CyberLaw Blog

Archive for the ‘UK’ Category

Individuals will have to pay to contest copyright infringement warnings, Government says: “Internet users who risk being blacklisted as illegal file-sharers will have to pay £20 to appeal against warning letters they receive about their behaviour, the Government has said.“

(Via OUT-LAW News.)

Government scraps plan to block illegal filesharing websites | guardian.co.uk

Business secretary Vince Cable says site blocking is too cumbersome and unworkable, and work is being done on other ways to tackle online copyright infringement

Mark Sweney
guardian.co.uk, Wednesday 3 August 2011 11.37 BST

Vince Cable on Wednesday scrapped plans to introduce the blocking of illegal filesharing websites, arguing the a scheme proposed by last year’s Digital Economy Act is too cumbersome and unworkable, but said that some form of plan to bring down piracy sites is still being worked on.

A consultation document, launched by Cable, said that ministers intend to do more work on what other measures can be pursued to tackle online copyright infringement in an effort to stop widespread music piracy, which is increasingly spreading to television and film.

The business secretary said that people will also be able make copies of music and other media for personal use, confirming well-leaked plans to relax the current law that makes it illegal to copy the contents of a CD they own onto an iPod or other digital device.

‘This brings the law into line with, frankly, comon sense,’ said Cable, responding to the Hargreaves report on the future of UK copyright law, which recommended the changes back in May 2011.

‘A lot of this has to do with consumer freeedom. We need to have a legal framework that supports consumer use rather than treat it as regrettable. We can’t say that businesses should embrace technology but say to consumers they can’t use technology for products they have paid for.’

However ,Cable was not able to give detail on whether the new rules would apply to consumers using cloud services to store digital content on their portable media players, such as those launched by Google and Amazon in the US, adding that it would only apply for devices on a limited basis without infringing European law.

Cable recognised that more needs to be done to crack down on illegal filesharing to protect the copyright holders, but nevertheless backed down on introducing site blocking legislation to the DEA. ‘Music and film makers have to be able to take effective and justified measures,’ he said. ‘The basic philosophy is we do recognise the need for protection, but it has to be protection that’s proportionate to needs and based on evidence.’

Ed Vaizey, the communications minister, said that the existing measures were too cumbersome and unworkable to have a real impact. He said that a specially commmissioned Ofcom report into the feasibility of site blocking legislation proved that it was too elaborate and complicated to go through, adding: ‘We haven’t said no to site blocking per se, forever.’

Rights holders have heavily lobbied for the introduction of site-blocking legislation to curb digital piracy. However, Vaizey said that last week’s landmark high court ruling, which forced BT to cut off access to mass-piracy site Newzbin2, showed that there is a route forward if rights holders want to take it.

But he acknowledged that the court process can take a long time, pointing out that the system can never cope with an illegal website launching on a Friday to cash in on a live sport event and then disappearing on Sunday. ‘One of the things that is frustrating for rights holders is the length of time it takes for a court process,’ he conceded.

Vaizey has been aiming to broker a fast-track legal process for site blocking by holding a series of meetings between rights holders. The talks aim to find common ground so both sides can agree in advance if a website is in fact infringing copyright – as well as protect ISPs from any repercussions if rights holders are wrong in their allegations – so that long-winded and costly court cases can be avoided.

‘One of the things I’ve enabled is conversations between ISPs and rights holders,’ he said. ‘I want to see if ISPs and rights holders can come to agree a process to get facts together before going to court. The key point is up to court to make a [final] decision’.

Ministers still have available the ultimate sanction of disconnecting serial pirates, although under the DEA, they have to examine a variety of less penalties before they can introduce disconnection.

Initially, alleged pirates will be sent warning letters that identify them as being serial illegal downloaders from the second half of 2012 – more than a year later than originally anticipated.

Fearful that there could be thousands of time-consuming appeals by receipients of the letters, ministers said that consumers who wish to appeal will have to pay £20, in an effort to deter frivilous claims. The amount will be refundable if somebody receiveing a letter can prove their innocence.

The government has also asked Ofcom to begin establishing benchmarks and data on trends in online infringement as soon as possible.

