Tag: 3strikes

The strange, hypocritical attitude of the Irish Government to copyright, the internet and citizens

[Updated, at end] The introduction yesterday of an amendment to the Copyright & Related Rights Acts has been in the works for a long time (posts here, here and here). The issue has generated quite a bit of heat on both sides and the Government would do well to observe that opponents to the law have not held a monopoly on intemperate comment.

The amendment was destined to be introduced by statutory instrument and the concerns of any critics were always going to be ignored but the attitude of Séan Sherlock, junior Minister for Research & Innovation, to the issue is strange and contradictory.

His announcement of the new law contains a significant dig at those who opposed the statutory instrument the Government has just introduced.

I urge all interested parties on all sides to come together and work in a constructive and realistic way to the benefit of all.

This is a boggling statement. Like any campaign there was a lunatic fringe that fired off ill-informed comments. But most opponents were relatively well organised and the Minister met with representatives of some of them (read Michele Neylon’s account here). So, at least some “sides” came together. The Stop Sopa Ireland campaign was up and running in a very short time and, unlike most campaigns of opposition, actually proposed alternative wording to the Minister.

A key paragraph in that alternative wording would have included an obligation on a court to carry out a balancing act when considering whether or not to grant an injunction to a copyright owner.

In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction (including the freedom to conduct business, the right to protection of personal data and the right to receive or impart information) and the court shall give such directions (including a direction requiring that persons likely to be affected be notified of the application) as the court considers appropriate in all of the circumstances.

It appears that Minister Sherlock considers such a proposal to be non-constructive and part of a campaign of setting the “dogs” on him. However, a few weeks ago the Minister bizarrely “welcomed” the decision of the European Court of Justice in Sabam v. Netlog with the following comment:

[T]his decision … reiterate[s] that, in the context of measures adopted to protect copyright holders, national authorities and courts must strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures …

I welcome today’s decision from the European Court of Justice. This will provide further clarity to Irish courts in adjudicating such matters.

What would also have provided clarity to Irish courts in adjudicating such matters is a clause like the one included in the alternative wording submitted to Minister Sherlock.

Instead, a bare-bones statutory instrument has been used to amend the Copyright & Related Rights Acts providing none of the clarity that the Minister otherwise appears to favour.

[Update 7 March 2012] A recent press release by Minister Sherlock’s party colleague, Phil Prendergast MEP demonstrates what appears to be quite a different attitude to citizen engagement with copyright reform.

Commenting on the referral of the Anti-Counterfeiting Trade Agreement to the Court of Justice of the European Union, Ms Prendergast says:

This extraordinary u-turn by the European Commission, who had up until now dismissed legitimate concerns, demonstrates that engaged citizens and civil society groups can have a decisive impact on politics, especially when fundamental freedoms are at stake.

Not under Labour in Ireland, it would seem.

Stop SOPA Ireland

I’ve written some posts before on Irish developments in the music industry’s new approach to copyright infringement (targeting ISPs). A ministerial order which would provide the courts with wide, unspecified powers to control internet companies seems to be on its way. It has spurred an impressive grassroots protest movement into action, taking its name from the similar, recently-stalled US proposals.

Read about the issue here:

Stop SOPA Ireland

The huge Government majority means that any such debate would almost inevitably result in the law being passed by the Oireachtas anyway. Nevertheless, the issue should be publicly debated by the Government as it pits the interests of a small industry (Irish record companies) against those of an industry that is hugely significant for the “smart economy” (Google, Facebook, Twitter, YouTube, etc).

It’s also worth bearing in mind the quality of evidence often advanced by the record industry when seeking in junctions, as indicated by this post by Justin Mason.

Why does all of this matter? I again quote Cory Doctorow.

… I don’t care if you want to attempt to stop people from copying your work over the internet, or if you plan on building a business around this idea. I mean, it sounds daft to me, but I’ve been surprised before.

But here’s what I do care about. I care if your plan involves using “digital rights management” technologies that prohibit people from opening up and improving their own property; if your plan requires that online services censor their user submissions; if your plan involves disconnecting whole families from the internet because they are accused of infringement; if your plan involves bulk surveillance of the internet to catch infringers, if your plan requires extraordinarily complex legislation to be shoved through parliament without democratic debate; if your plan prohibits me from keeping online videos of my personal life private because you won’t be able to catch infringers if you can’t spy on every video.

Battle of the Bakers: Round 2 (and an interesting update re Round 1)

I had assumed that the McCambridge v. Brennan brown bread case was solely one of intellectual property infringement but the judgment of Mr Justice Peart, which has now been published, shows that there is more to it (an Irish Times report of the case is here).

