently good reason been brought to its attention.
3. The DEA does not require ISPs to monitor information in the above sense. The DEA may impose general obligations on ISPs, but these obligations cannot accurately be called "monitoring". Nothing in the DEA requires ISPs to inspect or examine the information transmitted for any purpose, including the purpose mentioned earlier concerning the legality of the information transmitted. Copyright owners may well monitor information that is being transmitted, to check whether there is an apparent copyright infringement, but they are not ISPs and they are under no duty by virtue of the DEA to carry out any "monitoring".
4. For present purposes, the role of the ISP under the DEA is essentially passive. It receives reports from those who have, in the relevant sense, "monitored" information that has been transmitted. It is the copyright owners who must show (according to substantive criteria and standards of evidence to be set out in the Code) that the information transmitted infringed the owners' rights. The ISP has itself no general obligation to inspect or examine the information to see whether the transmission might infringe, or has infringed, the rights of any copyright owner. When the ISPISP sends a CIL to a copyright owner, it is not "monitoring" any information. It is simply reporting to the copyright owner that, according to information held by the ISP, a particular subscriber, identified through the IP address or addresses, has infringed the owner's rights on a number of occasions (to be specified in the code). The fact that the ISP may by that stage know what kind of information the relevant subscriber is prone to download in breach of the copyright owner's rights (it may, for example, be lawful pornography) does not, in my view, convert the ISP's activity into one of "monitoring" that information. The knowledge acquired is no more than a by-product of the different non-monitoring role that I have set out above.
5. Mr White relied strongly on the Opinion dated 22 February 2010 of the European Data Protection Supervisor ("EDPS") who, in describing "three strikes Internet disconnection policies" stated that they entailed "generalised monitoring of Internet users' activities" (see paragraphs 16, 17 and also 21 and 22). In my view, this Opinion adds nothing. It is clear from the context that the EDPS was describing "monitoring" by copyright holders of internet usage with a view to discovering copyright infringement. He was not stating that ISPs under such arrangements were "monitoring" the information transmitted through their services; he was not offering a legal interpretation of Article 15 of the ECD (which would in any event appear to be outside his remit); and he was not saying that anything done by ISPs under the arrangements in question would constitute "monitoring" under that Article.
6. Mr White also argued that the DEA imposed on ISPs "a general obligation to seek facts or circumstances indicating illegal activity", contrary to the second part of Article 15(1) ECD. However, it is the copyright owner who actively seeks such facts and circumstances and reports them to the ISP. The ISP itself has no such active role, either when it communicates a CIR to a subscriber or reports a CIL to a copyright owner: the CIR is already the work product of another person who has conducted an active investigation, and the CIL is simply a compilation of such reports in respect of a relevant subscriber. In the present context, the essential function of the ISP is not to investigate facts or circumstances, but to identify the wrongdoer. If a police officer observes a motor car passing through a red light, and asks an official at the vehicle licensing authority to disclose the name and address of the registered keeper (and presumed driver) of the car, that official, in responding, would not actively be "seeking facts or circumstances indicating illegal activity". She would be doing no more than identifying, in response to a specific request, the person who, according to the investigation already completed by the police officer, had infringed the traffic code...

1. In my view, the logical elegance of Mr Beal's submission faces serious practical difficulties. First, the central premise is that, through the Copyright Directive, the law of copyright has now been entirely or at least sufficiently harmonised so that within the EU the exclusion found in the Annex to the ECD in relation to copyright has simply vanished, no longer buttressed by an extant rationale. But all references to the Copyright Directive, including its very title, speak of harmonising "certain aspects" of copyright law, indicating that complete harmonisation lies somewhere in the future. Whether or not the degree of harmonisation achieved at any point is sufficient to undermine the rationale for exclusion in the current text of the ECD for copyright would, in my view, require a fine exercise of legislative judgment, and is not a matter appropriate for judicial adjudication. I was referred to no authority that harmonisation in this field is complete (and my own researches simply confirm that the view of learned commentators is that it remains partial), or that harmonisation had advanced to such an extent that the rationale for the relevant exclusion could no longer be supported.
2. Furthermore, it seems to me that Mr Beal's interpretation would create intolerable legal uncertainty in a system of law (namely EU law) where the principle of legal certainty has been accorded great weight. It must be remembered that the relevant exclusion remains in the legislative text of the ECD: the Community legislation did not remove that exclusion, either at the time that the Copyright Directive came into force (in May 2001), or at the time by which Member States had to implement the Copyright Directive (22 December 2001), or at any subsequent time. In my judgment, if the Community legislator had wished to abrogate the relevant exclusion, it would, in the interests of legal certainty, expressly have removed the exclusion by an appropriate amendment of the ECD, and would not have left the matter in the air, susceptible to competing and conflicting interpretation.
3. Finally, on Mr Beal's approach, the relevant exclusion would have had a relatively short shelf-life: after 17 January 2002 (the implementation date for the ECD) Member States could have retained provisions on copyright that otherwise fell within Article 3(1), relying on the relevant exclusion. However, by 22 December 2002 (that is, less than a year later) such provisions could no longer be invoked against ISPs established in other Member States unless, following Mr Beal's argument, the Copyright Directive expressly authorised them. Short shelf lives generally need prominent signposting. If such a result had been intended, an express provision in the Copyright Directive abolishing the relevant exclusion, with an appropriate explanatory recital, could have been expected, with the proverbial red hand pointing at it...

