ORG Debate on Three Strikes - London, Fri 2 Oct

If you're interested in the whole ongoing mess about the threat to cut off the net access of alleged file-sharers (see my earlier posts on three strikes) then come along if you can to the Open Rights Group's forthcoming public debate on the issue. It's on the evening of Friday 2 October near Farringdon, and if you book in advance it costs £10 if you're an ORG supporter or £15 otherwise. Or if you book now and become and ORG supporter by the time of the event, admission is free!

3 Strikes: Here We Go Again

A little while back I blogged about how the Digital Britain report appeared to accept that delivery of government services by internet was so important that disconnection as a sanction for filesharing was a step too far. (For earlier discussions of Three Strikes and Amendment 138, see here, here, here and here.) Well, as is being extensively reported (Guardian, Technollama, BoingBoing) it now appears that there has been if not exactly a U-turn then certainly a sharp veer in the direction of harsher measures - 'harsher' meaning 'including disconnection from the internet'.

So what exactly is being said? This release from the Central Office of Information announces not new laws but rather a revised consultation process regarding sanctions for filesharing. It seems that following feedback from rightsholder organisations (and more on that below) HM Government has decided both that the original timescale - which would not have seen measures implemented until 2012 - was too long, and that it was wrong to rule out disconnection as a sanction.

What we now therefore have is a revised and extended consultation from the Dept of Business, Innovation and Skills (PDF here) seeking further input on a number of these issues. Some parts of this consultation particularly caught my eye. For example:

"Any technical measures deemed necessary and appropriate by the Secretary of State would be introduced by Ofcom via secondary legislation."

It's important to note that 'secondary legislation' means statutory instruments which are not voted on by MPs, although MPs can register objections to them - if they hear about them in advance amidst New Labour's avalanche of secondary legislation. In other words, our MPs won't be asked to vote on this.

"It would be important to ensure as far as possible that innocent people who may be affected by such technical measures would retain access to the Internet services they need, including online public services."

That's jolly nice to hear, although 'as far as possible' includes quite a lot. I may be being unduly cynical, but I can't help wondering if the terminals in local libraries (or as Tower Hamlets now calls them, 'Idea Stores') will be deemed to provide such essential access.

Then we get onto the question of measuring illicit filesharing and defining what is and isn't acceptable. The original plan was for a detailed study of this, on the basis that policy should be based on evidence. Actually, I take my earlier words back - here there is a blatant handbrake turn.

"Evidence – although we have no doubt Ofcom would have carried out their research under the original proposals in their usual thorough manner, measuring unlawful P2P activity across a range of networks and different content is extremely difficult."

This is what a former colleague of mine called 'filing in the TOO DIFFICULT' tray.'

"On reflection, using a precisely defined “trigger” as the basis for introducing technical measures would not be sufficiently flexible (for example it would not allow the wider health of the broadband or content markets to be taken into account), and under-estimated the inherent difficulties of measuring this unlawful activity with precision."

Or, to put it another way, drawing a line in the sand involves awkward questions about where the line should go...

"In reaching his decision, the Secretary of State will have to carefully weigh the evidence available to him and make any order on the basis of defendable information based largely but not exclusively on the reports from Ofcom."

...so instead lets listen largely to Ofcom's general thoughts, plus input from other sources (I can't imagine who.)

"But even so, the Secretary of State can do this much quicker than the process which the regulator would have to go through if acting alone."

Because when a large rights organisation is breathing down your neck, speed, rather than accuracy, is of the essence!

Then we get onto talking about disconnection.

"Since the issue of the consultation some stakeholders have argued strongly that none of those technical measures is powerful enough to have a significant deterrent effect on infringing behaviour."

In other words, the self-appointed gamekeepers are not surprisingly complaining about being denied sufficiently big mantraps.

"Taking those points into account, although we continue to regard the uptake and use of Internet services as essential to a digital Britain, we are considering the case for adding suspension of accounts into the list of measures that could be imposed."

Translation: "Having been told that we're a bunch of wusses, the nuclear option is back on the table."

"...this step would obviously be a very serious sanction as it would affect all members of a household equally, and might disrupt access to other communications, so it should be regarded as very much a last resort."

I can't help but read this as a rearguard sop to the original conclusions of the Digital Britain Report. Once again though we have weasel words; it's all well and good to say that a measure should be 'regarded as very much a last resort' but will that be the case in practise? We lawyers are told to put our client's case at its highest; if disconnection is available, that's what we're going to be expected to push for.

"As ever we would need to ensure any such measure fully complied with both UK and EU legislation."

Well, that's all right then because we have Amendment 138 to the Telecoms Package to protect us. Except, that as the splendid and endlessly energetic Monica Horten has detailed over at IPTegrity.com, the EU Commission is trying very hard to water it down with, as Monica notes, UK Government support. In other words, the Government position is on the one hand that disconnection should be in accordance with UK and EU law, and on the other that UK and EU law should not preclude disconnection.

