Wednesday, 24 February 2010

"When is ‘disconnection’ not disconnection? When it is ‘account suspension’, of course."

A day or two ago, the news that campaigners against the Digital Economy Bill (or at the very least, Clause 17) wanted to hear was announced. Or so it would seem. The Guardian technology pages led with somewhat optimistic headline: "Plans to cut off internet connections of illegal filesharers dumped"

Background

First, a little context may be useful. This is drawn on what has commonly been referred to as the "3 strikes" rule, whereby people accused of copyright infringement via the internet will be given three warnings before disconnection (like the unpopular HADOPI law in France, which seems like the inspiration for Clause 17 of the Digital Economy Bill). The role of peer-to-peer technology is central to this argument.

The Guardian story came off the back of a relatively small petition on the Number 1 website which highlighted the problems of the phrasing in the Bill, a point that will be picked up on again later in this post. The petition states:
The use of P2P is neither illegal nor exclusive to copyright theft. Many free software providers use this form of distribution, as does the BBC’s iPlayer. If citizens are innocent until proven guilty, ISP’s would be forced to monitor internet usage to ensure that no copyrighted material is being transferred. This flagrant disregard for privacy is comparable to forcing the Post Office to search through parcels for photocopied documents or mixtape cassettes. Such requirements would place enormous strain on ISP’s whilst failing to prevent the distribution of copyrighted material through hidden IP’s, http or ftp.”
Previous concerns have stated that the Internet is increasingly central to everyday life and that the act of identifying who was actually guilty of using peer-to-peer software to infringe copyright was difficult and ill-conceived, especially in shared households or on public 'cloud' based services. This is a point that is also addressed later in the same petition.

All of this is with the aim of cutting illegal peer-to-peer filesharing by 70% - something the Government, led by Lord Mandleson, is determined to do in order to appease the copyright industries. The Digital Economy Bill proposed a series of 'technical measures' including traffic shaping and disconnection for those the offending IP addresses the copyright industry identifies as being guilty of a crime. The major concern here is, of course, the lack of judicial process or the ability for the accused to defend themselves. The onus will be on the accused to prove they are innocent - people who may not have the technical knowledge or skills required to sift through router logs to be able to prove they were not responsible for the 'crime' they may be accused of.

What's changed (if anything)?

With the context established, let's consider the Number 10 response to the petition which got The Guardian and critics of the Bill excited (if somewhat momentarily):
[T]he Bill provides a reserve power obliging an ISP to apply ‘technical measures’ to a customer’s internet account to restrict or prevent illegal sharing. Technical measures might be a band width restriction, a daily downloading limit or, as a last resort, temporary account suspension. A proper independent appeal would be available against application of technical measures.
The key phrase here is 'temporary account suspension' as opposed to disconnection. It sounds much less punitive and more temporary than permanent. Jim Killock, the Executive Director of non-profit human rights group ORG, was quick to point out to several people via Twitter (myself included) that the phrasing was misleading 'government-speak'. To the Guardian's credit, they updated their news story with reference to Killock and the ORG's blog.

It's worth citing some of the blog post at length:

When is ‘disconnection’ not disconnection? When it is ‘account suspension’, of course.

The government therefore felt justified in a response to a petition on Friday in claiming that they were not intending to ‘disconnect’ families from the net after accusations of copyright infringement. If you think they mean that their internet cabling will still be plugged in at the wall, then that’s true.

If you think they mean that these families will be able to connect to the internet, well, no they won’t. Their connection will be switched off.

Please do not be confused by the government’s semantics. BIS and DCMS decided in the summer that they would not refer to ‘disconnecting’ users, because that sounds harsh and over the top. ‘Temporary account suspension’ sounds much more reasonable.

Language matters. What journalist is going to run a story on ‘temporary account suspension’ (yawn)? This is why the government has chosen these disingenuous terms: it‘s just more spin.

What we still don’t know is how long a family’s internet might be disconnected for.

A month? Three? A year? There is nothing in the Bill or any of the notes that we are aware of that might give us a clue.

‘Temporary account suspensions’ sound like the government would to suspend accounts for a few hours, or at most a day, to fit most people’s idea of ‘temporary’ and ‘suspension’. We doubt ‘suspensions’ would be so brief. We can assume what the government means to you and me is ‘disconnection’.

The issue here is what Killock referred to as 'government speak'. The phrasing of the response by the Number 10 website seems to hint at a compromise when the Open Rights Group suggest this semantic distinction is a deliberate attempt to mislead the public. A classic case of New Labour spin.

What is more alarming is that the power to determine the length of the suspension will be granted to the Secretary of State, based on recommendations from Ofcom (something I blogged about late last year). This is highlighted in a subsequent story in the Guardian yesterday when a Department of Business, Innovation and Skills (DBIS) spokesperson was quoted as saying:
"If government decides to use technical measures the Secretary of State would be required to consider an independent report from Ofcom on whether they should be imposed, and on the most effective and proportionate measures."
Mandelson would then decide the upper limit for a "temporary" suspension – which the DBIS indicated would be at least a few days. Parliament needs to be consulted in order to establish the duration of any suspensions towards the upper limit of the punishment scale. The worrying issue here is laid bare in the article:
"an Order cannot be amended by parliament; it can only be accepted or rejected. Any government with a working majority will be able to get an order passed – and so would be able to implement a "temporary" suspension of indeterminate length without any legislative review."
The Government has all the balls in its court with this one, and on the current form, seem determined to push through their plans despite opposition. Only time will tell if they are able to do so before the General Election is called in May.

