Jim Killock, 25 March 2010

To: Richard Mollet and Feargal Sharkey

Cc: Adam Liversage

Dear Richard and Feargal,

I am writing to ask for clarification on an important point: do you believe the Digital Economy Bill requires full debate in the House of Commons?

The Bill has been debated in the Lords, but it has not received scrutiny and debate from the democratically elected chamber of Parliament.

The Open Rights Group strongly believes that full democratic scrutiny is vital for this Bill, since it includes measures that would affect people’s access to vital services and to free speech – rights that should not be legislated away without full debate of all the consequences.

Your organizations have recently appeared to be in favour of excluding genuine debate in the Commons from the passage of the Bill, minimizing the scrutiny given to its most controversial clauses.

The leaked email from Richard to BPI members, and statements from Richard Mollet and Feargal at Counter2010 and the Black Music Congress event on Tuesday all suggest that your view is that the Bill should be passed as rapidly as possible, before the General Election - without further scrutiny, if necessary.

However, you are now making statements that effectively deny that this is your position.

I and other campaigners would be very grateful if you would clarify whether you do in fact support full democratic scrutiny of the Digital Economy Bill. And, if so, ask you to join us in calling, clearly and publicly, for a full debate of its provisions in the House of Commons.

Yours sincerely,

Jim Killock

Executive Director, Open Rights Group

I never did like the Undertones.

My Lords, you can't please the entertainment industry and sustain privacy

Liberal Democrat peers have added an amendment to the Digital Economy bill which outlaws 'web lockers'. Have they never tried to send a large, personal, private file?

• Cory Doctorow
• guardian.co.uk, Thursday 4 March 2010 16.26 GMT
• Article history

You never know quite what people are keeping in a locker - but that's because it's private Photograph: Getty Images

This Wednesday, I woke up to find an urgent email in my inbox from the Open Rights Group, letting me know that Lords Razzall and Clement-Jones, both Liberal Democrat peers, had introduced a web censorship amendment to Peter Mandelson's Digital Economy Bill.

I had a moment's confusion, because I assumed that the LibDems (a party I belong to) would have proposed a bill against web censorship. But no, our peers had put forward an amendment that would allow courts to order all of Britain's ISPs to shut off access to specific sites if these sites were found to be involved with copyright infringement.

Like many LibDems, I wrote to the Lords using WriteToThem and told them that promoting censorship – that is, shutting off entire swaths of the web because parts of a site infringed upon copyright –  was not consistent with the values of the "party of liberty." So I was even more horrified to discover on Thursday that Razzall and Clement-Jones had withdrawn their amendment and entered a new one, jointly with the Tory Lords, that was specifically aimed at eliminating "cyber-lockers" (also called "web lockers") – services like Google Docs, YouSendIt, RapidShare and so on – that allow users to upload files that are too big to be attached to email, and send a private download URL to the recipient instead.

In a statement on Liberal Democrat Voice, Clement Jones defended his amendment, saying:

"Around 35% of all online copyright infringement takes place on non peer-to-peer sites and services. Particular threats concern "cyberlockers" which are hosted abroad.

"There are websites which consistently infringe copyright, many of them based outside the UK in countries such as Russia and beyond the jurisdiction of the UK courts. Many of these websites refuse to stop supplying access to illegal content.

"It is a result of this situation that the Liberal Democrats have tabled an amendment in the Lords which has the support of the Conservatives that enables the High Court to grant an injunction requiring Internet Service Providers to block access to sites."

Judging from the flood of outraged responses that followed, LibDem members aren't on board with this. And I'm among them. Web lockers are a critical piece of our internet life, and an attempt to ban them is worse than misguided; it's actively detrimental to the UK.

First, we must acknowledge that web lockers are useful for more than piracy. As our routine media files have increased in size - multi-megapixel images, home videos, audio recordings of meetings and so on - it's become increasingly difficult to use email to share data privately with family, friends and colleagues, because most email servers croak over really big files. For example, the sound editor for my podcasts uses a web locker to send me the mastered audiofiles for my review (and he's not the only audio person who relies on this; many's the time I've had an audiobook publisher send me an MP3 of an audiobook for review through a web locker).

There are plenty of personal uses too: my parents live in Canada and are always hungry for video of their granddaughter, but I don't want to make our home movies available on the public internet, so web lockers save the day for us. And when my immigration attorneys needed a mountain of scanned bank statements sent to their office for my application for permanent residence in the UK, a web locker made it easy to convey an encrypted archive to them.

There's no way to square this need for private file sharing with the entertainment industry's demand that all files be placed in the public sphere, where they can be inspected for infringement.

The reason web lockers are used for piracy is that they support privacy. A call to end web lockers is really a call to eliminate the public's ability to exchange personal information out of sight of the wide world. The only way you can be sure that someone isn't using a web locker to share a bootlegged movie is by shutting off my ability to privately send my mum a video of my toddler in the bath.