So where is all this coming from? A number of commentators have observed that only a few weeks ago Lord Mandelson dined with media mogul David Geffen (see this Times report from last week, which nicely anticipates today's developments). I'm not going to speculate, but it is hard to avoid the feeling that more than a little high-level lobbying may have been going on, as evidenced by that line in the new consultation document about how 'some stakeholders have argued strongly'.

As this BBC report explains, the latest proposals are causing considerable consternation, not least among the ISPs who may be forced to implement and enforce such measures, at considerable cost in time, money and in all likelihood customer satisfaction. What can we do? The Open Rights Group, for which I initially researched Amendment 138, is urging people concerned by these developments to write to their MPs. Another option comes out of the fact that, as I've noted above, this is still just a consultation. The DBIS is seeking comment on this proposal; now is the chance to make (reasoned and temperate, please) responses to it.

Digital Britain meets Amendment 138

The Government's Digital Britain report came out yesterday (download a copy from here) and has already drawn comment from several of my fellow bloggers (panGloss and Technollama in particular). Given my involvement in ORG's analysis of the Telecoms Package, my particular interest is in how far this report goes in acknowledging the concerns ORG raised, especially in relation to so-called 'Three Strikes' sanctions for alleged copyright infringement.

The first main area of interest is actually from near the end of the report. Chapter 8, on Digital Government, places great store on the extent to which essential government services will increasingly be delivered online. Indeed, the report refers to a 'Digital Switchover' of such services, akin to that already taking place for analogue broadcast. This is relevant because it emphasises just how serious a sanction disconnection from the Internet would be in such a world. As para 8.16 notes, candidates for early switchover include electoral and school registration and debt and redundancy advice; denying access to such services would very much engage human rights concerns. This may be why Chapter 4, relating to creative industries, is not as draconian as some observers may have expected; there may well be growing awareness within government that if 'digital exclusion' is seen as a social ill, it is hardly appropriate to wave it as a potential sanction.

Turning to Chapter 4, other commentators have noted that the report acknowledges rights-holder claims of economic damage through file-sharing. Having said that, it's worth noting that it does not do so uncritically - para 4.17 is careful to use qualifiers such as 'indicated' and 'claim'. Nonetheless, HMG sets out its position firmly in the next paragraph, describing online piracy as a 'serious offence' and stating that a 70-80% reduction should be the government target. It goes on to dismiss the views of the 'minority of the anarchic'; I wonder if this part of the report was written before or after the Swedish Pirate Party got their first MEP? Now, I don't agree with the PP's position, but its electoral success in Sweden (and this report harps on a lot about looking to Scandinavian and Nordic models for IPR reform) does indicate a significant degree of public unhappiness and disengagement with mainstream views of IPR, and I'm not sure such positions should be dismissed rather than engaged with.

As to practical measures, the report calls for an industry body to be set up under legislative oversight to address rights issues. This is in line with proposals in the Telecoms Package to "promote cooperation between undertakings providing electronic communications networks and/or services and the sectors interested in the promotion of lawful content in electronic communication networks and services" (in the Universal Services Directive). What about sanctions, though? Much discussion has been of the 'Three Strikes and you're Out' model proposed by the French Government under the recently-failed HADOPI legislation, that would have an escalating series of notifications and warnings upon allegation of copyright infringement culminating in disconnection. What we see in the Digital Britain report is rather different though. As per the box on page 113, following para 4.31, the proposal seems to be for notification and warning accompanied by collection of evidence to be made available via court order. One might term this 'Two Strikes, Then We Let Someone Sue You'.

The report goes on to list other sanctions that might be brought into play if this approach does not lead to the desired reduction in file-sharing. The first point is that this implies that it is anticipated that legal action will be via conventional channels and sanctions, i.e. damages where infringement is proven in court. Secondly, even the prospective future measures seem to stop short of disconnection. They included throttling, shaping and various targeted blocking approaches that seem aimed at limiting Internet access to certain sites or services rather than stopping it altogether. It's also not clear though whether these sanctions will come as the third 'strike', via court order, or as a consequence of one of the earlier warnings, at the behest of the ISP.

Now, how does this tie in with the successful campaign to save Amendment 138, the EUP-sponsored provision that would require sanctions to be in accordance with due legal process? As passed by the EUP in May, the Amendment incorporates the following text into Article 8(4)(h) of the Framework Directive:

"applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent"

As the late Professor Joad would have put it, it all depends on what you mean by "fundamental rights and freedoms of end-users". If you confine these to the right to have Internet access at all, as hinted at by Chapter 8's discussion of ubiquitous and essential digital services, then Chapter 4's proposals probably are compliant with Amendment 138. There is no suggestion that Internet access would be cut off altogether, even for the most persistent offenders (although they might be sued into penury). However, if you take a wider view, you might argue that the other sanctions discussed such as constraining or blocking certain services might well be an infringement, and given that it seems that these will be 'strike 2', at the ISP's discretion, rather than 'strike 3' after a court order, then on such an interpretation they would not be compliant with Amendment 138.