Cable also said that plans for an Amazon-style digital copyright exchange, to create a kind of one-stop-shop for easily buying and selling rights, have been accepted in principle. The government has launched a feasibility study to see how the exchange will work.

‘[It will] serve as a genuine marketplace independent of sellers and purchasers, for example on the model of independent traders using Amazon.co.uk to sell goods, rather than simply being an aggregated rights database,’ the government said in its response to Hargreaves’ recommendations.

The government allayed a number of the fears that rights holders have raised, such as that forcing them to join may break European regulations, saying that it will be a compelling proposition to rights holders but not compulsory.

Intellectual property laws around parody, which are considerably more stringent than in countries such as the US, have also been relaxed to allow comedians, broadcasters and other content creators more scope – ensuring that spoofs such as the YouTube hit Newport State of Mind are no longer removed.

Vince Cable: government plans to block illegal filesharing sites unworkable

Mark Sweney and Josh Halliday
guardian.co.uk, Tuesday 2 August 2011 14.02 BST

Vince Cable, the business secretary, will say on Wednesday that government plans to block illegal filesharing websites under the controversial Digital Economy Act are in effect unworkable.

Outlining the government’s response to the Hargreaves report on the future of UK copyright law, Cable is also expected to announce legislation to sweep away restrictive rules on file copying and parody works.

In a speech at the British Library on Wednesday, the Liberal Democrat minister will outline the next steps for the introduction of the delayed Digital Economy Act.

Cable will row back on one of the act’s most contentious measures – introducing legislation to block access to copyright-infringing websites – and instead say that the existing Copyrights, Design and Patents Act is powerful enough.

That follows last week’s landmark high court ruling, which forced BT to cut off access to Newzbin2, a site found to be infringing copyright ‘on a grand scale’.

Cable’s intervention comes as ministers struggle to implement anti-piracy measures outlined by the Digital Economy Act rushed through by the Labour party at the end of its time in office.

The first warning letters to be sent to Britons accused of illegal filesharing are now not due until the second half of 2012 – more than a year later than originally planned.

A series of legal challenges have meant that cutting off the internet connections of serial pirates is unlikely to begin until 2013 at the earliest.

Cable is also expected to announce a ’scoping review’ into the viability of a setting up a digital copyright exchange, one of the key proposals of the Hargreaves report published in May – in effect kicking the idea into the long grass.

The rights exchange, which would effectively be a one-stop shop to make lawful use of copyrighted material easier, received ’serious pushback’ from media companies, according to one industry source. Film and music companies and broadcasters are understood to have raised a number of issues about the proposed exchange, including fears that it may contravene various European regulations by forcing all rights holders to participate. One industry source said that if it was a full ’stock exchange’ trading platform it may not generate as much revenue as selling rights directly.

The government is anticipated to legislate to sweep away many of the UK’s archaic intellectual property restrictions that make it technically illegal to transfer content from CDs or DVDs to other formats, such as iPods. The reforms will also make it legal for Britons to burn copies of music and video files for family members to use, and give legal protection to spoof works.

Cable has previously said that private copying is carried out by millions of people who are ‘astonished’ that it is technically illegal. He said: ‘We need to bring copyright into line with people’s expectations and update it for the modern digital world. This will free up innovative British businesses to develop new consumer technology and help boost economic growth.’

Cable is expected to outline further changes to the DEA, including how costs are apportioned between rights holders and ISPs. The judicial review ruled in April that ISPs should not foot the bill for setting up an appeals body.

Ed Vaizey, the communications minister, is understood to have set a date of mid-September to get ISPs and rights holders to another roundtable meeting aimed at curbing infringing sites voluntarily.

However, many rights holders are dismayed at the delays in implementing the Digital Economy Act. ‘What we would very much like is the government to get on drafting and writing the code that goes with the DEA and to fast-track the legal process so it doesn’t take hundreds of thousands of pounds and a long time to sort these things out,’ said Lavinia Carey, director general of the British Video Association.

