Two LibDem peers have tabled an amendment allowing the Courts to grant injunctions against ISPs – blocking off sections of the internet found to host infringing material. It’s similar to the DMCA-style proposal punted by the BPI in the new year, which we exclusively revealed.
Injunctions are already a legal tool against infringement, but the LibDem Lord gives them a new scope and spin.
Lords Razzall and Clement Jones (not Howard, the Conservative culture shadow, as previously stated) have put forward an entirely new Section 17 of the Copyright Act, the controversial section giving the Minister infinitely extendable powers. The revised section 17 gives the High Court:
power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court for the prevention of online copyright infringement.
The Court must consider a number of issues, including whether the operator “has taken reasonable steps” to prevent infringement or remove the infringing material, balanced by “the extent to which the copyright owner has made reasonable efforts to facilitate legal access to content”.
That’s a well-intentioned but potentially fraught piece of ‘balancing’. If proprietary source code (which is covered by copyright) is found on the internet, does the party seeking the injunction then have to give it away?
You can see the proposal in full here, in the form in which it will be discussed this afternoon (look for 120A).
An ISPA spokesperson told us:
“We don’t think it’s a good idea to introduce a fairly wide ranging amendment at such a late stage, given that it wasn’t something that parties were consulted on in the first place.”
ISPA pointed out that courts could already order shutdowns:
Courts already have the power t o do what the amendment proposes and therefore all that this amendment actually does is reduce due process. Under the proposed amendment, unless an ISP is willing to take the risk of incurring significant costs by not acting upon an initial notice – the accuracy and validity of which might not be clear – then the decision about whether to block access would be taken away from the court.”
Music business sources told us the intention was never to introduce “DMCA-style takedowns”, but modernise the courts’ existing powers. In any event, we were told, Mandelson’s original (flexible) Section 17 was the preferred route.
Consumer opposition to the Bill had all died out, even before the Government’s concessions last week. One campaigner revved up for action turned up for the Open Rights Group’s weekly London campaign meeting, only to discover he was the only person there.
Then again, it might be over in the time it takes a cup of tea to get cold. The Lords Report stage continues this afternoon.