And separate from that, there's the infrastructural cost of establishing a Great Firewall of Britain in order to block access to web lockers. Developing a system whereby parts of the net can be shut off for all of Britain creates the possibility that someone will use the system to shut off the wrong part of the net. I'm not just talking about the danger of a hijacker breaking into the system to shut down or redirect traffic to legitimate sites (say, Microsoft Security Centre or the BBC), but the attractive nuisance presented by such a system. Once you create the facility to shut off parts of the internet that are implicated in civil disputes, how long will it be before people who've alleged a libel or are worried about a trade secret being not so secret are lobbying to have this turned to their aid?

Which isn't to say that this will actually stop infringement. File sharers have already demonstrated their ability to use the perfectly legal, widespread proxy services abroad to circumvent network blocks - ask any 14-year-old whose school network is censored by blocking software and I guarantee you'll get an education in how to evade this kind of thing. Which is great news if you're a pirate, but why should sound engineers, doting grandparents, and solicitors have to learn how to evade the Great Firewall in order to conduct their legitimate business?

It's not as if this hasn't been tried abroad. When South Korea and the US signed a Free Trade Agreement in 2007, Korea - a global powerhouse on the IT front - agreed to take major steps to lock down its Internet, including a prohibition on web lockers. Three years later, Korea has slipped badly in the global league tables and finds itself bringing more and more criminal sanctions against its young people.

"The party of liberty" needs to rein in these Lords, and not just because a failure to disavow them will cost the LibDems votes in May; but because this amendment is bad for the UK, bad for copyright, and bad for freedom.

In the UK Lily Allen joined calls for a crackdown on file-sharing

The European Parliament has approved a major overhaul of telecoms law across Europe.

The package includes a provision for "internet freedom" - the first time it has been referred to in law as fundamental right says the EU.

Member states have until May 24 2011 to include the legislation in their own rules.

It comes amid controversial laws being introduced in France and the UK to cut off persistent illegal downloaders.

Protecting internet access and users' rights was a high priority for MEPs hammering out the Telecoms Package.

Many critics say the eventual compromise solution is too weak and will not prevent disconnections.

Other measures in the telecoms package include an aim to harmonise the way mobile broadband is rolled out across the EU, which would help in the push to achieve 100% broadband coverage in Europe by 2013.

It also seeks to improve co-operation between member states' telecoms regulators and make it easier for incumbent operators to both provide and buy network services.

A law on citizens' rights aims to improve how quickly customers can change their mobile telephone number and strengthen personal data and privacy protection by, for example, allowing users to opt in to the use of cookies.

Fair hearing

Perhaps the most scrutinised part of the package is that which relates to file-sharing.

It comes as individual member states introduce tough penalties for those who download content illegally.

France has introduced a "three strikes" policy for those who share illegal content. If letters fail to stop them, illegal file-sharers risk being disconnected.

And the UK's Digital Economy Bill also seeks to impose technical restrictions, including disconnection, on persistent pirates.

Earlier this month, MEPs agreed on a compromise solution to protect user's rights which read: "A user's internet access may be restricted, if necessary and proportionate, only after a fair and impartial procedure including the user's right to be heard."

What the fair and impartial procedure will mean in practice is, as yet, unclear.

MEPs also agreed that restrictions on a user's internet access can only be taken "with due respect for the principle of presumption of innocence and the right to privacy".

But an earlier amendment which ruled that any application for cutting off internet access must go through a judge was rejected.

Some critics say the compromise is too weak while some lawyers argue that it could put the UK's newly introduced Digital Economy bill at odds with the Telecoms Package.

Meanwhile protests over the UK bill have grown, with 11,000 signing an e-petition against it while others predicted "civil unrest" as a result of the bill.

• The Guardian, Monday 23 November 2009
• Article history

The digital economy bill is misnamed. A more honest title for the legislation, recently introduced in the Lords, would be the copyright protection and punishment bill. It is less about creating the digital businesses of the 21st century than protecting the particular 20th century business models used in music and film.

The bill is narrow in vision but dangerously broad in creating sweeping ministerial powers to punish digital pirates. It boils Digital Britain down to three Ms – media, music and movies – myopically ignoring the pioneers of new technology, and showing a blind spot for all creativity outside the so-called creative industries. Digital Britain is much more than digital media – there are the start-ups of London's Silicon Roundabout, the great success story of Cambridge chip designer ARM and the small businesses all over the land using the net to open up opportunities. Instead of empowering digital Britons, the bill follows the lead of music and movie corporations, who already apply a presumption of guilt to their customers. Instead of treating the web as a platform of possibilities, it recasts it as a tool for mass theft.

The only digital thing about this bill is the cut-and-paste facility it grants the secretary of state to redefine the copyright laws and increase maximum penalties. The government may argue, with some force, that it needs flexibility to ensure the rules keep pace with technology. But granting this administration – or any future one – such latitude to rewrite crucial laws on the fly, with only the merest figleaf of parliamentary oversight, is a dangerous precedent, and one sure to inspire future abuses – of democratic as well as digital rights.

Vague laws create opportunities for unintended consequences and offer an open invitation for aggressive lobbying. If it is understood that the secretary of state has it within his gift to change the rules on a whim, then Rupert Murdoch, for instance, could soon be advancing his war against Google in Whitehall.

