Digital Economy Act: the battle may be over...

... but the war rages on

Yesterday morning saw Justice Kenneth Parker present his ruling regarding the Judicial Review of the Digital Economy Act.  Two of the UK's largest ISPs, BT and TalkTalk, were swept aside as their attempt to persuade the court that the new law infringed web users' basic rights and freedoms as a result of the Act being passed into law without adequate parliamentary scrutiny.

All but one of the ISPs claims were overruled (the exception being the claim about the costs imposed on ISPs as a result of rights holders queries about subscribers IP addresses).  As a result, Justice Parker deemed the provisions of the Act to be consistent with EU law.  Moments like this, when severely flawed policy is rendered appropriate to the task, can leave those of us who have been vocal in their opposition to the Act feeling a little beaten.  However, now is not the time to give up hope, but a time to regroup and focus on the practicalities involved in the next stage of action.

There are still many issues that raised by the Digital Economy Act that need publicly questioning and there are several forums in which to express these concerns.  Whether the focus is on the future of open public wi-fi networks (under threat by the Act), the potential for individual privacy to be compromised by various surveillance regimes, or whether or not website blocking arrangements are a threat to future new startups or personal creativity, the war is far from over.

Peter Bradwell, writing for the Open Rights Group, has stated that the "ruling is an assessment of the Act's consistency with EU rules on how governments are allowed to legislate" - it is not an assessment as to whether or not the Act is the right tool to support digital innovation or whether it is the most appropriate policy judgement regarding the policing of 'guilty' IP addresses.  Indeed, Justice Parker's ruling seems to go against the grain of Judge Birss in the ACS Law case, in which the QC acknowledged that  evidence of an IP address infringing is different to pin-pointing a person.  It's certainly going to be interesting to see how courts will proceed with cases based on the 'graduated response' process especially given the problems of:

• inaccuracies in the software and methods employed to detect file-sharers
• inaccuracies in the connections made between IP address, bill payer and actual file-sharers
• inaccuracies in the data logs kept by ISPs

The biggest problem comes from the way in which government seems beholden to the 'big numbers' game being played by effective industry lobbyists and their projections of massive losses that results in legislation being passed under false pretences.  Put simply, there is insufficient research or evidence of losses associated with file-sharing, yet that hasn't stopped the BPI's wishes making their way into the Act. 

The Digital Economy Act may well yet prove to have a 'chilling effect' on the content industry in the UK - such an outcome would be a travesty given the wide-spread criticism of the legislation.  In a response to a recent letter I sent to my MP, the Secretary of State, Jeremy Hunt noted:

The Government does not have any in-principle objections to blocking sites set up primarily to distribute illegally-copied content. I am aware, though, that there are a number of technical issues which would need to be addressed if such a scheme were to be made to work effectively, and I appreciate that there are methods to evade blocking techniques which could be employed by websites determined to infringe copyright.

Many users of infringing sites may be unaware that the sites they are viewing carry content unlawfully, and they may find it useful for such unlawful sites to be less readily available. Therefore, I continue to believe that there is value in exploring the options.

This seems indicative of the problem - many users are unaware of infringing content (YouTube? Muxtape?) and it's questionable how the messages regarding infringement will be conveyed under this new regime.  YouTube fingerprinting software even preempts the uploading of content that might be digitally flagged as potentially suspicious.  How far will techniques like this go as content hosting intermediaries start to police their users, and subsequently, those users police themselves?

As I said at the beginning of this post, the war is still continuing even if this battle might be lost.  I'd like to cite Peter Bradshaw once again:

Bad decisions build movements against them. Whether it is ID cards or the poll tax, history is littered with examples of governments charging ahead with illegitimate ideas that are ultimately abandoned because they are wrong, and people do not accept them.

You can take part in the war.

Join the Open Rights Group.

Help fight for your digital rights.

If only #DEAct was an April Fool...

Another week, another letter to my MP regarding the Culture Secretary's meetings with rights holders and ISPs.  Mr Miliband did respond to my previous letter by passing my concerns onto Mr Vaizey - here's hoping that he will do so again given the recent developments.  There's been a flurry of activity in recent days, as we approached the anniversary of the Digital Economy Act's ascent into law, especially given discussions about web blocking and web filtering being implemented in the UK. We could also do well to look at the bigger picture, as the EU has just hired on of the IFPI's top lobbyists to oversee future copyright implementation (eg ACTA, iPRED2)

The notion being mooted in this instance is the establishment of a body similar to the non-profit Internet Watch Foundation (IWF) which collects data about and investigates online child abuse. The IWF then distributes a blacklist of web addresses for ISPs to filter out UK access.  Discussions seem to be gravitating towards the establishment of a similar body dealign with copyright infringement - such a body would act as an intermediary between ISPs and right-holders, but as to how they might function - well that much is unknown to date.  These powers are seeking to replicate much of those afforded to HADOPI in France and iPRED in Sweden, despite there being signs that these measures may be ineffective.  The question of how pays for such an organisation is yet to resolve, although costs may be passed onto IPS subscribers meaning higher broadband bills.

