If you follow technology news services and blogs that are vaguely interested in digital rights issues, you must already have heard about ACTA, the Anti-Counterfeiting Trade Agreement. This is a multilateral trade agreement between the EU, the US, Mexico, Canada, Australia, South Korea, New Zealand and a [...]]]>

"I find your lack of copyright enforcement disturbing"

If you follow technology news services and blogs that are vaguely interested in digital rights issues, you must already have heard about ACTA, the Anti-Counterfeiting Trade Agreement. This is a multilateral trade agreement between the EU, the US, Mexico, Canada, Australia, South Korea, New Zealand and a few others, currently negotiated in secret that is set to tackle copyright infringement issues. As the name indicates, the aim of the agreement is to tackle counterfeiting. However, the most controversial aspect is that various sources have disclosed that the agreement is set to export some of the worst maximalist legislation out there, particularly in an attempt to curb illegal file-sharing. For the most detailed in-depth analysis of what has been happening so far, Michael Geist’s blog is the place to be. Nonetheless, I have been meaning to take stock and write a synopsis of what has happened so far for my own benefit. If you are confused about the various claims and counter-claims, I hope you find this useful.

The main problem with ACTA is that the negotiations have been closed. Secrecy leads to fear, fear leads to hate, hate leads to anger, anger leads to the Dark Side. One problem that I have noticed, and which has already been picked up by some defenders of the agreement, is that some of the language attacking ACTA seems to be rather overboard. This is an agreement that will end Web 2.0 services, it will eradicate the Internet as we know it and replace it with an alien reptilian replicant. So I have decided to go through what we know about the agreement so far. It must be pointed out that this is the perfect time to take stock, the next round of negotiations is coming up in April, so if there is something to be worried about, we should make a fuss right now.

So what do we really know about the agreement? Relatively little. Because of the secret negotiations, we only have had some leaks here and there. I will not recount the history of the talks (for that, again, I refer you to Michael Geist), but I will only mention that the agreement has been in negotiation since 2008, and that, as mentioned, the process has been shrouded in secrecy. Had it not been for some whistleblowers like Geist, ACTA would now be in an almost final stage with little or no public oversight whatsoever. Whatever one may think about some of the more colourful and fanciful speculation out there, the spotlight cannot hurt, ad we will not be taken by surprise.

So, what does the text say? The most important leak so far came in mid-February, and it was precisely what we had hoping to see, namely Article 2.17: Enforcement procedures in the digital environment (pdf here). The text starts out in a seemingly innocuous manner:

“Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an act of, trademark, copyright or related rights infringement which takes place by means of the Internet, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.”

This is frustrating, as we do not have the current civil and criminal enforcement sections. There are some earlier proposals out there (here and here), and a European leak with country positions  regarding civil enforcement here, but we do not have a clear idea of what the final text will look like. Two things are worrying however. As EU representatives have mentioned, current European copyright obligations do not mention specifically criminal and civil liabilities, but “adequate legal protection…” Another worrying aspect from the existing civil liability section is that ACTA exports the DMCA’s infamous statutory damage provisions, as it asks other countries to calculate damages in the following manner:

“[I]n determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall consider, inter alia, the value of the infringed good or service, measured by the market price, the suggested retail price, or other legitimate measure of value submitted by the right holder.”

This means that we might see some of the most outrageous American copyright enforcement damages, such as the Jammie Thomas-Rasset and Joel Tenenbaum cases, exported to jurisdictions where damages are nowhere near what is proposed. The other concern is that the civil enforcement section could contain a three-strikes clause. We just do not know yet.

Paragraph 2 is a bit odd. It requires the enactment of third party liability, but this is surely already part of most agreements, so why include it here? My guess is that this is setting up the stage for continuing the war against intermediaries that is being waged at the moment. The language is broad enough as to include almost anything.

