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UK ISPs React Angrily to Bill that Blocks Copyright Infringing Sites

Posted: 04th Mar, 2010 By: MarkJ
ispa ukThe UK Internet Services Providers Association ( ISPA ) has said that its members are "bitterly disappointed" after amendment 120A to the Digital Economy Bill was voted through in the House of Lords yesterday. The change could force UK broadband providers into blocking any website deemed to contain "a substantial proportion" of content that infringes copyright (see yesterdays news). That might just as easily apply to YouTube as it would a P2P links site.

The Trade Association for providers of Internet services, which represents around 200 ISPs and related businesses, warned that the new amendment had been hastily constructed and rushed through at report stage without due consideration to either its implications or consultation with affected parties.

The ISPA claims that 120A is "negligent ... misjudged and disproportionate" because it has many associated legal, technical and practical issues, most of which have simply not been debated in nearly enough depth. It quotes the words of the Shadow Secretary of State for Culture, Jeremy Hunt, "trying to rush through controversial powers at the tail end of a Parliament is simply no way to make law and not something we will be supporting".

Nicholas Lansman, ISPA Secretary-General, said:

"ISPA has been supportive of Peers’ excellent scrutiny of the Bill to date. However, in this instance, our members are extremely concerned that the full implications of the amendment have not been understood and that the reasoning behind the amendment is wholly misguided. We would therefore urge the Conservatives and Liberal Democrats to urgently reconsider their position and vote against this amendment."

Lord Clement-Jones noted in proposing his amendment that the courts in fact already have the power under 97A of the Copyright, Designs and Patents Act to grant an injunction requiring ISPs to block access to sites that contain unlawful copyright content.

The group believes that S97a strikes an appropriate balance between the interests of different parties and leaves the court free to consider each claim on its merits and independently of other factors. The fear is that 120A introduces a bias in favour of Rights Holders and limits the court’s discretion to judge each case on its merits. There is no "equality before the law" as his Lordship suggests.

ISPA is particularly disappointed that the Lords supporting this amendment draw parallels with the model of network-level blocking administered by the Internet Watch Foundation ( IWF ). The suggestion that a framework developed to fight against the distribution of criminal images of child sexual abuse is appropriate to tackle allegations of civil copyright infringement is incomprehensible.

UPDATE - 2:26pm

Outspoken UK ISP TalkTalk has thrown in its opinion too.

Andrew Heaney, TalkTalk's Executive Director of Strategy and Regulation, said:

"Lord Clement-Jones's amendment may have been proposed with the best of intentions, but ultimately it doesn't address the fundamental concerns of our customers. It would force us as ISPs to restrict access to specific sites accused by rightsholders of hosting material that infringed copyright.

Currently we do restrict access to a few sites but only in the most serious cases, for instance those involving child pornography or issues of national security. It’s hard to see how copyright infringement warrants the same draconian response.

More to the point, making the restriction of websites a more widespread policy would be dangerous given its major impact on internet users’ human rights, freedom of expression and privacy. We fear it could also be a backdoor to censorship of the internet.

At any rate, efforts to restrict websites on a mass scale would be utterly futile. Rightsholders can close down as many sites as they like but ultimately they will always survive in new or different guises. Unless you pull the plug on the whole internet, it’s a pointless pursuit.

We are concerned that this new amendment is being put through at the last minute without any proper debate or scrutiny. Given the potentially profound impact it would have, we think this is unacceptable.

We are also worried that the amendment seems to require ISPs – and by implication their customers – to pay costs to rightsholders unless we bar a site prior to an injunction being granted against it.

The amendment proposes that if a rightsholder’s application for an injunction against a website is ultimately successful, the ISP has to pay the rightsholder’s costs for making that application.

This will inevitably encourage ISPs to bar access to a site immediately, in effect turning us into judges deciding which sites our customers can and cannot access. Again, we think this is unacceptable and unfair. Why should broadband customers have to pay for the enforcement of rightsholders’ wishes which have no bearing on them?"
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