England and Wales: blocking website sets bad international precedent · Article 19

ARTICLE 19: 01 Aug 2011

The High Court’s decision requiring British Telecom to block access to the file-indexing website, Newzbin.com sets a worrying international precedent against the right to freedom of expression.

The decision sets too low the threshold for ordering blocking, fails to properly balance the right to property with the right to freedom of expression, and shows no consideration for the chilling effect such a decision would have. Ordering the blocking of an entire domain name, as opposed to specific webpages, is also likely to breach the requirement for necessity in international law.

Although ARTICLE 19 supports development of clear standards related to online copyright infringement, the judgment of the English High Court on 28 July 2011 sets a worrying precedent which could have a dramatic chilling effect on legitimate online content. It is also highly likely to breach international standards of freedom of expression.

In a landmark ruling, given on 28 July 2011, an English High Court judge held that British Telecom (BT), the UK’s biggest internet service provider (ISP), must block access to Newzbin.com which provided links to pirated movies. The decision to block access to the site was made following an application by several Hollywood studios, who argued that it was the only way they could combat online copyright infringements by Newzbin2.

The judge held that a ‘website blocking’ injunction was available on the basis that BT knew that the users and operators of Newzbin.com ‘infringe copyright on a large scale and in particular infringe the copyrights of the studios in large numbers of their films and TV programmes’. The judge also found that BT subscribers were among those using Newzbin.com to receive pirated copies of the studios’ films and TV shows.

ARTICLE 19 notes with concern that the judge granted the ‘website blocking’ injunction not only in relation to the studios’ own films but also those of third parties who were not involved in the case, on the basis that there was no reason to believe that they would not support it. The judge accepted that the order would also prevent BT subscribers from making use of Newzbin.com for legitimate purposes, but considered that there was little evidence that the site was being used in this way.

The court concluded that the intellectual property rights of the rights holders ‘clearly outweighed’ the freedom of expression rights of the users of Newzbin.com, and ‘even more clearly’ those of the operators of Newzbin.com. The free speech rights of BT and its subscribers were also outweighed by the property interests of the studios.

BT had argued that, instead of blocking the entire site, it would be more proportionate for the studios to provide a list of specific URLs (webpages) to be blocked. However, the judge rejected this argument.

ARTICLE 19 believes that the high court order is very likely to breach international standards for the protection of freedom of expression, in particular the principle that any restriction on freedom of expression for a legitimate aim must be proportionate. Today’s ruling gives short shrift to this well-established principle as follows:

In its judgment, the high court failed to carry out a proper balancing exercise between freedom of expression and the right to property. In particular, the judge provided very little reasoning for his conclusion that the intellectual property rights of the studios ‘clearly outweighed’ the free speech rights of BT and its many UK users;

The threshold for granting such a ‘website blocking’ order was set very low, despite its obviously far-reaching consequences. In particular, the studios simply had to show that BT knew that one or more persons were using its service to infringe copyright, and that was sufficient to justify an order blocking the entire site;

Moreover, little or no consideration was given to the chilling effect that the order is highly likely to have on freedom of expression and the free flow of information on the Internet, especially legitimate online content. This is borne out by the overly broad terms of the order sought, which is directed to the website’s domains and sub domains rather than specific URLs deemed illegitimate. In ARTICLE 19’s view, any order seeking to block access to domain names as a whole rather than specific URLs is very likely to breach the requirement of necessity under international law. In this respect, ARTICLE 19 also points out to a July 2011 report by the OSCE Special Representative for Freedom of the Media said that ‘Arguably, the practice of banning access to entire websites, and the future publication of articles thereof (whose content is unknown at the time of access blocking)goes beyond ‘any notion of ‘necessary’ restraint in a democratic society and, instead, amounts to censorship’.

ARTICLE 19 urges the establishment of clear legislative standards in this area in order to strike a fairer balance between the interests of rights holders and Internet users and better protect freedom of expression on the Internet.

