Digital Economy Bill: Why Amendment 120a isn’t our enemy


4:30 pm - March 4th 2010

by Lee Griffin    


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There has been a lot of fuss about the Digital Economy Bill online for months, rightfully so. However the current topic that is particularly concerning to opponents of the bill is the latest amendment, 120a, tabled by Lib Dem and Tory peers to replace the vastly more dangerous Clause 17. Clause 17 was the one which it’s argued could give dark Lord Peter Mandelson – or any future Secretary of State – unwarrantable powers to change British copyright law.

If you can’t remember the problems with Clause 17 then you should take another look and be thankful that due to yesterday’s controversial amendment getting through such measures are being weeded out.

I am certainly not saying the bill is good, or even adequate, in either it’s original or it’s amended state; indeed once the bill is passed to the commons I intend to go through it on Liberal Conspiracy in detail. There is a lot more that is bad about the bill than just the file sharing aspects, areas that will unlikely be debated properly in the commons as they have barely been touched in the Lords, and unfortunately barely touched in public opposition. But there are some things that need to be understood about where we are now.

1) Things like this amendment (120a) are not fundamentally bad, certainly not so much that we should spend all of our efforts on them compared to the much greater risks to personal freedom present in the bill.
2) We need to be careful not to over-react because we are ourselves making assumptions about the language used.
3) There has to be a distinction between the law and the practicing of law, and a realisation that no legislation on an issue like this can cover every eventuality.

So, why isn’t this amendment quite as bad as people are saying?

So far there have been few people commenting on the real dangers of this amendment, the main one being the lack of foresight in to the effects of allowing copyright holders to make demands of ISPs that may force their actions due to cost implications, and more people over-reacting on the potential for mass censorship. Unfortunately these people clearly haven’t read other parts of the bill that allow the government to take control of domains for “fair use” conflicts, and should see the ability for censorship by this government is much further reaching, and already rooted in other sections, than this rather tame amendment by comparison.

Take a look at the amendment below, wall of text does follow but you can skip it if you think you already have the gist of it…

Amendment 120a

LORD CLEMENT-JONES
LORD HOWARD OF RISING

Leave out Clause 17 and insert the following new Clause—
“Preventing access to specified online locations for the prevention of online copyright infringement
In Part 1 of the Copyright, Designs and Patents Act 1988, after section 97A insert—
“97B Preventing access to specified online locations for the prevention of online copyright infringement
(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court for the prevention of online copyright infringement.
(2) In determining whether to grant an injunction under subsection (1), the Court shall have regard to the following matters—
(a) whether a substantial proportion of the content accessible at or via each specified online location infringes copyright,
(b) the extent to which the operator of each specified online location has taken reasonable steps to prevent copyright infringement content being accessed at or via that online location or taken reasonable steps to remove copyright infringing content from that online location (or both),
(c) whether the service provider has itself taken reasonable steps to prevent access to the specified online location,
(d) any issues of national security raised by the Secretary of State.
(e) the extent to which the copyright owner has made reasonable efforts to facilitate legal access to content,
(f) the importance of preserving human rights, including freedom of expression, and the right to property, and
(g) any other matters which appear to the Court to be relevant.
(3) An application for an injunction under subsection (1) shall be made on notice to the service provider and to the operator of each specified online location in relation to which an injunction is sought and to the Secretary of State.
(4) Where—
(a) the Court grants an injunction under subsection (1) upon the application of an owner of copyright whose copyright is infringed by the content accessible at or via each specified online location in the injunction, and
(b) the owner of copyright before making the application made a written request to the service provider giving it a reasonable period of time to take measures to prevent its service being used to access the specified online location in the injunction, and no steps were taken,
the Court shall order the service provider to pay the copyright owner’s costs of the application unless there were exceptional circumstances justifying the service provider’s failure to prevent access despite notification by the copyright owner.
(5) In this section—
“copyright owner” includes a licensee with an exclusive licence within the meaning of section 92 of this Act,
“infringing content” means content which is produced or made available in infringement of copyright,
“online location” means a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible,
“operator” means a person or persons in joint or sole control of the decisions to make content accessible at or via an online location, and
“service provider” has the meaning given to it by section 97A(3) of this Act.
(6) Subsections (1) to (5) shall come into force on such day as the Secretary of State may by order appoint not less than 3 months and not more than 12 months after subsections (1) to (5) have been notified to the Commission of the European Communities (“the Commission”) in accordance with the obligations of notification imposed by Directive 98/34/EC.
(7) If any comments are received from Member States of the European Union or the Commission after subsection (1) to (5) have been so notified and the Secretary of State reasonably considers amendments are necessary to give effect to such comments, he may make the necessary regulations within the period referred to in subsection (6)(a), to amend subsections (1) to (5).