Take Action

The ORG are encouraging people concerned by this Bill to take action. If you are encouraged to resist this problematic Bill then write to your MP and write to your local newspaper demanding that they get your local MPs to reveal their support for these proposals. You can find convenient templates over on their wiki page here. Get involved

Thursday, 18 February 2010

The Digital Economy Bill, Clause 17

About a week or so ago the Digital Economy Bill made it's second pass through the House of Lords. Lord Lucas has been one of the most vocal critics of the Bill, especially the controversial Clause 17 which gives the First Secretary of State (currently Lord Mandleson) the power to enforce sweeping copyright reforms without public consultation in the face of future technological developments. Briefly, this section of the Bill would grant the government the power to make changes it sees appropriate to help enforce the copyright held by the content industries (eg the music industry). These powers are so broad they can be applied to adapt any future changes in technology without consultation (emphasis needed!). The Bill also proposes to disconnect illegal filesharers from the Internet after three warnings - commonly referred to as the "3 strikes" ruling. If you want a quick overview of how serious this is, check out the video below:



Back in December '09 PC Pro reported on how Lord Lucas expressed some doubts as to whether the Government's plans to disconnect users, claiming that the entertainment industry hadn't done enough to encourage people to pursue legal methods:
"We need to bear in mind that the problems now facing the industry are, to quite a large extent, of their own creation ... The industry has been extremely slow to listen to the demands of its customers, and has had something of an abusive relationship with them, seeking to punish them before thinking of how to serve them better."
"It has taken a decade for the industry to produce sensible alternatives to illegal file-sharing, and the fact that a generation of people have become used to an illegality comes down to the industry’s sluggishness. It is still slow."
He also raised some concerns that the methods being proposed to pinpoint who was actually responsible for downloading illegal content was inaccurate - the harvesting of an IP address doesn't always guarantee that the person responsible for paying the bill is the person engaging in filesharing activity, especially in households where several people have shared access. The same could be said of the hospitality sector in which hoteliers, bars, cafes and conference venues offer free wireless access to patrons.

Educators have complained that the bill also endangers their businesses and internet provision to the general public (via city-wide cloud-based services) is also under threat because of the insistence that organisations providing net access should be liable for the actions of their customers. The British Library with its public Wi-Fi access would be in jeopardy.

In January 2010 Lord Lucas suggested a number of amendments to the Bill including adding a remedy to help prevent false claims from being made against the innocent by giving them legal recourse to pursue counter actions against the accuser. He also tried to add an amendment that would require copyright holders to detail actual damages done by file sharing in their reports to ISPs notifying them of infringement. There were a total of 299 amendments suggested by the House of Lords. Lords Razzall and Clement Jones proposed one amendment (no. 34) to Clause 4 that stands out, mainly due to its evocation of the Human Rights Act:

Compliance with fundamental rights

In drafting or amending any code, laying any statutory instrument, or taking any other action under sections 124A to 124L of the Communications Act 2003 or under section 302A of the Copyright, Designs and Patents Act 1988, the Secretary of State must demonstrate before such action is implemented that he has considered whether such action—

  • a) is necessary and proportionate to the goal of protecting and enforcing copyright, and
  • b) appropriately balances the interest of rights holders and the interests of the public in due process, privacy, freedom of expression and other fundamental human rights guaranteed by inter alia the European Convention of Human Rights and the EC Charter of Rights."

The safety and privacy of the general public must not be disregarded in lieu of the demands of the content industry.

Earlier this month the Joint Select Committee on Human Rights also claimed that sections of the Digital Economy Bill needed clarification. The technical measures and the powers that are to be given to government were not "sufficiently specified". The fear here is that they might result in sweeping powers which restrict the freedom of expression and the privacy of individual users. Andrew Dismore MP and chair of the Commitee stated:

"The concern we have with this Bill is that it lacks detail ... It has been difficult, even in the narrow area we have focussed on, to get a clear picture of the scope and impact of the provisions."
One of the real concerns is with the lack of "due judicial process" to people accused of illicit filesharing. There is a real fear that the burden of proof will lie at the feet of Internet users who may be unable to prove they are innocent as they may not have the knowledge or skills to do so, nor the space to react to accusations accordingly.

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Friday, 5 February 2010

Tracking musical expenditure: January

This is the fifth monthly installment in a yearlong project to monitor the amount of cash I have spent on music and music-related activities. In case this is the first time you've stumbled across this blog then the inspiration behind this series of posts was a report (.ppt) published by the UK-based think tank, Demos, which stated that file-sharers typically spent more money (£77 per year) on music than non-filesharers (£33). The suggestion here is that pirates are the best customers, or at the very least are the ones willing to part with the most cash.

January was a busy month for me. It was filled with quite a few purchases of 'old' music media (ie CDs) - well a few by my standards at least - and a few live concert ticket purchases. In total £119.66 was spent on music and music-related activities. The latter category includes any money that was spent on the back of music purchases, like concert merchandise and/or refreshments that would not otherwise have been purchased were it not for the musical event. This brings the running total to date up to £942.10.

Going back to the music purchases, out of that £119.66 only £36.81 was spent on music (ie singles, albums, etc). The bulk of the money was spent on live concerts and tickets. Also, some of the music purchases included non-traditional music media such as video game downloads for the Guitar Hero series. If I strip down the sales to money spent on what we would classify as chart eligible singles and album the monthly expenditure comes down to a more meager £25.96 - all of which was spent on buying both the Vampire Weekend albums twice (to give as gifts). That brings the money spent on albums and singles (the measure in the Demos report) in at £80.24

I have to admit that I did not expect to reach and surpass the figure that Demos placed as the average spent by pirates after only 5 months. There's still a long way to go in this experiment, but one thing seems to be sure and that is this music lover still contributes to the musical economy.

And did I fail to mention that Massive Attack have an album out in February? There's at least one purchase for next month.

As usual, you can see a detailed breakdown of expenditure here.