I will be going through [...]]]> So, the Digital Economy Bill has been unleashed upon an unsuspecting public (if we exclude the twittering and blogging classes of course). The Bill is already being scrutinised by various parties, and the veredict seems to be worrying, as it implements three strikes disconnection, as well as other seemingly abusive provisions.

I will be going through it in more detail in the next couple of days, but initially I was pleasantly surprised to find that the bill contains a section related to orphan works. As I have mentioned before, orphan works are a hot legal topic at the moment thanks to the Google Book Settlement, which has forced policy-makers to respond to the orphan work issue before (and if) the agreement comes into force. The relevant section of the Bill is related to licensing of copyright works (s 42), will include a new section to the Copyright, Designs and Patents act that reads:

“116A Licensing of orphan works
(1) The Secretary of State may by regulations provide for authorising a licensing body or other person to do, or to grant licences to do, acts in relation to an orphan work which would otherwise require the consent of the copyright owner.
(2) An authorisation or licence under the regulations in favour of any person must not preclude any authorisation or licence in favour of another person.
(3) The regulations may provide for the treatment of royalties or other sums paid in respect of an authorisation or licence, including—
(a) the deduction of administrative costs;
(b) the period for which sums must be held for the copyright owner;
(c) the treatment of sums after that period (as bona vacantia or otherwise).
(4) The regulations may provide for determining the rights and obligations of any person if a work ceases to be an orphan work.
(5) The regulations may provide for the Secretary of State to determine whether any requirement of the regulations for a person’s becoming or remaining authorised has been met or ceased to be met.”

While any legislative move towards regulating orphan works must be welcome, I cannot help but feel that the worst option possible has been chosen, namely licensing. Most experts agree that there are three different strategies to take when it comes to orphan works: reduce liability (as proposed by U.S. bills on the subject); create an exception, or allow an existing body to license the work in question (the Canadian experience). I think that the way in which the Canadians have modified their copyright legislation to allow for their Copyright Office to decide on a case-by-case basis is rather good. The problem with the licensing proposal in the proposed UK bill is that it seems to be geared towards making collective societies the ones responsible for receiving payment for use of orphan works. Call me cynical, but this seems like a system that will create a new revenue stream for collective societies, one that it is very unlikely that they will have to pay to legitimate owners. No wonder collective societies seem to relish the opportunity of becoming the recipients of orphan works licence fees.

The more logical solution seems to me to create an exception to copyright law that will allow limited use of the work if exhaustive and conscientious effort has been made to locate the rights holder. This right could stop the moment the holder is identified. This section is a lost opportunity, thankfully it has been added to a bill that one would hope will not see the light of parliamentary vote.

While the Bill’s text is not yet available, Parliament has published [...]]]> As anticipated, Her Majesty the Queen has announced the implementation of measures against file-sharers, including notices and disconnection. The measures will be part of the Digital Economy Bill, which also proposes tougher classification for video games, and new powers to Ofcom regarding local news services.

While the Bill’s text is not yet available, Parliament has published both an outline of the Bill’s contents, and how the plan fits into the government’s legislative strategy for the next year. The outline mentions that infringement is one of the main objectives of the Bill:

“Online infringement of copyright – tackling widespread copyright infringement via a two-stage process. First by making legal action more effective and educating consumers about copyright on-line. Second through reserve powers, if needed, to introduce technical measures, such as disconnection”

As we are currently lacking detail, it is early to say anything other than what has already been discussed thoroughly elsewhere. I do not need to repeat how this is bad news, and how disconnection is unworkable and potentially it is a human rights minefield. Three-strikes legislation has been drafted under the assumption that file-sharers are students living on their own, when the reality could prove to be more nuanced. There is real concern that this will end up disconnecting people who have nothing to do with the alleged offence. Seems like the idea of collective punishment did not disappear in the dark ages as we had thought, Lord Mandelson and his ilk are happy to punish the innocent and sinners alike.

At the same time, innovative digital services are providing valid and valuable alternatives. We shall see.

