Digital Economy Act

The UK Department for Culture, Media and Sport (DCMS), said the government will seek to remove two crucial sections of the Digital Economy Act that would have allowed it to impose Web site blocking at the ISP level.

According to DCMS, the department in charge of the Digital Economy Act (2010), the government will seek to repeal sections 17 and 18 of the law.

The two sections are arguably the most controversial elements of the act. Section 17 allows the government to seek a court order against any location on the Internet deemed to facilitate or actively infringe copyright, while section 18 sets out the approvals process the government must go through to get such orders granted.

The decision to seek the repeal of the two sections follows a report in May 2011 by Ofcom, the U.K.'s communications regulator, which concluded that the measures would not work in practice. We do not think that sections 17 and 18 of the Act would meet the requirements of the copyright owners, the report said.

It said using the Copyright, Designs and Patents Act 1988 through the courts was a faster and more efficient way to get sites blocked. The government said a few months later that it would not bring forward the site-blocking provisions.

People who illegally put music or films on the internet for others to download could have their web access cut off under new copyright rules announced by the Government.

Record labels and studios will be able to send a list of those suspected of illegal file-sharing to internet service providers and demand that their accounts are switched off.

But consumer groups fear innocent families could be targeted. Parents have been caught up in allegations of piracy after their teenage children uploaded music without their knowledge. Others have been wrongly accused after pirates hijacked their home wi-fi.

Under the new rules, it will cost £ 20 to appeal against the allegations.

Ofcom have recently written a report, Site Blocking to reduce online copyright infringement, as part of a feasibility study into measures contained in the Digital Economy Act.

For the moment Ofcom has come out against the use of website blocking and explained some of the difficulties in the report. Particularly the current ease with which both websites and readers may circumvent current blocking techniques.

According to The Register, the Department of Media, Culture and Sport weren't too impressed by Ofcom letting the public be aware of the limitations of current website blocking technologies and asked Ofcom to censor the information.

Ofcom deleted the offending but some of the censored information was left in the document presumably in the document history. It was published and some clever people were able to restore the deleted text. Ofcom have now properly implemented the censorship but not before it was published on scribd and internet commentators had pointed out some of the sensitive work rounds to site blocking techniques. eg:

• Websites providing encrypted access to their websites via SSL/HTTPS
• Websites using a network port other than the usual port 80
• Websites changing the IP address and bypassing the network routing announcements
• Websites registering a new domain name and letting users know via email and social networking
• Websites using page naming to defeat individual page blocking perhaps by having arbitrary search strings that lead to the blocked page
• Readers using Virtual Private Networking (VPN)
• Readers using anonymous web proxies

In general the authorities are not going to be very keen on large numbers of internet users being encouraged to use hard to monitor web routings that make life difficult for policing the net for more serious issues.

Google's executive chairman, Eric Schmidt, has warned that government plans to block access to illicit filesharing websites could set a disastrous precedent for freedom of speech.

Speaking to journalists at Google's Big Tent conference in London, Schmidt said the online search giant would challenge attempts to restrict access to the Pirate Bay and other so-called cyberlocker sites,  part of government plans to fight online piracy through controversial measures included in the Digital Economy Act.

Schmidt described website blocking as akin to China's restrictive internet regime:

I would be very, very careful if I were a government about arbitrarily [implementing] simple solutions to complex problems, he said. So, 'let's whack off the DNS'. Okay, that seems like an appealing solution but it sets a very bad precedent because now another country will say 'I don't like free speech so I'll whack off all those DNSs' -- that country would be China.

It doesn't seem right. I would be very, very careful about that stuff. If [the UK government] do it the wrong way it could have disastrous precedent setting in other areas.

Speaking at the same conference, the culture minister, Jeremy Hunt, said plans to block access to illicit filesharing websites were on schedule. He admitted that a challenge of the controversial measure is deciding which sites get blocked.

Ofcom is due to present its report on the practicability of the site-blocking measures included in the DEA to Hunt in the coming weeks.

TalkTalk and BT have been granted judicial review of the Digital Economy Act by the High Court.

A judge will now scrutinise whether the act is legal and justifiable, and could make wide-ranging recommendations.