What this amendment does is clarify the process through which a copyright owner can deal with copyright infringement on the web. A copyright owner can already send you or your web host a letter threatening legal action and, most likely, you’ll acquiesce to their request for fear of the financial impact defending the action may take.

The amendment also handily took away the Clause 17 of the original bill, a clause that could have enabled not only the action in this amendment but also much worse and much more draconian measures. Claims that this amendment is somehow worse than a broad and undefined ability for ministers to take the pen to existing acts without proper oversight are whimsical and undermine our collective argument. We want better definition and, to a large degree, this amendment helps deliver some much needed certainty.

Yet the claims of “mass censorship” due to this amendment will be the ones that strike the highest chord, and are certainly the claims getting more traction on Twitter. Unfortunately they rely on a misinterpretation of the text that really has no place in taking place. The problem is that people are taking “online location” to mean something other than what is explicitly mentioned in the amendment itself.

“online location” means a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible

We are not talking about taking down the whole of Youtube for a number of copyright infringing videos, we are not talking about the taking down of the Orange network because one or two sites allow free MP3 downloads to your phone. The term “locations” could be better described in itself, but it is hard to interpret it as anything other than a single location, that of a webpage or sub-site of a larger site. In essence this is *GOOD* use of language because it allows the interpretation to be even more surgical than prescriptive, ensuring that this bill does not need to be amended every time a new technology comes out that could be determined to be a “location” in it’s own right.

I concede that it could well be that location can be claimed to be the whole of Youtube, the question then comes as to whether or not the safeguards put in place are robust enough for the courts to throw the case out as it should.

It is hard for even the most cynical part of me to assume that a court faced with a claim from a major copyright holder to put an injunction against the entirety of YouTube would look past points (a), (b), and (f) when considering such an asinine case. There is a case to be made for “substantial” being too much down to interpretation, but again we have to look at the practicality of law in the real world.

Sometimes we must leave some interpretation to the courts as, sometimes, situations cannot be measured against a single yardstick in a one size fits all approach.

What is the real problem with this amendment? Like the rest of the bill it focuses on ISPs, yet in reality…isn’t this inefficient? If I want to block Youtube from displaying my video why is it even suggested that this law will be a tool for me to use to go to every single ISP in the land and get an injunction against them showing the content? Seems a little long winded, and therein lies my main concern.

The amendment acknowledges the lack of power for UK based copyright holders to a) hold other countries services to account and b) to be able to tackle copyright infringement with relaxed laws on the subject. The only route to do this on an international scale is through ISPs, yet at the very first instance it feels like a better way of achieving the same result would be through careful collaboration with ISPs, consultation, and agreement between all parties that with the sites concerned there should be a block.

What 120a doesn’t tackle in any way shape or form is the current problem which is of the copyright owner having to pass a burden of proof before they are able to send threatening legal literature. The same can be said for our libel laws. The worst this amendment can be said to be doing is not fixing an inherent problem in our national legal system for the prevention of defamation and losses by one individual upon another.

