Digital Economy Bill: Parliamentarians reply to prospective candidates

Yesterday we covered an open letter from 25+ Liberal Democrat prospective Parliamentary candidates (and see also this comment from ex-MP Richard Allan), expressing concerns over the line the party had taken in the House of Lords on a key part of the Digital Economy Bill. The party’s DCMS (Department for Culture, Media and Sport) team has now replied in turn with another public letter.

Two things to note when reading it. First, this sort of public exchange of letters is unusual, but very welcome. Although journalists sometimes struggle with the concept of a party that debates policy openly and has a democratic policy-making process, that’s a key part of the party’s approach.

Second, reading between the lines there is a very big olive branch being offered and the opportunity for a dialogue rather than warfare. Phrases in the letter such as “the Liberal Democrats believe passionately in the neutrality of the web” suggest a significant degree of common ground on both sides of this debate, as does the agreement on all sides that the Government’s original proposals were wrong.

So here’s the letter:

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. Cyberlocking 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.

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45 Comments

  • Glad to see they are open to changing the wording, but we cannot let the pressure subside.

    The amendment as it stands is a pig. There are so many weasel clauses in the amendment. What is the definition of “substantial proportion”?

  • Kate said:

    “What is the definition of “substantial proportion”?”

    I also wonder how a site would go about proving the proportions involved. Would they need to release details of _all_ the content they hold? That can’t be a good thing.

  • “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.”

    This depends on whether absolute volume could be taken into account when assessing substantial proportion. Absent a definition of this term in the act (which I can’t see in the amendment but it may be defined elsewhere) this is a pretty vague – and vagueness in a draconian power is not a good thing. Why not define a threshold below which cannot be regarded as a substantial proportion.

    “4. Where human rights implications, such as the right to freedom of expression, have been taken into consideration by the Court”

    As I’ve said elsewhere this is a meaninless clause as the courts would have to take Human Rights implications into consideration regardless of what this act said. Its also a disingenuous statement as the relevant clause also makes reference to

    “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.”

    If that is to be the “new regime” what problem is it addressing. Is it currently the case that copyright holders can’t get an injunction against a site hosting a substantial proportion (for arguments sake over 33%) of illegal content and have repeatedly refused to remove it? That doesn’t sound like the hardest case to make for an on notice injuntion.

  • “I also share the concern that “substantial” has not been defined — a concern compounded by previous corporate rightholder arguments that 1% (Napster) is substantial, see also Viacom’s claims against YouTube”

    Cory – has that position on substantial been upheld by any US courts? There is of course a vast difference between arguments made in front of a court and ones that are upheld :-)

    This bit in my post above
    “As I’ve said elsewhere this is a meaninless clause as the courts would have to take Human Rights implications into consideration regardless of what this act said. Its also a disingenuous statement as the relevant clause also makes reference to”

    Should go on to say “the right to property – so what it is asking the courts to do is balance the two. Not, as implied by this letter have especial regard to freedom of expression.”

  • Salim Fadhley 5th Mar '10 - 10:26am

    I’m curious about section 3:

    3. Where the copyright holder has made a reasonable effort to ensure that there are legal ways of accessing the content online

    Are you suggesting that a copyright owner would be prohibited from requesting this injunction unless the said material was already available online – Cory has already commented on the vagueness of the word “reasonable” when applied to this sort of undertaking. I too feel that there’s no objective standard of what counts as “reasonable” online distribution.

    It occurs to me that this well-intentioned clause might be utterly toothless since all that matters is that the copyright owner made a reasonable effort, rather than a successful effort!

  • “Cory has already commented on the vagueness of the word “reasonable” when applied to this sort of undertaking. I too feel that there’s no objective standard of what counts as “reasonable” online distribution.”

    It sounds a bit vague I’lll admit but the concept of reasonable steps/actions is well understood in legal terms. In the absence of any firm definition in the bill the assumption would be Parliament would want it to be interpreted in the way it usually is.

    @Cory – Thanks. I’m not sure that is the same as measuring a substantial proportion though. Did the court order everything illegal to be blocked? If so a 99% success rate isn’t compliance. If the court ordered “resonable steps to block a substantial proportion” then it might be analagous.

  • Briget, I am sure that the party receives more criticism than it can handle.

    So, perhaps it would be better to say “it acts on some criticism”.