BT and TalkTalk argued that the legislation had been rushed through parliament before the election.

Internet service providers (ISPs) are unhappy with the part of the act that requires them to take action against suspected illegal file-sharers.

Depending on the judge's ruling, the government may be forced to change or even scrap the legislation.

Andrew Heaney, director of strategy and regulation at TalkTalk said he was very pleased that the High Court had recognised the concerns of ISPs: The act was rushed through parliament in the 'wash-up' with only 6% of MPs attending the brief debate and has very serious flaws.

The provisions to try and reduce illegal file-sharing are unfair, won't work and will potentially result in millions of innocent customers who have broken no law suffering and having their privacy invaded.

He called on the government to put the legislation on hold pending the enquiry.

A judge will conduct a full review in February, considering whether the parts of the act that deal with illegal file-sharing are in breach of the e-commerce directive, which rules that ISPs cannot be held liable for traffic on their networks. The act will also be measured against EU privacy and technical standards legislation.

Update: The ISP's Case

16th November 2010. Based on article from  bigbrotherwatch.org.uk

TalkTalk and BT claim that provisions of the Act governing online copyright infringement are incompatible with EU on the following four points:

1. TalkTalK and BT should have been notified under the EU Technical Standards Directive (98/34/EC, as amended by 98/48 EC) in writing by the European Commission because the provisions listed in the DEA are burdensome. Under this directive, any technical regulations that require notification from a company to a third party must be submitted in writing to the European Commission. The UK has not notified the EC in the case of the DEA.
    
2. The provisions are incompatible with the EU Electronic Commerce Directive (2000/31/EC) which sets out a legal certainty on communications and transparency on a variety of services including ISPs. The specific provisions of the DEA violate this directive.
    
3. The provisions contradict the EU Privacy and Electronic Communications Directive which outlines data processing for ISPs among other groups.
    
4. And finally, the provisions are disproportionate in that they infringe:

a. The free movement of services under the Treaty of the Functioning of the European Union;
b. Article 3(4) of the E-Commerce Directive;
c. Article 15(1) of the Privacy and Electronic Communications Directive;
d. UK Human Rights Act 1998 and to Articles 8 and/or 10 of the European Convention of Human Rights relating to privacy and freedom of expression.

Not So Liberal Democrat peers have proposed a new clause for the Digital Economy Bill that sets the ball rolling for state internet filtering:

Lord Razzall and Lord Clement-Jones have proposed the following new clause

Preventing access to specified online locations

In Part 1 of the Copyright, Designs and Patents Act 1988, after section 97A insert—

97B Preventing access to specified online locations

(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court.

(2) In determining whether to grant an injunction under subsection (1), the Court shall have regard to the following matters—

(a) whether a substantial proportion of the content accessible at or via each specified online location infringes copyright,

(b) the extent to which the operator of each specified online location has taken reasonable steps to prevent copyright infringing content being accessed at or via that online location or taken reasonable steps to remove copyright infringing content from that online location (or both),

(c) whether the service provider has itself taken reasonable steps to prevent access to the specified online location, and

(d) any other matters which appear to the Court to be relevant.

(3) An application for an injunction under subsection (1) shall be made on notice to the service provider and to the operator of each specified online location in relation to which an injunction is sought.

(4) Where—

(a) the Court grants an injunction under subsection (1) upon the application of an owner of copyright whose copyright is infringed by the content accessible at or via each specified online location in the injunction, and

(b) the owner of copyright before making the application made a written request to the service provider giving it a reasonable period of time to take measures to prevent its service being used to access the specified online location in the injunction, and no steps were taken, the Court shall order the service provider to pay the copyright owner's costs of the application unless there were exceptional circumstances justifying the service provider's failure to prevent access despite notification by the copyright owner.

(5) In this section—

copyright owner includes a licensee with an exclusive licence within the meaning of section 92 of this Act,

infringing content means content which is produced or made available in infringement of copyright,

online location means a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible,

operator means a person or persons in joint or sole control of the decisions to make content accessible at or via an online location, and

service provider has the meaning given to it by section 97A(3) of this Act.

Update: Shared Interests

5th March 2010.

