On Tuesday, the Liberal Democrat peer Lord Clement-Jones and the Conservative peer Lord Howard of Rising successfully added an amendment to the Digital Economy Bill that would let copyright holders gain high court injunctions forcing ISPs to block access to websites that have received copyright-infringement claims.
Amendment 120a swiftly earned outrage from ISPs and privacy campaigners, who have branded it, in the words of the ISP Association (ISPA), "hastily constructed and rushed through at report stage without due consideration of the implications".
The government's Digital Economy Bill, set out in late 2009, is largely concerned with cracking down on online copyright infringement. It is being debated in the House of Lords, and will subsequently go to the Commons for further scrutiny.
ZDNet UK spoke to Lord Clement-Jones on Thursday to find out more about the motivation behind and implications of Amendment 120a.
Q: What is the purpose of Amendment 120a?
A: The purpose is very clear — it's to prevent copyright infringement.
It replaces Clause 17, which the Lib Dems opposed, does it not?
It's a much more specific way of replacing Clause 17. We took objection to the fact that the government would change copyright law by order.
We kept saying: "Show us a situation where you think you're going to need this kind of power." The government, frankly, didn't come back, but we came to the conclusion with the Conservative front bench that this was a matter of doing something now to prevent some of these overseas websites infringing copyright and getting away with it. It's a growing problem.
Is the overseas nature of these websites the reason you are going after the conduit, not the source?
It is sometimes very difficult to distinguish between the two. Of course the ISP is a conduit, but one is asking the ISP to take down a website which people are getting access to via their service provider. Their business model is often based on being able to infringe copyright. That's the worst example.
Frankly, copyright enforcement against someone in the UK is relatively straightforward. This power is only an adjunct to the existing copyright law, which says copyright owners have the right to gain injunctions against service providers.
Arguably, under [section 97A in Part 1 of the Copyright, Designs and Patents Act 1988], [there is] already the right to block sites. I don't quite take the argument that this is a terribly dangerous new power, precisely because it's an adjunct.
If there is already a law for blocking websites, why is new legislation necessary?
Because it makes it more specific — specifically, this will allow takedowns. It's very carefully controlled. The ISP is at the end of the road only when you can't get satisfaction from [contacting] the website.
Some people have drawn an analogy with UK libel laws, where super-injunctions sometimes have a chilling effect on the media. Will this not also cause self-censorship in the face of expensive legal action, in this case by ISPs?
This is completely different. Libel law is often a matter of opinion. Sometimes there are super-injunctions made, as with [John] Terry, which are often designed to gag free speech.
This is about the protection of legitimate rights. It is perfectly easily establishable whether there are rights attached to a particular copyright owner.
Photographers are worrying about people trampling over their rights [by using their images online]. This is for small creators, not just the big battalions [of rights owners]. The business model depends on people being able to download material without paying for it, in breach of copyright.
Are you saying that ISPs' business model is based on copyright infringement?
No, I'm talking about the service providers. A lot of business models are based on being able to deliver free music over the internet. The only way to get at them is by giving them notice, then, if they don't take them down, go to the service providers.
Would this not make websites such as YouTube, which frequently hosts copyright-infringing material, liable?
Whenever they are asked to do so, they behave impeccably and take down copyright material. There's no question they would be involved. Google behaves impeccably — this is just a red herring. YouTube always demonstrate their good faith. There is no question they would be vulnerable.
Is the wording in your amendment clear enough to avoid making sites like YouTube liable?
The wording is entirely clear. If you started action against YouTube, they would take it down.
Your amendment repeatedly refers to 'online locations'. What does that mean, specifically?
That's the websites we're talking about.
What about services such as Limewire, which are often used for perfectly legitimate purposes?
Websites aren't just simply mere conduits. Websites have responsibility. If their business model depends on...
...people accessing it to unlawfully download, they've got to do something about that.
I find it odd that the reaction to this amendment seems to be based on the idea that it's not legitimate to defend copyright. If people are upfront about this, and say, "We don't believe in copyright", then I understand where they're coming from but I disagree.
But Limewire is a P2P client for the PC, rather than a website. Being connected to the internet, it might be possible to see it as an 'online location'. How would the amendment affect such an application? Would ISPs have to block it?
You've already got the peer-to-peer remedies in the Digital Economy Bill. That's what it's all about. That's what the possible technical measures code is all about. That bit of the bill is entirely designed to deal with P2P file sharing.
You can only detect on the upload, you can't detect on the download. By and large, the big issue is that people can only detect what's happening on the upload. The only new thing is that this deals with downloads from websites. You can identify the website — you can't identify the subscribers and you wouldn't want to.
Might an effect of this amendment not be to make people turn to encryption and other means of bypassing the block?
Be that as it may — and I'm not sure that's the case — this would not be a universal way of behaving.
If you look at what's happening with child pornography sites and other objectionable content, there hasn't been a growth in encrypted sites. People will realise when they contemplate setting up a site with a copyright-infringing business model, they will decide not to go ahead.
You have previously drawn this analogy between blocking copyright-infringing sites and blocking child pornography sites. Some people have expressed surprise at the comparison — how do you respond?
I was using it as an illustration to demonstrate that site blocking already exists. It is perfectly legitimate to do that. This is not a novel concept. There are sites that are identified as being blocked in various fields. I am not saying child pornography is equivalent to copyright infringement.
But is there not an important distinction to be made, in that child pornography is a criminal offence, while copyright infringement is a civil matter?
I don't think so, no. If you're infringing somebody's copyright on the web, it's something that should not be taking place.
Some comparisons have been made between your amendment and the US Digital Millennium Copyright Act (DMCA), which has in some cases seen businesses making claims against rivals, so as to hurt their business. Could this not happen here?
I think it's a matter of people testing it in the court. I don't think that will happen, because the courts will be pretty canny at knowing whether people are taking the mickey in the first place. They may take something down temporarily, but that's not really the point.
It has to be a copyright owner who is aggrieved that their material is on a website without permission. This is not some great freedom fight for the individual. Most of these infringing websites are commercial interests — maybe not all the P2P sites, but a lot of the non-P2P sites are commercial sites.
Do you think your amendment might need further tweaking to prevent it being used for some kind of censorship?
If there are rough edges to the amendment, we'll certainly look at those. If people have genuine amendments they want to put forward, I'd be perfectly happy to look at that, and I hope the government would too. But I don't believe, in its current form, there is any possibility of censorship.