NOTES TO EDITORS:

For more information please contact: Gabrielle Guillemin, Legal Officer, gabrielle@article19.org or +44 20 7324 2513
The full text of the judgment can be found at http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/twentieth-century-fox-film-corp-others-v-bt.pdf
For the report of the OSCE Special Representative for Freedom of the Media on Freedom of Expression and Internet, see http://www.osce.org/fom/80723

BT on site-blocking: Every case will need a court order: “

Pick on our freetards over our cold dead corpse

BT’s head of retail Simon Milner came out swinging after the legal setback over web-blocking. While admitting the company is ‘not deliriously happy’, it welcomes a clarification. And BT won’t be appealing the decision.…

Free Whitepaper: Implementing Energy Efficient Data Centers

“

(Via The Register – Comms.)

Hollywood Wins Court Case – ISP Ordered to Block NewzBin2: “

While major entertainment corporations are working hard at censoring the internet in the United States through the PROTECT IP Act, it corporate sponsored censorship has already become a reality in the UK thanks to what some have referred to as a landmark court case.

Legally speaking, the internet got a little more censored recently. The Telegraph is reporting that Hollywood has won a major court case in which they are now, for now, able to compel ISPs to block access to, really, any website they pick and choose in the name of combating copyright infringement. At stake was general access to a website known as NewzBin2.

NewzBin2 is a website that offers an index of NZB files. NZB indexing sites are generally simply a list of small files that are merely metadata. The NZB files points to a file made available on one of the oldest known file-sharing networks that is still used quite a lot – UseNet. The file is a bit like a .torrent file, only the file is on a server – or maybe several servers – instead of on other people’s computers. The actual downloading typically doesn’t happen on the NZB indexing site nor is the NZB indexing site keeping track of any data flowing to and from the user.

An NZB file may be convenient, but it simply isn’t necessary for downloading anything on UseNet (access to UseNet providers, sure, but not the NZB file)

So, knowing this, the only thing the court ruling really does is enable Hollywood to censor the internet in the UK. Blocking NewzBin2 will amount to nothing in the end except maybe a temporary minor inconvenience for some people. Many already point to the fact that an encrypted connection will circumvent whatever the ISP throws down against its own users – and if you’re using UseNet regularly, there’s a good chance you’d know about how to hide your connection from ISP level censorship anyway, I think.

What is a little disconcerting is what the judge said in his ruling. From the report:

‘In my judgment it follows that BT has actual knowledge of other persons using its service to infringe copyright: it knows that the users and operators of Newbin2 infringe copyright on a large scale, and in particular infringe the copyrights of the Studios in large numbers of their films and television programmes,’ said Justice Arnold.

In opposing the order, BT had argued that Newzbin2 also links to lawful content, but the court said it was far outweighed by pirated material and that ‘BT’s best shot was to point to a reference to the 1891 Lancashire census’.

If the judge is suggesting that ISPs know what everyone on their network is doing, then isn’t that like saying that the operators of a major subway network know exactly where everyone in the network is going? Sure, whoever is controlling the network might be able to track a handful of individuals, but trying to track every person is way too demanding as the amount of man hours to make sure it knows the movements of every user is simply impractical.

Even scarier is the suggestion that lawful content is no excuse to stop the blocking of a website. It’s very difficult to really know where to begin with that. How much content has to be infringing in order for the website to be blocked? Will it have to be more than 50% infringing content? 25% infringing content? One song that happens to have three notes that are similar to another song? Where’s the bar set here? That point is not reflected in the report and if the judgement doesn’t specify what the level is, it’s not completely illogical to suggest that Hollywood can really block every website in existence. How many websites have at least a reference to copyrighted material (i.e. a message on a forum saying ‘Listening to Kiss right now.’)?

The amusing part is the fact that the censorship of NewzBin2 will be put in place in the Fall. No doubt this will give NewzBin2 plenty of time to figure out how to bi-pass this measure for it’s UK users. Even better is the fact that this only affects BT currently and similar motions will be brought to other ISPs. I don’t see how NewzBin2 simply changing it’s website to another name for its British users won’t defeat this in any way. Call the site ‘Fuzzybunniesjumpinginthefield.com’ and allow access to the NewzBin2 services. If you plan on finding ways to circumvent British censorship in order to download the entire Adbobe Suites in the future, you only have until the end of the Summer holidays to figure it out!

