The Ready Relevance Reckoner

You don’t know what predictive coding is?  Well that may not be too surprising, since one thing that almost all the contributors to an October 2010 Survey on Predictive Coding (published by the eDiscovery Institute) agreed on was that there should be a better term than predictive coding to describe what they do. 

That is a shame, since predictive coding technology promises to be the most important advance in tackling the mountain of electronic documents that we litigators now face when doing discovery. (Sceptical contrary view here)

In a nutshell, predictive coding tools enable the lawyers to review a sample of the overall document collection and decide whether each document in the sample is relevant or irrelevant.  The tool analyses the reviewers’ decisions and then evaluates the rest of the collection, giving every document in the collection a relevance ranking. 

Each tool has a slightly different approach, for instance some are more iterative, but that’s the gist.  The hope is that since the vast majority of any given electronic document collection is irrelevant, most of the documents can with a high degree of confidence be excluded from human review – an approach that chimes very nicely with the emphasis in the English procedure rules on proportionality.

So what can we do about the name?

My own flight of fancy is the title of this post.  But it is hardly a serious generic term, though you never know – relevance reckoners, anyone?.  But even that doesn't convey the message that these tools enable the user to identify irrelevance, rather than relevance.  Since the key point of the technology from the human point of view is the ability to start with a subset and end up discarding most of the documents, maybe a suitable generic term would flow from that – sample-driven culling, perhaps?  Irrelevance cullers? Garbage detectors?

Hmm, maybe we’re stuck with predictive coding after all.  It has to be better than one of the alternatives suggested by a contributor to the eDiscovery Institute Survey: ‘Prognostic Document Profiling’.

[Updated 1 May 2012.  Predictive Coding now seems to be morphing into Computer Assisted Review.  Not perfect, but much better.]

SABAM/Scarlet meets Newzbin2 – but will they play nicely together?

The ECJ’s decision in SABAM v Scarlet is a seminal judgment. 

It is not just what it says, but the way that it says it.  By the standards of ECJ judgments it is unusually forthright:  IP rights are not absolutely protected or inviolable, but have to be balanced against other fundamental rights - not just as a matter of form but in substance. It is not enough to pay lip service to rights of privacy, freedom of expression and (the new kid on the block) freedom to conduct a business. 

The ECJ has stated in the plainest terms that these rights have real substance and can trump overreaching IP rights.  Moreover, the ECJ has given real teeth to the prohibition on general monitoring obligations in Art 15 of the ECommerce Directive.

SABAM/Scarlet comes hot on the heels of Mr Justice Arnold’s second judgment in Newzbin2.  There are important factual differences between the cases.  SABAM/Scarlet is about content filtering, whereas Newzbin2 is about site blocking.  But there are also parallels.  Both concerned conduit ISPs.  Both involved the use of DPI (deep packet inspection) technology, albeit in very different ways.  Both required the court to balance the various fundamental rights at stake.  How does Mr Justice Arnold’s approach now stack up against that of the ECJ? 

General monitoring obligations

Article 15 of the ECommerce Directive prohibits national authorities (which includes courts)  from adopting measures that would require an ISP to carry out general monitoring of the information that it transmits on its network.  In L’Oreal v eBay the ECJ held that this applies to measures that would require an online intermediary, such as an ISP, to actively monitor all of the data of each of its customers in order to prevent any future infringement of intellectual property rights.

The filtering system at issue in SABAM/Scarlet would require an ISP:

1.       to identify, within all of the electronic communications of all its customers, files relating to peer-to-peer traffic;

2.      to identify, within that traffic, files containing works in which rightsholders claimed to hold rights;

3.      to determine which of those files were being shared unlawfully; and

4.      to block file sharing that it considered to be unlawful.

This involved a cascade of deeper and deeper dives into transmitted packets in order to determine their nature and contents.  In the words of the ECJ:

“Preventive monitoring of this kind would thus require active observation of all electronic communications conducted on the network of the ISP concerned and, consequently, would encompass all information to be transmitted and all customers using that network.”

How does Newzbin2 sit with this?  The system of site blocking that the court required BT to employ was a two stage process: first, redirection based on IP addresses, then the redirected traffic would be analysed at the URL level. 

Although this would use DPI technology, in his original judgment Arnold J had taken care to distinguish between three levels of packet inspection, which he described as (i) a minimal analysis; (ii) summary analysis (iii) detailed, invasive analysis of the contents of a data packet.  The order against BT requires it to use:

“DPI-based URL blocking utilising at least summary analysis in respect of each and every URL  … .

2. For the avoidance of doubt paragraph 1 … does not require the Respondent to adopt DPI-based URL blocking utilising detailed analysis.”

Arnold J commented:

“The order sought by the Studios does not require BT to engage in active monitoring of the kind described by the Court of Justice [in L’Oreal v eBay] at [139], but simply to block (or at least impede) access to the Newzbin2 website by automated means that do not involve detailed inspection of the data of any of BT's subscribers. To the extent that this amounts to monitoring, it is specific rather than general.

It is clear from SABAM/Scarlet that (a) the fact that the deepest inspection is carried out only on some preselected traffic does not prevent there being a violation of Article 15 and (b) the deeper the dive into the packets, the greater the likelihood that Article 15 will be contravened.

It is also evident that Arnold J was alive to these issues.  However because the Newzbin2 judgment gives no further detail as to the difference between minimal, summary and detailed DPI analysis it is unclear exactly what level of packet inspection is involved and whether SABAM/Scarlet would have had any impact on that.