    I have been critical about the Lib Dem approach to banking (as people probably know) but do not necessarily expect action in the short term

  • Well done Lib Dem Leadership; what a great way to alienate over 1,000,000.00 voters.

  • Can the Lib Dems and Pirates stand joint candidates, like the Labour and Co-operative parties?

    I for one would like to see Bridget Fox elected as the first Liberal Democrat and Pirate MP.

  • Charles Marsh 6th Mar '10 - 1:08am

    As I follow the debate in Australia over mandatory Internet filtering, I hope that the legislation never reaches their statute books. I hope that, not because I think it would hurt the UK, but because I think it would hurt the citizens of Australia. If the UK starts shutting itself off from the rest of the Internet solely over the issue of copyright, it’ll be us who suffer the nett loss.

    It’s obvious that sites like YouTube, Facebook and Google would never be blocked. Blocking any one of them would result in the collective outcry of several million people. But, will the High Court really protect sites like Wikileaks and Cryptome on human rights grounds alone?

  • Andrew Suffield 6th Mar '10 - 12:16pm

    If we have to have a Digital Economy Bill, at least put some good stuff into it! Go talk to (and more importantly, listen to) photographers and museums.

    This bit already happened, and a series of consultation reports were produced that listed a whole bunch of important and useful copyright reforms. The government, acting on the instructions of the media industry, ignored them all.

    It is an issue of undoing SEVERE DAMAGE to the credibility of the Lib Dems in the eyes of the public.

    This is unfortunate. It’s the result of a sadly common form of blinkered vision in regards to how the Lib Dems work. Since Labour and the Tories work on the basis of policy being handed down from the leadership, and that policy being the gospel which all party members endorse, everybody has this habit of assuming the Lib Dems work the same way – which is not even close to true. What we have here is a couple of peers who made a good faith effort to improve one aspect of the Bill, without attempting to fix all the issues. Their amendment was never representative of the party, and was always open to further improvements, but the media and the public have got this idea in their head that it must represent the final position of the whole party.

    I’m not sure what can be done about this. The fact that the Lib Dems are internally democratic makes it impossible for the first published anything to be representative of the party. We see this behaviour from the media all the time: a proposal is made, to start a discussion inside the party, and they all run stories as if it was a finished policy. We cannot, and should not, keep the discussions secret. What else can we do?

  • Andrew Suffield 6th Mar '10 - 9:41pm

    Not exactly the same scenario, but the same problem: people treating proposals by individuals as being party policy.

  • This is completely ridiculous. Also, it has just emerged that Lord Clement-Jones draws a salary from DLA Piper – a group of IP lawyers who have worked for the RIAA and the MPAA in the past. He is basically being bankrolled by people in league with the recording industries and pandering to special interest. It is disgusting. As far as I am aware, no word from Nick Clegg. No responses from Lib Dems on Twitter. I am seriously reconsidering my support for the coming election.

  • If one is not willing to respond to occasional Tweets, what’s the point of having a Twitter account? That aside. This bill is not just a little something to get a little upset about. It is about a Liberal Democrat peer sponsoring an amendment that strikes at the heart of liberal principles. An attack from within. Now, if the party leadership cannot even stand up to Conservatives in in sheep skin, how will they stand up to real ones?

    I believe that, on a matter of this magnitude, it is not too much to expect the leader of this party to react.

  • Arggh!

    In item 1 in the letter your quote of the proposed text talks about “substantial amount” of material and your defence changes this to “substantial proportion”! These **DO NOT** mean the same thing! YouTube for example might well (at any given time) host a “substantial amount” without it being a “substantial proportion”. It is this kind of sloppiness that gets bad and dangerous laws passed, particularly when most MPs are too lazy to turn up for the debates.

    This is a slippery slope – we have already seen the fact that ISPs agreed to Child Protection blocking used as an argument in this debate for copyright infringement blocking. Now we can expect this to be extended to blocking due to “super injunction” or the UK’s ridiculous sub-judice rules. Before we know it, most of the overseas internet will be blocked simply because someone somewhere on a huge site has said something perfectly legal in their own country but illegal in UK. And of course other countries will block UK sites because of some arcane local sensitivity. And of course rights holders will be able to use the threat of blocking to blackmail overseas sites into doing what they want.

    The media organisations are big enough and ugly enough to pursue infringing sites using the laws and jurisdiction of the countries hosting the sites!

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