Malign the amendment for what it is…carrying on the tone of a bad bill in the manner of legislation that puts the rights of a copyright holder ahead of a person’s assumed innocence, but not for the real world application it has rightfully considered, nor the clarification of an already existing process.

It may just be possible to get this bill through the Commons before parliament is dissolved, but the further question will be whether it is passed in any state that the Lords themselves will agree to to give it Royal Assent. Ultimately if we want the bill to fail, and there is not a whole lot in the bill that should succeed, we need to convince our Lib Dem, Tory and enough Labour MPs to either vote against the bill, or to vote for enough amendments that the Lords will be forced to question whether it is worthwhile even passing the resulting document before.

Rallying opposition is key, either to watering down the bill (or culling it) in the wash-up period, or creating a bill that isn’t worth passing any more. Focusing efforts on this one amendment will only serve to make a lot of Labour and Tory vested interests happy as it will frame the debate away from much worse areas of the law, that of three strikes, lack of due process, and domain registrar take overs.

Remember that now is the time to start lobbying your MP (via WriteToThem for ease) to gain as much support for the possible amendments and changes that will be put in the Commons to tackle this bill, and if possible to get them to stand against it completely.

Alternative views on this subject can be found here:

panGloss – More Trouble at t’bill
Tim Clement-Jones – on the Digital Economy Bill: web blocking amendment
PPInternational – the controversial Clause 17 falls, but at what cost?
Boing Boing – Lords seek to ban web-lockers

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About the author
Lee is a 20 something web developer from Cornwall now residing in Bristol since completing his degree at the lesser university. He has strange dreams, a big appetite, a small flat, and when not forcing his views on the world he is probably eating a cookie. Lee blogs independently from party colours at Program your own mind.
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Story Filed Under: Blog ,Civil liberties ,Technology

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Reader comments


What is the position of the Open Rights Group on this?

Answering my own question: http://www.openrightsgroup.org/blog/2010/lib-dems-seek-web-blocking

Why are the Lib Dems being so illiberal?

I’m not a Lib Dem by the way, party unaffiliated.

As for people being illiberal, firstly it’s a little premature to call the whole party illiberal based on the actions of a couple of Lords and second, see the bill that saw 28 day detention without charge enacted as for why politicians sometimes do things that seem to be out of character.

@Lee

I’ll amend my comment to “Why are these Lib Dems being so illiberal?”

It is good to see that grassroots members are equally annoyed at Lord Claptrap-Joke etc, judging from the comments at LDV.

I criticised the Lib Dems for being uninfluential in another thread. I take it back: their Peers, at least, have an unhealthy influence when joining with the Tories.

Actually all the commentary I’ve read on Twitter and elsewhere has been about the DMCA-style ‘chilling effect’ – I’ve not seen anyone raving about ‘mass censorship’ – so either I move in restricted circles or there’s a bit of a straw man thing going on in this article.

120a is definitely an improvement on Clause 17, but then it would have been hard to make that Clause worse – I don’t think that’s a great reason to praise this particular amendment.

“What is the real problem with this amendment? Like the rest of the bill it focuses on ISPs, yet in reality…isn’t this inefficient?”

The reason for this, as I’ve said elsewhere, is that (as was clearly shown in the debate around this amendment), the Lord (Clement-Jones) who wrote 120a _does not understand_ the difference between an ISP, a hosting provider, and a web services company. This has resulted in the whole amendment being incredibly poorly worded and probably not even achieving the effect he intended it to.

Fair enough Denny, we obviously move in different circles. Certainly Open Rights and Index on Censorship have been more concerned with the mass censorship angle.

“120a is definitely an improvement on Clause 17, but then it would have been hard to make that Clause worse – I don’t think that’s a great reason to praise this particular amendment.”