Arnold J went on to say:

“Furthermore, it would be imposed by a case-specific order made under national legislation which implements Article 8(3) of the Information Society Directive.”

However that, in the light of SABAM/Scarlet, is not an answer to a potential violation of Article 15.

Fundamental rights

Much of the fundamental rights analysis in SABAM/Scarlet and Newzbin2 is similar.  Both balanced the rightsholders’ IP rights against freedom of expression.  Both recognised that the risk of preventing access to lawful content through overblocking or overfiltering is a relevant factor to take into account. 

However SABAM/Scarlet not only placed heavy emphasis on the fact that IP rights are neither absolutely protectable nor inviolable, but also introduced some new elements.

The biggest contrast with Newzbin2 is in the ECJ’s reliance on the fundamental freedom of ISPs to conduct their businesses.  This is now enshrined in Art 16 of the EU Charter of Fundamental Rights: “The freedom to conduct a business in accordance with Community law and national laws and practices is recognised.” 

The ECJ held that the injunction in issue would be a serious infringement of the freedom of the ISP concerned to conduct its business since it would require that ISP to install a complicated, costly, permanent computer system at its own expense.

On the facts this differed from Newzbin2, in which Arnold J held that the costs of implementing the injunction were modest.  But he also said this:

“The Studios are enforcing their legal and proprietary rights as copyright owners and exclusive licensees, and more specifically their right to relief under Article 8(3). BT is a commercial enterprise which makes a profit from the provision of the services which the operators and users of Newzbin2 use to infringe the Studios' copyright. As such, the costs of implementing the order can be regarded as a cost of carrying on that business.”

Even before SABAM/Scarlet, this passage looked a bit lopsided.  The Studios also are commercial enterprises which make a profit from exploiting their legal and proprietary rights as copyright owners and exclusive licensees.  As such the costs of protecting and enforcing those rights, including implementing this order, could just as easily be regarded as a cost of carrying on that business.  In any event now, after SABAM/Scarlet, it will not be possible to elevate rights owners above mere commercial enterprises.  They both have fundamental rights which have to be balanced.

One point which SABAM/Scarlet leaves open is how the balance between competing fundamental rights is to be drawn if the costs burden of complying with an injunction is shifted to the rightsholder.  It could be argued that even if the compliance burden could be fully compensated by cost-shifting, an excessive burden is damaging to the interests of the internal market and consumers generally, whichever party bears it.  In any event cost-shifting cannot reduce any impact on the freedom of expression rights of ISP customers, which the ECJ emphasised, or affect violation of Art 15 of the ECommerce Directive.

The ECJ also noted a cross-border issue which is potentially of great importance when considering whether an injunction could result in overblocking and thus interfere with the freedom of expression rights of the ISP’s customers.  The court said:

“it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. Moreover, in some Member States certain works fall within the public domain or can be posted online free of charge by the authors concerned.”

The discussion in Newzbin2 was entirely domestic, predicated on infringements of UK copyright.  It now appears that future cases will have to take cross-border issues into account, at least where an ISP has customers in more than one EU country.

How dare we speak across borders!

I've been inspired by this excellent but thoroughly depressing piece by Nate Anderson in Ars Technica to add the "through any media and regardless of frontiers" quote from Article 19 of the UDHR to my sidebar.  Adopted in 1948, it could not have been better expressed had it been written with the internet in mind.

Anderson highlights the proposed US Stop Online Piracy Act (SOPA) as the first legislation that would officially distinguish between domestic and foreign internet sites, and the last nail in the coffin of the borderless internet. 

It has become de rigeur over the last 10 years not only to dismiss the early cyberlibertarians (Johnson, Post, Perry Barlow et al) as impossibly naive and idealistic, and to predict the erection of national borders in cyberspace, but also to welcome that as a Good Thing (Goldsmith and Wu). 

There is certainly a serious debate to be had over how far attempts by national authorities to prevent undesirable bits and bytes from flying across their borders can be effective; and about the negative externalities associated with going to ever greater lengths in trying to make them so.  SOPA is a case in point. 

But it's the last proposition that really sticks in the throat - the idea that we should, as a laudable goal, positively seek to re-erect national borders in cyberspace rather than take the opportunity provided by the internet to break them down. 

For domestic politicians wedded to notions of national sovereignty the idea of preserving national borders online is inevitably meat and drink.  The unfortunate and surprising thing is that these ideas seem to have traction beyond that (I had a slightly crisp exchange with an adherent at the Society for Computers and Law Policy Forum in September).  Some seem quite happy, in the name of preserving domestic sovereignty, to toss on the scrapheap the most liberating development for cross-border freedom of expression that has ever taken place.

Naive and idealistic?  Maybe, but unless we cling tenaciously to the rock of Article 19 we risk being swept away in the rush to put speakers back in their rightful and respectful place behind national barriers.  How dare we speak across borders!  (How dare we speak at all?)

ECommerce Directive trumps Jurisdiction Regulation (maybe)

The CJEU’s Martinez/eDate judgment (C-509/09 and C-161/10, 25 October 2011) is another significant decision on cross-border internet liability.  In December last year we had Pammer/Alpenhof, which provided much needed guidance on what constitutes cross-border targeting of online activities under the consumer contract provisions of the Brussels Jurisdiction Regulation. 

Now the Court has turned its attention to cross-border tort liability, in two joined cases that raise questions under both the Jurisdiction Regulation and the Electronic Commerce Directive.   

