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I’ve been saying since Day One the Three Strikes ‘law’, touted around the world by Hollywood/Big Music shills as individual government ‘iniatives’, is but final shout of the corporate entertainment cartels as they desperately try to bring how content is distributed online, and by whom, under their exclusive control.

And it, in turn, is part of ACTA, the cynical Anti-Counterfeiting Trade Agreement that’s just been dismissed out by European parliamentarians.

Now TechDirt’s Mike Masnick confirms some of the documentation openly used by the British government in its Digital Ecomy bill comes from the corporate record labels.

“UK Lords were looking to make the Digital Economy Bill even worse by adding a provision that would allow a judge to block all access to a website if that site was accused of facilitating copyright infringement” said TechDirt last week, going on, “After widespread outcry against the proposal in the UK, the Lords changed the proposal, but came back with an even more ridiculous proposal that would be even more stringent in allowing courts to shut down websites.”

Says a new TechDirt post,”We had already discussed the silly proposal to alter the already ridiculously bad (and also written by the entertainment industry) Digital Economy Bill, to allow the courts to block weblocker type sites, if they were regularly used to infringe on copyrights”, going on:

“Now some leaked documents are showing that it was a pretty blatant copy-and-paste job from the BPI, the UK’s equivalent of the RIAA. The BPI wrote up a draft and the politicians basically proposed it as is.”

But then, “when your role as a politician is to be little more than a sock puppet for the industry, it’s easier just to propose the legislation given to you”.

‘The BPI believes … ‘

Says Vivendi Universal, EMI, Warner Music and Sony Music’s BPI (British Phonographic Industry) in the document, as originally cited by Britain’s Open Rights Group >>>

DIGITAL ECONOMY BILL: CLAUSE 17

Background

The BPI believes it is vital that the Digital Economy Bill makes provision for reducing online copyright infringement taking place in both peer-to-peer (P2P) and non P2P environments. Clauses 4 to 16 of the Bill deal with P2P and Clause 17 tackles non P2P.  Clause 17 also makes provision for reducing infringement caused by future technologies.  However, the Clause has been criticised in some quarters, notably by the Delegated Powers Committee, and does not command support of the main opposition parties.

Following discussion with the opposition parties and the Bill team, the BPI proposes the following alternative approach for dealing with non P2P and future technologies.  We propose a wholly new Clause 17 which would have two component parts:

(1) an amendment to the Copyright, Designs and Patents Act 1988 (the “CDPA”) which would introduce a new Section 97B.  This Section would allow the High Court to grant an injunction requiring ISPs to block access to sites where there was a substantial proportion of infringing material.  The injunction would be granted only where rightsholders had first requested ISPs to block access to the site, and requested the site operator to take down infringing material.  Any concerns regarding Article 6 of the European Convention on Human Rights (the right to a fair hearing) are dealt with by the fact that the service provider would be a full and active party in the proceedings; and equally importantly the site operator will also be served with notice of the injunction application.  Furthermore, any issues around the E-Commerce Directive and Regulations (regarding limiting accessibility to any online location where legal and illegal content may be available) can be addressed.  By analogy with defamation law, a Court can order an injunction of an entire publication in circumstances where as little as one page of the whole work is defamatory.  Any infringing party can avoid such an injunction by removing the infringing part of the publication.  Equally under the proposed S97B, a partly infringing online location could avoid an injunction by removing the illegal content.

(2) an amendment to the CDPA (new Section 97C) giving the Secretary of State the power to periodically review the operation of S97B (and only 97B), and if necessary amend it in the light of technological developments which have occurred.  This provides a further level of “future proofing” to the legislation by allowing the injunctive relief available to the Court to evolve and to keep pace with technology.

Proposed Amendment to Clause 17 of the Digital Economy Bill

(Replace existing Clause 17,with the following:)
In Part 1 of the Copyright, Designs and Patents Act 1988 after section 97A insert–

97B.

(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.

(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 infringing content being accessed at or via that online location and/or taken reasonable steps to remove copyright infringing content from that online location,

(c)  whether the service provider has itself taken reasonable steps to prevent access to the specified online location, and

(d)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.

(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 such 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 etwork 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 Act1.

97C.  Power to amend section 97B following review of technological developments

(1)At the intervals specified in sub-section (9) below, the Secretary of State shall undertake a periodic review of the operation of section 97B of this Act in the light of technological developments which have occurred and which are likely to occur so as to enable copyright infringements by means of the internet, mobile data networks or other data networks in a manner not addressed by section 97B.

(2)Following completion and publication of such review, the Secretary of State may by order amend section 97B insofar as he reasonably considers such action necessary for the purpose of preventing or reducing infringements of copyright undertaken by means of the internet, mobile data networks or other data networks.

(3)The following provisions apply to the power conferred by this section.

(4)The power may be exercised so as to enable the Court to grant injunctive relief against a wider class of persons than service providers as defined in section 97B.

(5)The power does not include a power to create or modify a criminal offence.

(6)An order under this section must be made by statutory instrument.

(7)Before making any order under this section the Secretary of State must consult such persons who the Secretary of State considers are likely to be affected by the order, or who represent any of those persons, as the Secretary of State thinks fit.

(8)A statutory instrument containing an order under this section may not be made unless a draft of the instrument has been laid and approved by a resolution of each House of Parliament.

(9)The first periodic review referred to in sub-section (1) above shall be undertaken by the Secretary of State 18 months following the coming into force of section 97B. Subsequent review shall be undertaken on the completion of each 18 month period following publication of the previous review.

8 January 2010

Now you know.

Jon Newton