Three Strikes Is Out? UK Judges Rule Internet Ban Is 'Unreasonable', Even For Sex Offenders

from the it's-a-human-right dept

Last week, Techdirt wrote about a US teenager being banned from using the Internet until his 21st birthday as punishment for his involvement with some Web site break-ins. That seems incredibly harsh, and as Mike noted, earlier bans have been tossed out on the grounds that they were unreasonable.

And that is exactly what has just happened in the UK, as the Guardian reports:

Banning anyone from the internet is an "unreasonable" restriction, two appeal court judges have ruled, suggesting that access to a computer at home has become a basic human right.

The decision by Mr Justice Collins and Judge Nicholas Cooke QC signals judicial recognition of how pervasive digital communications are in an era when a multitude of services can be obtained online.

What makes this judgment even more interesting is that, as with cases in the US, it concerned a sex offender. Normally, these result in especially severe sentences. So for an Internet ban to be held to be "unreasonable" even here means that for far less serious offences -- unauthorized sharing of copyright works, say -- it is hard to see Net disconnection imposed by a lower UK court being upheld upon appeal.

That would seem to spell the end of the "three strikes and you're out" approach in the UK. Of course, there are still plenty of other unjust ways of exacting collective punishment on families -- throttling their Internet connection rather than cutting it off, for example -- but it is nonetheless a hugely important decision. In particular, it seems bound to impact the UK's Digital Economy Act, whose detailed implementation is still being discussed.

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Filed Under: bans, human right, internet access, three strikes, uk

Megaupload Defendants Get Internet Access Back; Kim Dotcom Allowed To Record An Album

from the conditions-of-bail dept

When Kim Dotcom was granted bail, we noted that it was rather silly that the conditions of bail included a ban on internet access. It appears that pretty much everyone involved in the case has actually agreed, and the terms of bail have been adjusted to allow all of the Megaupload defendants to have internet access. The US didn't even object to this request (which surprises me, actually).

What the US did object to, however, was Dotcom's request to be able to go to a nearby recording studio to complete an album he is supposedly working on. The US seems to question whether this album really exists as well as its likelihood of commercial success. However, the judge notes:

This Court cannot speculate on the success or otherwise of Mr Dotcom’s venture. The numerous varieties of modern musical genres suggest that there are probably unimagined audiences available, and modern legitimate digital distribution systems are changing the face of the music market. I could venture to suggest that notoriety alone could well be a marketing angle for Mr Dotcom’s venture.

In the end, he does allow Dotcom to go to the studio, but with specific requirements, including having to notify officials when he's going there, and only staying for four hours at a time. He has to alert officials when he arrives, at the 2 hour mark, and 5 minutes before he leaves -- and he's supposed to do so with a photo of himself on a smartphone (if he has a smartphone).

The US also objected to allowing the four defendants to meet in person, saying that by allowing them internet access, they could just Skype each other. However, the court agreed with the defendants that Skyping is not the same as actually meeting in person and is allowing that as well (again, in a limited fashion). The court notes that the "flight risk" that the US keeps worrying about appears to be exaggerated, though it's still keeping pretty strict limits on Dotcom and the others, and may revisit the rules in the future.

Of course, I'm still wondering why internet access was banned in the first place. It seems like such an overaggressive ban on something that's so central to the ways in which everyone communicates these days.

Filed Under: bail, internet access, kim dotcom
Companies: megaupload

UK Labour Party: Let's Just Get On With Kicking People Offline Over Copyright Infringement

from the give-us-data-not-dogma dept

As Techdirt reported at the time, the UK's Digital Economy Bill was rammed through Parliament, without proper scrutiny or even much democratic process, in the dying hours of the previous government. Since then, the implementation of the Digital Economy Act has moved forward relatively slowly. That's partly because there have been a series of legal challenges from ISPs concerned about its legality (and likely cost for them). In addition, it made sense for the current UK government to wait for the completion of the Hargreaves report on copyright in the digital age before proceeding.