Anyway, here's my second letter in as many weeks to my MP.  Write to your now if you want to be able to use public wifi, libraries or watch YouTube videos:

Thank you for passing my previous concerns onto the Culture Secretary (email correspondence 28th March).  Given his recent intonations regarding the 'self-regulatory' scheme for website blocking measures to combat copyright infringement being discussed by rights holders and ISPs, I fear his mind may already be made up. 

I'd like to reiterate my concerns regarding the web blocking proposals, which I fear may have all manner of unintended consequences that might impact on democratic free speech.  Web blocking sounds like a simple idea. But the reality is that it is a dangerous cosmetic measure. Trying to simply block sites is a complicated process. Proving infringement and that a site warrants blocking is difficult. Deciding what people are allowed to see online is a matter requiring careful oversight.

A voluntary scheme such as the one being discussed by Mr Vaizey, rights holders and ISPs sidesteps any proper judicial oversight and places decisions about what people can and cannot see online in the hands of businesses.  

It also won’t work. It can be easily circumvented by anyone. But the inevitable mistakes, involving disruptions to legitimate traffic, would lead to interference with the interests of businesses, publishers and citizens. There is no conclusive evidence that it will help the creative industries, especially if we look to the example of iPRED in Sweden.

Music and film companies can already apply to courts to block specific instances of copyright infringement. They can also take the sites to court, and frequently do. They can even take individuals to court, and do. What the rightsholders want with this new scheme is to get around the judicial oversight required by the law already in place.  

I know that you have already passed on my prior concerns, but if it is appropriate given the recent discussions that have since taken place, I would appreciate it if you would forward my concerns to the ministers responsible, Ed Vaizey and Jeremy Hunt.

ACS:Law pwnd by anonymous/4Chan

Image by Vincent Diamante, 2008, Flickr

Over the past week ACS:Law, a legal firm named and shamed in the House of Lords due to the number of complaints made about it to the Solicitors Regulation Authority, suffered a DDoS attack orchestrated by 'anonymous' users of the popular image board 4chan as part of Operation Payback.  This was one in a number of attacks which sought to target organisations and groups who many have thought to have been rather heavy handed in their dealings with the enforcement of supposed copyright infringements. I use the term 'supposed' here purposefully as several of the accused in this case deny any involvement in downloading illicit material at all (see the comments at the bottom of this BBC story)

For background to the story it's worth visiting TorrentFreak and the Guardian coverage for a decent overview.  Suffice to say, following the attack ACS:Law jeopardised the privacy of its intended targets by exposing its entire email database which has since been downloaded, archived and distributed across the web via sites like The Pirate Bay.  Data about 8000 internet customers solicited by ACS:Law on behalf of the copyright owners from internet providers like BT and Sky and several others firms (Plusnet) was passed to the legal firm in an encrypted form (passwords to the data were issued via telephone), only for this data to emerge unprotected when the website was restored.  This is something the Information Commissioner might take an interest in.  They have the power to levy a fine of up to £500,000 on the law firm.  Yesterday they posted a statement (.pdf)  claiming:

“The ICO takes all breaches of the Data Protection Act very seriously. Any organisation processing personal data must ensure that it is kept safe and secure. This is an important principle of the Act. The ICO will be contacting ACS:Law to establish further facts of the case and to identify what action, if any, needs to be taken.”

Reporting on guardian.co.uk yesterday evening, Josh Halliday noted that BT have serious doubts regarding the integrity of the process being used by rights holders to enforce copyright infringement claims.  They join TalkTalk and Virgin Media in expressing in their lack of cooperation with ACS:Law. When the ill-considered processes brought about by the Digital Economy Act start to be implemented next year, in which IP addresses accused of copyright infringement are issues gradated warning letters, these service providers may have very little choice but to comply with firms like ACS:Law, despite the problems associated with the veracity of the methodologies employed for data gathering (never mind establishing who is individually responsible for each supposed infringement).

Punitive threats at a national level to the identity of internet users accused of sharing copyright controlled content aside, the identity of the anonymous group of 4chan remains difficult to pin down. They did however include the following message bundled with the archive of emails:




Homepage of Operation Payback:
http://tieve.tk/
(Valid as of 24/09/10, things may have changed from then.)