Like I’ve said on LDV, and thought I made clear above, I’m not praising the amendment, nor the bill. The whole lot is a shambles, but spending time getting angry about this particular amendment is both a waste of time given it’s extremely low position on the scale of “Making new shitty laws for internet users”

“The reason for this, as I’ve said elsewhere, is that (as was clearly shown in the debate around this amendment), the Lord (Clement-Jones) who wrote 120a _does not understand_ the difference between an ISP, a hosting provider, and a web services company. This has resulted in the whole amendment being incredibly poorly worded and probably not even achieving the effect he intended it to.”

It has nothing to do with the wording, as I have said above the wording on this bill isn’t that bad. It’s not perfect but it is certainly better than the much more ambiguous areas of the bill that are more wide ranging and dangerous to internet users.

The wording in the legislation re: ISPs (both in the already live 97A of the copyright bill, and this amendment) says “Service provider” which in legal terms means…ISP, a hosting provider or a web services company (and others). I’d need to watch the actual debate, but it sounds like perhaps it is not him that is confused.

“is a waste of time”, not “both a waste of time”

“you’re giving these people a blank cheque.”

I’m not doing anything other than opposing the bill in its entirety, and aiming to make my MP, and help others let their MP, know that there are at least three or four other areas more detrimental to our rights and creativity in this country than amendment 102a.

I’ll repeat here what I’ve said elsewhere, Section 97a of the Copyright etc. Act 1988 allows the chilling effect to happen, it was added to the 1988 bill via the undemocratic statutory instrument in 2003 where it wasn’t given the opportunity to be scrutinised.

Cry about 102a, but do so knowing that it is actually a technical improvement (if not by much) on the law that exists and will continue to exist whether 102a is removed from the bill or not.

“We are rocketting down that slippery slope. I don’t see how anyone can deny it.”

I don’t deny this, I think you and I agree more than you think 🙂

There is no free speech anymore, just remember that.

11. Michael Williams

120A allows the UK to have a more opressive version of the DMCA. Courts closing down websites is like closing down nespapers.

The DMCA allows large companies to shutdown small companies through claiming copyright for example.

As the government rush this before they fall we get a digital turkey, and 120A makes it look like it has liberal support.

Gee, lets help megacorp silence people, go us

Hi Michael, thanks for not reading the article and missing the point.

97a of the existing law allows for companies to issue these types of injunctions, if they wanted to.

The issue that was ALWAYS going to be the case was the limited debate time on the bill, and in that sense there are much larger parts of the bill that are cause for concern. I assume you’ve already written to your MP (as I already have) to demand that this bill gets debated in the commons, so that hopefully it won’t be passed in the wash-up.


Reactions: Twitter, blogs
  1. Richard George

    RT @libcon: Digital Economy Bill: Why Amendment 120a isn't our enemy http://bit.ly/bn5aI8

  2. Derek Bryant

    RT @libcon Digital Economy Bill: Why Amendment 120a isn't our enemy http://bit.ly/bn5aI8

  3. Lee Griffin

    For #debill followers on Twitter: Why the Lib Dem/Tory amendment means little in the grand scheme of things – http://bit.ly/cCgouz

  4. Alan Lai

    RT @Niaccurshi: For #debill followers on Twitter: Why the Lib Dem/Tory amendment means little in the grand scheme of things – http://bit.ly/cCgouz

  5. Liberal Conspiracy

    Digital Economy Bill: Why Amendment 120a isn't our enemy http://bit.ly/bn5aI8

  6. Lee Griffin

    RT @libcon: Digital Economy Bill: Why Amendment 120a isn't our enemy http://bit.ly/bn5aI8

  7. Lee Griffin

    To all liberals still complaining about #debill #102a …GROW UP AND CONCENTRATE ON THE REAL ISSUES. http://bit.ly/bn5aI8 http://j.mp/aJH4KN

  8. Tim Cowlishaw

    @timd @felix_cohen – seen this? http://bit.ly/cvuk7p not sure how true it is, but interesting perspective on #debill

  9. Cal Russell-Thompson

    For the sake of fairness, here's another take on it: http://bit.ly/cCgouz #DigitalEconomy





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