Britain's Digital Economy Act (long)

Mon May 24 18:41:38 UTC 2010

Today in Daily Kos:
http://dailykos.com/
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Britain's Digital Economy Act is coming to America
by brooklynbadboy
Mon May 24, 2010 at 07:00:03 AM PDT

It didn't make much news on this side of the pond, but one of the most
significant pieces of legislation in the digital era was passed in the
United Kingdom just prior to the recent national election. It is called
the Digital Economy Act, pushed by a powerful coalition of media
interests. It is a sweeping piece of legislation. Notably, its odious
provisions are headed for America and the world.

The Electronic Frontier Foundation recently noted:

    The Digital Economy Bill has been the subject of heavy entertainment
industry lobbying and widespread concern amongst U.K. citizens and
telecommunications companies because it included provisions that would
allow the U.K. government to censor websites considered "likely to be
used for or in connection with an activity that infringes copyright,"
and disconnect the Internet connection  of any household in the U.K.
with an IP address alleged to have engaged in copyright infringement.

That means YOU, Wikileaks.

Other powers granted by the new law include:

       * Although proof is required before disconnection, the evidence
does not have to relate to you: you can be punished for the actions
of a friend or even a neighbour who has used your Internet
connection.
       * Rights holders could have the power to demand that sites they
believe to contravene copyright law be blocked by ISPs. Right now,
we don't know what the govrnment will propose, as they have yet to
draft their new proposal.
       * As it is not the perpetrator that is punished, as you might
expect, but the owner of the connection, and others using it, cafés
and bars may have to stop providing wifi.

You could go to your local coffeeshop tea room and use their WiFi. Some
other user at that shop is using BitTorrent or some other P2P software to
download music or a movie. Under the DEA, that WiFi network can be
disconnected from the internet. Permanently. More ominously, if a right
holder, such as News Corp. or Halliburton believes that certain websites
are likely to be used to publish copywritten materials, that website can
be blocked from the internet. Whoa. Not an actual incident of copyright
infringement, but the likeliness of it happening allows the holder of that
copyright to request that website's ISP block it.

For more analysis of the law and its implications, read this.

Similar provisions included in the DEA are being negotiated, in secret, by
a consortium of nations in a new trade agreement called the
Anti-Counterfeiting Trade Agreement. The United States is part of the
negotiations which recently concluded their eighth round in New Zealand.
Thanks to pressure from civil society and privacy activists, the first
public draft of the new law is available. The draft provisions look
remarkably like the DEA:

    In civil judicial proceedings concerning the enforcement of [copyright
or related rights and trademarks] [intellectual property rights], each
Party shall provide that its judicial authorities shall have the
authority [subject to any statutory limitations under its domestic
law] to issue [against the infringer an injunction aimed at
prohibiting the continuation of the] [an order to a party to desist
from an] infringement, including an order to prevent infringing goods
from entering into the channels of commerce [and to prevent their
exportation].

    [2. The Parties [may] shall also ensure that right holders are in a
position to apply for an injunction against [infringing]
intermediaries whose services are used by a third party to infringe an
intellectual property right.8]9

What this legalese means is every party to the trade agreement must adopt
policies that give "judicial authorities" the authority to not only go
after the person who infringes on the copyright at the behest of the right
holder, but also against "intermediaries." That could mean ISPs. That
could mean your unsecured WiFi network. That could mean sites that act as
publishing platforms for the general public.

And then there is this:

    [X. Each Party shall provide that its judicial authorities shall have
the authority, at the request of the applicant, to issue an
interlocutory injunction intended to prevent any imminent infringement
of an intellectual property right [copyright or related rights or
trademark]. An interlocutory injunction may also be issued, under the
same conditions, against an [infringing] intermediary whose services
are being used by a third party to infringe an intellectual property
right. Each Party shall also provide that provisional measures may be
issued, even before the commencement of proceedings on the merits, to
preserve relevant evidence in respect of the alleged infringement.
Such measures may include inter alia the detailed description, the
taking of samples or the physical seizure of documents or of the
infringing goods.]

       1. Each Party shall [provide][ensure] that its judicial authorities
[shall ]act [expeditiously][ on requests] for provisional measures
inaudita altera parte, and shall endeavor to make a decision[ on
such requests] without undue delay, except in exceptional cases.

Emphasis mine. Now, it seems reasonable to me that courts should have the
power to issue injunctions to prevent imminent infringement by a copyright
abuser. But to also grant the power to disconnect intermediaries, seize
evidence inter alia of said intermediaries, and to do it all ex parte is
beyond odious. This is all being done in the name of ending online
software and content piracy, which is certainly a reasonable goal. This
response, however, is draconian. Since it is expensive to go after each
and every person who downloads a music file for free, the media
conglomerates must slowdown or shutdown any network where it is or might
possibly take place. This will have the effect of forcing ISPs to police
what their users are doing and that is where the Internet experience start
to feel like watching cable: lots of stuff on but nothing worth seeing.

The EFF strongly opposes ACTA much as it opposed the awful Digital Economy
Act in Britian. Liberal Democrat leader, now Deputy Prime Minister Nick
Clegg promised to repeal it if elected. However, the new Conservative
minister responsible for the law has made it clear it is here to stay.

You can take action against ACTA by first fighting for sunlight.

Oh...almost forgot:

    Because ACTA is being negotiated as anExecutive Agreement, it will not
be subject to the Congressional oversight mechanisms that have applied
to recent bilateral free trade agreements, even though it appears
likely to have a far greater impact on the global knowledge economy
than any of those.

-- 
Peter Hiscocks
Syscomp Electronic Design Limited, Toronto
http://www.syscompdesign.com
USB Oscilloscope and Waveform Generator
647-839-0325

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