The eDate case involved a claim for violation of personality right, the Martinez case infringement of privacy.  eDate was an Austrian company sued in Germany over statements on its Austrian website.  Martinez sued the English publisher MGN in France, over a publication on its English Sunday Mirror website.   

The most heavily reported aspect of the judgment has been that on jurisdiction.  I will start at the other end, with an aspect that didn’t even make it into the Court’s press release – and yet which has equally far-reaching implications.  This concerns the scope of the country of origin and internal market clauses of the ECommerce Directive.  These are powerful, often overlooked, provisions which can require a court to disapply a Member State’s otherwise applicable local law.

Some have argued that it is at best unclear whether these clauses apply only to restrictions of a public law or regulatory nature, or can also include disputes over private rights.  The judgment confirms that these clauses do apply to private rights. 

The country of origin provision of the Directive (Art 3.1) requires a Member State to ensure that service providers established in its territory comply with its law.  The internal market clause (Art 3.2) prohibits a Member State from restricting the freedom to provide information society services from another Member State.   Both apply only within the ‘co-ordinated field’ of the Directive, and are subject to exceptions such as copyright and industrial property rights. 

One argument in favour of limiting these provisions to regulatory regimes is the reference in the definition of co-ordinated field to ‘requirements with which the service provider has to comply’ – a phrase that does not read easily onto private law rights and obligations.   

The CJEU devotes two paragraphs of its judgment to determining that both the law to which a service provider established in a Member State is subject, and the provisions requiring other Member States to respect the binding nature of that law, include the private law field.  The Court relies on the reference to private law disputes in Recital (25), the reference to excluded private law rights and the reference to liability of service providers in the definition of the co-ordinated field.  The result is that the provisions apply to liabilities such as defamation and privacy infringement.

This should be very significant.  It ought to provide a basis on which to prevent a stringent local law from applying to an online service incoming from another Member State with a more liberal law.

That is exactly what the CJEU went on to hold.  The country of origin and internal market provisions do not amount to a rule of conflicts of law.  But the Member State must ensure that within the coordinated field, and subject to certain permitted derogations in a specific case, the provider of an electronic commerce service is not made subject to stricter requirements than those provided for by the substantive law applicable in the Member State in which that service provider is established.

This is all very positive for cross-border trade and publication on the internet within Europe.  But the last aspect of the judgment, the one that garnered all the headlines, is not.  It allows a person claiming infringement of personality rights to sue under Article 5(3) of the Brussels Regulation in the Member State in which his centre of interests is based (as an alternative to the Member State of the establishment of the publisher), for all the damage caused; or to sue in any Member State where the online content is accessible, only for the damage in that country.  So it is now very easy for a publisher established in one Member State to be sued in another, for the contents of a merely accessible website.  That is bad news for the internet.

It is still tempting to ask “so what?”.   According to the remainder of the judgment, under the ECommerce Directive the court should consider whether its local law is more stringent than that of another Member State in which the defendant publisher is established and, if so, disapply its local law unless grounds for a specific derogation can be established.  That is the theory.  In practice it is difficult to avoid the suspicion that a defendant would be better off arguing in front of its home court, rather than trying to persuade a foreign court to disapply its own local law.

Rebalancing copyright - Hargreaves, thumbnails and a handbag

The Hargreaves Review may have stopped short of recommending fair use, but the report still represents a turning point in the development of UK and even European copyright.  For the first time an official review has said in terms that digital copyright has overreached and, not least in the interests of restoring legitimacy to copyright, should be rebalanced.

Legislation will not follow immediately.  That will have to await the consultation and lobbying that will start this autumn.  However the courts need not sit on their hands.  They have shown themselves quite capable of stepping outside the four corners of the copyright legislation to find tools with which to rein back overreaching copyright – or indeed to go in the opposite direction to catch palpably bad actors.  A copyright lawyer has to be aware of the variety of tools that courts can deploy to mould copyright into better shape.

These tools are numerous.  Implied licence, estoppel, public interest, non-derogation from grant, countervailing fundamental rights and accessory liability are some that come to mind, not to mention that if you want to understand the copyright liability of online platforms and carriers you have to look at the ECommerce Directive, not at copyright legislation.

Some recent examples illustrate the point.  The first is the decision of the Paris Court of Appeal in SAIF v Google on 27 January 2011, in which the court held that the image thumbnails that are a necessary part of Google Image Search do not infringe copyright.  In finding that Google’s service was that of a neutral intermediary the court seems to have drawn inspiration from the Ecommerce Directive.  The text also suggests that the court took a policy view that the service was of sufficient public benefit that the use of thumbnails should be tolerated.  The court evidently did not feel confined by the strict boundaries of the copyright statutes in getting to the right answer.

In a different context, but equally significant, was the decision of the Hague District Court in May 2011 in the Darfurnica case, holding in a preliminary judgment that the artist Nadia Plesner’s right of freedom of artistic and political expression outweighed Louis Vuitton’s Community design right in a handbag that the artist had included in her painting Darfurnica.    

In the UK the courts have so far mostly only dipped their toes into the deep waters beyond the IP statutes.  The last time they plunged bravely in was probably BL v Armstrong [1986] UKHL 7, the mid-1980s spare parts case in which the House of Lords, using the common law principle of non-derogation from grant, discovered a previously unknown right to repair motor vehicles which overrode the interests of copyright owners.   (A recent attempt to argue non-derogation from grant in NLA v Meltwater [2011] EWCA Civ 890 received short shrift.) 