Paragraph 3 creates rules that will allow service providers, intermediaries and third parties to operate despite what has been mentioned in paragraph 2. In other words, Paragraph 3 will export American safe harbours and notice and take-down regimes. What bothers me is that Paragraphs 2 and 3 create a noxious environment in which third party liability is the rule, not the exception. Intermediaries will be liable with two exceptions. The first one reads:

“[Each party shall] (a) provide limitations on the scope of civil remedies available against an online service provider for infringing activities that occur by:
(I) automatic technical processes and
(II) the actions of the provider’s users that are not directed or initiated by that provider when the provider does not select the material, and
(III) the provider referring or linking users to an online location when, in cases of subparagraphs (II) and (III), the provider does not have actual knowledge of the infringement and is not aware of the facts or circumstances from which infringing activity is apparent [...]“

So, if you are an intermediary, you have to make sure that all of your processes are automated, that you do not exercise any editorial and selection process whatsoever, and you make your best effort not to know anything that happens with your providers. Otherwise you might be liable. The second exception is:

“(b) condition the applicantion of the provisions of subparagraph (a) on meeting the following requirements:
(I) an online service provider adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights except that no Party may condition the limitations in subparagraph (a) on the online service provider’s monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring; and
(II) an online service provider expeditiously removing or disabling access to material or activity, upon receipt of legally sufficient notice of alleged infringement, and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of a mistake or misidentification. Except that the provisions of (II) shall not be applied to the extent that the online service provider is acting solely as a conduit for transmissions through its system or network.”

As stated, this pretty much exports DMCA notice-and take down. You must have a policy to take down content as soon as you’re told, and must make sure to take down the content ASAP.

Paragraphs 4-6 are also DMCA export provisions, as they make it an obligation to export the DMCA’s anti-circumvention provisions, particularly criminal liability for breaking DRMs. Paragraph 6 specifically talks about rights management information (mostly metadata integrity).

So, what’s the verdict? It’s too early to tell. I will reserve full comment until I get to see a reliable draft of the civil and criminal enforcement sections. So far, I do not particularly like what I have seen. I agree with people like Ben Sheffner and Nate Anderson who comment that what we have seen of ACTA does not affect the United States that much, they already have the mother of all maximalist copyright protection. However, their comments seem rather short-sighted, and tend to forget that there are lots of other countries who will sign the agreement. The provisions are already in US law, so don’t worry, they would come to you anyway in some shape or another.

The problem that I have with exporting DMCA-level of protection is that Americans have a huge counterbalance to those provisions in the shape of Fair Use dcotrine. We do not. We have fair dealing, an exhaustive list of exceptions and defences. We get the DMCA, but without any balance. Why is it that the American copyright system seems keen to export maximalism, but not fair use?

Hopefully, there seems to be some opposition building up this side of the Atlantic. Stay tuned.

Update: The European Parliament has voted in favour of opening up the ACTA negotiation 633-13. Things are getting interesting.

As was mentioned last week, we have been expecting an important ruling with regards to internet service provider (ISP) liability from Australia.  Behold Roadshow Films Pty Ltd v iiNet Limited [2010] FCA 24.  This is a case of tremendous [...]]]>

What did you say Skippy? ISPs are not liable for the infringement committed by their customers?

As was mentioned last week, we have been expecting an important ruling with regards to internet service provider (ISP) liability from Australia.  Behold Roadshow Films Pty Ltd v iiNet Limited [2010] FCA 24.  This is a case of tremendous importance because it is one of the first skirmishes in the brewing struggle between content owners and intermediaries (I use the term intermediaries on purpose, as the wider dispute encompasses companies such as Google).

iiNet is an Australian internet provider, which was sued by Australian film producer Roadshow Films, part of the Village Roadshow conglomerate.  However, the real power behind the suit was the weight provided by several Hollywood studios, including Warner, Columbia, 20th Century, and Sony Pictures.  The question at the heart of the proceedings was whether an ISP is to be held liable for the copyright infringement committed by its customers.  Call me cynical, but it seems like the film studios chose Australia as the first place to test this theory because Australian copyright law holds secondary infringement as direct infringement.  In other words, anyone making available copyright works will be held similarly liable, whether they do so directly or indirectly.