Indeed, Peart J notes that McCambridge do not “have any proprietary rights as such over that type of re-sealable bag, its shape or indeed the shape and size of the loaf of bread inside.” The company itself accepted that it does have such proprietary rights, nor rights over the shape and colour or ingredients of the bread itself.

Notwithstanding that, Peart J agreed that the overall impression on consumers satisfied the conditions for passing off (a form of action used to protect unregistered intellectual property rights).

[I]t would take more care and attention that I believe it is reasonable to attribute to the average shopper for him or her not to avoid confusion between the two packages when observed on the shelf, especially when these are placed adjacently or even proximately so.

Peart J indicated that an injunction should be granted to prevent further passing off. However, the interesting element of the case comes next: he also considered whether McCambridge are entitled to an injunction under section 71 of the Consumer Protection Act 2007 on the basis that Brennans were engaging in a misleading commercial practice.

The Minister for Jobs, Enterprise & Innovation recently announced a planned overhaul of consumer legislation, arguably ignoring that the 2007 Act was supposed to be just that (I wrote about it here in April 2011). The 2007 Act was quite significant, but appears to have been barely used, particularly by the National Consumer Agency. Indeed, Peart J states that they held a watching brief in McCambridge v. Brennan but, strangely, adopted “a neutral position”.

(The failure of the Agency to adopt a position is reminiscent of the refusal of the Data Protection Commissioner to involve his office in the EMI v. eircom case. Ironically, he recently went on to order eircom to halt the three-strikes system which resulted from that case.)

Peart J decided that McCambridge were not entitled to an injunction under section 71, apparently (my interpretation) on the basis that the design of its packaging was not a commercial practice involving marketing or advertising.

Peart J was to hear the parties in relation to the exact terms of his proposed injunction, but the decision to grant an injunction has since been appealed to the Supreme Court by Brennans.

As stated, my interpretation of Peart J’s comments (at paragraph 45) is that an injunction was not available because packaging was not “marketing or advertising”. I would have thought that the European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 were aimed at preventing misleading advertising and that the (quite similar) provisions of the 2007 Act were of broader application such as would capture packaging. The 2007 Act is the Irish implementation of the Unfair Commercial Practices Directive which, in the UK, was implemented by statutory instrument. Guidance from the UK’s Office of Fair Trading gives the following example of a prohibited practice:

A trader designs the packaging of shampoo A so that it very closely resembles that of shampoo B, an established brand of a competitor. If the similarity was introduced to deliberately mislead consumers into believing that shampoo A is made by the competitor (who makes shampoo B) – this would breach the [Regulations].

Of course, Peart J had decided that Brennans’ passing off was not deliberate, and so could not have found them to have intended to “deliberately mislead consumers”. Nevertheless, it appears to be a case where the views of the Consumer Protection Agency would have been of use.

Department of Jobs, Enterprise & Innovation (brief) consultation on filesharing injunctions

[Updated 23/06/11] In the (literally) last days of the previous Government, a rumour shot around that the then Minister for Enterprise, Trade and Innovation was about to sign a statutory instrument into law which would address the gap in the law criticised by Mr. Justice Chartleton in the EMI & ors v. UPC case.

A firm denial was issued by the Minister but I’m not sure anyone really believed that a draft SI wasn’t floating around somewhere. Anyway, the newly-titled Department of Jobs, Enterprise & Innovation has put a draft SI out to consultation. The relevant SI text is below.

~~Deadline for submissions is 1 July 2011: less than 2 weeks from today. That’s pretty swift consultation by any standard.~~ Apparently the Department received a number of requests for an extension to the consultation period, so the new deadline for submissions is Friday 29 July 2011.

New section 40(5A) of the Copyright & Related Rights Acts:

(5A)(a) without prejudice to subsections (3) and (4), the owner of the copyright in the work concerned may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (3) where those facilities are being used by one or more third parties to infringe the copyright in that work.

(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.

New section 205(9A) of the Copyright & Related Rights Acts:

(9A)(a) without prejudice to subsections (7) and (8), the rightsowner may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (7) where those facilities are used by one or more third parties to infringe any of the rights referred to in Parts III and IV.

(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any third party likely to be affected and the court shall make such directions (including, where appropriate, a direction requiring a third party to be put on notice of the application) as the court may deem necessary or appropriate in all the circumstances.

Thanks to Ronan Lupton for bringing the consultation to my attention.

Has the Irish Government introduced #3strikes legislation? (Update: No)

[Updates at end] It appears that the Irish Government has implemented or is about to implement a significant change to the Copyright & Related Rights Acts 2000 to 2007 by statutory instrument on the eve of an election.