However the ground has been laid for new excursions, mainly in the recognition of the public interest defence to copyright infringement in Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142 and the comments of Lord Justice Buxton concerning the conflict between copyright and freedom of expression in the ‘Lawyer’s Letter’ case, Musical Fidelity v Vickers [2002] EWCA 1989.  Most recently, Mr Justice Arnold in SAS Institute v World Programming Ltd [2010] EWHC 1829 (Ch) accepted that he should construe the “fair dealing for purposes of criticism or review” copyright exception liberally, in the light both of previous authority and the right of freedom of speech under Article 10 of the European Convention on Human Rights.

Now that the Hargreaves report, since endorsed by the UK government, has legitimised the view that copyright has to be rebalanced, the UK courts would have good reason to make more use of the tools available to them should the need arise.

Ten essential points from Newzbin2

Mr Justice Arnold decided yesterday to order BT to block access to the Newzbin2 website, in a case brought by the major Hollywood film studios. Now that the immediate hullaballoo has subsided, here are 10 key takeaways from his typically thorough 204 paragraph judgment.

1. Legal context. The EU Copyright in the Information Society Directive specifically requires Member States to enable rightsowners to apply for injunctions against intermediaries to terminate or prevent a copyright infringement. So notwithstanding all the arguments about whether the court had power to make a blocking order, what is meant by ‘actual knowledge’ of a person using an ISP’s service to infringe copyright, and who is a user of the service, the debate was perhaps always more likely to end up being about whether the court should, on the particular facts of the case, exercise its discretion to grant an injunction and, if so, what the scope of the injunction should be.

2. Factual context. The Studios had already taken their case against Newzbin1 to trial, proved ‘massive’ copyright infringement and obtained a judgment and an injunction against the operators of Newzbin1. The injunction had proved to be ineffective, since the new Newzbin2 site was doing its best to avoid the reach of the English courts.

3. No non-infringing use. The judge found that while an injunction would prevent BT subscribers from making use of Newzbin2 for non-infringing uses, the incidence of such uses was de minimis. Against this background the judge held that the protection of the property rights of the rightsowners outweighed the freedom of expression rights of the users of Newzbin2, and an injunction blocking the whole of the Newzbin site was justified. On the particular facts as found by the judge any arguments based on preventing access to legitimate content on the Newzbin2 site were effectively a non-starter. Whether that will apply in future cases will depend on their particular facts.

4. Does this open the door to more blocking orders? The judge accepted that rightsholders would be likely to seek similar orders against ISPs in relation to other websites. He pointed out that even though the studios had already obtained judgment against Newszbin1, the studios had had to put before the court a substantial quantity of further evidence to support the Newzbin2 application. Future applicants for blocking orders against other sites would have to prove things that in this case the studios had already established in Newzbin1. The judge’s view was that rightsholders would not undertake future applications lightly and would probably concentrate their resources on seeking relief in respect of the more egregious infringers. He therefore did not anticipate a flood of applications. The effect on the ISPs or their networks of multiple orders could be addressed in evidence as and when they are applied for, in the light of experience gained as a result of the present order.

5. Will blocking orders become routine? In addition to the reasons given by the judge for not anticipating a flood of orders, there is a self-limiting aspect to this. If rightsholders try to obtain blocking orders in cases where the extent of infringement is more limited and there is substantial non-infringing content, then questions of proportionality and impeding access to legitimate content will come to the fore, which were not an issue in this case. That is likely to act as a brake, tending to ensure that the site blocking order remains the exceptional remedy that (given that it is an injunction against a non-infringing third party) it should be.

However, what start out as exceptional remedies can become routine and open to abuse, as happened with the ‘Anton Piller’ search and seize order. In the case of site blocking orders there is a particular risk of this, if ISPs adopt a similar neutral stance as they did with Norwich Pharmacal orders. There may need to be a procedure to ensure that the target site itself is notified of the application for a blocking order and given an opportunity to put in evidence and make representations to the court, at least if the rightsholder could have (but has not) taken infringement proceedings against the target site.

6. Will this apply to defamation and privacy cases? The judge recognised that these raised separate issues as well as common ones. He said that it does not automatically follow that applications in respect of such websites would succeed.

7. Does this open the door to content filtering injunctions against online intermediaries? No. The legality of content filtering injunctions is being considered by the EU Court of Justice in the SABAM v Scarlet and SABAM v Netlog cases. Mr Justice Arnold specifically distinguished the blocking injunction sought by the studios on the basis that it was clear, precise and merely required BT to implement an existing technical solution which it already employed for a different purpose.

8. What can an ISP be required to do? At a general level the court held, applying the recent CJEU decision in L’Oreal v eBay, that an injunction can require a service provider not only to take steps to prevent the continuation or repetition of infringements of which the service provider has actual knowledge, but to take measures which contribute to preventing further infringements of that kind.

Specifically the court decided that BT should be required to use its Cleanfeed system to block the whole Newzbin2 site on the basis of IP addresses and/or URLs, as notified by the studios to BT going forward. However the full details have yet to be worked out and will be the subject of a further hearing in October. The outcome of the October hearing may prove to be just as interesting as the main decision, as the court and the parties grapple more closely with the technical issues involved in site blocking. Significantly, the judge stated that if Newzbin2 had had a substantial proportion of non-infringing content, then it might have been appropriate to require the rightsowners to supply ongoing daily lists of URLs corresponding to specific infringing items, rather than IP addresses and/or URLs for the whole site.

9. Will the same apply to other ISPs? The studios have said that they will seek orders against other ISPs to block Newzbin2. Any arguments in those cases are likely to focus on whether the ISP in question has the technical capability to implement blocking.