-


To whom it concerns,


Over the past years we have seen an technological revolution. One where you are free, in the most extreme anarchistic sense, to share ideas. Some of these ideas are shared behind proxies, darknets, or similar "closed doors", but the ideas are out there. This kind of revolution is of the mind, and its effects on respective societies is all but surprising. While the people embrace this revolution, this new "anarchy" of freedom to share, leaders have crushed and seek to crush it before it even begins in earnest. 


These "anarchists", who are only anarchists in the minds of leaders seeking to destroy this freedom, have succeeded en-mass in distributing content to the poor, the underpriveleged, the restricted. The most popular pirates are the chinese, whose content filters restrict a vast amount of content from them. The second most popular, the poor, who cannot afford things like college books or entertainment. Indeed, while mostly ignored, a vast amount of educational literature is available to the everyday pirate. Enough that saw me through college, even, when I otherwise could not have afforded it.


It is no different, though, than when these powers that be tried to silence the record player, the cassette, the CD. The same claims were made then, and they were ignored, so why now are they listened to? This flawed application of extremist capitalism upon what is considered sacred by any culture - knowledge - is treason upon every human. All should have the right to listen to that beat, experience that twist in a plot, or learn from the mass volumes of literature now made available.


You already know this, however. You know it when you freely give your unused software, illegally I might add (remember: You don't own the software you buy [1]), to a friend or acquaintence. You know it when you give that old college book to a persin in need. You know it when little girls are basically raped in the name of "justice" [2]. You know it when thousands of bullshit legal letters are sent to SCARE money out of people [3]. You know it when such organizations lie through their teeth, produce false documents, and spread misinformation about its opponents [4]. You know that this is not right when your leaders inexplicably support massive capitalist enterprises over the majority opinion of their own people [5]. You know they are wrong when they use illegal means to get what they want, while simultaneously bashing us for doing the same [6].


If you were to assume the propaganda of various community-reputable organisations such as...


    The Motion Picture Association of America [MPAA]
    The Recording Industry Association of America [RIAA]
    The British Phonographic Industry [BPI]
    The Australian Federation Against Copyright Theft [AFACT]
    Stichting Bescherming Rechten Entertainment Industrie Nederland [BREIN]
    
...you would have heard many a story that if you say, 'pirate' a film or an album, you are depriving a simple artist, actor or crewmember from their rightful wage. They won't be able to break even for their next lot of groceries - and YOU robbed them of THEIR money. Money that they only see a small percentage of, they carefully omit. Do they ever tell you how small of a percentage most script writers, novelists, etc, actually make? No, and there is a reason why. Do they tell you how much THEY, the anti-piracy organizations, make? No, and there is a reason why.


In the end, our DDoS efforts have been compared to waiting for a train [7]. What do we have to do to be heard? To be taken seriously? Do we have to take to the streets, throwing molitovs, raiding offices of those we oppose? Realize, you are forcing our hand by ignoring us. You forced us to DDoS when you ignored the people, ATTACKED the people, LIED TO THE PEOPLE! You are forcing us to take more drastic action as you ignore us, THE PEOPLE, now.


We will not stop.


We will not forget.


We will prevail.


We are anonymous.




[1] http://www.wired.com/threatlevel/2010/09/first-sale-doctrine/
[2] http://www.techdirt.com/articles/20100722/09434710323.shtml
[3] http://technews.am/conversations/techdirt/acs_law_asks_those_who_deny_infringing_to_incriminate_themselves
[4] We DID NOT attack the pirate party, we ARE NOT affiliated with anti-scientology activism, and The Pirate Bay has not organized this.
[5] http://www.which.co.uk/news/2010/01/acs-law-letter-writing-continues-197714
[6] http://torrentfreak.com/anti-piracy-boss-denies-dos-attacks-torrent-site-refutes-claim-100912/
[7] http://www.theregister.co.uk/2010/09/22/acs_4chan/


I await future developments in this story with baited breath

On the way to #ORGCon

I'm currently fuelled by caffeine and taking advantage of the free wifi on the East Coast train service as I write this post.  It feels like a while since I was last posting over here as I've been on my hols with my wife (the Dalmation Coast - lovely!).  This morning was an early one; a 5:15am rise in order to catch the 6:30am train from Newcastle to London and I'm not sure how coherent I'll be today given that I struggled to even form a sentence at Costa to purchase coffee.  While the caffeine kicks in I thought I'd try and forward plan for today's Open Rights Group conference, as there are bound to be some clashes ahead (just like Glastonbury - without the music).  The line up is listed here and also below:



My route through the day should be as follows:

• 10:30 Thriving in the Real Digital Economy - Cory Doctorow et al
• 11:35 ACTA campaign workshop
• 12:15 The Incredible Shrinking Public Domain - James Boyle
• 14:00 Digital Economy Act: What's Next - Tom Watson MP et al
• 15:00 DEA campaign workshop
• 15:45 Reforming Privacy Laws - Lilian Edwards et al
• 16:45 Dismantling the Database State - Phil Booth et al
• 17:30 ACTA A Shady Business - Andres Guadamuz et al
• 18:15 Pirate Party Fringe

I've had to make a few compromises along the way.  I was looking forward to attending the Open Data  session (featuring Heather Brooke) I've been impressed with the work Lilian Edwards has been putting in over the last 12 months with regards the Digital Economy Act so that was a tough call.  On a similar note the ACTA session with Andres Guadamuz is also a draw in the same basis but I'd also like to attend the Future of Privacy session running concurrently.  I'd like to catch up with the Pirate Party UK folk if time permits but I've got a 19:15 train to Newcastle to catch so time may be against me on that front

Decisions, decisions...

Anyway, if you want to say "hi" I'm the 30-something guy in thick framed glasses:

For once, I won't be wearing the Stormtrooper helmet with Apple and Pirate Party logos on it:

Your freedom - a chance to be heard or a copyright 'cover-up'?

Late last week, I overheard an announcement on Radio 4's Today programme that the Con/Dem coalition were planning on soliciting the opinions of the British public regarding current laws that are not fit for purpose.  Nick Clegg and the coalition Government have pledged to consider up to ten of the most popular workable ideas, which will inspire the landmark Freedom Bill later this year. A website has been set up for voters to put forward their ideas, entitled 'Your Freedom'.  Clegg spells out the aims in this video:



Now, this sounds like an ideal opportunity for opponents of the Digital Economy Bill to put forwards their objections.  Indeed, several people have already done this (search the site for "copyright" and you will find a number of tagged posts referring to the Bill). The site is divided into three distinct sections: restoring civil liberties, repealing unnecessary laws and cutting business and third sector regulations.   Users of the site can suggest topics and vote on the relative value of the suggestions, giving the government an indication as to what issues are important to the public.

'Cover-up'?

That is, of course, until you try and vote on the many topics that are specifically entitled "Digital Economy" such as this, this, this, this, this, this, this and this one.  This may be because some (not all) are tagged as duplicates - it is not entirely clear why some posts are locked down and other are not, but this reasoning is as good as any.  In one interesting post, a voter going by the name of bingoboblin has argued that a 'cover-up' exists on the Your Freedom site, noting that moderators were borought in the day after the site was launched.  They claim that 'copyright' was one of the most frequently used tags on the launch day, being highly visible on the homepage, but now

we have no Copyright, DEB or any otherrelated words on the home page despite these being without question the most popular and commented on subjects.

Is this really a conspiracy or is it more likely the result of multiple requests for similar sounding repeals has prevented an accurate measure of the public's attitude?  After all, if 200 authors all created their own post rather than strategically voting up post in a co-ordinated manner then the initial effort is wasted.  It's quite clear that a site like this would be a target for critics of the Digital Economy Bill, but it may be that a slew of similar sounding requests has resulted in a fragmented and disparate effort.  Either way, this is a great way for the government to engage the public around prescient issues.

At the time of writing a topic entitled the Digital Economy Act 2010 tops the 'repealing unnecessary laws' category in terms of ratings.  If you are against the Act, then this is the one I recommend you vote for.  However, in terms of being the most commented upon, a post entitled Digital Economy Act is rated higher - it wouldn't hurt to vote for this topic too.  A little co-ordination can go a long way

MPs: Will you oppose the use of disconnection and web blocking powers?

I recently contact the MPs in my local constituency regarding their intentions to repeal the Digital Economy Act's rather punitive web blocking powers.  For me, the attitude the parties display towards the future of the UK's digital sector is the election issue.  Here's the letter I sent:

The Digital Economy Act was rammed through Parliament as the election was

called. Over 20,000 people contacted their MP to complain, adverts were paid

for by donations, and thousands of people watched the debate live from

Westminster.

I was appalled by this process. It seemed to me undemocratic and dangerous.

Now, new powers have been granted without really understanding the

consequences.

I do not think that disconnection - for whatever length of time - should be

used as a punishment for allegations of civil copyright infringements. There

is no justification for interfering in someone's ability to communicate

because of a civil dispute. Such disputes require financial recompense, not

wide ranging arbitrary punishments. It is also wrong to put forward

punishments that will be inflicted on everyone in a household, not just the

allegedly guilty person.