This is a lengthy and complex ruling, but it is remarkable that it has fallen upon a judge that seems to get the importance of the ruling in the wider context, and also who got the technical complexities involved.  Cowdroy J has managed to wade through the technical issues with exceptional clarity, and has produced a ruling that should become an instant classic.  The judge accurately identifies that the case hinges on two simple questions.  Have the iiNet customers infringed copyright directly?  The answer is yes.  Has iiNet authorised the copyright infringement of its users by failing to take steps to stop it from happening? Here the answer is no. The reasoning behind the negative answer is set out clearly:

“12. Firstly, in the law of authorisation, there is a distinction to be drawn between the provision of the ‘means’ of infringement compared to the provision of a precondition to infringement occurring. The decisions in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the ‘means’ of infringement. But, unlike those decisions, I find that the mere provision of access to the internet is not the ‘means’ of infringement. There does not appear to be any way to infringe the applicants’ copyright from the mere use of the internet. Rather, the ‘means’ by which the applicants’ copyright is infringed is an iiNet user’s use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system.
13. Secondly, I find that a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to s 101(1A) [...]
14. Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.
15. Consequently, I find that the applicants’ Amended Application before me must fail.”

This conclusion is both astute and well informed, as it takes into account the very clear distinction between an internet service provider, and the producer of software designed specifically to authorise copyright infringement, such as Kazaa.  Cowdroy J goes in detail through some of the most relevant aspects of the technology, namely the intricacies of Bittorrent transactions, and also whether the identification of customers is reliable.  To me one of the most important parts of the ruling is that we get a very clear legal explanation of the Bittorrent protocol:

“70. To use the rather colourful imagery that internet piracy conjures up in a highly imperfect analogy, the file being shared in the swarm is the treasure, the BitTorrent client is the ship, the .torrent file is the treasure map, The Pirate Bay provides treasure maps free of charge and the tracker is the wise old man that needs to be consulted to understand the treasure map.
71. Whilst such an analogy grossly oversimplifies the situation it will suffice for present purposes. It demonstrates that all of the constituent parts of the BitTorrent protocol must work together before a person can access the file sought. In this judgment the Court will refer to all the constituent parts together as the ‘BitTorrent system’.
72. Such analogy also demonstrates that a number of deliberate steps are required to be taken by a person to bring about the means to infringe the applicants’ copyright. The person must download a BitTorrent client like Vuze, seek out .torrent files related to copyright material from websites, and download those .torrent files and open them in their BitTorrent client. Thereafter, the person must maintain connection to the internet for as long as is necessary to download all the pieces. The length of this downloading process will depend on the size of the file, the number of peers in the swarm and the speed of those peers’ internet connections.”

The other remarkable part of the ruling is that we get a very detailed insight into the technology involved in the detection of repeat infringers.  The applicants use a Bittorrent client called DtecNet, which singles out infringing torrents identified by the content owners, and starts downloading from the participant sharers in the swarm.  The agent downloads a full copy of the file to establish that this is indeed an infringing copy, and then identifies IP addresses in the iiNet network.  The agent would then download one piece of the full file from a specific IP address, and would continue to download a piece every 24 hours from the same address.  This technical operation was able to establish that there were indeed iiNet customers sharing infringing files repeatedly, but here is where one of the most interesting findings takes place.  Cowdroy J accurately points out that the infringement is much less widespread than previously beieved, and particularly, seemed to express doubt as to the efficiency of matching IP addresses with specific customers.  Another interesting technical issue that came to bear on the liability issue was the fact that the applicants were trying to paint a picture that a large portion of an infringer’s broadband use would be dedicated to illegal filesharing, while the evidence was to the contrary.

Turning to the legal aspects, one of the most important questions in the ruling is whether each time a user connects to the internet it should be considered as a fresh count of making the work available to the public, or whether the first action, namely downloading the .torrent file and seeding it, would be one single count.  Cowdroy J opines:

“310. [..] The Court finds that it is the wrong approach to focus on each individual piece of the file transmitted within the swarm as an individual example of an ‘electronic transmission’. The BitTorrent system does not exist outside of the aggregate effect of those transmissions, since a person seeks the whole of the file, not a piece of it. In short, BitTorrent is not the individual transmissions, it is the swarm. It is absurd to suggest that since the applicants’ evidence only demonstrates that one piece of a file has been downloaded by the DtecNet Agent from each iiNet user (in some cases more than one, but not many more), the applicants cannot prove that there have been ‘electronic transmissions’ by iiNet users of the applicants’ films. But it is equally absurd to suggest that each and every piece taken by the DtecNet Agent from an iiNet user constitutes an individual ‘electronic transmission’ infringement.
311. The correct approach is to view the swarm as an entity in itself. The ‘electronic transmission’ act occurs between the iiNet user/peer and the swarm, not between each individual peer. One-on-one communications between peers is the technical process by which the data is transferred, but that does not mean that such level of detail is necessarily what the communication right in s 86(c) focuses upon. While the DtecNet evidence cannot prove directly that an iiNet user has ‘electronically transmitted’ a film to the swarm (it can only show that the data has been ‘electronically transmitted’ to the DtecNet Agent acting as a peer in the swarm) the evidence is sufficient to draw an inference that in most cases iiNet users have done so. “

There are many other legal aspect treated, most of them are specific to Australian copyright law.  The most relevant from an international perspective, and one that has been highlighted elsewhere, is that the ruling seems to seriously attack the viability of three-strikes approaches to copyright infringement.  Firstly, there is a lengthy discussion about the legal reliability of evidence obtained by agents acting on behalf of the copyright owners, when by definition those agents are licensed by the owner to undertake actions that would otherwise be infringing, namely, collect copies from the internet.  Secondly, there is the troublesome issue of how such evidence should be suspect in the first place.   Cowdroy J says:

“631. [...] the Court finds that it would not be appropriate to construe the safe harbour provisions such that there is an expectation on the [ISP] to terminate its subscribers at the request of a person who does not swear to the truth of his statement, and is an employee of an organisation whose precise legal status vis-à-vis the relevant copyright owners and exclusive licensees is not at all clear. Allegations of copyright infringement are serious charges which are potentially defamatory. Further, AFACT (the Australian copyright enforcement agency) enjoys no status as an authority invested with power to issue legally enforceable directions.”

This paragraph should be printed out and handed out to the Lords currently discussing the Digital Economy Bill (wink, wink, ORG).  We cannot possibly build a system of punishment that relies entirely on suspect accusations without any legal recourse.  The very principles of fairness and due process of law are at stake here.

What a refreshing ruling from Down Under.  Unfortunately, another copyright case from the land where women glow and men plunder has overshadow this more important development.

I just smiled and gave me a vegamite sandwich.

Anyone who has been paying attention to the War on Piracy will have noticed that the emphasis has shifted from the user to the internet service provider.  As content owners discovered that attempts to enforce their rights against users backfired and/or had no noticeable [...]]]>

"They are getting closer, I can hear their lawsuits at night"

Anyone who has been paying attention to the War on Piracy will have noticed that the emphasis has shifted from the user to the internet service provider.  As content owners discovered that attempts to enforce their rights against users backfired and/or had no noticeable effect, they began returning to the strategy of trying to make the service providers liable for the infringement committed by their customers.

The first barrage in the war took place when content owners managed to get Irish ISP Eircom to promise that it would disconnect repeat offenders.  Then an Australian copyright conglomerate (representing several U.S. content giants) sued iiNet for copyright infringement incurred by its customers, and we should get a ruling next week.

These lawsuits however are only a small part of the global strategy.  As it has been repeatedly posted here and elsewhere, the end-game for the content providers is of course to make ISPs liable through the inclusion of three-strikes clauses into copyright law.  New Zealand and France have attempted to do just that with mixed results, and in the UK we are currently experiencing a similar threat through the Digital Economy Bill.  But it is in ACTA where the final battle will take place.  The inclusion of three-strikes provisions in a wide-ranging bilateral agreement between some of the most developed countries in the world will almost undoubtedly spell the end of intermediary indemnity, and more importantly, it might well spell the end of ISPs as we know them.

Update: And to complicate things even more, Virgin Media says that it will use deep-packet inspection software to monitor potential infringing material.