Silicon Republic reports:

In its final days, the Government is believed to be rushing through a statutory instrument that will amend the existing Copyright Act and which will give judges the power to grant injunctions against ISPs in relation to copyright infringement cases.

The demands for the change came about as a result of Mr. Justice Charleton’s decision in EMI v. UPC last year, when he ruled that Irish law did not allow him to grant such injunction “even though that relief is merited on the facts.”

The decision led to frantic lobbying on the part of record companies and a media campaign on this issue, including dramatic statements from Paul McGuinness that the issue “has got to do with the future of civilisation”.

With the range of other problems facing the Government the issue did not get much priority. The election manifestos of Fine Gael and the Green Party suggest that they are conscious of the issue with FG appearing to support the industry and the Greens appearing to support the consumer.

If accurate, there are many problems with this amendment and TJ McIntyre outlines them in his comments to Silicon Republic. However, whether or not the contents of the amendment to the Acts are agreed with, it is shocking that the Government is proposing to introduce such a contentious change by way of statutory instrument with hours to go before an election.

A statutory instrument is defined as “an order, regulation, rule, scheme or bye-law made in exercise of a power conferred by statute”. Section 7 of the Acts appears to provide reasonably wide scope for the introduction of regulations but it is likely be a topic for debate as to whether the reported change fits within or exceeds that provision.

Ironically, Charleton J. stated in his judgment:

Legislative intervention is required, if the Oireachtas see fit, to protect constitutional rights to copyright and foster the national resource of creativity. (my emphasis)

Updates (24 February 2011)

Acting Minister for Enterprise, Trade & Innovation Mary Hanafin has said that there “is no truth in the rumour” that an amendment to the Copyright & Related Rights Acts will be passed before the election. The press Minister expects the next Government to consult on the issue before such an amendment is made.
However, an story from the original source of the rumour earlier today said that the Department “neither confirmed nor denied that a statutory instrument was being pushed through, but said “it may be necessary” to introduce measures to clarify Ireland’s position under the Copyright Directive in relation to injunctions, thanks to the recent court case involving UPC and the music industry.”
Simon Coveney, a front-bench member of Fine Gael, tweeted about the issue earlier. Fine Gael is highly likely to introduce the amendment following the election but not, one hopes, by way of statutory instrument.

Election 2011: Privacy, intellectual property & the internet

With so much of the electoral attention focussed on crisis management, it is easy to ignore other aspects of each party’s manifestos (or the absence of same in the case of many independents).

It is worth checking these manifestos for references to any issues you have a particular interest in: you might be surprised at what you find. Luckily, blogs like Maman Poulet and Human Rights in Ireland are keeping an eye on the aspects of the party manifestos not concerned solely with bond-burning.

Crowd checking the 1931 general election results, Willis Street, Wellington, 1931 — Election night results, pre-Twitter

Our courts and citizens are having to deal with an increasing number of issues under our privacy, data protection and intellectual property laws, so I had a look at the parties’ positions in these areas. If I have missed anything, please let me know in the comments, along with suggestions as to what the manifestos should contain.

Fine Gael

FG would “review and update Intellectual Property legislation currently in place to benefit innovation.” This commitment is vague and suggests that the party is aware of issues but hasn’t thought about any solutions yet.
FG would “clarify the laws relating to on-line copyright infringement and the enforcement of rights relating to digital communications”. This probably refers to the consequences of the IRMA litigation (contrast with the Green Party manifesto, below). Again, the party does not appear to be ready to offer solutions.
What is meant by “the enforcement of rights relating to digital communications”? Does it refer to data retention or freedom of speech? The sentence is somewhat worrying in the absence of elaboration.
FG will revamp the Patents Office website. This is a bizarrely specific proposal, by contrast with the other high-level proposals.
The consultancy industry will be delighted to learn of plans for “an E-day on January 1st, 2016 by which all government services to business will be on-line only.”
FG would “develop Ireland as a ‘Digital Island’ and first-mover when it comes to information technology.” One might be forgiven for thinking that is an aspiration that is somewhat unrealistic in 2011.
FG would introduce a national DNA database. The process of doing so had already been started by the outgoing administration.
The party proposes a Circuit Commercial Court along the lines of the existing Commercial Court but which deals with smaller-value commercial disputes (the Circuit Court can generally hear cases for claims worth up to €38,092.14)