To summarise, what we have here is a report that seems to acknowledge the folly of threatening total disconnection from the Internet as a sanction for alleged rights infringement, and which puts forward proposals that would, as per Amendment 138, require a judicial ruling before opening up alleged file-sharers to serious sanctions. What is not clear, however, is whether this also applies to other technical measures such as blocking or throttling, and this is a point on which further consultation should concentrate.

Good News on Three Strikes

In one of the more pleasant surprises of the long-running saga of the updates to the EU Telecoms Package (see my earlier posts here, here and here) the EU Parliament has soundly rejected moves to strip out legal protection for users against disconnection without recourse to law. Amendment 138 is back, and more importantly has been put back by the deliberate vote of a large majority of MEPs.

More on the story from Pangloss (thanks for the kind words, but many other people did far more than me!), Technollama and Monica Horten, who provided invaluable assistance to my ORG work regarding the minutiae of EC legislative procedures.

This is not the end of the matter, or even, to quote Churchill, the beginning of the end. But with any luck it is the end of the beginning, especially if there is now wider awareness of the issues among MEPs.

The Telecoms Package: What Now and Where Next?

Following on from my previous post about the EU Telecoms Package, the vote in question took place this morning. Monica Horten, who is far more au fait with the minutiae of EU legislative procedure than I am, has given a very good write-up of what happened.

So, this isn't the end of the process. We now have the Council's view of what the Telecoms Package should be, as well as the Commission's view and the EU Parliament's view. All three bodies will now have to try to hammer out a compromise, and it's clear from Monica's report that there is much unease at the Council (i.e. national) as well as Parliament (direct representatives) level as to the way in which both Amendment 138 and its sibling Amendment 166 - which was dropped by the Council some time back - have been expunged. As I noted earlier, Recital 14a remains in the Universal Service Directive to urge proper due process via national legal systems, so with any luck questions will be asked as to why, if the Council is content to leave it in, there isn't some accompanying Article to ensure compliance with it?

As I see it, there are definitely further opportunities for lobbying and action. The Telecoms Package will have to finish its passage through the EU legislative process - Monica suggests this will probably be over the next few months - and the resulting amended Directives will have to be transposed into UK law over the subsequent two or three years. Our MEPs, MPs and Ministers are not off the hook yet.

Whatever Happened to Amendment 138?

A couple of weeks ago I posted about my pro bono project for the Open Rights Group, analysing proposed changes to EU Telecoms law that might allow a 'Three Strikes' sanction against alleged file-sharers without recourse to due process of law. As became clear in preparing our final report, a key measure was Amendment 138, inserted by the EU Parliament in an effort to apply the rule of law to such measures. The EU Council is voting tomorrow on the Telecoms Package, but confusion has now arisen about whether Amendment 138 is still in play. What seems to have happened is that there has (in true EU style) been a lot of horse-trading going on as to the final text of the Telecoms Package that the EU Council is going to vote on tomorrow.

It's worth remembering that EU legislation is made in a complex and not very transparent way and that voting by MEPs in the EU Parliament is only part of the process. The final vote at the EU Council is by representatives of member state governments, all of which have their own agendas. Furthermore, it's not as if individual elements such as Amendment 138 get voted on line-by-line; instead, the final text (including amendments made by the EU Parliament) is argued over behind closed doors before a compromise is voted on by the Council. If you think this bears more resemblance to trying to pass a rule change through your local football club committee than getting a Bill through Parliament, you might not be wrong.

Looking at the final versions of the five amended EU Directives that form the Telecoms Package, it seems that yes, Amendment 138 (which made sanctions against 'unlawful content' subject to due process of law) has indeed disappeared. But so have some elements of another part of the Package that said that national telecoms regulators should regulate lawful and unlawful content. What was particularly worrying about those provisions was that they referred to another part of the Package that mandated co-operation between national regulators and telecoms industry providers - i.e. ISPs and the big telecoms carriers.

So, what we were looking at until now was a set of provisions buried within the Telecoms Package that said:

a) National regulators must promote lawful content.
b) National regulators must co-operate with ISPs.
c) Measures to do this must be by due process of law. (Amendment 138)

In the latest version, (c) is gone - but so is (a), leaving (b) more as a general mandate that regulators and the telecoms industry must work together, but not with a set 'stop unlawful content' agenda. In fact, the end result of the latest round of changes is to put much of the underlying legislation back to its current state, as first passed in 2002.

