The UK's DMCA; Clause 17 falls, but at what cost?

During another intense session in the House of Lords this afternoon a vote was finally held on the controversial Clause 17 of the UK's Digital Economy Bill. This clause would have allowed the Secretary of State to amend the UK's copyright law with a lot less oversight from parliament than usual. The government did not hide the fact that this provision would be used to clamp down on unlicensed file-sharers in various ways as the industry demanded. However, there was a bright side; the clause would have permitted Lord Mandelson (or more likely his successor) to do as he promised back in October and relax the UK's copyright law by bringing in the 'fair use' exemptions it so desperately needs.

Strong Opposition

However, as most people are aware, both the Conservative and Liberal Democrat parties (and many from within the Labour party) made it clear that they objected to these excessive powers being given to an unelected official. Finally, a vote was called on a relatively minor amendment that sealed Clause 17's fate. The clause was removed from the bill by a vote of 140 to 165, supposedly marking a triumph of democracy over the government's attempts to gain even more power. Unfortunately, what replaced it has already raised alarm across the online world.

The Alternative

The new text that was strongly pushed by the Liberal Democrats adds a new section to the Copyright, Designs and Patents Act 1988 (the basis for the UK's copyright law) entitled 'Preventing access to specified online locations for the prevention of online copyright infringement'. This section allows the High Court to grant an injunction that would force any service provider (such as an ISP) to prevent access to any specified website, service or other location to help prevent online copyright infringement. It is worth noting that the website or location does not even need to be hosting allegedly infringing material, just that the material is "accessible at or via" the location. This is clearly designed to force ISPs to block any website a judge can be convinced is hosting or linking to copyrighted material but could easily include hosting sites such as YouTube or even those that link such as Google itself.

Unintended Consequences

On the face of it, this might not seem too bad; a copyright owner would have to go to the High Court and plead their case, the ISPs and site owners would get a chance to defend themselves and it would be much the same as the current situation. Unfortunately, the debate made it clear that the provisions will work slightly differently. In practice, a copyright owner will first send a 'take-down' notice to the service provider (although it is not clear whether this will be the ISP or web hosting organisation) and the service provider will be expected to then censor the allegedly infringing content or fight the accusation in court. As we all know (and was mentioned in the Lords) legal action can be prohibitively expensive so it is likely that if this becomes law, we will see websites dropping or being blocked at the first sign of trouble.

The UK's DMCA

Does this sound familiar? At first glance this section would seem to closely resemble the provisions United States' Digital Millennium Copyright Act that allow a copyright owner to send a take-down notices. Since this became law there has been a steady flow (or torrent) of examples where this procedure has been abused. Such notices have been used to shut down competing websites, silence critics or for other malicious purposes and with the burden on the accused to prove their innocence it is likely we will see the same in the UK if this Bill passes in its current form. Despite the similarities with the DMCA, there are also some significant differences. Due to the speed with which this amendment was drafted and pushed through there are many significant holes in it. Take-down notices under the DMCA are directed at those who host content, requiring them to take down the material. Under this law, the notices would go to the ISP, effectively ordering them to block access to the specified site, without requiring that the offending site be notified. Secondly, the ISP is forced to pay all the copyright owner's legal costs if they choose to resist. We have already seen how quick certain ISPs have been to bow to legal requests without examining the evidence or challenging the accusations so it is unlikely they will put up a fight in this case, and due to the general fear of legal action and ignorance of the law (as recently demonstrated by a Consumer Focus study on copyright) it is hard to imagine that many individual site owners will feel able to take any action other than simply removing the (allegedly) offending content.

The Debate

The debate itself was rather heated. Lord Clement-Jones (LibDem) introduced his amendment with a passionate speech that demonstrated a lack of understanding. The Conservatives offered their support (led by Lord Howard) and the only defence that the government minister (Lord Young) found was that it might have negative effects on national security by driving file-sharers to encryption (which L Clement-Jones denied would happen). It was left to the Earl of Erroll (a cross-bencher) to stand up and explain, in great detail, the many flaws to this section. He repeated his call for a full review of copyright legislation - a call echoed by Baroness Miller, (LibDem) - and argued against both this new amendment and the original Clause 17, as usual, demonstrating a clear understanding of the issues and technologies involved. He was then 'corrected' (mistakenly) by L Clement-Jones who seemed unaware of the difference between an ISP and a website host (something reflected in the text of the amendment). The vote was finally called and the government defeated with Clause 17 being removed without a formal vote later. It its place now lies something that should be equally troubling to those who would have a free Internet.

What Happens Now

In response to the initial outcry Lord Clement-Jones published his justification for the amendment. The statement does little to remove the fears held by many opposing this and he demonstrates his lack of understanding; even the first sentence is factually incorrect - at no point in the Bill is P2P mentioned at all. While the initial consultations and debates only concerned the use of P2P software, by the time the Bill was published it had been generalised to all online activity. While advocates of sensible internet and copyright policy have been opposed to this Bill since it was first mentioned, today's debate has managed to do the unthinkable and make it even worse, causing confusion and outcry even from within the ranks of the Liberal Democrats. Today's events clearly demonstrate that we cannot rely on the front bench of any major party to respect or understand the internet and modern technology. More than ever, it is clear we must support the Pirate movement.

The full text of the amendment can be found on the bill site here under amendment 120A.