Labour

Labour’s Innovation Strategy Agency would, among other things, “make Ireland a world leader in the management of [IP]”.
Labour “supports the development of an International Content Services Centre in Ireland, and its potential to make Ireland a European hub for the dissemination of Intellectual Property.” This was, in fact, a commitment of the renewed Programme for Government agreed by Fianna Fáil and the Green Party in October 2009. It is also firmly in Your Country, Your Call territory: one of the winning YCYC proposals was to establish an ICSC. The competition winners were announced in September 2010, almost one year after the establishment of an ICSC became Government policy.
Labour propose to introduce civil orders against serious offenders following conviction, for example, restrictions on the use of the internet by those convicted of child sex offences.
Labour wants to make Ireland a headquarters location for data centres and cloud computing. The party would establish an expert group to review security and privacy issues arising from these areas. A data protection review group established by the Minister for Justice 2008 published a report in 2010. The EU is also currently reviewing the Data Protection Directive (Irish law implements the Directive) and cloud computing is one issue under review in that context.

Fianna Fáil

I will not be the first to suggest that the FF manifesto consists primarily of a defence of the outgoing Government’s policies and lists of achievements since 1997. It is not surprising, therefore, that party does not appear to offer much in the areas of privacy, IP and the internet.

No direct reference is made to copyright, data protection, privacy or the internet (not one instance of the word internet in the whole manifesto, though commitments are made about broadband). One, incidental, reference is made to IP in the context of publicly-funded research. While FG want to clarify the law on exploiting IP developed by third level institutions, FF want the outcomes of publicly-funded research to be made freely available “save where there are specific commercial intellectual-property issues.”

FF commits to supporting research and development and to continue use of the innovation voucher system to help small businesses acquire R&D.
Like the Labour party, the FF manifesto commits to fostering cloud computing services. It also commits to establishing the International Content Services Centre (as already mentioned, this has been Government policy since 2009).

Green Party

The Greens would “[p]revent private organisations from intruding into a citizen’s privacy”. The Data Protection Acts 1988 and 2003 already do this in general terms, but I assume that the Greens are proposing either reform of those Acts or the implementation of some form of specific privacy law, as was proposed but not implemented by the outgoing administration.
The Greens would prevent organisations from “summarily punishing citizens for alleged illegal activities and from interfering with citizens’ legitimate and legal uses of content.” Again, a little interpretation is required, but I assume this suggests that the Greens would deal with the consequences of the IRMA litigation in a manner which favours citizens over companies. As Minister for Communications, Eamon Ryan said that he was seeking the advice of the Attorney General in this area but his holding statement to the Dáil last year did not indicate any thinking along the lines of what is now contained in the manifesto.
The party would “[u]pdate the role of the Data Commissioner to ensure evolving technologies are in check with the rights of Irish citizens.” This might refer to increased enforcement powers, which would be welcome.
The party would completely oppose the introduction of software patents.

Sinn Féin

The SF manifesto makes no direct reference to copyright, intellectual property, data protection, privacy or the internet. However, the party would “focus on creating new jobs across the agri-food, tourism and IT/pharma sectors, and Research and Development as well as with initiatives that will ensure Ireland becomes a world leader in green energy.”

Strike One?

This week’s big intellectual property news was the judgment of Mr. Justice Charleton in EMI & ors v. UPC. The case was the latest plank in the record industry‘s campaign to force the introduction of a graduated response to online copyright infringement.

Charleton J’s judgment is long and there is a lot to get through. I haven’t had the opportunity to read the judgement fully but a few highlights already stand out:

Evidence was adduced by the plaintiffs to justify claims that many thousands of tracks are illegally downloaded. Justin Mason looks at some of those claims and finds that, by the same logic, an album he invented on the spot has been downloaded 24,752 times. This evidence, which appears to be highly flawed, has already been represented as fact in the Seanad.
In 2009 Charleton J granted an order requiring eircom to block access to The Pirate Bay. As noted by TJ McIntyre at the time, the judgment was of limited value as it was not opposed by eircom and was delivered ex tempore. Simon McGarr points out that Charleton J now finds he was incorrect in granting that order. According to his latest judgment:

I regret that my previous judgement in the matter was wrong. The legislative basis enabling me to act in that way does not exist in Irish law as it exists in other European jurisdictions.

If eircom had contested that order, Charleton J may have been in a position to reach the decision now indicated in the UPC judgement. It’s an important point, as he also gave judgment clearing data protection concerns raised by the Data Protection Commissioner in relation to the graduated response settlement. That case was similarly unopposed and the Commissioner did not appear due to cost concerns.
Charleton J has repeatedly characterised online copyright infringement as theft and anyone engaged in downloading files in breach of copyright to be in the criminal sphere. Eoin O Dell draws attention to interesting posts on the question of whether or not copyright infringement is theft.

