The Closing of the Net  "original and valuable"  Times Higher Education

Is the House of Lords serious? Could users be asked to divulge their computer logs in order to prove themselves innocent of copyright infringement?

 

The debate last week on the Digital Economy Bill  discussed the tribunal procedure for applying sanctions to users accused of copyright infringement. The question was asked  by Lord Lucas,  how would a user be able to prove their innocence? I will say upfront, that he was not happy with the answer he got.

 

The Digital Economy Bill provides for a 3-strikes system against peer-to-peer downloading and alleged copyright infringement. Lord Lucas'  concern is that in a 

few years' time, a large number of young people will be getting large sanctions for copyright infringement. To leave it in the hands of the copyright owners, when it reaches this scale, will be inappropriate. Although rather tamely, he then said that he would not oppose the government ( he is a Conservative, and therefore supposed to oppose the government).

 

The procedure under the Digital Economy Bill, leaves it to the rights-holders to make the allegations of copyright infringement. They have to apply to the courts to get users identity from the ISP, after which they approach the user for an out-of-court settlement.

 

The user may apply to appeals tribunal, where they may defend themselves. The  defence for the user is to demonstrate that they took all reasonable precautions to prevent their system being used for copyright infringement.

 

Lortd Howard of Rising seemed to think that this defence was clear. I think it is anything but clear.

 

Lord Lucas had two points. The first was that the standard of evidence required for a tibunal procedure should be higher than that in the Copyright Infringement Reports  that will be sent to users initially. (NB The Copyright Infringement Report is a new concept in the Digital Economy Bill).

 

His second point was, how can you defend yourself, if you do not have the data?  Or rather, in order to defend yourself, you need access to the data which will demonstate beyond reasonable doubt, that you did not infringe. In order to do that, you need access to your computer logs.

 

Because most people are not sufficiently technical to know how to access their computer logs, they  will need help. One option is for Ofcom to provide that help, either by giving the software that can run through your computer or by offering is as a service.

 

I understand the point he is trying to make, but it raises further serious issues related to privacy and freedom of expression. A user  may have not infringed copyright, but  still may not wish Ofcom or anyone else, to examine their  computer logs which may give away other things about them  that they do not wish them to know.  And if they are  being asked for an out-of-court settlement on the basis of the rights-holders claim alone, one  would certainly expect as high a standard of evidence as would be required for a tribunal procedure. However, I think that raises issues of fundamental rights under the European Convention.  I am fairly sure it  will not comply with the new EU telecoms law (Telecoms Package). 

 

The response from the government spokesman, the Dickensian Lord Young of Norwood Green, was, I felt, rather dismissive of the issue.

 

It occurs to me that this is a back-door, stealth implementation of what the French ‘obligation to control your Internet access'. Unlike the French however, it is being brought in a higgeldy-piggeldy manner, so that  British citizens will not even be aware of it before it becomes law. 

 

It is just one indication of the can of worms in the Digital Economy Bill. It needs much more careful and expert scutiny, m'lords.

 

Webcast of the House of Lords session on 20 January 2010 on the Digital Economy Bill.

 NB The UK Parliament webcast is set up for Microsoft Silverlight but will run in Real Player. 


This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010) Digital Economy Bill: will users have to divulge logs?

http://www.iptegrity.com 25 January 2010

 

 

 

 

 

 

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Iptegrity.com is the website of Dr Monica Horten, European expert on Internet policy and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

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