Update: Cory Doctorow claims to have received leaked information about the specifics of the Digital Economy Bill. If true, this is scary stuff, but I will hold judgement until I read the content.

On 18 November I am running a workshop at the Internet Governance Forum in Egypt at 8am – 9am (2 hours ahead of the UK) “Towards Access: the relationship between IP, competition and [...]]]> My colleague Abbe Brown is in Egypt attending the Internet Governance Forum (not jealous, honest). She has sent this announcement, which I reproduce:

On 18 November I am running a workshop at the Internet Governance Forum in Egypt at 8am – 9am (2 hours ahead of the UK) “Towards Access: the relationship between IP, competition and human rights”.  You can listen in at  http://www.un.org/webcast/igf/

On channel 5

Abbe Brown

Jamie King (Film Director (STEAL THIS FILM 1,2 and 2.5 and founder of the VODO project (www.vodo.net)) and Shira Perlmutter (IFPI). Lecture Theatre 175, Old College 13:00 to 14:30 All Welcome!

The case deals with email contractual negotiations [...]]]> (Via Jordan Hatcher) What are the rules with regards to contract formation through email? When exactly is a contract concluded if the negotiators have not disclosed the terms and conditions clearly? The case of Baillie Estates Ltd v Du Pont (UK) Ltd helps to elucidate some of these questions.

The case deals with email contractual negotiations that are nowadays common in various industries. The case involves Edinburgh printing company Baillie Estates, and the English representative of US multinational Du Pont. The contract involved the purchase of a large printing press. While the sales process involved visit by Du Pont sales agent to Baillie’s facilities, the negotiation process was mostly conducted through email. According to the facts of the case, Du Pont sent an email to Baillie with details relevant to the conclusion of the contract, including price, date of delivery, payment dates, interest rates, and extras to be included in the transaction. Baillie responded with a short email reading “Go ahead”, and Du Pont replied with a terse and vague and terse response “It’s on the way”, with no reference as to what was on the way. At this point, Baillie’s representatives thought that the contract had been concluded. However, Du Pont then sent the standard terms and conditions as an email attachment the day after, which included a jurisdiction and choice of law clause, but also specific provisions about credit checks that may hinder the conclusion of the contract.

The parties were in disagreement as to when there was a contract. Baillie argued that the contract had been concluded with the communication that “It’s on the way”, while Du Pont argues that the early exchange was only an invitation to treat, and that the contract would have been concluded after Baillie had agreed to the standard terms and conditions. In the Court of Session decision, Lord Hodge opined that the email with contractual details was indeed an offer, and that the subsequent communication, while informal, had the acceptance effect. Therefore, a contract was concluded before Du Pont had sent an email with its standard terms and conditions.

A very interesting aside is that Du Pont’s communications contained a disclaimer stating that no email communication should be considered contractual unless clearly stated. Lord Hodge says:

“For completeness, I record that Du Pont did not advance the argument set out in their defences that their emails contained a standard disclaimer that the email did not constitute a contractual offer or acceptance unless it was designated that an e-contract was intended. Such an argument would have been inconsistent with Mr Cormack’s approach and would have been met by the response that it was the attached proposal rather than the email which was the offer document.”

Very interesting ruling indeed! It seems like this serves to further erode the enforceability of email disclaimers. Brodies has drafted a list of lessons to be learnt from this case:

“Contracts may be formed by email earlier than you might expect.

When negotiating a contract by email, tell the other side about your standard terms as early as possible.

Consider rewording standard “no contract” email footers to cover attachments.

If you do not want to be bound until the contact is signed, then say so expressly in your communications (both written and verbal). In England, the phrase “subject to contract” is often used. In Scotland, while it may help to use this phrase, it does not have the legal meaning that it has in England. It is better to spell out the position in each communication e.g. by making clear that nothing in the communication constitutes a legal offer that is open for acceptance to create a legally binding contract.”

Sound advice indeed.

Have you had an embarrassing or worrying moment with communication technologies? Are you concerned about online privacy? If you answered yes, then you may be happy to know that you are not alone, the number of people concerned about online privacy is increasing. Of course, this is not the exclusive realm [...]]]>

What are you doing?