But the people who drew up the Act and its punitive approach to tackling unauthorized file sharing -- the UK Labour Party -- have no doubts; they want extreme measures brought in now. Here's what Harriet Harman, the party's deputy leader, thinks the UK government should do:

implement the Digital Economy Act under a clear timetable including getting on with the notification letters and publishing the code of practice

lead and set a deadline for agreement in the industry for site blocking, search engine responsibility and digital advertising

That is, she wants people thrown off the Internet for allegedly sharing files (the three-strikes "notification letters"); censorship ("site blocking"); search results to be doctored ("search engine responsibility"); and extra-judicial punishment (cutting off revenues from "digital advertising".)

Of course, she wants all this without producing any specific evidence that it would actually help the music industries, or any awareness that innocent people might suffer as a result. That's to be expected, since the Digital Economy Act was drawn up in exactly the same way: without any research that its measures were appropriate, proportionate or effective.

To be fair, Harman does quote a few figures in her speech, such as this one:

Research by [the University of Hertfordshire] and UK Music found that:

Over 60% of 14-24 year olds were downloading music without paying for it.

Of course, that figure is pretty meaningless, since it includes people who have downloaded just once as well as those who download frequently. Moreover, they may have downloaded without paying in order to sample before before buying, or because they weren't able to buy what they wanted -- something the research quoted by Harman explicitly recognizes (pdf):

40% said their main reason for filesharing is to save money or because it's free. 23% said they did so to get hold of music they could not buy (for instance, pre-releases, DJ mixes) and 22% to experiment and try-before-they-buy.

So at most, 40% of that 60% were downloading music because it was free -- only 24%, which is rather different from 60%. Not only that, but the same research reported:

85% of illegal downloaders say they would be interested in paying for an unlimited, all-you-can-eat download service.

In other words, the vast majority of these unauthorized downloads are because of a failure to offer a product that people would gladly pay for.

Here's another number she mentioned:

Research from Harris Interactive found that:

3/4 of all digital music obtained in 2010 was downloaded illegally.

This is what the research report, commissioned by the British recorded music industry body BPI, said (pdf):

Harris conservatively estimates that 1.2bn tracks will be illegally downloaded in 2010 -- equivalent to a stack of CDs some 74 miles high stretching well into space.

Illegal downloads represent three quarters of all music obtained digitally, when set against BPI's prediction of 370m tracks in total across singles and albums bought legally by the end of this year.

That is, it's an estimated figure, but without any methodology given for how it was obtained. Here's another estimate from the same report:

Harris Interactive calculate that the total number of people in the UK illegally downloading music on a regular basis is 7.7m.

That's almost exactly the same figure that Jupiter Research obtained in its own research on the subject. Harman used another claim from that company in her speech:

Of course every illegally downloaded track would not translate into one which was paid for but even taking that into account Jupiter Research estimate:

That revenue lost to the recorded music industry last year through piracy was £236m.

Unfortunately, neither the research nor its methodology is publicly available as far as I can tell, making it hard to judge how reliable that figure is. But we do know something about Jupiter's estimate elsewhere that there were 7 million people downloading in the UK. As Techdirt noted at the time, this figure had been extrapolated from just 136 self-reported filesharers, using some pretty shaky logic. A more realistic number is likely to be closer to 3.9 million -- rather less than the Harris Interactive estimate quoted above.

The final figure that Harman quotes is in many ways the most important:

And despite the success of UK music, piracy has contributed to the fall in revenues of UK record labels - down 1/3 since 2004.

This, in a way, is the key "justification" for the harsh measures that Labour believes are "necessary": the UK music industry is suffering because of piracy, and must be saved at all costs. Unfortunately for Harman -- and for Labour's logic -- that's simply not true. As Techdirt reported, even the industry's own economists admit that the music industry is growing, not shrinking; the industry doesn't need "saving".

Although it's welcome that Harman tries here to justify her call for guilt upon accusation, censorship and extra-judicial punishments with some figures, it's significant that none of them stands up to scrutiny. In fact, there is no independent evidence whatsoever that the kind of measures the Labour Party embodied in the Digital Economy Act are either needed or effective. It's sad to see Harman continuing to suggest otherwise: surely it's time to move the debate on from one based on rigid dogma to one using real data?

