07 March 2010

The book shop and the sunday drive: yet again why the UK Digital Economy Bill is wrong-headed

I have been having an email conversation with Lord Clement-Jones for the past few days (see blog 1 and blog 2) about the UK Digital Economy Bill. We have been trading complaints and counter-complaints, arguments and counter arguments, but I have had the strong feeling that we are mostly speaking past each other. Not because, as many may think, that one of us, or both of us, don't really understand the Bill. In different ways, Lord Clement-Jones and I are well versed in the implications of the bill, but the ways that we are versed seem to be based in different cultures.

I have had this problem before, that of trying to explain something that from my own experience seems so clear and familiar, but must seem totally alien to the person I am speaking to. I characterise this to my students as something like the 16th century European traveller coming home from what then were far away lands and trying to explain what they saw. Without a common language and a common experience, what is familiar and sensible to one is alien and distant, even impossible, to another. This is what I feel like when talking with well meaning people who think that the UK Digital Economy Bill is a good thing.

After exchanging arguments with Lord Clement-Jones, I felt that one of the problems is with the belief about what the web is. If I may speak for Lord Clement-Jones and the other proponents of the Bill -- an unfair position to take, I know -- I think that they all see the web as a large library or book store. The web for them is a means of disseminating published, or quasi-published, material and the ISPs (Internet Service Providers) are there to accommodate the accumulation and dissemination of this content. Therefore, from their point of view, if some 'publisher' of content, a web page owner, is accumulating or disseminating illegal content or violating someones copyright, the web library or bookstore -- the ISP -- has a duty to remove it from the shelf. More than this, like all good libraries and bookstore, they have a duty to keep a record of all they hold. Very simple, very sensible.

Unfortunately for Lord Clement Jones and the other proponents, the web isn't anything like a library or a bookshop, and ISPs certainly aren't like libraries or bookshops. Not only is publishing on the web far more complex, hybrid and multi-authored, in fact since Web 2.0 it isn't much like publishing at all in the vast majority of cases, but the services that provide for content to move around and be used on the web are nothing at all like a library of bookshop.

The confusion that the Government and the proponents of this Bill have got themselves into is that they don't realise that they are dealing with something that is much more like a distributed, grassroots transport system than an archive. The web is much more like a vast open road system, where all people can not only choose where to drive, and when, but can put up stalls more or less when and were they wish. They can stop where they want for a chat, or a bit of politicking or even to build a community. What the Bill really doesn't understand is the degree that anyone can build and extend their own road system within the existing network, and how anyone can enter the transport system from any one of dozens of points (I regularly use at least 5 ISPs and probably dozens more infrequently). Rather than being something scary and dangerous, this is what gives the great power to the Digital Economy. Shut down or disable this system, and you destroy the economy.

The problem with this legislation is that it thinks it is blocking books on shelves, when what it is really going to be doing is to close down whole streets because someone may have done something illegal on them. We would not expect the occupants of a street, nor the businesses on that street, and especially not the people who maintain the street, to be liable if someone does something illegal on their street. However, this is exactly what this Bill does for digital networks.

There remains no need for these restrictions and unjust obligations as current copyright law more than adequately protects the copyright holder. That the web needs regulation and its use requires responsibility, I fully agree, but let's create fair regulations that punish the perpetrators while ensuring the rights of law-abiding users and service providers.

06 March 2010

More of Lord Clement-Jones' arguements -- and back

Lord Clement-Jones was kind enough to reply to my criticisms directly.

As Lord Clement-Jones wrote directly to me, rather than a stock reply, I do not feel I can reproduce what he said here without his permission. However, he did make several points which I can paraphrase here.

Lord Clement-Jones misunderstood my allusion to mobile networks and phone companies thinking that I believed that the new legislation included such provisions. I did not, and I was using the example hypothetically. He went on to say that UK domestic websites fall within UK copyright law, which we knew, and that many sites already have procedures for removing infringing material -- so why do we need the legislation? Also, that most other services are more regulated than the internet and that the new provisions are "very carefully circumscribed."

Well, I naturally disagree with Lord Clement-Jones, and here is my reply:

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Dear Lord Clement-Jones,

I think I did mean "extended reply", but perhaps the irony was misplaced. I did see that the amendment does not force mobile phone or landline operators to police the use of all phones, as that was my point. If there was, hypothetically, some legislation requiring them to do so, this would be seen as intolerable. However, we are expecting ISPs to police content in a way that we would not demand of any other service provider. We do demand such policing of content for broadcasters, but then that leads us to a much larger debate about the difference between broadcasting and the internet -- a debate that needs a great deal more attention before we start legislating it.

Your fourth point is apt as many other services are more regulated, but they are more regulated to ensure freedom of content, freedom of expression and to stop government policing the service without due legal process. If that was the case, then we would be far less concerned with the legislation. Your points, as put, are sensible, but the point remains that we are asking ISPs to police content of a service which is not really a broadcast service, and to do this with a liability that is ill-considered and clearly unjust. ISPs are not broadcasters and do not have an editorial role over the content their service enables, any more than the phone companies or mobile networks have editorial, or any, responsibility over what their users say. It is the lack of understanding of these key differences and key characteristics of the digital networks that has lead to this ill-suited and certainly damaging bill.

Yours sincerely,

Dr. Robin Boast

05 March 2010

Lord Tim Clement-Jones replies to criticism about the Digital Economy Bill

After writing to Lord Clement-Jones asking him to reconsider his backing of the deeply damaging UK Digital Economy Bill, here is the response I got. As it is a "standard reply", I do not think I am breaking any copyright laws in reprinting it. However, I may in the future.

