Fixing this blog, judicial review, Digital Economy Act

Just before the turn of the year, I published a back dated personal review of the BT/TalkTalk vs Secretary of State for BIS seeking judicial review of the DE Act and a summary. The longer review was accidentally deleted, I have reposted it, dated 21st April 2011, and amended the hyper-link in the article of 30th Dec 2011. The old URL and it’s SURL no longer work. This http://is.gd/pODktv is a new SURL if you want one. …

Why the DE Act is not in breach of EU law?

I have finally finished my summary of the Judicial Review of the Digital Economy Act. [here]. I have posted it on this blog backdated it to 21st April 2010, since that is the day after the judgement was delivered, and close to when I started it.  It’s a hard read, and I am not sure my summary is much easier. It’s clearly taken a long time to read the judgement and write my review in hours taken and from when I started, for that I apologise. It doesn’t mean it’s not worth reading.

The ruling states that,

  1. the DE Act is not a technical regulation and thus does not need to be notified to the EU Commission as part of the legislative process, although the subsidiary Ofcom regulations will.
  2. the DE Act does not conflict with the EU’s E-Commerce Directive because the ‘mere conduit’ defence is not absolute, it does not require ‘general monitoring’, and copyright protection measures are excluded from the domain of the ECD.
  3. the DE Act does not conflict with the EU or UK Privacy and Data Protection laws because copyright enforcement measures are permitted processing measures under the Law.
  4. the DE Act does not conflict with the EU’s Authorisation Directive since the AD does not prohibit amendment or supplementary regulation, however it does invalidate some aspects of the proposed cost sharing order.
  5. the claimants fail to prove that the DE Act and its parliamentary passage was sufficiently disproportionate to warrant being struck down i.e. that intellectual property rights are balanced against the rights of ISSPs and citizens by Parliament.

The ruling made no comments on the proportionality of any “Technical Measures” since they have not been drafted, agreed or promulgated.

The court made no comment on whether a law requiring “careful balance” on the issues of “fundamental rights” should be passed using the unprecedented accelerated procedures of House of Commons’ Wash-up. This process meant that the possibly 100’s of hours of review time spent by elected politicians was avoided. (The Commons spent under 10 hours considering the Bill.)

Judge Parker refused the claimants the right to appeal, but this has now been granted on all grounds except that the DE Act breaches the E-Commerce Directive by imposing a duty of general monitoring.  This was reported by the Guardian [here] and Linx [here]. …

Sabam vs Scarlet, the People vs. Copyright

The European Court rules to balance the rights of copyright holders against citizenship rights. Finally some sense from the courts. The SABAM vs Scarlet case from Belgium has finally reached the end of the road. The European Court of Justice has ruled that EU Law prohibits national courts from forcing Internet Service Providers (ISPs) to filter and block all users, including alleged and proven copyright infringers. …

Some thoughts on censorship and the internet

Earlier this week, the MPAA and BT returned to court to agree subsiduary terms around the court injunction that BT is to use its Cleanfeed technology to block the newsbin2 web site. In considering the events in court and the judgement, I found an article I had written but not posted about the case and the politics, including the governments announcement to back the Hargreaves Review and Ofcom’s reticence in pursuing the use of the Digitial Economy Act’s web site blocking powers.

I have now published the article, called Censoring the Internet as at the 7th August, which is roughly when I finished it. …

Just one more cadre

I recently wrote to Loz Kaye, the leader of the UK Pirate Party, to congratulate him and his party on their brother’s and sister’s victory in Berlin. I pointed out that in Europe they were at a cross roads. As they grow in maturity and power as a political party, something yet to occur in the UK, it will become harder to talk to and work with supporters in other political parties. There is a mature balancing act to be taken in advancing their ideas, most of which I agree with, and winning political power. In my mind, they have to find a route between supporting the growth of broad campaigning groups such as the ORG or building their own organisation. There is a tendency in both the Liberal Democrats and the British Trotskyist movement to consider each new party member a victory for the cause. Both parties often win these cadres at the cost of those they create, dispirited by defeat who give up on politics. Each person who gives up on politics and hope is a loss to democracy, and we are not winning. …

Judicial Review of the Digital Economy Act

BT & Talk Talk, the two largest UK internet Service Providers (ISP) went to court towards the end of 2010 and the beginning of 2011 to obtain a judicial review of the Digital Economy Act, a law passed in the dying days of the last Labour Government. This law is designed to place duties on internet service providers to act on the instruction and on behalf of copyright holders and to authorise Web site blocking. On the 20th April, Mr. Justice Parker delivered his judgement.

This article is a personal summary of that ruling. The judgement is awfully hard to read and understand. I have an economics degree and nine years of Civil Service training! Actual quotes should be obvious, other representations are in my words, not those of the judgement. In some places I have got lost in the text of the judgement and while my summary is much shorter than the original, it remains pretty long. The impatient or easily satisfied can skip straight to the summary. …

Copyright, a constitutional right

For some reason, I had a quick peek a the US Constitution earlier today, I wonder if Congress’s powers,

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

would permit nationalisation? What gobsmacked me though is that artists, authors and inventors copyright protection is a constitutional right. The constitution grants congress the right, or maybe duty,

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

Mind you, I don’t see where it says that companies have the right to buy the copyright and pursue the author, artist and inventors customers. In fact, the consitution states that these rights should accrue to the authors and inventors, not their agents. Perhaps the current legal framework is unconstitutional.

ooOOOoo

Several people are exploring in the US, the limits of useful Arts, in particular looking to see if Porn films can be considered ‘useful arts’? DFL 12 Aug 2103 …

A week’s a long time in politics

The Bill becomes an Act

Just over a week ago, the Digital Economy Bill got its 3rd reading, and according to “Computing” got its Royal Assent  on the 9th April. I watched the 2nd & 3rd reading debates on parliament.tv with Tweetdeck open. Others have commented on how helpful having crowd sourced commentary was, which I have to agree with and also how disappointed they were that most MPs weren’t in the chamber to hear the debate. Twitter certainly enhanced my understanding and enjoyment of the debates, which were rather spoiled at the end by the tiny vote in favour of the Lib Dem amendment and then against the 3rd reading. On the good side, I have been pleased to ‘meet’  some new twitter correspondents, however I had to turn it off at work for the rest of the week. Unlike contracted musicians with royalty based earnings, if I don’t work, I don’t get paid and I found it too distracting. …