In the end, this will do little more than damage the internet infrastructure as more methods to circumvent censorship measures will be developed. Activities like this will probably have an affect on users wanting to use the internet for legitimate purposes, but it’s unlikely that this will even come close to putting a dent on file-sharing.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.”

(Via ZeroPaid.com.)

High court forces BT to block file-sharing website | Technology | guardian.co.uk

Win for Hollywood studios as UK high court rules BT must block access to Newzbin2

Mark Sweney and Josh Halliday
guardian.co.uk, Thursday 28 July 2011 10.58 BST

Hollywood film studios won a landmark UK high court ruling on Thursday forcing BT to block access to an illegal file-sharing website accused of operating ‘on a grand scale’.

The Motion Picture Association, the trade body whose members include Warner Bros, Fox, Disney and Paramount Pictures, has been granted an order requiring BT — the UK’s biggest internet service provider — to block its customers’ access to the website Newzbin2.

Thursday’s verdict will be viewed by the creative industries as a landmark that could set a precedent for the widespread blocking of illegal filesharing websites by ISPs, helping to stem the flow of digital piracy in the UK.

‘In my judgment it follows that BT has actual knowledge of other persons using its service to infringe copyright: it knows that the users and operators of Newzbin2 infringe copyright on a large scale, and in particular infringe the copyrights of the studios in large numbers of their films and television programmes,’ said Justice Arnold in his ruling at the high court in London.

‘[BT] knows that the users of Newzbin2 include BT subscribers, and it knows those users use its service to receive infringing copies of copyright works made available to them by Newzbin2,’ Arnold added.

BT had argued that forcing it to ban its 6 million UK customers from accessing a website would usher in a new wave of online censorship.

However, the creative industries claim website blocking could save them hundreds of millions of pounds in illegal downloads.

The MPA said that Newzbin2 makes unlawful copies of television programmes and films, and receives in excess of £1m a year from its 700,000 users.

‘This ruling from Justice Arnold is a victory for millions of people working in the UK creative industries and demonstrates that the law of the land must apply online,’ said Chris Marcich, MPA managing director for Europe, the Middle East and Africa. ‘This court action was never an attack on ISPs, but we do need their cooperation to deal with the Newzbin site, which continually tries to evade the law and judicial sanction.’

The film industry’s fight to block Newzbin stretches back to March last year, when the high court ordered the site to take down all of its pirated material and pay damages to the studios.

The three men behind the Newzbin Ltd – Chris Elsworth, Thomas Hurst and Lee Skillen – sold all of their shares in the company to David Harris shortly before the trial. Newzbin Ltd went into administration shortly after the ruling and avoided the huge payouts.

Months later a clone site appeared operating anonymously from Sweden. Rights holders said they had no choice but to force BT to block UK users’ access to the website, saying all other legal avenues had been exhausted.

Simon Milner, director of group industry policy at BT, said the latest judgment means rights holders will now have to prove in court that a website infringes copyright before it is blocked.

Milner added that the judgment puts the Digital Economy Act voluntary blocking scheme, drawn up at industry roundtable meetings earlier this year with Ed Vaizey, the culture minister, in an uncertain position.

‘[The judgment] is actually helpful and we welcome it because it clarifies a complex area of law and shows that rights holders can use the copyright laws in this country. It means they have to prove a site is infringing before [a] court and get a court order,’ he said.

Milner declined to reveal how much it will cost ISPs such as BT to block infringing websites.

Review into viability of website blocking rules to be announced soon, Government says: “A report into a whether website blocking measures are viable is to be published shortly, the Culture Minister has said.“

(Via OUT-LAW News.)

Foreign Office to hold talks on whether internet access is a human right – 14 Jul 2011 – Computing News

by Gareth Morgan
14 Jul 2011

The Foreign and Commonwealth Office will host a multidisciplinary meeting next week exploring the UK’s policy towards freedom of expression on the internet.

The first meeting, which will be led by Jeremy Browne, minister for state at the FCO, takes place on 20 July. It will include representatives from human rights campaigners.

