19 December 2011

Only Stupid Bastards Help EMI

Just because something is talked about a lot on the Internet doesn't mean that it is actually of any great importance, in fact I am tempted to say it is often quite the opposite, the smaller the dog, the louder the bark as they say (“they” being the people on the Internet). Today I found my morning feeds and streams full of chatter about the Government's proposed new legislation to allow music publishers, film producers and others go to court to compel Internet Service Providers (ISPs) to block access to certain websites, and for once I thought the alarms being sounded were not ringing loud enough.

In 2008, EMI Ireland - along with three other record labels - launched a series of cases against Irish ISPs, first against Eircom and subsequently against UPC. Under the terms of the settlement of its case, Eircom instituted a 'three strikes' rule, meaning that those found to be downloading copyrighted material without the permission of the copyright holders, such as through peer-to-peer (P2P) file-sharing sites, would be warned and if caught three times would be banned from internet access through Eircom. In other countries with a wide range of ISPs this might not be such a big deal, but there are still parts of Ireland where Eircom is the only broadband service provider. In addition Eircom voluntarily blocked access to the Swedish P2P directory Pirate Bay for all its customers.

But this self-enforced policy was not enough for the music industry, particularly EMI, who wanted all ISPs to block access to any P2P site capable of hosting copyrighted material without the consent of the copyright holders. In October of last year High Court Justice Peter Charlton ruled that this policy was unenforceable under current Irish Copyright law, and dismissed EMI's case against cable company UPC. However he did believe that EMI's rights were being infringed, and the Fianna Fail/Green government agreed to introduce a Government Order to close what Charlton perceived to be a loophole in the law.

Last month the Court of Justice of the European Union (EUCJ) ruled that web filtering by ISPs was fundamentally incompatible with human rights (Scarlet Extended SA v SABAM, November 24th, 2011), ruling that such an injunction “could potentially undermine freedom to receive information since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications”, and yet today we learn that the new Fine Gael/Labour Government intend to follow their predecessors and introduce legislation in the new year to do exactly that.

Now to be honest I couldn't care less about file-sharing or the illegal downloading of music. I have never illegally downloaded a music file nor do I have any intention of doing so. I think artists should get paid for their work, but I don't for one minute believe that EMI or any other major corporation cares about any of their artists given the meager slice of the pie that any artist actually gets, for the record labels artists are a commodity to be bought and sold like any other. My concerns are more about the precedent being set of a Government censoring the internet and blocking access to content legally available elsewhere that it disagrees with.

Back in the deep dark mists of time known as the Nineties, I had the pleasure of spending a number of days in the Supreme Court at the tail end of the infamous SPUC V Grogan case. SPUC (The Society for the Protection of the Unborn Child) had taken a case against the Students' Unions of a number of universities to prevent them from distributing information on pregnancy options that included abortion information. The case went back and forth between national and European courts for a number of years and after a final ruling by the EU Court of Justice it ended up in the Supreme Court during my tenure in the Students' Union in 1997 to decide on final costs. The EU Court Of Justice ruled that while abortion was a legal service in other EU member states and that one member state could not block its citizens from availing of a service legal in another member state, as the Students' Unions were not themselves providing the service nor were they acting as paid agents on behalf of the service providers, EU law (specifically Article 56 of The Treaty of Rome, on The Free Movement of Services) was not being compromised. In fact had the Students' Unions charged for pregnancy option information or had engaged in a contract with a specific UK clinic to direct people to that clinic, they would have been protected under Article 56. Capitalism trumps human rights every time, it seems.

Of course in this age of the Internet everybody has access to information on a full range of pregnancy options at the click of mouse or the touch of a screen (except users of the Siri service on iPhones) so the effect of the SPUC V. Grogan ruling has been overtaken by technology. A clinic in the UK where such services are legal can freely advertise itself online in its home country, and any other EU citizen has the right to access that information once it is provided directly by the provider of that service or an agent thereof. However today's announcement by the Government has worrying implications, particularly when the EUCJ has already ruled that web-filtering by ISPs fundamentally affects human rights because it could lead to “the blocking of lawful communications”.

Our Governments have traditionally been quite socially conservative and much of our human rights legislation has been introduced into Ireland by the EU in the face of strong opposition from successive hostile Governments. Homosexuality was only decriminalized in 1993, five years after Senator David Norris won his case in the EUCJ that criminalization of his sexuality was in contravention of the European Convention on Human Rights, and who is to say that in the coming decade abortion, gay marriage and euthanasia, all illegal here but legal in a number of other EU member states, might similarly come to be viewed as fundamental Human Rights within the EU? Whether you agree with any or all of these, access to information on these activities is the key to education on the issues, and this is why the proposed Government legislation to compel Irish ISPs to block access to websites that offer a service deemed illegal under Irish law while legal elsewhere in the EU is a very dangerous precedent to be setting. While you may not care about the Government blocking P2P sites, what if it attempted to compel ISPs to block websites that gave detailed instructions on how same-sex couples could get married in Belgium?

Furthermore having access to a P2P site does not automatically entail that you will break the law. Many P2P sites (like Pirate Bay) also facilitate the sharing of non-copyrighted material, or material hosted under a Creative Commons license that permits non-commercial sharing. Blocking access to a site on the basis that it might facilitate an illegal action assumes a criminal intent on the part of all users of that site, effectively categorising all users as guilty until proven innocent, a troublesome development indeed. While there are signs that the controversial Blasphemy law introduced by the last Government may be repealed, since online Blasphemy is now a crime should the Government take similar proactive steps to block access to any website or online forum where a blasphemous statement could be made, say through a public forum or unmoderated user comments?

If someone breaks the law, then by all means prosecute them for doing so, but restricting access to knowledge on the basis that it could under certain circumstances be used to break the law or assuming guilt before any wrongdoing has occurred is a worrying action for any Government to take. You may be tempted to dismiss all today's online chatter about EMI and the Government as the loud barking of a small and irrelevant dog, but this would be a mistake. The Government's proposed course of action leads down a very dark and dangerous path indeed

Links
Full text of the Court of Justice of the European Union ruling in the Scarlet Extended SA v SABAM case, November 24th, 2011

Image: Only Stupid Bastards Help EMI, album cover by Conflict.

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