Today was the last day for submissions to the European Commission consultation on the IP Enforcement Directive and we’re very grateful to Alan Toner for putting together a short submission emphasising some of the many problems with it. Full text after the jump.
Dear Sir or Madam
I am writing on behalf of Digital Rights Ireland Ltd. in support of the submission made by European Digital Rights. While we are in full agreement with that submission, we would like to take this opportunity to emphasis some particular aspects which are missing from the Report on the Enforcement Directive.
The absence of an “an evaluation of its [the Directive's] impact on innovation and the development of the information society”, as required by Article 18, is a fundamental flaw in the Report. The presumption that enforcement of exclusive rights is a key driver of innovation lies behind the Directive’s design. In its report on the Database Directive, the Commission has already been confronted by empirical evidence that this is not a universally valid presumption. While late implementation in several Member States is stated to have impeded the collection of the data necessary for such an evaluation, one is left wondering why such tardiness was no obstacle to the Report’s commentary on the efficacy of the Directive’s substantive measures. The contribution of exclusive rights regimes to advances in any sphere should be assessed through empirical analysis, on a sector by sector basis, in light of evidence.
Failure to grapple with the innovation question is of especial concern due to changed perspectives in this field over the last decade. Initially, the Lisbon Agenda benchmarking process relied on statistics regarding R&D spending and patent activity as predominant indicators. But today a more nuanced and situated understanding of the heterogeneity of innovation (in services, in different local contexts etc.) has superseded this vision. This point was raised by the Center for European Reform in its most recent report (The Lisbon Scorecard X, the Road to 2020). In high technology areas, also, the efficacy of alternative approaches to capturing the benefits of investment (free software, user-innovation) is no longer a matter of dispute. Any useful account of the interface between enforcement measures and innovation must take these new perspectives into account.
Lastly, and with particular relevance to copyright, the report is silent on the matter of overstatement of claims: instances where works are being removed from circulation preemptively due to complaints by rightsholders, even where the basis for the complaint is unfounded. Experiments conducted by researchers from Oxford’s Socio-Legal Institute and user group Bits of Freedom have shown that even spurious complaints often result in the take down of materials which are clearly not-copyrighted. Risk aversion on the part of webhosts & ISPs, combined with a desire to minimise compliance costs, creates a situation where both legitimate and contested uses of media online are abrogated preemptively. This occurs increasingly through the types of automated filtering and monitoring systems which rightsholders would have intermediaries install as standard. Future review of enforcement mechanisms should also investigate misuse of rights and the consequences both on freedom of expression and new uses of cultural works.
Yours faithfully
March 31st, 2011
In our last post we mentioned Garda plans to introduce web blocking into Ireland.
One of the many problems with blocking systems is that they require ISPs to take additional steps to monitor users, resulting in real risks to privacy. These risks are amplified in the case of the Garda proposals which – incredibly – would require ISPs to report details of web browsing without any legislative basis whatsoever.
Because of the privacy risks presented by this proposed system, we’ve asked the Data Protection Commissioner to investigate it now, and the full text of our letter (setting out the problems in more detail) is here:
Letter to Data Protection Commissioner Re Garda Blocking Proposals
March 29th, 2011
Last year we revealed that the Department of Justice was working on secret plans to introduce internet filtering in Ireland. Now, despite a complete lack of any legislation, public consultation or democratic discussion, these plans have moved to the implementation stage.
In a letter which was leaked to us, Gardai have asked Irish ISPs to block sites designated by them, and for information about the browsing habits of users who are alleged to have visited these blocked sites. Here’s the full text of the letter:
Garda Letter to ISPs Requesting BlockingThis blocking – part of wider attempts to stop access to child pornography – is certainly well intentioned. But good intentions aren’t enough.
Experience elsewhere has shown that blocking is largely futile – easily evaded and stopping only a very small proportion of material (it wouldn’t cover, for example, peer to peer filesharing or newsgroups). Earlier this month, for example, it was revealed that Dutch ISPs have, for exactly this reason, abandoned what they concluded was “ineffective” web blocking.
Blocking is also a distraction from what should be the main focus of policing – removing material at source and identifying those responsible. Work in Germany has shown that blocking leaves material available indefinitely, when it could easily be taken down by contacting the hosting providers. Here’s an excerpt from that analysis:
The group developed software to select, categorise and geo-locate 167 blocked Internet domains as a representative sample of websites blocked in Denmark at the time of the investigation. “The result is a smack in the face of law enforcement authorities”, says Alvar Freude of the Working Group. “Of the 167 listed sites, only three contained material that could be regarded as child pornography.” Two of these three sites had been blocked in Denmark since 2008, and these are, or least were, blocked in Sweden, Norway and Finland as well. These sites were therefore known for at least two years in several countries, and apparently law enforcement authorities did nothing to try and get this illegal content removed.
This is even more disturbing because the Working Group managed to take down the remaining sites just by sending a few emails. Two of the sites were hosted in the USA, and even during the weekend (Friday, ca. 10 p.m. EDT) they were removed by the hosters within 30 minutes. On the following Tuesday, the third website was taken down by its registry in India, three hours after notification.
More fundamentally, however, even if blocking were effective then it should only be introduced in accordance with the norms of a democratic society – after public debate, based on legislation and subject to judicial oversight. Instead, what this Garda letter seeks to do is to introduce blocking unilaterally (bypassing even the industry representative bodies ISPAI and ALTO) by means of private contracts with individual ISPs. The result would be that sites could be blocked without any judicial oversight or approval being required and in a way which could easily be extended beyond child pornography in the future. There would be no independent oversight of the list of blocked sites – something which is particularly worrying given that leaks of blacklists in other jurisdictions have shown that many entirely innocent sites have deliberately or inadvertently been blocked. In Australia, for example, the blacklist has been leaked, with the result that:
about half of the sites on the list are not related to child porn and include a slew of online poker sites, YouTube links, regular gay and straight porn sites, Wikipedia entries, euthanasia sites, websites of fringe religions such as satanic sites, fetish sites, Christian sites, the website of a tour operator and even a Queensland dentist.
There will also be extensive collateral damage. This is because the proposed system relies on blocking domains and subdomains – that is, blocking everything on example.com even though the only material involved might be on example.com/users/johndoe123. Consequently, Irish citizens will find themselves unable to access entire domains based on allegations against one individual page, image or user. This is not a theoretical risk – it has already happened to O2 users who found the entire image hosting site IMGUR blocked due to a similar system operated by O2.
In short, therefore, the blocking system which Gardai have sought to impose on ISPs is worrying. It is ineffective at achieving its goals, certain to cause extensive collateral damage to perfectly legal content, and prone to function creep whereby it can be used to target other material in the future. These problems are compounded by the fact that it has no legal basis or judicial oversight.
What can you do about it? Internet filtering falls within two departmental functions, and is the responsibility of both the Department of Justice and the Department of Communications. A good start would be to contact each Minister expressing your concerns.
Pat Rabbitte is the Minister for Communications, Energy and Natural Resources and his contact details are here.
Alan Shatter is the Minister for Justice and Law Reform, and his contact details are here.
You should also consider contacting your ISP and letting them know your concern about these proposals.
We’ll be doing more on this shortly – watch this space.
March 29th, 2011