How to talk to your MP and get them to change the Digital Economy Bill (Edinburgh) Sunday, January 24, 2010 from 2:00 PM – 5:00 PM (GMT)

Gain the confidence to talk and write to your MP

It was supposed to be the British equivalent of high-profile cases such as PirateBay and the Jamie Thomas trial.  It was supposed to act as a clear deterrent to a new generation of file-sharers against widespread copyright infringement.  Instead, Alan Ellis, the founder of torrent tracking site [...]]]>

"I'm not criminally liable for secondary infringement, officer!"

It was supposed to be the British equivalent of high-profile cases such as PirateBay and the Jamie Thomas trial.  It was supposed to act as a clear deterrent to a new generation of file-sharers against widespread copyright infringement.  Instead, Alan Ellis, the founder of torrent tracking site OiNK has been acquitted of the charges of conspiracy to defraud.  How did this case turn from sure thing to nightmare for the music industry?

OiNK was not your typical torrent tracker site. Websites such as PirateBay, Isohunt, and TorrentReactor are free to use and available to the wider public.  OiNK was a free-of-charge closed service, available only by invitation from an existing member, which could be obtained by paying $5 USD.  The site also operated through donations, which amounted to a staggering $300,000 USD.  OiNK’s statistics are impressive, it boasted 200,000 registered users, and it facilitated the exchange of 21 million files. I am going to go out on a limb here and claim that most of those files were infringing copies.

So, it is clear that OiNK was in the wrong, and the fate of Mr Alan Ellis was sealed, right? Not really.  The problem seems to have been that prosecutors chose to charge Mr Ellis with conspiracy to defraud, instead of anything related to copyright infringement.  This meant that they had to prove Mr Ellis was trying to defraud his customers, when it was clear that he was offering a service, and his clientèle knew fully well what they were getting into.  No fraud then.

Why didn’t the prosecution try for copyright infringement offences?  For example, s107 CDPA establishes criminal offences for various copyright infringement acts made “in the course of business”.  As Mr Ellis was clearly profiting handsomely from his services, it could be argued strongly that he was infringing copyright for commercial gain.  Or can it?  The main problem with torrent sites is precisely that no infringing copies are kept on the servers, and that the trackers act simply as facilitators.  Using a real-world analogy, torrent sites are more akin to bar lounges where illicit goods change hands.  Nonetheless, s107 also covers secondary infringement offences, such as communicating infringing copies to the public, which one might think is precisely what a torrent site does.  However, the wording of UK copyright law is problematic in this respect, as it seems entirely drafted with physical copyright infringement in mind.  For example, s108 CDPA says:

“108.-(1) The court before which proceedings are brought against a person for an offence section 107 may, if satisfied that at the time of his arrest or charge-
(a) he had in his possession, custody or control in the course of a business an infringing copy of a copyright work, or
(b) he had in his possession, custody or control an article specifically designed or adapted for making copies of a particular copyright work, knowing or having reason to believe that it had been or was to be used to make infringing copies,
order that the infringing copy or article be delivered up to the copyright owner or to such other person as the court may direct.”

This clearly assumes that criminal commercial infringement will take place through some physical medium, and seems to preclude facilitating online acts.  It seems then that prosecutors were not sure to obtain a conviction through copyright infringement.  OUT-Law makes a good point that the best way to proceed was to pursue OiNK for authorising copyright infringement, which is a civil offence for secondary infringement (see s24(2) CDPA).

Good news for OiNK may be bad news for the rest of us, as I am afraid that the music industry may use this verdict to push for stronger copyright protection in the upcoming Digital Economy Bill.  It is clear that some torrent sites operate at the very fringes of acceptable behaviour.  As some independent musicians have pointed out in an interesting Guardian blog article, torrent sites may be guilty of not doing enough to curb infringement.  If legislators are presented with an idea of a virtual Wild West where everything goes, we may be in for a rough awakening when the Bill eventually gets through Parliament.

This has been some time coming. At some point [...]]]> When the history of the Internet is written down (again), the annals of the years 2009 and 2010 will describe the consolidation of social media, the rise of Twitter, but more importantly, it will be known as the period when regulators and industry tried to tackle intermediaries.