So does the Telecoms Package say anything at all now about due process? Actually, yes. At this point it should be noted that EU Directives work not by making law directly (well, not generally, but for EU law experts I am simplifying here) but instead by giving a template that each member state must then turn into national law. It does this by means of Articles, which must be turned straight into local law, and Recitals, which are more like explanatory notes of what the new law is meant to do. In theory a Directive should contain a list of Recitals explaining what the Directive is trying to do, followed by a set of Articles that lay down the laws to be made that will do it.

Here though, the relevant Articles have been amended or deleted so there is no specific one saying 'make a law guaranteeing due process for telecoms disconnection'. But the related Recital, inserted by the EU Parliament, is still there:

"In the absence of relevant rules of Community law, content, applications and services are deemed lawful or harmful in accordance with national substantive and procedural law. It is a task for the relevant authorities of the Member States, not for providers of electronic communications networks or services, to decide, in accordance with due process, whether content, applications or services are lawful or harmful or not."

In other words, EU member states, when implementing the Telecoms Package, are strongly guided to do so in a way that relies on the rule of law and due process rather than delegating the whole thing to ISPs.

Where are we left after all this? If the current Telecoms Package passes on Thursday, it will have the desired safeguards removed, but it will also be rather watered-down. Instead of clearly laying down a Three Strikes policy, it now gives guidance to say that such measures must be subject to due process. Now this won't on the face of it stop a particular country from passing its own Three Strikes law if it wants to, although it will give a heavy hint that any such law must allow for due process. My own opinion is that the Three Strikes battle hasn't been won or lost this week - instead it's been moved to each EU member state to be fought locally.

But what this whole mess does highlight is the very opaque and convoluted process by which EU law is made. The EU is often described as suffering from a 'Democratic Deficit', with law-making processes that, as I noted above, more resemble those of a club than a nation. Given that the EU started out as a club, albeit of countries, that is not surprising - but if it is now acting like a super-state setting telecoms laws governing the net access of half a billion people, is this really a good way to carry on?

Finally, I'd like to thank Monica Horten at IPtegrity.com for essential and insightful analysis of the latest changes.

Opening Up the Telecoms Package for the Open Rights Group

My posting record has continued to be a bit thin of late thanks to the pressures of the Bar Vocational Course. (And if you're reading this in the UK, BBC 2's new series 'The Barristers' starts tonight, featuring the joys of the BVC). However, part of my work of late has been a pro bono project that came my way from the Open Rights Group, via Prof Lilian Edwards (aka Pangloss).

Detailed accounts of the background are given by ORG here and Prof Edwards here, but in a nutshell I was asked to review the latest batch of amendments to the core group of Directives governing EU telecoms law. In particular, my remit was to see what had happened to measures inserted by MEPs to ensure that disconnection sanctions - the so-called 'Three Strikes' measures - could only be implemented via due process of law. I was very helpfully assisted by Monica Horten of IpTegrity.com, whilst Judith Rauhofer at UCLAN provided useful advice and of course Prof Edwards oversaw the whole effort; I'm especially grateful to her for comments on the text as it developed and for putting together a very clear and forceful summary for our final report.

Our findings? Yes, there are elements of the Telecoms Package as it stands that raise serious concerns. In particular, some of the measures explicitly inserted by MEPs to ensure due process have disappeared, although it does seem that there are efforts being made to keep at least one in place. Also, some of the definitions of the sort of content or threat that would give grounds for communications providers to read traffic (with associated privacy concerns) are potentially very broad.

I feel I should make my own position clear. As an aspiring IP lawyer I think that copyright protection is a good thing - so long as it is properly regulated, clear in scope and applied under the aegis of the courts. To take an analogy with land law, the law of 'real' property, we regulate land ownership under a system that protects land-owners whilst at the same time recognising rights-of-way, providing for boundary disputes and setting legal constraints on how we deal with land-owners. I don't agree with those who scoff at the whole idea of IP, any more than I'd go along with ideas to allow anyone to do what they wanted on anyone else's land. But equally, nor would I support a proposal to allow large land-owners to take over all responsibility for controlling access to their estates, including the power to decide for themselves if a right-of-way or easement existed and to eject with extreme force anyone they considered might be trespassing. The proposed measures could well lead to providers flagging legitimate peer-to-peer filesharing or fair-dealing use of copyright material as being illicit, whilst denying those affected recourse to the courts to prove their legal rights.

From here on, it's over to the ORG to take this matter forward, and I return to the more mainstream BVC joys of the Civil Procedure Rules, sentencing policy and drafting Particulars of Claim. Oh, and with any luck maybe even posting some IP and technology law stories here - there have certainly been plenty of interest lately. But this has been a fascinating project to be involved with, as well as providing an at times alarming insight into the process by which EU law is made.