10. Who pays? So far that is unclear. The normal practice when issuing injunctions against third parties who are not wrongdoers, such as in Norwich Pharmacal cases, is that the applicant pays both the legal and compliance costs of the third party. The judge hinted at similarities with Norwich Pharmacal orders. The question of who pays will be determined at the resumed hearing in October.

The long arm of digital copyright

[Note significant changes as a result of the Supreme Court judgment and CJEU judgment in NLA v Meltwater, discussed here, which reverse the judgment of the Court of Appeal described here. (9 June 2014)]

The NLA v Meltwater case decided yesterday by the English Court of Appeal illustrates how, as an accidental by-product of digital technology, the reach of copyright is significantly greater online than it ever was in the hard copy world. 

The Court of Appeal found that public relations agency recipients of Meltwater’s e-mail and online news clippings service would not be protected from copyright infringement by a licence from the Newspaper Licensing Agency that covered Meltwater’s scraping and distribution activities. 

The agencies themselves, when receiving and reading the e-mails or accessing Meltwater’s website, engaged in a separate activity restricted by copyright, so would require their own licence.  The same applied when they followed links from the e-mails so as to access newspaper websites, since the newspaper websites’ terms and conditions permitted only personal and/or non-commercial use.

The appeal was brought by the Public Relations Consultants Association, which had intervened in proceedings brought by the NLA against Meltwater.  The PRCA’s detailed defences were emphatically rejected by the Court of Appeal.  But the PRCA also ran a more fundamental argument that goes to the heart of the increasingly apparent problems with the scope of digital copyright. 

The PRCA argued in effect that copyright online should be functionally equivalent to copyright offline: 

“[PRCA’s] starting point is the press clippings agency; whilst the agency requires a licence from the Publishers to make the 'hard' copies they supply to their clients, the latter do not require a licence to receive and read them. PRCA contend that in an online environment a licence to the provider of a service, Meltwater, must encompass the inevitable copies which will be made when that service is received and read by the end-user. In other words the provision and receipt of the service are but opposite sides of the same coin. They accept that one must be licensed but deny the right of the Publishers to insist that both are licensed.”

This ‘double licensing’ argument was rejected by the Court of Appeal, which analysed the copies made by a recipient of a Meltwater e-mail and concluded that they were separate activities, not two sides of the same coin:

“The copies created on the end-user's computer are the consequence of the end-user opening the email containing Meltwater News, searching the Meltwater website or accessing the Publisher's website by clicking on the link provided by Meltwater . They are not the same copies as those sent by Meltwater. PRCA admitted as much in its defence and the agreed statement of facts. For these reasons I consider that the double licensing contention is unmaintainable.”

This conclusion illustrates a general difference between digital and pre-digital copyright. 

In the pre-digital environment no potentially infringing act was committed by reading a book or a newspaper, by opening a letter, or by listening to music on a vinyl record.  These activities were beyond the reach of copyright, since no copy was generated by doing so.  So no licence was required to do them and they were outside the control of the rightsholder.

Things are different in the digital world.  Once it became accepted that the transient copies created in the RAM of a computer count as copies for copyright purposes (a theory developed to enable a copyright owner to control the running of a computer program), then the very act of reading, opening, viewing or listening to anything on a computer automatically fell within the scope of copyright and became something that the copyright owner could control.  This position has been reinforced by the more recent acceptance that images on a computer screen also count as copies for copyright purposes.

None of these extensions in scope was envisaged by the original legislatures.  They happened without any change in the law.  They are a by-product of the fact that it is to all intents and purposes impossible to do anything in a digital environment without creating copies.  The law remained the same, but its effective scope in the digital environment was extended by the change in technology. 

This accidental extension of the reach of copyright has since become entrenched in later legislation such as the EU Copyright in the Information Society Directive.  This has two consequences.  One is that appeals to functional equivalence between digital and pre-digital copyright may fall on stony ground when measured against the words of the legislation. 

The second consequence is growing hostility to copyright, as the full ramifications of its extended digital reach have become apparent.  Most recently the Hargreaves Review concluded that copyright has overreached to a degree that brings it into disrepute and threatens its legitimacy. 

Whatever the ultimate result of the Meltwater litigation, it serves as a valuable reminder of the long arm of digital copyright.

To block or not to block? That is the Vaizey question

What would you do about infringement? That is the question that Culture Minister Ed Vaizey asked the ORG’s Jim Killock when they discussed website blocking this week. 

The right answer to the Vaizey question is ‘Ensure that the rightsholders have appropriate tools with which to enforce their rights if they choose to do so’. 

What is an appropriate enforcement tool?  That depends critically on who is the target.  Against the wrongdoer the full set of infringement remedies is available: damages, delivery up of infringing items, injunctions to prevent further infringement, and more.  Serious infringement may even attract criminal sanctions, including imprisonment. 

The rights industries say that this is not enough.  They cite numerous difficulties, including identifying infringers on the internet and problems with infringers who locate themselves in countries with less reliable intellectual property regimes. 

So the rights industries have long sought out other targets for enforcement.  Top of their list are ISPs.  The rightsholders have identified ISPs as efficient choke points for enforcement, who should be persuaded or forced to block websites, throttle internet connections and so on.

The rights industries have striven mightily to tar conduit ISPs with the taint of infringement, making it easier to justify enforcement measures against them.  However they have made little headway.  Conduits remain what they have always been – intermediaries who have done no legal wrong, and in particular do not infringe copyright, whatever information people may send through their pipes.    