Have you had an embarrassing or worrying moment with communication technologies? Are you concerned about online privacy? If you answered yes, then you may be happy to know that you are not alone, the number of people concerned about online privacy is increasing. Of course, this is not the exclusive realm of the wired world, many people are familiar with the dreaded 2AM drunken phone call either as senders or recipients, and there probably were some mistimed telegraphs during the technology’s nadir. However, there cannot be any doubt that the chance of privacy malfunctions increases as we put more of our life online.

The question has to be whether those who choose to make some of their personal details public through Facebook, LiveJournal, Twitter or MySpace should have less expectations with regards to privacy and personal data than those who choose digital obscurity and anonymity. To join the social media tribe is still entirely dependent on making a personal decision to make public aspects of one’s life.  Furthermore, the level of involvement is a matter of personal choice as it is entirely possible to assume a pseudonym or a digital persona to conduct one’s online interaction in a more open and carefree manner. Those of us who have decided to have a very public social media presence may lack the freedom enjoyed by the anonymous crowd, but as a trade-off benefit from other perks such as a level of recognition and accountability.

Nonetheless, the level of personal scrutiny to those publicly engaged in online communities is a matter of concern to people like yours truly. Having publicly quit Facebook, I have been aware that my online persona both in this blog and Twitter is my main presentation card. Even though I try to be “light-hearted and nonchalant”, will people understand that the online persona is separate from the real person? If I do not take myself too seriously, will anyone else?

Still, I get a lot of enjoyment from my online presence, but I am constantly mindful of the fact that I walk a thin line. Using Judith Rauhofer’s excellent Twilight analogy, I have joined the wolf pack, a collective mind that shares its feelings and thoughts (if I get the analogy correctly). If I dislike how the wolf pack behaves, the solution is one silver bullet away.

Update: This is completely a coincidence, but I wrote this before I knew that Stephen Fry is quitting Twitter. The pack has lost one of the alpha wolves.

Update 2: Well, Fry is not quitting Twitter after all. The incident was a disagreement blown out of proportion. Hmm… not surprised by this, the technology seems to lend itself to misunderstanding. More than wolf packs, I am reminded of zombie mobs mumbling “brainsss”.

The air of inevitability surrounding three strikes legislation in the UK came to its fruition yesterday with the announcement by Lord Mandelson that the government will seek to pass legislation that will force intermediaries to disconnect users involved in file-sharing. I hate to say “I [...]]]>

The demise of 3-strikes has been largely exaggerated

The air of inevitability surrounding three strikes legislation in the UK came to its fruition yesterday with the announcement by Lord Mandelson that the government will seek to pass legislation that will force intermediaries to disconnect users involved in file-sharing. I hate to say “I told you so”, but I have been harping about three strikes for a while. The blogosphere is already replete with replies to the new development, so I will not add my voice to the overwhelming condemnation of this step by directing readers to ORG and PanGloss.

The announcement came in context of the 2009 c&binet forum conference, which was webcast live, so it left a very interesting digital trail of commentary as people were speaking (see the hastag #cabinetforum). The Twittersphere had its hopes raised by a speech the previous day by David Lammy MP, the Minister for Higher Education and Intellectual Property. Lammy MP had been rather open, and made an informed and balanced presentation on the topic, which prompted people to tweet that they were expecting reasonable measures to be announced the next day (licensing provisions amongst others). Being the pessimistic cynic that I am, I immediately smelled a rat; I suspected that we were being softened up for the inevitable killing blow the next day. The government ignored all contrary advice, and Mandelson still went ahead with the misguided three strikes policy.

So, the opposition starts here, although I am afraid that the government won’t listen to the webosphere; Darth Mandy was particularly dismissive yesterday when Jim Killock from ORG asked a question. They ignore their own advice and consultations, so what chance do we have? Nonetheless, heavy and strident opposition to three strikes might help to sway some MPs. The Internet has already issued a fighting challenge, and now the ISP TalkTalk has clearly stated that it may take legal action over the proposals, as it might cost intermediaries greatly.