Internet access has become a defining feature of the Arab Spring protests – a wave of revolutions and protests in the Arab world – with several regimes blocking citizens’ internet access in an effort to quell protests.

That has resulted in widespread calls from human rights campaigners for governments to acknowledge the critical role the internet plays in people’s lives.

In early July 2011, the UN-affiliated Organization for Security and Co-operation in Europe (OSCE) called for internet access to be treated as a fundamental human right.

‘Some governments already recognise access to the internet as a human right. This trend should be supported as a crucial element of media freedom in the 21st century,’ said Dunja Mijatovic, an OSCE’s spokesman.

The UK government has recognised the increasing importance of internet access, even if it lacks a formal stance on whether it counts as a human right.

In a parliamentary written answer, Foreign Secretary William Hague said the government were committed to supporting people’s right to access – and express their views on – the internet.

‘[We] will continue to encourage states that restrict access to online media to uphold their international human rights commitments,’ he said.

BBC News: UK looks to US on piracy blocking

5 July 2011 Last updated at 15:21 GMT
UK looks to US on piracy blocking
Footballs, AFP/Getty Ways to stop websites illegally streaming sports matches should be investigated, said Ed Vaizey

Websites hosting pirated material could be blocked in the UK if the US introduces a similar system, according to culture minister Ed Vaizey.

He told a conference in London that internet providers in the States were ‘rumoured’ to be considering a voluntary filtering.

Such an agreement would be a ‘game changer’ elsewhere, said Mr Vaizey.

There have been no official announcements from the US to substantiate the minister’s claim.

To date, UK ISPs have resisted pressure from rights holders to police their users.
Odd attitude

Mr Vaizey struck a bullish note on the subject of copyright during his keynote speech at the Intellect Consumer Electronics conference.

‘If people are streaming live football without permission we should look at ways we can stop them,’ he said. ‘People have the right to earn money from content they create.’

However, he remained tight-lipped on what came out of last week’s meeting between UK ISPs and content providers to discuss website blocking.

Mr Vaizey’s suggestion that similar talks were taking place in the US was clearly intended to move forward the debate at home.

‘A voluntary agreement may come out of the US and if that does happen it could be a game-changer,’ he said.

In a dig at ISPs, he said he found ‘their attitude odd’, especially BT and TalkTalk’s failed legal challenge to the Digital Economy Act (DEA).

The DEA is aimed mainly at preventing piracy via peer-to-peer file-sharing but as people move away from that route, it also makes provision to block access to some websites.

It allows content providers to apply for an injunction against ISPs that do not restrict access to illegal streaming sites.

The Motion Picture Association has done just that, taking BT, the UK’s largest consumer ISP, to court over linking to members-only index site Newzbin.

The MPA wants BT to block Newzbin with the same system that stops access to sites hosting child sex abuse images.

The members-only website aggregates a large amount of the illegally copied material found on Usenet discussion forums.

The case is due to be heard next week.
Free speech
Mulberry handbag, Getty Few would complain about sites peddling fake handbags, said Mr Vaizey

Another conference speaker Neil Berkett, the chief executive of Virgin Media, said there was no current agreement between UK content providers and ISPs.

‘We still have a way to go to create an environment where the two sides see eye-to-eye,’ he said.

‘How do you ensure that content is protected in an age where a whole generation thinks that stealing is just fine?’ he asked.

‘Beating them over the head with a stick is not a good start. What is needed is models that encourage people to change their behaviour, subscriptions that are cheap enough so that people think ‘I’m better off getting a full array of quality music’ ‘, he said.

The US government has pledged to pursue those who link to illegal streaming sites, including extraditing individuals from other countries.

The issue has attracted some high-profile critics, such as Google chairman Eric Schmidt.

He vowed that the search engine would fight any attempts at web blocking. He warned that putting blocking measures into legislation would set a dangerous precedent for censorious governments around the world who might be tempted to use it as a political tool.

Mr Vaizey said that critics of website blocking displayed a degree of hypocrisy.

‘They [the US government] have been tough but if they took down a website linking to fake handbags no-one would bat an eyebrow,’ he said. ‘As soon as it is a site sharing music it becomes an issue about freedom of speech.’