Asking for enforcement powers against non-infringers is quite different from seeking sanctions against infringers.  There is tension between the apparent convenience of enforcing at a chokepoint and the principle that remedies should be deployed primarily against infringers.  Why should any remedy be available against someone who has done no legal wrong?  Is mere convenience a sufficient justification?

Exceptionally the courts do use their powers against innocent third parties to aid enforcement against a wrongdoer.  Where the law provides such remedies it has always protected the interests of the innocent third party.  It insists that the remedy should go no further than strictly necessary, is highly specific so that the third party knows exactly what is required of it, is minimally invasive of the third party’s rights and that the third party is compensated both for its legal costs and the cost of compliance with the order.  Examples are Norwich Pharmacal orders and freezing injunctions served on banks who hold wrongdoers’ bank accounts. 

In the UK the existing S97A Copyright Designs and Patents Act 1988 permits the court to grant injunctions against service providers who have actual knowledge of another person using their services to infringe copyright.  We will shortly find out, in Newzbin2, whether the English court will grant the movie industry a blocking injunction against BT under these provisions, and if so how targeted an injunction that will be. 

The severe limitations on granting remedies against innocent parties are not matters of mere legal nicety.  They reflect fundamental requirements of justice and proportionality.  An injunction against an innocent third party should, as a matter of law, always be regarded as exceptional and never become routine.

When the target of the injunction is a choke point such as a conduit ISP, there are significant proportionality concerns.  The very effectiveness of applying pressure to an information choke point requires the remedy to be applied with extreme caution, due to the high risk of cutting off legitimate as well as infringing content.  The fundamental rights not just of ISPs, but of the users of the internet generally, come into play.  Both have to be weighed against the interest in enforcing intellectual property rights. 

When we discuss the rights and wrongs of website blocking it also matters, and cannot be dismissed as a point of detail, what form the website blocking takes.   Blocking a whole site is far too blunt an instrument to be regarded as proportionate in any but the most special case.  If the infringement is a proprietary website full of infringing content, which demonstrably cannot be pursued by any direct means, then it might be proportionate to require an ISP to take measures within its technical capability to block access to the whole site, if no other content will be affected by the block.  Even then an injunction should contain proportionality safeguards, such as ensuring that it applies only while the site continues to include the infringing content. 

But as soon as we move away from that exceptional special case, whole-site blocking is, or should be, effectively off the menu.  Could it be proportionate to require blocking of the whole of a site which contains genuinely non-infringing material, or which only contains facilitative, dynamic links to material on other sites?  Could it be proportionate to require blocking of the whole of a hosting platform to which users submit content or links?  

Proportionality suggests that a more targeted, content-specific approach might be appropriate.  But while such a granular approach renders blocking more palatable in minimising collateral damage to legitimate content, it is likely to be technically more complex and so place a greater burden on the ISP.  Proportionality would be a very significant issue if, for instance, an ISP were required to take measures which it does not have the technical capability to implement.  

Targeted blocking also raises issues of scalability.  It is all very well for one rightsowner to demand that a content location be blocked, but what when the hundredth, or the thousandth, asks for other locations to be blocked?  These scalability issues are relevant for all ISPs, but especially so for SMEs.

This may all give the impression that any blocking – blunt instrument or fine - is objectionable.  It does illustrate just what an extraordinary, exceptional and difficult remedy blocking is.  Blocking cannot be an everyday solace for the online ills of the copyright industries.  

Universal access to the internet a human right? Not so, Mr Special Rapporteur

Rarely can there have been such a clear example of the muddled state of human rights thinking as the UN Report on freedom of expression on the internet. 

Most of the Report, by Special Rapporteur Frank la Rue and submitted to the UN Human Rights Council, is an incisive, indeed inspiring, manifesto for protection of the internet from censorship and other interference from the state.  Point by point it targets arbitrary blocking and filtering of content by the state, criminalisation of legitimate expression (such as locking up bloggers), imposition of intermediary liability, internet disconnection and three strikes rules, government-initiated cyber-attacks and State violations of privacy.  Truly excellent stuff.

But in Part V the report morphs into a plea for a government-sponsored universal entitlement to be provided with access to the internet.  The Rapporteur is quite candid about this: 

“…the Special Rapporteur would like to underscore that access to the Internet has two dimensions: access to online content, without any restrictions except in a few limited cases permitted under international human rights law; and the availability of the necessary infrastructure and information communication technologies, such as cables, modems, computers and software, to access the Internet in the first place.”

The second dimension is paraded under the banner of human rights.  In truth it is not a human right at all. It is a claim that I, someone who would like an internet connection, can via the coercive agency of the state compel other people to sacrifice the fruits of their labour to satisfy my desire.  

Many will argue, on myriad grounds related to social justice, general welfare and the like, that that is a reasonable claim that the state should enforce.  But a human right it is not.  It is the opposite: a claim that the state can justifiably abrogate human rights in the name of a greater good. 

To pretend that forced redistribution of wealth in what the state deems to be a good cause is an expression of human rights (so-called ‘positive’ human rights), rather than an interference with them, dilutes and tarnishes the really important human rights addressed in most of the Report: the rights that entrench protection from actions of the state.

So 10 out of 10, Mr Special Rapporteur, for most of your Report.  Minus infinity for Part V.

IPO opinions – inside or outside copyright?

One concrete recommendation of the Hargreaves Review is that, in an effort to reduce uncertainty and confusion about what infringes copyright, the UK government’s Intellectual Property Office should be able publish statutory opinions. 