1. I shall, therefore, proceed on the basis that the relevant data which would be processed by copyright owners would be personal data and that some of it would be special data.
2. However, the important issue on this ground of challenge is whether the relevant processing of personal data is permissible.
3. The Defendant and the Interested Parties rely on Article 8(2)(e) (which relates strictly to special categories of data): the processing is necessary for "the establishment, exercise or defence of legal claims". That would appear to be the precise purpose of the contested provisions of the DEA: the copyright owner will be able, through the procedures under the DEA, to establish not only that there has been an infringement of copyright but also who is responsible for the infringement.
4. Mr White argued that the provision applied only if the data controller was sure, at the beginning and throughout the relevant "processing", that at the end of the processing a legal claim would be brought. However, in my view, the copyright owner might not in a particular case decide to pursue legal proceedings, but that does mean that the action that he took under the DEA was not for the purpose of establishing or exercising such a claim. Mr White's interpretation would create intolerable legal uncertainty and something of a "Catch 22" situation. The data controller might not know at an early stage in processing the relevant data whether he intended at the end of the process to commence legal proceedings, and the processing could be rendered impermissible if in the event he did not commence such proceedings; and it might be only after the relevant data processing that he could sensibly decide whether it was appropriate to commence proceedings. The data controller might change his mind during the course of processing, and the legal position would be obscure.
5. Article 8(2)(e), as noted, does not in strict terms apply to processing under Article 7. However, it would be absurd if that particular basis did not apply generally, for it would otherwise mean that processing of data that fell short of special category data was permissible in more restricted circumstances than those applied to special category data. It seems to me that the only sensible interpretation is that the circumstances described in Article 8(2)(e) inevitably fall within Article 7(f) as "processing … necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are controlled" and necessarily observe the balance required by the proviso to that Article."

Whereas there may be an arguable case on the various technicalities I just don't buy the repeated deference to Parliament as a rational decision making body in the context of the DEA, given how the Act came to be rushed through on the nod without appropriate scrutiny before the general election:

"

1. In my judgment, there are good reasons in the present context for the Court to attach substantial weight to the balance struck by the primary decision maker, namely, Parliament. First, there is considerable support in the case law for the proposition that the Courts should afford particular deference to elected and accountable decision makers where the decision concerns subject matters that are regarded as within the particular province of the political branches. In Wilson v First County Trust Ltd (No 2) [2003] UKHL 40; (2004) I AC 816 Lord Nicholls stated that the readiness of a court to depart from the views of the legislature depends upon the circumstances, "one of which is the subject matter of the legislation". The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene (see [70]). (See also Ghaidan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 at [19], and Michalak v London Borough of Wandsworth [2002] EWCA Civ 27; [2003] I WLR 617, at [41]). In International Transport Roth Gmbh v SSHD [2002] EWCA Civ 158; [2003] QB 728 at [83] Laws LJ stated that

"greater deference will be due to the democratic powers where the subject matter in hand is peculiarly within their constitutional responsibility."

2. In this case Parliament has addressed a major problem of social and economic policy, where important and conflicting interests are in play. On the one hand, there is evidence to suggest that the media industry, broadly interpreted, is sustaining substantial economic damage as a result of unlawful activity on the internet; and there is concern that such damage may significantly affect creativity and productivity in an economic area of national importance where, at least historically, the UK has tended to enjoy some comparative advantage in international markets. On the other hand, the business models of ISPs are constructed on the basis that they are essentially conduits for the flow of information, and the efficiency, cost effectiveness and competitiveness of their operations depend on the minimum regulatory interference with that flow of traffic, and on the minimum responsibility and burden in respect of the actual content of the material passing through the conduit. Similarly, subscribers of the ISPs and users of the internet appreciate that the technology is the most prodigious tool for the transmission and interchange of information and other material ever designed, and, in general, they would oppose restrictions on their ability to enjoy untrammeled access to such information and material. Information is also a public good, and interference with access to, and publication of, information may adversely affect general welfare. How these competing and conflicting interests should be accommodated and balanced appears to me to be a classic legislative task, and the court should be cautious indeed before striking down as disproportionate the specific balance that Parliament has legislated.
3. Secondly, Parliament struck the challenged balance after a lengthy process of consultation with all interested parties, which took account of the representations made by those parties, and after a voluntary, non-legislative scheme was tried out. That process is likely to have provided the decision maker with an insight and capacity that the court is unlikely to enjoy."

There is ample evidence to demonstrate that Parliament did not take account of the representations of key stakeholders in the DEA and the notion that the "decision maker" had an "insight" and capacity "that the court is unlikely to enjoy" would give me serious concerns about the capacity of the UK High Court to tackle the cases before it if this were true. There was no mention of the ECJ AG's decision last week on the SABAM v Scarlet case which, once the ECJ makes its decision will likely lend weight to BT and TalkTalk's cause (though as I warned at the time the UK situation is different).  There was also a reference to the ECJ Promusicae case from a few years back to justify the DEA's compliance with the Privacy and Electronic Communications Directive ("the PEC Directive") (Directive 2002/58/EC of the European Parliament and of the Council concerning the processing of personal data and the protection of privacy in the electronic communications sector, OJ [2002] L No 201). Yet the Promusicae judges clearly stated that copyright does not trump fundamental rights like privacy.

As I said - this was a quick scan so I may have misinterpreted one or two points but the surprise was that the decision completely rejected the ISP's position on all counts.  It remains to be seen what BT and TalkTalk's next move will be but it looks to me as though they have still got plenty to work with. The courts' deference to Parliament, though, a Parliament that does not get technology, could continue to be a major stumbling block.

Update: I should have said that there is one small crumb of comfort in the decision for digital rights activists in that Mr Justice Baker did conclude (at paragraph 157) that IP addresses are personal data and by implication attract the associated legal protections. (The justification for this conclusion is given in paras 152 - 156).
(I've tidied up some of the formatting issues with the quotes from the decision above too, at para 129).