This has been some time coming. At some point in the past three years, content owners discovered that suing their customers was not such a good idea after all, and while keeping up the pretence of conducting the War Against Piracy, their sights were set on another front, much like Hitler giving up on the Battle of Britain and looking at the Soviet border longingly (Godwin’s Law has been invoked, you may cease to read if you want). For the last ten years (give or take a couple), intermediaries have been exempt from liability for infringement undertaken by their customers. The consensus has been that intermediary liability exemption is a Good Thing, as it would be impossible for any internet service provider to monitor and filter every transaction by their customers.

Fast-forward some years, and the picture has changed immensely. Intermediaries used to be small and meagre operations that did not have enough money to pay back in case of litigation. But with the appearance of large aggregators and other powerful intermediary services such as Google, the possibility of making these providers liable became greater. The cluster of lawsuits against Google that we have witnessed in the last few years has been the result of this change in strategy. However, service providers are still protected by safe harbours and other liability dampeners. What to do?

The answer to this question has been to undertake a double-pronged approach. Why not turn internet service providers into policemen? Let them do the unpopular work of slowing down and disconnecting users if they engage in infringement, all you have to do as a rights-holder is to point them in the right direction, or at least point them towards an IP address that may or may not be accurate. Let the ISPs deal with the angry customer and the lengthy appeals process. This is in a nutshell the rationale behind three-strikes, be it HADOPI, ACTA or the Digital Economy Bill.

The second part of the strategy is to try to erode the power of the aggregators by erecting pay-walls and removing content from search engines, as has been proposed by Rupert Murdoch. This is a much trickier proposal. There is no doubt that newspapers and traditional media are struggling due to the Internet. How they respond in the next year may make or break entire companies. Nonetheless, the idea is compatible with the three-strikes one. At the heart of both suggestions there is the recognition that intermediaries have had a free ride for too long, and the time of reckoning is nigh.

While I empathise with the newspaper industry, I am afraid that many of the solutions offered will not work. There is a good reason why newspaper sales are down, and it has nothing to do with Google. People are getting their news in different places nowadays. It is quite indicative that the news of Michael Jackson’s death was first broken by the entertainment website TMZ. Many of us heard of the news first from Twitter or Facebook. Like it or not, the authoritative top-down approach can no longer keep up with people’s information consumption habits. Those who survive the next year will be the businesses that realise the changing nature of the market, and adapt accordingly.

I will be going through [...]]]> So, the Digital Economy Bill has been unleashed upon an unsuspecting public (if we exclude the twittering and blogging classes of course). The Bill is already being scrutinised by various parties, and the veredict seems to be worrying, as it implements three strikes disconnection, as well as other seemingly abusive provisions.

I will be going through it in more detail in the next couple of days, but initially I was pleasantly surprised to find that the bill contains a section related to orphan works. As I have mentioned before, orphan works are a hot legal topic at the moment thanks to the Google Book Settlement, which has forced policy-makers to respond to the orphan work issue before (and if) the agreement comes into force. The relevant section of the Bill is related to licensing of copyright works (s 42), will include a new section to the Copyright, Designs and Patents act that reads:

“116A Licensing of orphan works
(1) The Secretary of State may by regulations provide for authorising a licensing body or other person to do, or to grant licences to do, acts in relation to an orphan work which would otherwise require the consent of the copyright owner.
(2) An authorisation or licence under the regulations in favour of any person must not preclude any authorisation or licence in favour of another person.
(3) The regulations may provide for the treatment of royalties or other sums paid in respect of an authorisation or licence, including—
(a) the deduction of administrative costs;
(b) the period for which sums must be held for the copyright owner;
(c) the treatment of sums after that period (as bona vacantia or otherwise).
(4) The regulations may provide for determining the rights and obligations of any person if a work ceases to be an orphan work.
(5) The regulations may provide for the Secretary of State to determine whether any requirement of the regulations for a person’s becoming or remaining authorised has been met or ceased to be met.”