Lord Clement-Jones one of the proposers of the  new clause became the talk of the internet when it was noticed that he receives significant money from a law firm standing to gain from measures in the Digital Economy Bill

See Register of Interests from publications.parliament.uk

CLEMENT-JONES, Lord

Partner of DLA Piper (international law firm) and adviser to its global government relations practice.

The member is paid £70,000 in respect of his services as Co-Chairman of DLA Piper's global government relations practice

Update: Amendment Passed

5th March 2010. Based on article from guardian.co.uk

One of the most contentious parts of the controversial digital economy bill was voted down by the House of Lords last night – only to be replaced by a clause that campaigners say is even more draconian.

The Liberal Democrats forced through a surprise amendment to the bill's notorious clause 17 on Wednesday – in a move that dealt a defeat to the government but troubled critics, who suggest it will have the opposite effect that its creators intend.

Instead of sweeping new powers that threatened sweeping alterations to British copyright law, the Lib Dems added a clause that gives extra oversight to the high court.

The new proposal – which was passed in the House of Lords by 165 votes to 140 – gives a high court judge the right to issue an injunction against a website accused of hosting a substantial amount of copyright infringing material, potentially forcing the entire site offline.

Putting forward the amendment, Lib Dem peer Lord Clement-Jones said that it would placate concerns over the so-called three strikes rule – which could see those accused of sharing files illegally online having their internet connections cut off – and added that it was a more proportionate, specific and appropriate way to approach infringement than the previous proposals made by the government.

But instead of making the proposed system more transparent and accountable, critics say it will simply leave it open to abuse.

This would open the door to a massive imbalance of power in favour of large copyright holding companies, said Jim Killock, executive director of the Open Rights Group. Individuals and small businesses would be open to massive 'copyright attacks' that could shut them down, just by the threat of action. This is exactly how libel law works today: suppressing free speech by the unwarranted threat of legal action. The expense and the threat are enough to create a 'chilling effect'.

In particular, there are concerns that the amendment could follow in the footsteps of America's controversial Digital Millennium Copyright Act, which has been accused of encouraging companies to file bogus copyright claims to block material they dislike.

The high costs and dangers of dealing with copyright claims in court mean that many web hosts simply take down the material in question without checking whether the copyright case is legitimate – even going as far as shutting down entire websites in some cases.

The new amendment could also have dire implications for websites like YouTube, where users can upload copyright-infringing material without the knowledge of the site's owners.

Update: A Good Summary from Metro

6th March 2010. Based on article from metro.co.uk

Video-sharing websites such as YouTube could be blocked in Britain after a last-minute change to a new law

They are facing a major clampdown on using copyright material under an amendment passed by the House of Lords.

The change grants TV and music companies the right to demand their material is taken down. If the request is refused, they can take their challenge to court, where high legal costs will make it pointless to launch a defence.

Under the new law, copyright holders must ask ISPs and the website itself to remove the material or any links to other sites hosting it. If it is not taken down, a court order can force the ISP to block the site.

The amendment is aimed at websites with substantial amounts of copyrighted material. However, critics say the law, which is set to be passed in April, is unclear about what substantial means and that it is unfair to block an entire site over a few minor breaches. They say ISPs would simply shut out a site rather than risk the high legal costs of defending a case.

Nicholas Lansman, secretary-general of the Internet Service Providers Association, said: Our members are extremely concerned that the full implications of the amendment have not been understood.

The government will not exempt universities, libraries and small businesses providing open Wi-Fi services from its Digital Economy Bill copyright crackdown, according to official advice released earlier this week.

This would leave many organisations open to the same penalties for copyright infringement as individual subscribers, potentially including disconnection from the internet, leading legal experts to say it will become impossible for small businesses and the like to offer Wi-Fi access.

Lilian Edwards, professor of internet law at Sheffield University, told ZDNet UK that the scenario described by the Department for Business, Innovation and Skills (BIS) in an explanatory document would effectively outlaw open Wi-Fi for small businesses , and would leave libraries and universities in an uncertain position.

This is going to be a very unfortunate measure for small businesses, particularly in a recession, many of whom are using open free Wi-Fi very effectively as a way to get the punters in, Edwards said.

