‘Ireland’s SOPA’

Two days after hacktivist collective Anonymous distributed denial of service attack took the websites of the departments of Justice and Finance offline under the banner of OpIreland we now know exactly what they were protesting: two subsections of text on the topic of ‘harmonising’ one element of Irish with EU law.

Afforded a scant 15 minutes debate in a Dail chamber attended by a handful of deputies, you could be forgiven for thinking Junior Minister for Research and Innovation Sean Sherlock’s (pictured) draft statutory instrument (SI) just another matter of process, not a landmark copyright war between the recording industry and Internet service providers. The debate, a mere exercise in optics, served two purposes: to show Minister Sherlock is in full possession of the facts of his brief and to dispel any doubts as to whether the SI (full text at http://bit.ly/xOnxOY) will be implemented. At time of writing it has just been announced that a full debate will indeed take place but let there be no confusion, the SI will pass and by the end of the month rights holders will be able to apply to the High Court to secure injunctions against copyright infringers, and those who enable them. After two years of gridlock, bodies like IRMA will have the right to demand Internet service providers (ISPs) block access to websites they believe are illegally distributing their work.

The response has been predictable: outrage from the digerati reflected in a petition signed by almost 60,000 netizens, satisfaction from the recording industry, and indifference by everyone else. Having ignited the debate, Anonymous moved on to railing against the much bigger and scarier Anti-Counterfeiting Trade Agreement (ACTA) being signed by the US, EU, Japan, South Korea, Canada and Australia.

So has Government saved the state some money by dodging a fine for not complying with EU law at the expense of the Internet? Based on Minister Sherlock’s wording (full text here) we can glean that Ireland is not on the verge of enacting its own version The US’s defunct Stop Online Piracy Act and Protect IP Act – both cast aside in the face of massive Internet protest.

Under the proposed SI there are no provisions for jail sentences for copyright infringement, removing links and domain names from search engines. What the order implements is a structure whereby content creators can apply for an injunction in the High Court against ‘intermediaries’ (websites and Internet service providers) and individuals who are making money off work they did not create.

A clue to the kind of sanctions the Courts might impose can be found in the order’s reference to "due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction". The wording implies that Courts can act based on the scale of the infringement and the means of the defendant. This is not a measure designed to bankrupt people, yet is sufficiently vague that in the wrong hands could lead to wholesale shutdowns of cloud services, social networks and even Web-based e-mail.

Critics of the order say the recording industry has just been handed a nuclear option and is tooling up for an assault on Microsoft, Google or anyone else within a mouse click of their properties, that judges are ill-equipped to deal with the realities of e-commerce, and politicians hace little to no understanding of effects it will have the smart economy they pontificate about. Yet there are already concepts in domestic and EU law that, properly clarified, can prevent a copyright apocalypse.

The safe harbour defence
Right now there are two kinds of broadband service provider: those that add content (eircom and Magnet, for example) to their offering and those that don’t (UPC). Providers without ties to the recording industry – is those with no content agreements – would be well placed to seek clarity on the concept of the safe harbour. Under this defence a provider can argue they provide an infrastructure with no obligation to regulate what happens on it, much the same way a phone company cannot be held accountable for the nature of conversations held on its network.
Minister Sherlock said the order would not compel networks to monitor their own traffic and that businesses cannot, under EU law, have their businesses affected by the whims of copyright owners.
Under the safe harbour defence in the US’s Digital Millennium Copyright Act rightsholders can issue takedown notices to have their content removed on a case by case basis, giving websites a fair chance to respond to complaints.

Fair use
At what point does reproduction and sharing become outright piracy. Some cases in the US saw rightsholders attempt to remove any and all traces of their work, extending to incidental background music in user-generated YouTube clips. Such lawsuits not only make bad PR, they present the recording industry as litigious patent trolls engaging in nuisance lawsuits to the detriment of the artists the industry represents. Clarifying the parameters of fair use would dissuade industry bodies from adopting a ‘sue them all and let the courts sort them out’ approach.

The central question to be addressed here is one of intent: has the creator of the ‘remixed’ or reposted work *made* (as opposed to potential for making) any money off it? If so, then some kind of royalty is due to the rightsholder; if not, then nothing is owed. This would absolve users, discussion forums and social networks, and would work with any product from music to software.

Individuals posting baby clips with music playing in the background need not be troubled. Large sites that rely on user generated content backed up by a mix of material submitted by record labels, studios and professional artists (YouTube) currently pay a licence fee or (Muzu.tv) have agreed a revenue share based on the number of times a piece of music is streamed. Debate in this area is ongoing in Ireland.

The right to information
If the new SI is all about bringing Ireland into line with Europe let’s see what else Europe has to offer. In two decisions last year saw the EU court of human rights classified access to a satellite dish as a right in the context of the free movement of goods and services and the right to freedom of expression. and that separating television markets by territory was an anti-competitive practice. Both decisions have massive implications for how we receive broadcast content, but could spill over into how the Internet is treated in law.

Without getting too far into the nuts and bolts of the decisions, should any entity try and limit avenues to public discourse either through hardware or service-level restrictions they are in violation of EU law.

Sherlock’s statutory instrument will give the recording industry a short term solution to its copyright woes. Few would mourn the loss of a service that exists only to illegally share content. A better solution lies with IRMA engaging with bodies like the Internet Service Providers Association of Ireland – something it has yet to do.

Read More: Blog Copyright Niall Kitson