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Sunday, 11 April 2010

Hunting The Digital Economy Act

Well the Digital Economy Bill may be an Act, but the shooting ain't over yet.

Hunting down the villains of the Parliamentary 'wash-up' will be a bloody, complex and expensive business. A process Lord Clement-Jones eloquently alluded to at the end of his damning speech on the DEB: "I hope that we have made the views of these Benches clear and that never again will such a complicated Bill be dealt with in this way at the fag end of a Parliament."

Here's a big offender, who was set loose late in the piece (italics are mine):
"18(1) The Secretary of State may by regulations make provision about the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright.

(2) “Blocking injunction” means an injunction that requires a service provider to prevent its service being used to gain access to the location."
There's immense potential for evil in the exercise of this disproportionate, unnecessary and overly broad power. Establishing its true scope and guarding against unintended consequences is an impossible task. Numerous activities may "infringe copyright" (see sections 16-27 of the CPDA, for a start). It is unclear whether only the rights holder could  seek a blocking injunction. And what qualifies as a 'location on the internet' is anyone's guess.  Could one of your competitors spot any random technical infringement and try to shut down your web site? Your customer extranet? Your presence in  search results, price comparison tables etc etc? You would need deep pockets to insist that all this be clarified in the face of a threatened injunction.

Ten sub-sections try to avert the need for these regulations, but the villain is already loose in  the political underworld. Given the standard of our politicians, it's easy to imagine a Secretary of State being "satisfied that the use of the internet for activities that infringe copyright is having "a serious adverse effect" on businesses or consumers, that making the regulations is a "proportionate" way to address that effect, and that making the regulations would not prejudice national security or the prevention or detection of crime. Then the minister can do his worst, explain his reasons, wait for the 60 days of ranting to expire and press on with issuing the regulations.

No, this villain is loose - as are others - and they're coming after the little guys. It's the sort of challenge that attracts super heroes. If Hit Girl isn't available, I guess it'll have to be ORG.

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