Dysfunctional Media Laws Challenged

Michael Hedges February 10, 2011 - Follow on Twitter

Legislators, members of parliaments and their lawyers have faced the digital onslaught with new laws intended to sort out the complications brought about by new media and the internet. Every stakeholder, through argument and lobbyist, has pushed their perceived need and favorite solution. New laws, though, run afoul of old laws.

Copyright rules, for example, can be complicated by privacy rules in the digital age. The music and film industries have argued that the internet, a lovely instrument when it enables easy payment, enables theft, piracy of copyright material. The size of these able lobbies and their attachment, quite emotional, to national cultures has led to laws in several countries meant to curtail what is seen as a criminal activity.

But it hasn’t worked out so well. The last UK Parliament passed, some say rushed through, its Digital Economy Act in the waning days of the Labour Party government. Six months on new Culture Minister Jeremy Hunt has called for media and telecom regulator OFCOM to review it all for “practicality.”

The UK’s Digital Economy Act has come under fire from many quarters but its greatest fault was an attempt at being a grand unifying body of regulation to right every digital wrong. In France the Hadopi Law, which inscribed forever the “three-strikes” provision, honed in on illegal file sharing. The Hungarian Media Act, vilified for several rights violations, was also an attempt to pile solutions onto often politically prescribed problems. European Commission Vice President for the Digital Agenda Neelie Kroes, clearly committed to a broadly defined digital economy, has expressed reservations about each of these laws.

Two areas of the Digital Economy Act, now being reviewed, commingle copyright with privacy rights. The law gives the government added authority to require internet service providers (ISPs) to block websites that “facilitate” illegal activity. Nobody – almost – argues with blocking child pornography websites but others websites, which include file sharing, can be perfectly legal.

“I have no problem with the principle of blocking access to websites used exclusively for facilitating illegal downloading of content,” said Minister Hunt (February 1). “But it is not clear whether the site blocking provisions in the Act could work in practice so I have asked OFCOM to address this question.” In other words: there’s a gap between the illness and the cure that the law can’t quite leap.

The Digital Economy Act also adopted the “three strikes” provision from the French Hadopi law, a graduated intervention that could lead to criminal prosecutions of individuals. Offenders would be identified by internet protocol (IP) address from which they could be located. ISPs have never liked this idea because their business is based on people using the internet and criminalizing any part of that behavior could be bad for business.

The gap between solution and reality popped up this week (February 8) when England and Wales Patents County Court Judge Colin Birss raised questions whether case law supports judging a person subscribed to an ISP liable for any activity from that IP address. UK ISPs BT and TalkTalk are pursuing separate judicial review of the Digital Economy Act.

“What if the defendant authorizes another to use their internet connection in general and, unknown to them, the authorized user uses P2P  software and infringes copyright?,” he asked. “Does the act of authorizing use of an internet connection turn the person doing the authorizing into a person authorizing the infringement within (UK copyright law)? I am not aware of a case which decides that question either.”  

The case before Judge Birss involved a law firm and its client, the “copyright troll” MediaCAT, and their suits against 27 individuals for copyright infringement. Both the law firm, ACS:Law, and MediaCAT have distanced themselves from the proceedings by closing shop but Judge Birss made clear they are required now to defend their practices. Adjudication of this case, it seems, brings into question evidentiary requirements to enforce the DEA “three-strikes” provisions. What a mess!

“Digitization has fundamentally changed content industries,” said Commissioner Kroes at the Business for a New Europe event in London (February 7), “but licensing models simply have not kept up with this. National licensing can create a series of Berlin cultural walls. It is time for this dysfunction to end.”

See also in ftm Knowledge

Intellectual Property Rights - Yours, Mine and Ours

Every content creator and user has a vested interest in intellectual property rights, the rules meant to set a course for fair distribution of art, music, video and the written word. Agreement on those rules is not absolute. This ftm Knowledge file explores what's yours, mine and ours. 42 pages PDF (March 2011)

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Media Laws – New and Revised

Policy makers and politicians are writing and rewiting media laws and rules at a breakneck pace. As broadcasters and publishers grapple with changes brought about by digital development, new business models and financial distress, the new media is feeling rules tightening around it. From licensing and public broadcasting to privacy, piracy and copyright this ftm Knowledge file Media Laws – New and Revised summarizes new laws and revised laws from a media perspective. 135 pages PDF (December 2010)

Order here