Hargreaves proposes that these official opinions would clarify copyright law, specifically exceptions to copyright, where new circumstances have arisen, or where there is evidence of confusion about what copyright allows.  While these opinions would not be binding, the courts would have a duty to take account of them in cases to which they are relevant.

This could be a good idea where the question of what does and does not infringe can be answered by looking no further than the copyright legislation.  The IPO would interpret the statutory provisions, a task for which it could be well suited (if it can be guaranteed lobby-proof, but that is another issue). 

However the present reality is quite different.  To answer the most difficult digital and online copyright infringement questions the courts often have to look beyond the copyright legislation.  This is largely a result of the very imbalance in copyright protection that Hargreaves has identified and says must be fixed.  The courts have to fish in other waters for ways of reining in copyright’s digital overreach or, in the other direction, of catching perceived bad online actors whose activities do not fall neatly within the copyright statutes.

Take format-shifting.  It is often suggested that millions of people in the UK infringe copyright - even if only technically – by copying legitimately acquired music tracks from CDs to MP3 players via their computers.  What could an IPO opinion usefully say about this? 

In June 2006 the BPI (the representative voice of the UK recorded music business), making submissions to the House of Commons Culture Media and Sport Committee, said that it would not pursue litigation against end-users who did this for their own private use.  An opinion would have to consider whether a forbearance to sue can amount to consent sufficient to negative infringement, and whether the BPI’s statements (both its written memorandum and its oral evidence) did amount to such consent.  The opinion might also usefully consider whether an estoppel had arisen, (a legal doctrine that would prevent the BPI withdrawing at will any consent or forbearance), and whether the estoppel was permanent or time-limited. 

This analysis is at the very edge of and, in some respects, outside the boundaries of the copyright legislation.  It is far removed from the scope of a statutory exception.  Yet in the present state of copyright legislation, the BPI statement from 2006 is one of the most relevant points to consider if someone wants to know if format-shifting is legal in the UK.  Would the IPO relish the task of taking that on?

Similarly courts considering digital copyright infringement issues in the UK and Europe have grappled with, and sometimes deployed, legal doctrines including implied consent, derogation from grant, freedom of expression under Art 10 European Convention on Human Rights and its equivalents, involuntary copying, public interest or benefit, the EU Ecommerce Directive and accessory liability.  

If and when the scope of copyright is corrected  there should be less need for the courts to look for answers outside the four corners of the copyright legislation.  The same would apply to IPO opinions.  Does this suggest that copyright scope has to be fixed before the IPO can perform a useful role in publishing statutory opinions?

Hargreaves and the copyright cake

An impressive feature of the Hargreaves report is how it challenges, in a rational and measured way, some fervently held beliefs about copyright yet without obviously appearing to do so.  

This is most evident in the report’s approach to exceptions.  There are two quite different views of copyright exceptions.  The one that holds sway today is that copyright owners have a fundamental right to prevent and control all copies of their works, of whatever type and made for whatever purpose; and that any exception derogates from that right.  On this view copyright constitutes a perfectly formed circular cake, anything more than a gnat’s bite out of which has to be compensated.

The second view is that copyright is an irregular cake, the appropriate shape of which has to be considered and determined, and that copyright exceptions are no more than another tool with which to mould the cake.  They sit alongside aspects such as the originality threshold, substantial part and the idea/expression dichotomy.

Hargreaves has filled his report with material that in substance  encourages the moulding view, without explicitly taking issue with the bite out of the cake approach.  This is evident in his references to the need for copyright to be balanced in terms of its economic and social effects, and his characterisation of fair use as a means of fixing imbalances.  So Hargreaves says at various points in his report:

“Policy should balance measurable economic objectives against social goals and potential benefits for rights holders against impacts on consumers and other interests. These concerns will be of particular importance in assessing future claims to extend rights or in determining desirable limits to rights.” 

“We simply invite Government to consider that as copyright becomes increasingly economically important, it is vital that economic considerations are fully weighed in the balance. This is especially so given the role, noted in the previous chapter, that copyright is acquiring of regulating the permissibility of technologies, such as consumer recording devices and web search engines. If the current imbalance in the debate on copyright is allowed to continue, the economic price will be high.”

“Economists regard copyright as a trade off between the positive effects of the incentives provided to creators and commercialisers of content [and] the negative effects of establishing monopoly rights for those parties, which have the potential to restrict supply and to inflate transaction costs.”

And the Report’s supporting law and economics paper observed (albeit among various references to exceptions as permitted private ‘takings’ of property):

“From a general perspective, the task may be well described as drawing monopoly as narrowly as possible so as to maintain incentives for creative activity while simultaneously using exceptions to avoid unacceptable impacts on objectives such as free speech and to avoid incurring overwhelming transactions costs.” (Dnes)

Against this repeated emphasis on the need for copyright to be in balance, paragraph 5.5 of the report acknowledges that the three step test embodied in EU law reflects the bite out of the cake stance.  The report seems to regard this more as a legal impediment to achieving balance than necessarily a soundly based approach. 

In this the report echoes Sir Hugh Laddie’s famous Stephen Stewart lecture in 1995, in which not only did he draw attention the benefits of flexible fair use such as future-proofing, but roundly criticised “bite out of the cake”:

“Rigidity is the rule.  It is as if every tiny exception to the grasp of the copyright monopoly has had to be fought hard for, prized out of the unwilling hand of the legislature and, once conceded, defined precisely and confined within high and immutable walls.  This approach also assumes that Parliament can foresee, and therefore legislate for, all possible circumstances in which allowing copyright to be enforced would be unjustified.” (Laddie, Copyright: Over-strength, Over-regulated, Over-rated?)

