New law threatens pirates but also free speech

Picture: Oren neu dag

The difficulty of reconciling the interests of copyright owners and the rights of internet users has been revealed again in a successful Lib Dem and Tory amendment in the House of Lords to the Digital Economy Bill which would force internet service providers to block access to “online locations” where a “substantial proportion of the content” infringes copyright.

One of the amendment’s movers, Lib Dem peer Lord Clement-Jones said: “There are several sites out there on the web, many of which are based outside the UK, which refuse to stop supplying access to illegal content – indeed whose business plan depends on supplying illegal content.”

The services he was talking about, presumably, include ones which replicate Apple’s iTunes but are based in Russia which has different copyright laws; file-sharing sites where the owners do not question what subscribers store on their servers and Torrent sites which point users in the direction of where to download music, film and software files which may be pirated. All are, arguably, legitimate targets.

Many breaches of copyright are not as black and white as this amendment suggests. As a number of commentators have pointed out a “substantial proportion of the content” on YouTube infringes copyright. With 20 hours of video uploaded to the site every minute of the day it is probably impossible to monitor all of it and certainly it would not be cost-effective. YouTube’s owner Google instead relies on users to report infringements.

Although YouTube has been the most-quoted example, the amendment potentially poses a threat to all sites which host “user-generated content”. This includes blogs; picture-sharing services such as Picasa and Flickr; and social networks such as Facebook and MySpace. All rely mainly on visitors to alert administrators to any breaches of the rules on the use and display of copyrighted, pornographic or hate material.

The movers of the amendment say sites such as YouTube which comply quickly with requests to take down offending material would not be affected by the new law. The Internet Service Providers’ Association (ISPA) whose members would be affected was not so sure describing the amendment as “hastily constructed and rushed through at report stage without due consideration of the implications”.

Whatever the amendment’s intentions it has created a great deal of concern in the technology industry. One of its great buzz phrases of recent years has been “cloud computing”. Although the meaning is somewhat flexible this essentially describes the sharing of resources over the internet including programs and file storage.

This can mean, for example, a number of people in different offices can collaborate on a single document. To ensure it’s secure it may be encrypted and password protected. So far, so legitmate. But the same technology can be used to share copyrighted material. It’s impossible for the service provider to know what’s stored without breaching the privacy of its subscribers.

The amendment also seeks to get round the problem that many of the pirate services it wants to protect British internet users from are based overseas. So it puts the onus on the internet service providers (ISPs) to block access to the “online locations”. Not only is the term vague, but if an injunction is brought the ISP will have the choice of whether to block or face costs.

It’s not difficult to imagine a situation where a company could use this against a competitor. There are many cases where ownership of copyright is less than straightforward. Pictures can be altered and incorporated into designs. Computer programs can contain code from several sources. Music may sample elements from other songs. Courts can take years to sort out who owns what and is entitled to royalties and other payments.

Instead of waiting for due process a company could simply seek an injunction. If the ISP refuses to block the site it could face costs and could have little to gain from its failure to comply. The amendment does not compel anybody to inform the alleged copyright breaking service that it is doing anything wrong. Presumably this is to get round the problem of tracking down the owners of pirate services who often go to great lengths to conceal their names and whereabouts.

In the wake of criticisms of the amendment one of its proposers, Liberal Democrat peer Lord Clement-Jones, gave a lengthy interview to the technology website ZDNet UK in which he defended it against accusations that it would stifle free speech in a similar way to English libel laws.

“Libel law is often a matter of opinion. Sometimes there are super-injunctions made, as with [John] Terry, which are often designed to gag free speech,” he said.

“This is about the protection of legitimate rights. It is perfectly easily establishable whether there are rights attached to a particular copyright owner.” (One researcher pointed out that the Daily Telegraph’s display of MP’s expenses probably breached copyright.)

He concluded by saying that he would look at suggestions on any “rough edges” to his amendment. “But I don’t believe, in its current form, there is any possibility of censorship.”

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