The decision on these powers will be made through a "super affirmative"

process. If elected, you would have to decide whether to approve these

powers. Would you oppose the use of disconnection or other interference in

people's communications?

I am also against new website blocking powers that may be introduced after

the election. Powers already exist for copyright holders to do this through

court orders, but they have so far refused to use this course of action to

solve their problems. Why should new powers be introduced?

This will affect my choice of candidate. This is a matter of principle for

me. Either my candidates are willing to stand up for principles I believe

in, or they are not. Please let me know if you will stand up against this

Act if you are elected.

I would also be very reassured to hear that you would as my MP try to attend

Eric Joyce's parliamentary meeting on this topic, which he intends to

organise if elected.

I received responses from 2 of the 5 prospective candidates (Conservative and the Liberal Democrats).  As usual, David Miliband (Labour) has not acknowledged the concerns of his constituent.  YOu can find the responses below.  The first to reply was Karen Allen (Conservative):

Thank you for getting in touch about the Digital Economy Act. I certainly share your anger

about how the Government rushed through such an important piece of legislation

in the dying days of the last Parliament. There was absolutely no reason why

they couldn’t have introduced the Bill earlier into the House of Commons, where

MPs would then have been able to debate it at length. It just shows the

contempt in which they hold both Parliament and the industries affected by this

Act. 

As you know my Party did support many of the measures in this Act. For instance a single age 

rating system for video games was needed to help parents understand what sort

of games are appropriate for their children, and Channel 4 needed an updated

remit. Most significantly, something needed to be done to try to reduce online

piracy which was estimated to have cost the UK 39,000 jobs in 2008 alone. 

We believe that the Act sets up a proportionate and measured response to this problem and that

it contains sufficient safeguards through an appeals process and Parliamentary

scrutiny for consumers to be protected. It is important to note that only the

most serious and consistent offenders will face the threat of disconnection and

this will only be done after they have received numerous letters and gone

through an appeals process. So although I understand the strength of feeling on

this proposal I do not want to rule out temporary disconnection. I will listen

to the debates in Parliament and closely follow the drawing up of the codes

that will govern this process to make sure that the interests of legitimate

users are upheld. 

In terms of website blocking I believe that in some circumstances such measures may well be

needed. It cannot be right that websites are set up purely to make money by

facilitating online piracy. Again though, these proposals will be consulted on

and debated in Parliament so I look forward to taking part in that process. 

Although I understand that we may not agree on this issue I am very happy to consider all

aspects of this important debate. As such I would be more than happy to attend

any meeting on this subject should I be elected on 6th May. 

I'm not sure quite where the statistics for the 39,000 UK jobs lost specifically to piracy are from.  I think they are taken from the 'Building a Digital Economy: The Importance of Saving Jobs in the EU's Creative Industries' published by the International Chamber of Commerce.  This report has been criticised for a number of methodological problems around number counting (see Torrentfreak link).  I've even blogged about this report here. I'll quote one critique here just for effect:

It gets even more ridiculous when we take a closer look at the claims. In the UK consumers spent €6.3bn on audiovisual products in 2008. If the projected trends continued, the ‘lost’ revenue because of piracy would exceed the actual revenue, meaning that the music and movie industries would end up having to pay people for pirating their products.

You can find the somewhat vague response from my Liberal Democrat candidate here:

Thank you for contacting me about the Digital Economy Bill.

The Digital Economy Bill has now passed into law.  We have been highly

critical about the so called "wash-up" process which has enabled this Bill

to pass with limited Parliamentary scrutiny before the General Election.

The "wash-up" of the Digital Economy Bill was essentially a carve up between

the Labour and Conservative parties that ignored Liberal Democrat arguments

to consult more widely before introducing a measure to introduce

web-blocking for copyright infringement.  Liberal Democrats voted against

the Bill at 3rd Reading in the House of Commons and against the Labour and

Conservatives web-blocking amendment in both the Lords and the Commons.

Liberal Democrats remain to be convinced about the necessity for technical

measures, which could include disconnection from the internet.  Liberal

Democrats were successful in getting the Government to agree to a period of

at least a year in which no technical measures can be considered and then to

undertake a process of rigorous analysis and consultation into the need for

any such measures. We also believe that the music, film and other content

industries must work more urgently to develop easy and affordable ways for

people to legally access their products. 

The recent Liberal Democrat conference in March voted to establish a party

working group to look into further detail about the issues raised by the

Bill.

Thanks again for taking the time to contact me.

Like I said, vague, but at least they responded...