Even if they password protect, they then have two options — to pay someone like The Cloud to manage it for them, or take responsibility themselves for becoming an ISP effectively, and keep records for everyone they assign connections to, which is an impossible burden for a small café.

In the explanatory document, Lord Young, a minister at BIS, described common classes of public Wi-Fi access, and explained that none of them could be protected. Libraries, he said, could not be exempted because this would send entirely the wrong signal and could lead to 'fake' organisations being set up, claiming an exemption and becoming a hub for copyright infringement .

Young added that free or coffee shop access tends to be too low-bandwidth to support file-sharing and, under the bill, such a service is more likely to receive notification letters as a subscriber than as an ISP . He recommended that they secure their connections and install privacy controls, to reduce the possibility of infringement with any cases on appeal being considered on their merits .

Controversial proposals that would give Lord Mandelson unprecedented powers to amend censorship laws will be jettisoned next week when the Government suffers the first large defeat of its flagship media plans.

Conservative and Liberal Democrat lords will unite to vote down Clause 17 of the Digital Economy Bill, which has been criticised by internet giants such as Google and Yahoo!, when the Bill is put to vote in its report stage.

The Government maintains that the plans are necessary to future proof the Bill against emerging methods of piracy.

But internet firms and the Opposition said that despite attempts by Lord Mandelson to water down the proposals and increase parliamentary scrutiny of any fast-tracked legislation, via measures such as a 60-day consultation period, the proposals still allowed ministers to impose arbitrary measures.

Jeremy Hunt, the Conservative Shadow Culture Secretary, said his party will vote against the clause next week. He added: The Government has failed to address any of the concerns we raised with them. They still want a wide ranging and unconstitutional power yet can't tell us what they want to use it for.

Ministers have given a concession over what critics claimed were draconian powers which would enable them to crack down on online content in the name of copyright infringement.

A clause in the Digital Economy Bill would have allowed ministers to amend existing internet control laws without the need for further legislation.

Google and Facebook were among firms to complain about the measure, saying it would hamper digital innovation.

Officials said they were refining the proposals after heeding concerns.

Section 17 of the bill, which has attracted the most anger, would give ministers reserve powers to draft fresh laws to tackle net-based copyright infringement without needing parliamentary approval.

Ministers argued that such powers were needed to support copyright laws against future, more technically advanced forms of piracy. But Conservative and Lib Dem peers had both threatened to vote against the measure when it is considered next in the House of Lords.

In response, the government has tabled several amendments.

These would mean existing copyright laws could only be amended by statute if there was a significant new threat of infringement and would provide for more parliamentary scrutiny before this happened.

The Department for Business said it was not backing away from the controversial clause and its core objectives but had listened to concerns about how it was being targeted.

There is a new bill in the UK called the Digital Economy Bill that would allow the Secretary of State to basically force ISPs to do the censorial dirty work. Clause 11 in the new proposal will block sites that speaks out against governments, against the new world order and those that expose the deceit of things like Climategate, fistgate etc

According to a British legal blogger Francis Davey they can censor sites like Wikileaks or any sites they dont like or agree with. The most shocking part of is clause 11 which says the following:

11 Obligations to limit internet access

After section 124G of the Communications Act 2003 insert—

124H Obligations to limit internet access

(1) The Secretary of State may at any time by order impose a technical

obligation on internet service providers if the Secretary of State

considers it appropriate in view of—

(a) an assessment carried out or steps taken by OFCOM under section 124G; or

(b) any other consideration.

(2) An order under this section must specify the date from which the technical obligation is to have effect, or provide for it to be specified.

(3) The order may also specify—

(a) the criteria for taking the technical measure concerned against a subscriber;

(b) the steps to be taken as part of the measure and when they are to be taken.

This bill is the same thing being implemented in Australia. Any government that censors the internet is not for the people and is against free speech and should be considered the enemy of the people. Internet censorship is the only way to stop people against governments will draconian laws and tyrants in the making.

Without free and open internet governments can make any country look like a fairy tale while total chaos reigns on the inside, just like we saw recently with Iran.

The internet should be open, free and fair to all people.