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Dear Dr Boast

Forgive the standard reply but I have had a few emails to reply to on this subject as you can imagine. If you have further queries having read this, don't hesitate to contact me again.

Thank you very much for your email concerning an amendment passed in the House of Lords to the Digital Economy Bill on the issue of site blocking on the internet. I hope I can explain the background, why some of the concerns that have been expressed are unfounded but also the steps that are being taken to resolve any outstanding issues.

The amendment was tabled to replace Clause 17 which gave the Secretary of State excessive powers to amend copyright law at will in the future with limited scrutiny from Parliament. The Lords’ efforts ensured that Clause 17 was successfully deleted from the Bill on Wednesday 3 March.

Conscious, however, that around 35% of all online copyright infringement takes place on non peer-to-peer sites and services it was felt important to also sought to address this issue. To some extent there is existing legislation regarding site blocking; for example, numerous ticket touting websites were closed by police action in recent months. While further improvements no doubt can be made, the intention was to improve such existing legislation.

Amendment 120A enables the High Court to grant an injunction requiring Internet Service Providers (ISPs) to block access to websites that persist in publishing a substantial amount of copyrighted material despite repeated requests to remove it.

The Liberal Democrats believe passionately in the neutrality of the web; neutrality as far as free speech is concerned and neutrality as far as independence from government is concerned. Indeed, dating back to the Regulation of Investigatory Powers Act the Liberal Democrats have been committed to ensuring the maximum possible freedom on the internet. That remains our position. And we are instinctively loath to give the government any increased power in this area. But we can’t be neutral about illegality. Just as we would all want to prevent shops from selling stolen or counterfeit goods, so too we should want to prevent it happening on the internet.

As it stands, the amendment ensures that an injunction would only be permissible in the following circumstances:

1. Where a site is hosting a substantial amount of copyright material
Sites such as YouTube, Facebook and Google have such an enormous volume of material it would be impossible for a “substantial proportion” of their content to infringe copyright at any one time.

AND
2. Where the site operator has been contacted a number of times and asked to remove the copyright content but has failed to do so

Amendment 120A includes the condition that if reasonable steps have been taken to prevent access to copyright content an injunction would not be permissible. YouTube, for example, has a very good record of checking and removing content that infringes copyright.

AND
3. Where the copyright holder has made a reasonable effort to ensure that there are legal ways of accessing the content online

The amendment is designed to encourage copyright owners to develop innovative new ways for their material to be accessed legally online, such as Spotify. The intention is to discourage legal action from being the first port of call.

AND
4. Where human rights implications, such as the right to freedom of expression, have been taken into consideration by the Court

No injunction would be permitted unless all these conditions were met.

In other words, the amendment is designed to pick up sites that persistently host substantial amounts of copyright content despite being asked repeatedly to take the material down. The business of many of these sites is based on the publication of copyright material but, as they are not based in the UK, existing British law does not apply to them.

Some concerns which have been raised about the amendment include:

1. YouTube or Google (or similar sites) would be blocked -
This clearly couldn’t happen (see points 1 & 2 above)

2. Site operators won’t be notified of an injunction application -
An injunction is not permissible unless the site operator has already been contacted and asked to remove illegal material, and refused to do so (see point 2). So concerns that site operators would not know of the threat are unjustified.

3. Sites like blogs that host other people’s comments might publish illegal material inadvertently and therefore be targeted by ISPs -

For a website to be threatened with an injunction, the illegal content would have to form a “substantial” part of all the material on the website (see point 1) AND the site operators would need to have refused repeatedly to remove the content.

4. Cyberlocking sites which are used to publish copyright content could be blocked -
The same conditions about “substantial” amount of copyright material and repeated refusals to remove or block copyright content would apply to cyberlocking sites as to any others (see points 1 & 2 above).

Given the speed with which this amendment was drafted, it is quite possible that the wording can be improved and I would welcome any suggestions you have on this point. You can be assured that the Liberal Democrats will continue to seek to do all we can to ensure that the rights and freedoms of internet users are protected to the maximum possible extent. The DCMS team has invited some leading bloggers and the Open Rights Group as well as representatives from key members of the industry to a round table to work out how we can best make this happen.

Many thanks again for taking the time to contact me on this important issue.

Best Wishes

Tim Clement-Jones

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This was my reply to Lord Clement-Jones:

Dear Lord Clement-Jones,

Thank you for the extended reply, and I do know most of these points already. The point you fail to deal with, however, is that contrary to any other service sector, this legislation places liability onto the service provider. I don't think that a piece of legislation would get very far if it included an amendment forcing mobile phone or landline operators to police the use of all phones. If someone is violating the law, copyright or not, by using a landline or mobile phone, the service provider is not liable the perpetrator is. If someone is using a leased property for illegal activity, the landlord is not liable the perpetrator is. Yet this legislation requires the ISPs to both police the service, the job of the police, and be liable for illegal activity that they are not complicit in. This is draconian by any standard and will force the internet into a downward spiral. Just at a time when this country should be investing in increased capacity and greater inclusion, this legislation will force many grassroots ISPs off-line. I ask you again to rethink you support for this legislation as a whole. We can do much better than this -- we must do much better than this.

Your sincerely,

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Let us all hope that this transparent mockery of justice will fail.