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Filed Under: censorship, digital economy act, internet access, labour, search engines, site blocking, three strikes

Italy Proposes Law That Will Ban People From The Internet Based On Single Accusation Of Infringement From Anyone

from the seems-a-bit-strict dept

Glyn Moody points us to a frightening analysis of a proposed copyright law in Italy that seems positively ridiculous, in that you could lose access to the internet based on a single accusation (which doesn't even have to come from the copyright holder):

1) citizens, outside of any judicial proceeding and without the right to appeal to the judicial authority, may be banned to access the Internet if ANYONE (a rightholder or an ordinary citizen) notifies a provider about alleged infringement of copyright or trademark or patent ("one strike" disconnections);

2) Internet service providers must comply to the blacklisting of citizens who are *suspected* of copyright or trademark or patent infringements ("proscription lists" to ban citizens from any access to the Net);

3) an Internet service provider must use preventive filters against services that infringe copyright, trademark or patents;

4) an Internet service provider must not promote or advertise, and must use preventive filters against, services that do not directly violate copyright, trademark or patents, but that *may* lead citizens to *think* that infringing services exist;

5) a provider or a hosting provider which does not use effective filters will be charged with civil liability.

The post notes that this law would be compliant with an early version of ACTA, and suggests that this was done on purpose. However, the report also notes that this proposed law would clearly not be compatible with current EU law. Either way, that's quite a wish list from the entertainment industry.

Filed Under: copyright, internet access, italy, one strike

UK: Sex Offenders More Deserving Of Internet Access Than Infringers

from the double-standards dept

Does the UK really have stricter punishment for copyright offenders than sex offenders? It appears so. As part of a ruling concerning kicking people offline for sex offenses, a judge ruled that to be unlawful (hat tip to MD1500 for sending this in). The ruling clearly states:

A blanket prohibition on computer use or internet access is impermissible. It is disproportionate because it restricts the defendant in the use of what is nowadays an essential part of everyday living for a large proportion of the public, as well as a requirement of much employment. Before the creation of the internet, if a defendant kept books of pictures of child pornography it would not have occurred to anyone to ban him from possession of all printed material. The internet is a modern equivalent.

I don't know enough about UK law to know if this acts as a precedent that could apply to copyright cases as well, but it would seem to undermine a big part of the punishment set up by the Digital Economy Act there...

Filed Under: civil rights, infringement, internet access, uk

Finnish Court Orders ISP To Kick Accused File Sharers Off The Internet

from the alert-the-UN dept

Despite a recent UN report that condemns the idea of kicking people off the internet as a civil rights violation, a court in Finland has agreed with a request by the record labels to kick three accused files sharers off the internet with no notice at all. This isn't three strikes. It's basically one-strike. Record labels accuse... court tells ISP to kick them off. I'm so sure that'll make people start buying music again.

Filed Under: file sharing, finland, injunction, internet access

Not Securing Your Internet Access To Block Infringement Is 'Negligence'?

from the yes,-well... dept

Porn movie studio Liberty Media has been pretty aggressive lately in its attempt to jump on the bandwagon trying to get file sharers to pay up by either threatening them with lawsuits or suing them. The latest move by the firm is to file a similar lawsuit against a bunch of people for file sharing... but with one interesting difference. Rather than just lumping together everyone who downloaded the same file, Liberty is suing a specific BitTorrent swarm, noting the specific info about each IP address that joined the swarm (including when they joined).

While some of the other lawyers in other such mass lawsuit campaigns have made more general arguments along these lines -- suggesting that since BitTorrent users swarm together it's okay to lump them all into a single lawsuit, this is the first one that specifically targets a single swarm and provides all such details. This also lets Liberty add a "civil conspiracy" charge on top of the copyright charges (both direct and contributory infringement). The conspiracy charge seems pretty weak to me. It seems to suggest that merely downloading the BitTorrent client is a sign of proactively joining a conspiracy. That seems like a huge stretch, as there are plenty of legal reasons to use BitTorrent software. Even if most BitTorrent traffic is infringing, merely downloading the client is hardly evidence of a plan to join a "conspiracy."