While Finland enshrines web access as a human right, this bill legislates plans to deprive users of access. It will force internet service providers to become copyright police, obliging them to provide lists of violations to copyright owners. After warnings, violators will have their service crippled, or even cut off. All this will drive up the costs of web access, by piling duties on providers. Add the more defensible surcharges to pay for next generation services, and Digital Britain risks becoming a land beset by an even deeper digital divide. Instead of building on a positive vision of Digital Britain, the government has capitulated to the fears of music and movie moguls struggling to defend their multimillion-pound businesses.

A source close to the British Labour Government has just given me reliable information about the most radical copyright proposal I've ever seen.

Secretary of State Peter Mandelson is planning to introduce changes to the Digital Economy Bill now under debate in Parliament. These changes will give the Secretary of State (Mandelson -- or his successor in the next government) the power to make "secondary legislation" (legislation that is passed without debate) to amend the provisions of Copyright, Designs and Patents Act (1988).

What that means is that an unelected official would have the power to do anything without Parliamentary oversight or debate, provided it was done in the name of protecting copyright. Mandelson elaborates on this, giving three reasons for his proposal:

1. The Secretary of State would get the power to create new remedies for online infringements (for example, he could create jail terms for file-sharing, or create a "three-strikes" plan that costs entire families their internet access if any member stands accused of infringement)

2. The Secretary of State would get the power to create procedures to "confer rights" for the purposes of protecting rightsholders from online infringement. (for example, record labels and movie studios can be given investigative and enforcement powers that allow them to compel ISPs, libraries, companies and schools to turn over personal information about Internet users, and to order those companies to disconnect users, remove websites, block URLs, etc)

3. The Secretary of State would get the power to "impose such duties, powers or functions on any person as may be specified in connection with facilitating online infringement" (for example, ISPs could be forced to spy on their users, or to have copyright lawyers examine every piece of user-generated content before it goes live; also, copyright "militias" can be formed with the power to police copyright on the web)

Mandelson is also gunning for sites like YouSendIt and other services that allow you to easily transfer large files back and forth privately (I use YouSendIt to send podcasts back and forth to my sound-editor during production). Like Viacom, he's hoping to force them to turn off any feature that allows users to keep their uploads private, since privacy flags can be used to keep infringing files out of sight of copyright enforcers.

This is as bad as I've ever seen, folks. It's a declaration of war by the entertainment industry and their captured regulators against the principles of free speech, privacy, freedom of assembly, the presumption of innocence, and competition.

This proposal creates the office of Pirate-Finder General, with unlimited power to appoint militias who are above the law, who can pry into every corner of your life, who can disconnect you from your family, job, education and government, who can fine you or put you in jail.

More to follow, I'm sure, once Open Rights Group and other activist organizations get working on this. In the meantime, tell every Briton you know. If we can't stop this, it's beginning of the end for the net in Britain.

• Sean Michaels
• guardian.co.uk, Tuesday 6 October 2009 10.47 BST
• Article history

Edwyn Collins with his wife and manager Grace Maxwell

Edwyn Collins has been barred from streaming his own song through MySpace. Management for the former Orange Juice frontman have been unable to convince the website that they own the rights to A Girl Like You, despite the fact that they, er, do.

"MySpace are not equipped to deal with the notion that anyone other than a major [label] can claim a copyright," complained Grace Maxwell, Collins's wife and manager. Maxwell made the unpleasant discovery after trying to upload A Girl Like You, the singer's 1994 hit, to his own MySpace page. "Lo and behold," she wrote in a blog, "it would not upload. I was told Edwyn was attempting to breach a copyright and he was sent to the Orwellian MySpace copyright re-education page. Quite chilling, actually."

The trouble with accusing Collins of copyright infringement is that he's not infringing. "He owns the copyright," Maxwell underlined, "as he does for most of the music he's recorded in his life (preferring to go it alone than have his music trapped 'in perpetuity' to use the contract language of the major record company)."

"I naturally blew my stack and wrote to MySpace on his behalf demanding to know who the hell was claiming copyright of Edwyn's track? ... Eventually, after HUGE difficulty, I was told Warner Music Group were claiming it. I found a nice lawyer guy at Warners, very apologetic, promised to get it sorted, but all these months later it isn't."

For Maxwell, this has been emblematic of everything that's wrong with the music industry. "[We are] aware of who the biggest bootleggers are," she said. "It's not the filesharers." While Collins has worked to make A Girl Like You freely available to his fans, she alleges that the same track is sold illegally "all over the internet". "Not by Edwyn, [but] by all sorts of respectable major labels whose licence to sell it ran out years ago and who do not account to him."

"Attempting to make them cease and desist would use up the rest of my life. Because this is what they do and what they've always done. And it's not just majors. If I had a fiver for all the dodgy indie labels we've been involved with I'd have £35 or thereabouts. (Exceptions: Heavenly and Domino)."

Maxwell, however, believes a different kind of digital music service could save the industry. "Now let's get on with working out a wonderful new way for music lovers to enjoy music for free or for a small subscription that makes it legal and easy to hear ANYTHING and allows the artist to reap the rewards of such freedom of access," she wrote. "Viva la revolucion!"