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]. …

The Digital Divide in the UK

While researching another blog article, I was pointed at the ONS’ Statistical Bulletin, “Internet Access – Households and Individuals, 2011“. This reports that 77% (up from 73% last year) of UK Households have internet access, and 79% of internet users think they can protect their privacy. (Yeah right!)

They ask those who do not have the internet “Why not?” and the reasons are, price of equipment, lack of skills or lack of need. I’d be interested in those who find the cost of connection too high? …

Program or be Programmed, it starts at school

It would seem that even the IT industry is fed up with England’s IT education syllabus. A number of IT companies, most of them US subsidiaries have issued a “report” seeking to influence the quality of IT teaching in England. In an article, called “Coding the New Latin”, the BBC report,

Today, the report is dated 28th Nov, the likes of Google, Microsoft and other leading technology names will lend their support to the case made to the government earlier this year in a report called Next Gen. It argued that the UK could be a global hub for the video games and special effects industries – but only if its education system got its act together

 …

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. …

More on the Newzbin2 affair

Last week, BT and the Movie Studios returned to court to discuss the terms of the newzbin2 injunction. The judgement is a pretty much a  victory for the Studios. BT must use Cleanfeed to block notified sites, they must use it to block all addresses notified by the applicants, the proposal that only sites that ‘predominantly’ induce copyright infringement should be blocked was rejected, they can’t turn the blocking off for operational reasons without the permission of the applicants, they can’t terminate the injunction in circumstances where the applicants don’t injunct BT’s competitors in a reasonable time frame, BT have to pay for the enforcement, BT have no right to claim damages against the studios for consequential liability,  BT have to pay the studio’s court costs to the point of the initial newzbin2 injunction, costs incurred after the injunction are born be each side. …

Royal Equality and Digital Freedom

So the #CONDEM government plans to introduce a “Royal Equality Act” before the next General Election. What do you suppose that’ll do then. Make the Royals equal to the rest of us? Levy taxes on their private income, Remove the Prince of Wales veto on UK politics? Nah! It’s about who succeeds King William!

I suppose that @Nick_Clegg will have to let the Tories bang on about this and agree to the use of parliamentary time, but I remember his promise to Repeal the Digital Economy Act, so in my mind and that of many others, I can think of much better things our politicians should be doing. The “Great Freedom Bill”, this ain’t. …

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. …