On Twitter: @JamesFirth and @s_r_o_c (post feed)

Got a tip? tip@sroc.eu

Tuesday, 21 June 2011

Premier League joins group lobbying for web blocking, proposing confused "voluntary" scheme - overseen by the courts

If I put the document online,
will I get extradited for infringement?

UPDATE 18:31 Oh look, the
Open Rights Group have
published the full proposal...
"Confidential" documents sent to this blog show the Premier League has joined a coalition of rights holders including the Publishers Association, BPI, Motion Picture Association and others lobbying hard for a great copyright firewall of Britain.

The group is attempting to influence public policy with a desperate-sounding and confused in places confidential submission to minister for the internets Ed Vaizey, who discussed the proposal at a meeting of stakeholders (including ISPs) last Wednesday.

A source very close to the situation told me, "whatever you think about copyright enforcement, this isn't the right way to draft public policy - in closed-door meetings discussing confidential documents with selected attendees."

The eight-page memo makes copious yet unsubstantiated reference to rights and freedoms, yet calls for a court-overseen blocking scheme "speedy enough to deal with urgent time sensitive material (such as live events)".  the report later goes on to say:

"Evidence should also be submitted to show the urgency with which the measures are sought to inform any balance that needs to be struck by the expert body and the Court between the need for swift action and the need for sufficient evidence."
(my bold)
This is very worrying indeed. Whilst the document talks about evidence gathering, "prior notification and liberty;" it also talks about a turn-around time quick enough for "live events" and a balance between swift action and evidence.

The language used reads like copyright protection is being sold as more important than due process under law.  In any case, I can't imagine a technical solution that would allow ISPs to implement an effective block within the time scale of a "live event", irrespective of the time it takes a court to act.

So it's not surprising that digital rights champions the Open Rights Group were locked out, despite hearing of the meeting in advance and putting in a request to attend.  Yet the paper trumpets the involvement of "consumers/users" in 5th paragraph:
We welcome the participation of a representative of consumers/users in shaping a series of measures to promote a responsible and safe internet environment and believe that consumer representatives can and should also play an educational role in this regard.
(my bold)
Open Rights Group executive director Jim Killock confirmed to me today that he put in a request to attend the meeting, but was denied.  After I showed Jim the document he said:
"This is a dangerous and ill-thought out proposal. Worse still, rights holders have tried yet again to hide their ideas away from public scrutiny, in order to sneak them forward without democratic debate. We need to take action to protect ourselves from these destructive censorship plans."
In fact the Open Rights Group are already urging action to throw out the controversial sections of the Digital Economy Act (site blocking and user disconnection) in light of the United Nations La Rue report into the promotion and protection of online rights and freedoms.

I understand that the one consumer representative allowed at the meeting was the statutory consumer watchdog Consumer Focus. So was the exclusion of rights groups an attempt to keep this proposal under wraps and avoid public discussion of a scheme with massive implications for ISPs, site operators and the general public?

I'm not a pirate, so why do I care?

Some may be questioning why I care about sites facilitating copyright infringement. Quite simply I don't - but the definition of infringement under law is incredibly complex in itself, and the language used by the paper "websites that are substantially focused on infringement" is highly subjective.

Does a "focus" on infringement actually include providing copyright-infringing content, or does this also include sites that link to copyrighted content?  Techdirt recently reported archive.org and Vimeo were on Universal Music's list of "sites that support piracy".

It's easy to see how some future innovative web content company with no interest in facilitating piracy could fall foul of the copyright censors and be faced with a costly legal battle to clear their name.  Where are the safeguards to prevent favouritism and anti-competitive behaviour in actions brought by rights holders?

The title of the paper is most confusing, The Potential for a Voluntary Code.  Yet the paper still states the web blocking provisions under S17 and S18 of the Digital Economy Act:
 "should nevertheless be implemented to be available if S97, CDPA [Copyright, Designs and Patents Act] is not held by a court to be an adequate provision for these purposes and to be available if the Proposed Voluntary Scheme ceased to operate for any reason or the Scheme did not apply to certain types of site."
Talk about wanting it all ways.  The gist of the "voluntary" aspect of the scheme is that rights holders want ISPs to voluntarily submit to court jurisdiction over content blocking.  The paper calls for the guidelines to be incorporated into the Civil Procedure Rules - essentially defining the powers of the county court system.