Why people care about The Record Industry v. The Customer

Cory Doctorow makes some good points on the use and abuse of copyright law, in response to some pretty churlish criticism recently directed his way. I particularly liked this:

… I don’t care if you want to attempt to stop people from copying your work over the internet, or if you plan on building a business around this idea. I mean, it sounds daft to me, but I’ve been surprised before.

But here’s what I do care about. I care if your plan involves using “digital rights management” technologies that prohibit people from opening up and improving their own property; if your plan requires that online services censor their user submissions; if your plan involves disconnecting whole families from the internet because they are accused of infringement; if your plan involves bulk surveillance of the internet to catch infringers, if your plan requires extraordinarily complex legislation to be shoved through parliament without democratic debate; if your plan prohibits me from keeping online videos of my personal life private because you won’t be able to catch infringers if you can’t spy on every video.

Via Adrian Weckler.

A known unknown in eircom’s “three strikes” system

Adrian Weckler has published a copy of the intended notification to be issued by eircom to its customers when accused of unlawful filesharing by the Irish recording industry (represented by IRMA). It is, as warning letters go, extremely polite.

I mentioned last month that this “three strikes” system agreed between IRMA and eircom was approved by the High Court (for data protection purposes) on the basis that IRMA would not know “that the infringer is a particular person living in a particular place in Ireland”. In fact, Charleton J. said that all IRMA will “know is that a particular IP address has been involved in the downloading.” However, it appears that DtecNet, who will collect IP addresses for IRMA, has the capability to collect more information than just IP addresses. Whether such capabilites are to be used as part of the IRMA/eircom system is not known.

My suspicions were raised by eircom’s statement on their website that IRMA will send notifications to eircom “containing among other things the IP addresses of individuals”. Such suspicions could be unfounded; for example, IRMA might be sending eircom a list of shared files along with the IP addresses and that information might not be personal data.

However, the template letter reproduced by Adrian says:

Some of the details of the notification supplied by IRMA are set out below …

Is it not strange that eircom repeatedly notes that IRMA will be supplying them with more details than are apparently necessary for the purposes of the three strikes system.

What are those details?

Details of eircom’s 3-strikes system, but who will know what?

The graduated response system to tackle unlawful filesharing online, agreed as part of an out-of-court settlement between the Irish recording industry and eircom, was approved by the Irish High Court last month. Mr. Justice Charleton’s judgment concluded that the “parties can … lawfully proceed to implement the settlement”, though his judgment relates only to the specific question of compatibility with the Data Protection Acts 1988 and 2003.

© Time Magazine — Strike 1 to the record industry

eircom has now implemented the graduated response system on a pilot basis and details are available on its website. The FAQs say that IRMA will supply eircom with IP addresses which eircom will match to its customers, who will then receive warnings about alleged unlawful downloading. If warnings are ignored, service may be suspended for 7 days and the customer will not be charged for those 7 days of lost service. On a subsequent alleged infringement, service will be withdrawn for 12 months. If a customer disputes an allegation that their service has been used for unlawful downloading, they can appeal to the eircom, who “will consider all customer appeals on a case by case basis.”

The concerns about graduated response primarily arise out of disconnection on the basis of complaint, rather than court order, and that the sanction affects an entire household, rather than the individual alleged infringer. The latter point has gathered steam as the internet has taken on utility status. IRMA’s attitude to this is clear:

The European Parliament has been talking about internet access as a basic human right. It absolutely is not.

Dick Doyle, IRMA Director General

eircom emphasises that customer data will not be shared by eircom with any other party.

Under no circumstances will eircom be handing over customer details to any third party.

It is also stated that eircom won’t monitor network usage and that “[t]here are strict privacy laws that prohibit eircom from monitoring the online activities of individual customers.” Monitoring will be done by DtecNet on behalf of IRMA.

However, in the overview, eircom states:

IRMA will send eircom notifications containing among other things the IP addresses of individuals they have detected as engaging in illegal file sharing in breach of copyright.

One wonders what those “other things” might be. Charleton J. said:

Neither DtecNet, or any similar service of detection, nor any of the plaintiffs whose copyright material is being infringed would ever know through this process that the infringer is a particular person living in a particular place in Ireland. What they do know is that a particular IP address has been involved in the downloading.

However, DtecNet’s website states:

DtecNet’s solutions will automatically secure evidence against the infringer(s) and generate Cease & Desist letters that can be sent to the infringer(s) asking for immediate removal of the content.

This is a capability of their systems, not a detail of the IRMA/eircom agreement. But nevertheless, it appears that IRMA may be capable of gathering more than just IP addresses of alleged infringers. eircom might not share customer data with any other party, but it is not clear what data will be shared with it.