Separately, there's a "negligence" charge, which seems even weaker than the conspiracy charge. Here, the negligence claim is used to go after anyone who did not secure their internet connection to prevent such usage. That seems like a huge stretch, and I can't see that getting very far. There's simply no proactive requirement that anyone secure their internet connection to prevent any infringement from happening over it:

Defendants failed to adequately secure their Internet access, whether accessible only through their computer when physically connected to an Internet router, or accessible to many computers by use of a wireless router, and failed to prevent its use for this unlawful purpose.

Reasonable Internet users take steps to secure their Internet access accounts to prevent the use of such accounts for nefarious and illegal purposes. As such, Defendants' failure to secure their Internet access accounts, and thereby prevent such illegal uses thereof, constitutes a breach of the ordinary care that reasonable persons exercise in using an Internet access account.

That seems like a huge leap, and I'd be amazed if a court bought that argument. As for the effort to lump together everyone in the swarm... that seems to have a much higher likelihood of success than some of the other lawsuits that have been dumped on joinder issues, but I still think it's a pretty weak claim. The individuals each are totally unknown to each other, may have totally different reasons, defenses, explanations. However, I could see a court much more open to this "swarm" argument than the other random lumping together arguments we've seen.

Filed Under: copyright, internet access, negligence
Companies: liberty media

Just As It Tries To Kick People Offline, The British Gov't Wants To Move All Public Service Online

from the interesting-timing dept

Just as it considers kicking people offline via the Digital Economy Bill, it looks like the UK is getting set to move all sorts of government services online -- giving every UK citizen a unique webpage, where they can access all sorts of personalized gov't services. Now, some folks are (perhaps reasonably) concerned about privacy and the threat of data breaches, but it seems like an even bigger issue is the conflicting messages the UK gov't seems to be sending in threatening to remove people's internet connections at the same time it's trying to get them to do more and more online.

Filed Under: gov't services, internet access, uk

WiFi On The School Bus

from the the-wifi-on-the-bus-goes...-data-data-data? dept

WiFi has been showing up on airplanes and trains lately, and in Silicon Valley, it's used on the special shuttle buses that companies like Google and Yahoo use to get employees to work. But what about for high schoolers? The NY Times recently had an article about a high school out in the far reaches of Arizona that has put WiFi on a school bus, and found that the impact is really quite amazing:

Wi-Fi access has transformed what was often a boisterous bus ride into a rolling study hall, and behavioral problems have virtually disappeared.

"It's made a big difference," said J. J. Johnson, the bus's driver. "Boys aren't hitting each other, girls are busy, and there's not so much jumping around."

What's amusing here is the juxtaposition of this article with recent articles that fret about kids spending too much time online, with worries that they're becoming addicted or wasting time that could be better spent. But, here the article is suggesting exactly the opposite: that not only is more internet access leading to a less rowdy bus ride, but it's helping the students become better students.

Filed Under: bus, internet access, schools, wifi

EU Parliament Pressured By France, Removes Clause That Bans Kicking People Off The Internet

from the ah,-regulatory-capture-at-work dept

With France passing its new law to kick accused file sharers off the internet based on accusations rather than due process, you may wonder how that could possibly square with the EU Parliament's position from earlier this year that no one should be kicked off the internet without due process, and should only be allowed in "exceptional circumstances." Well, it looks like the lobbyists and the French gov't put enough pressure on the EU Parliament that it's now ditched that clause, even though 88% of Parliament agreed to it the first time around. Forget gov't for the people, the EU Parliament has shown that it's now the gov't for an entertainment industry that doesn't want to innovate. Sad. In the meantime, we're back to asking the basic question that no one in the industry ever answers: how will kicking fans of your content offline make them want to buy anything? It may get some to stop file sharing, but it won't make them buy. It seems the industry has become so confused that it actually thinks stopping file sharing is more important than making money.

Filed Under: eu parliament, europe, human rights, internet access, three strikes