Quite simply, once established, it's clear to me the scheme will be "voluntary" in name alone.

Who's going to pay?

One issue the paper doesn't discuss in any great detail is costs. It states:
The costs of any application by a site operator and the overall costs of applications to Court for orders can be reduced by the adoption of Court Guidelines that set out procedural rules for applications to be pursued in a way that reflects the procedures in the Patents County Court.
I blogged recently about the cost of litigation in the Patents County Court putting IP challenges beyond the reach of most small to medium businesses, even if they felt they were in the right.  It costs around £750,000 to mount a relatively simple challenge in a patent dispute.

We already know the basic 3-strikes notification scheme of the Digital Economy Act is going to cost over £6m in government set-up costs alone.  What's the price tag on the great copyright firewall of Britain, once ISPs equipment costs, legal aid, court time, etc?

In conclusion, the rights holders claim to:
"offer a proportionate and considered proposal in the spirit of co-operation. We look forward to engaging in further discussion..."
Well folks, the comments section below is open if you want to engage!

Silver lining

If another contact of mine inside government is to be believed, Ed Vaizey is said to have commented, "if it's a voluntary scheme, go and do it."  Heavily implying that the government need not be involved.

I put this to the DCMS, and a spokesperson replied, "The Government hosted a useful discussion between ISPs and rights holders on issues around a voluntary site-blocking system to help tackle online copyright infringement."



  1. In the USA, at least, the constitution would provide some kind of protection (albeit expensive) against this kind of censorship. Time for the UK to have a written constitution, maybe?

    I have a very jaundiced view of IP law. For example, there are many patents held by companies (I am thinking of Microsoft & Apple here) for things that are known to have been invented by others. The problem of "Legal Fact" being different from real fact already creates enough problems without opening the door to IP lynch-mobs made legal by a voluntary code.

  2. The problem is, this is exactly the sort of thing the current government will happily pass. No government in the last ten years has taken the time to properly engage the public on matters of copyright and intellectual property.

    It's all been about gradual erosion of rights, and it's hard to see a way of stopping that process.

  3. On the plus side, the Hargreaves report did highlight the need for a rational (evidence-based) approach to IP policy and also some of the problems with industry lobbying.

  4. The whole reason the DEA even came about was due to Mandelson being buttered up. http://technology.timesonline.co.uk/tol/news/tech_and_web/the_web/article6797844.ece

    Government is to serve the people and currently the people are getting ignored.

    Piracy will always exist and the only way to discourage it is to provide legal alternatives at a reasonable price. Netflix in North America is the best example of this. A majority of piracy is there because a need is not being met at this current moment. People in this digital lifestyle want their media on demand, whenever, wherever.

  5. if this scandalous proposal goes ahead , the only winners will be small groups of people with bags of money to throw at the courts( assuming a right of appeal will be available).

    it also highlights another thing. evidence is not measured by its intrinsic quality but by the size of the wallet behind it!!
    I will also add my personal definition of"piracy".

    Piracy is the taking, by force any item or class of items by persons who do not have legal title to that item or class of items, by intercepting the medium through which such items or class of items are being transported between parties which have legitimate title of such items or class of items.

    file sharing therefore, is not piracy since no force nor coercion is used between the consenting parties.although file sharing would amount to piracy if say, a film director distributes material that had not been scheduled for public release.
    Another point that people may not be aware of.l artists(for the most part, musicians). forfeit their copyright when they sign up to the big names in the industry. therefore losing their rights to their hard work( which incidentally is the reason why many of today's artists are producing their own work and building their own studios so that they can have greater control over distribution and receipt of royalties and so forth. not to mention better relations with their fan base.
    Ok I probably went a bit of topic but I think you get a flavour of what I am trying to say.


Comments will be accepted so long as they're on-topic, do not include gratuitous language and do not include personal attacks or libellous assertions.

Comments are the views of the commentator and not necessarily the view of the blog owner.

Comments on newer posts are not normally pre-moderated and the blog owner cannot be held responsible for comments made by 3rd parties.

Requests for comment removal will be considered via the Contact section (above) or email to editorial@slightlyrightofcentre.com.