While any legislative move towards regulating orphan works must be welcome, I cannot help but feel that the worst option possible has been chosen, namely licensing. Most experts agree that there are three different strategies to take when it comes to orphan works: reduce liability (as proposed by U.S. bills on the subject); create an exception, or allow an existing body to license the work in question (the Canadian experience). I think that the way in which the Canadians have modified their copyright legislation to allow for their Copyright Office to decide on a case-by-case basis is rather good. The problem with the licensing proposal in the proposed UK bill is that it seems to be geared towards making collective societies the ones responsible for receiving payment for use of orphan works. Call me cynical, but this seems like a system that will create a new revenue stream for collective societies, one that it is very unlikely that they will have to pay to legitimate owners. No wonder collective societies seem to relish the opportunity of becoming the recipients of orphan works licence fees.

The more logical solution seems to me to create an exception to copyright law that will allow limited use of the work if exhaustive and conscientious effort has been made to locate the rights holder. This right could stop the moment the holder is identified. This section is a lost opportunity, thankfully it has been added to a bill that one would hope will not see the light of parliamentary vote.

While the Bill’s text is not yet available, Parliament has published [...]]]> As anticipated, Her Majesty the Queen has announced the implementation of measures against file-sharers, including notices and disconnection. The measures will be part of the Digital Economy Bill, which also proposes tougher classification for video games, and new powers to Ofcom regarding local news services.

While the Bill’s text is not yet available, Parliament has published both an outline of the Bill’s contents, and how the plan fits into the government’s legislative strategy for the next year. The outline mentions that infringement is one of the main objectives of the Bill:

“Online infringement of copyright – tackling widespread copyright infringement via a two-stage process. First by making legal action more effective and educating consumers about copyright on-line. Second through reserve powers, if needed, to introduce technical measures, such as disconnection”

As we are currently lacking detail, it is early to say anything other than what has already been discussed thoroughly elsewhere. I do not need to repeat how this is bad news, and how disconnection is unworkable and potentially it is a human rights minefield. Three-strikes legislation has been drafted under the assumption that file-sharers are students living on their own, when the reality could prove to be more nuanced. There is real concern that this will end up disconnecting people who have nothing to do with the alleged offence. Seems like the idea of collective punishment did not disappear in the dark ages as we had thought, Lord Mandelson and his ilk are happy to punish the innocent and sinners alike.

At the same time, innovative digital services are providing valid and valuable alternatives. We shall see.

Update: Cory Doctorow claims to have received leaked information about the specifics of the Digital Economy Bill. If true, this is scary stuff, but I will hold judgement until I read the content.

The air of inevitability surrounding three strikes legislation in the UK came to its fruition yesterday with the announcement by Lord Mandelson that the government will seek to pass legislation that will force intermediaries to disconnect users involved in file-sharing. I hate to say “I [...]]]>

The demise of 3-strikes has been largely exaggerated

The air of inevitability surrounding three strikes legislation in the UK came to its fruition yesterday with the announcement by Lord Mandelson that the government will seek to pass legislation that will force intermediaries to disconnect users involved in file-sharing. I hate to say “I told you so”, but I have been harping about three strikes for a while. The blogosphere is already replete with replies to the new development, so I will not add my voice to the overwhelming condemnation of this step by directing readers to ORG and PanGloss.

The announcement came in context of the 2009 c&binet forum conference, which was webcast live, so it left a very interesting digital trail of commentary as people were speaking (see the hastag #cabinetforum). The Twittersphere had its hopes raised by a speech the previous day by David Lammy MP, the Minister for Higher Education and Intellectual Property. Lammy MP had been rather open, and made an informed and balanced presentation on the topic, which prompted people to tweet that they were expecting reasonable measures to be announced the next day (licensing provisions amongst others). Being the pessimistic cynic that I am, I immediately smelled a rat; I suspected that we were being softened up for the inevitable killing blow the next day. The government ignored all contrary advice, and Mandelson still went ahead with the misguided three strikes policy.

So, the opposition starts here, although I am afraid that the government won’t listen to the webosphere; Darth Mandy was particularly dismissive yesterday when Jim Killock from ORG asked a question. They ignore their own advice and consultations, so what chance do we have? Nonetheless, heavy and strident opposition to three strikes might help to sway some MPs. The Internet has already issued a fighting challenge, and now the ISP TalkTalk has clearly stated that it may take legal action over the proposals, as it might cost intermediaries greatly.