Lib Dems deny Digital Economy change would block social media

Posted by Jon Wilcox on Tue, 09/03/2010 - 15:31
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The Government’s Digital Economy Bill continues to wallow in controversy, thanks to a new amendment that opponents say would see sites such as YouTube blocked from UK web users, something denied by amendment proponents, the Liberal Democrats.

The Bill’s third and final reading in the House of Lords is due to take place on 15 March, and marks the last time amendments can be made before it’s transferred to the Commons. It is expected to pass into law before Parliament is dissolved at the start of April, ahead of a likely election in May.

The Bill includes many of the recommendations of the 2009 Digital Britain whitepaper, including the Universal Service Commitment to provide 2Mbps broadband internet connection across the UK.

The controversial amendment (120A), which replaces the notorious Clause 17 of the Bill, was tabled in the House of Lords by Liberal Democrat Lord Clement-Jones.

"More damaging" than Clause 17

Opponents claim the new suggestion is even more damaging than the last one. This is because it would allow content creators to take court action against websites accused of hosting "substantial" amounts of copyright-infringing material, whether unwitting or not, meaning that access could be blocked. Internet freedom campaigners reacted with dismay to the proposed changes. Jim Kilock, executive director of the Open Rights Group, slammed the amendment, saying that it would "open the door to a massive imbalance of power in favour of large copyright holding companies".

"Individuals and small businesses would be open to massive ‘copyright attacks’ that could shut them down, just by the threat of action," he warned. "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'."

The Internet Service Providers Association was likewise "outraged" by the plans. But Lord Clement-Jones said that the move would be welcomed by the content creators themselves.

"I believe this is going to send a powerful message to our creative industries that we value what they do, that we want to protect what they do, that we do not believe in censoring the internet, but we are responding to genuine concerns," he claimed.

In response to opposition, the Liberal Democrats’ Department for Culture, Media and Sport team has published an open-letter, which it hopes will allay such fears. Following is the complete text of the letter, including an acknowledgement from the team that because of the short duration available to delete Clause 17 and offer a replacement (Amendment 120A), “the wording agreed at this stage can no doubt be improved. And opportunities exist to achieve this.”

Andrew Robinson, leader of the Pirate Party UK, told PublicTechnology.net the statement from the Lib Dems, “doesn't match up with the actual wording of the bill.”

“The statement confirms my suspicion that YouTube, Facebook and Google are going to be above the law and safe havens for piracy, and it confirms the existence of a loophole for sites where the operator can't be contacted.”

“On the upside, the requirement that the ‘copyright holder has made a reasonable effort to ensure that there are legal ways of accessing the content online’ is a very, very radical Pirate stance indeed,” argued Robinson. “At a stroke it would allow the public to freely share the Beatles back catalogue (which isn't accessible online), every bootleg live recording that exists, the whole archives of the BBC and ITV, other people's private photos, pre-release album leaks, orphan works, unreleased demos, and of course every imaginable kind of mash-up where one or more rights holder objects to its sale, or is untraceable.”

He concluded, “If that's what the Lib Dems intend then I have been out-pirated, I would never take such a radically anti-copyright stance as Lord Clement Jones has. If on the other hand they didn't mean that, then it adds a lot of weight to the opinion that amendment 120A is an ill considered, badly drafted, loophole riddled, unworkable kludge.”

The complete letter from the Lib Dem Department of Culture, Media and Sport team:

“Thank you very much for your letter concerning an amendment passed in the House of Lords to the Digital Economy Bill on the issue of site blocking on the internet.

We hope the following will both 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. Our 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 we 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, our 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. Cyber-locking 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).

However, we acknowledge that with the shortness of time available and need to work with other parties to defeat the Government and remove Clause 17, it may be that the wording agreed at this stage can no doubt be improved. And opportunities exist to achieve this.

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 team from both Houses have 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.

Thanks again for taking the time to contact us on this important issue.”