Both Laddie and Hargreaves, in their insistence on balance and that the scope of copyright should extend no further than strictly necessary, contain echoes of an even more famous commentary on early UK copyright legislation:

“For the sake of the good, we must submit to the evil.  But the evil ought not to last a day longer than is necessary for the purpose of securing the good”

“It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated and the least objectionable way of remunerating them is by way of copyright” (Lord Macaulay, speech to the House of Commons, 1841)

Far from being regarded as a (to a limited extent) necessary evil, copyright now has been elevated to a sacred object of worship.  Those who question it even slightly risk being reviled as heathens and heretics by the guardians of the pure and eternal (or at any rate life plus 70 years) flame of copyright. 

Hargreaves’ decision not to recommend fair use, largely it appears as being legally too difficult, could be seen as rather tame.  However it is certainly understandable if the goal was to bring evidence, economics and rationality to the fore - which sparking off a doctrinal storm would not have helped achieve.  In that context Hargreaves may have laid the ground for a more radical approach, once the implications of its analysis have sunk in.

As to the perceived legal impediments to fair use, the report might have observed that the rights industry lobby is not slow to secure changes in international copyright law when it thinks its interests are threatened by technological change.  In any event, EU Directives are only secondary EU legislation.  Like the EU, the USA has signed up to Berne, TRIPS and the three step test, yet it has retained its fair use provisions.  So why not boldly do the same? 

After all, fair use is not an alien US import.  It was originally developed in English law, and only superseded (if indeed it was) by specific fair dealing exceptions as a result of the codification of UK copyright in the 1911 Copyright Act.  It would be a fitting way to mark the 100^th anniversary of the 1911 Act to acknowledge the error and put UK copyright back on track.

Twitter will notify users of disclosure applications

Interesting to see Twitter saying at e-G8 that they will notify users if they are the subject of a court application against Twitter to disclose their identities.  As pointed out in a previous post, that is possible under the English Norwich Pharmacal procedure, and was suggested by Aldous L.J. in Totalise v Motley Fool, but rarely if ever happens.  Maybe now it will catch on. 

More ATVOD decisions - one in three under appeal.

ATVOD has published two more scope determinations.  On 29 March 2011 it added Formula 1 Video and Telegraph TV to the list of services that it has decided are TV-like.  The Telegraph TV decision is being appealed to OFCOM, as are previous newspaper and magazine decisions against Sun Video, News of the World Video, Sunday Times Video Library and Elle TV.  In total seven of ATVOD's 22 published decisions to date are currently under appeal to OFCOM.

Meanwhile the Periodical Publishers Association has complained to ATVOD that the intention of the Audiovisual Media Services Directive is being ignored and that ATVOD is interpreting the implementing regulations in an unreasonable manner.

TV-like regulator pursues the national press

ATVOD, the newest UK content regulator, has started to test the limits of its powers to require providers of TV-like video on demand to notify their services and pay it a fee, currently £2,900 per service per annum. It has published 20 ‘scope determinations’, each one deciding that the service in question is in scope and subject to ATVOD regulation.


The determinations include three especially high profile decisions about national newspapers, all of which ATVOD says are expected to be appealed to OFCOM, the overall UK communications and broadcast regulator. ATVOD asserts that the video content on the Sunday Times video library, Sun and News of the World websites are TV-like video on demand services and fall within its jurisdiction. It has made a similar determination for Elle magazine. If ATVOD is right then the services must conform to stricter content rules than an ordinary website and are subject to ATVOD’s complaints procedure.

Seeking to bring national newspapers within scope is particularly controversial when the EU Audiovisual Media Services Directive, which determines the limits to ATVOD’s jurisdiction, states that it should not cover electronic versions of newspapers and magazines. The press has never had broadcast-style content regulation or rules imposed on it. To do so would rightly be seen as a gross intrusion on press freedom. That is why the carveout is in the Directive.

Unsurprisingly, the newspapers have argued to ATVOD that the video content on their websites is not a separate service and, among other objections, that it falls within the Directive’s exclusion for electronic versions of newspapers and magazines. ATVOD is undeterred:

"ATVOD has no desire or remit to regulate the press – whether online or offline – but we do have a duty to be even-handed and apply the new statutory regulations in a fair and consistent manner.

Where video content appears as an integral part of an online version of a newspaper, for example alongside a text based story, then the service falls outside our remit: it is indeed excluded by law. Many services provided by newspapers and magazines fall exactly into this category and can expect to hear nothing from ATVOD.

But that is not what happens in these particular services. In each case a catalogue of ‘TV like’ programmes is offered as a discrete service, comparable with many others. There are clear differences between these services and on-line versions of newspapers. It would make no sense to exclude viewers from regulatory protection simply because an on demand programme service shares a website with an online newspaper or magazine."

So it’s OK to have video on your newspaper site, but woe betide anyone who provides a discrete list of the video content.

When the then Secretary of State for Culture, Media and Sport Andy Burnham introduced the regulations that put this regulatory system in place, he said this about scope:

"The definition is narrow and covers only mass media services whose principal purpose is to provide television-like programming to users."

It is not easy to see these sentiments reflected in ATVOD’s current approach to newspaper sites. The outcome of the expected OFCOM appeals will be awaited with interest.