Glyn Moody in a an article called “Serious Organised Crime Agency Takes Down Music Site”, after talking to SOCA states that SOCA are pursuing enquiries to prove, to the point of arrest, that some, their notice said most, of the sound tracks previously available had been obtained pre-release by hacking. This is a crime under UK law and the copyright owners and licensees deserve the protection of the law, as the accused deserve a fair trial.

Arstechnia also comments in an article, entitled “Police: download a file, go to jail for 10 years and pay an “unlimited fine”. They clearly examine the notice and deconstruct the lies and disinformation. The notice includes statements about theft and the economic impact of the downloaders actions. i.e.

“As a result of illegal downloads young, emerging artists may have had their careers damaged. If you have illegally downloaded music from this site, you will have damaged the future of the music industry.”

It’s a disgrace that a law enforcement agency is publishing the BPI’s propaganda. The interests of a copyright licensors and the interests of artists are not synonymous!

Why are the police using our taxes to fund such bullshit? Why use British taxes to fund a free advert pointing at an american registered web site for so-called legal music? How much would that cost on google?

Innocent until proven guilty means that even the most egregious, industrial scale pirates are innocent until proven guilty.

Others have made the point that this notice may well prejudice any trial. I am also informed that the scary spyware doesn’t work with Mac or Chrome. Also IP addresses are private data under UK and European law, the use of the program code that displays the IP address requires a number of compliance actions. Perhaps I’ll check if SOCA registered this use of private data under the Data Protection Act.

Does the restriction of the “Initial Obligations Code” to six specific internet service provider companies, make the DE Act a Hybrid Bill?

If so, that’s two failures in parliamentary processes that the passage of this bill required.

In summary the Belgian collective rights society, i.e. the private sector organisation that taxes pubs, cafes and jukeboxes on behalf of monoploy capitalism lost its attempt to force Belgum’s biggest ISP to do everything they wanted. The upside is that copyright trolls lost, the downside, they asked for everything and so some of what they want may still be legal.

Further  upside is that the European Court stated that the rights of citizens and ISPs must be balanced with those of copyright holders! This is our hope.

I have had some time to think about the articles and the judgement since writing the articles and I and Monica compared notes. BT and Talktalk are appealing the ruling so it’s not over yet.

The three most troubling areas to me are the rulings on what the Judge referred to as “careful balance”, the review of the impact analysis and the Privacy rulings.

A central tenant of the UK constitution is “Parliamentary Sovereignty”. It means that Parliament can do what it wants. Axiomatically it cannot act illegally. This is now and has been for while constrained by treaty obligations but in the UK, judicial review has mainly been about the conduct of government business. The defendants have been the Secretary of State in lieu of the government department, or more famously local authorities, and people go to court to get bureaucratic decisions over turned because the law is not being followed. The precedent and practice of the UK legal system placed a significant road block in front of any judge in striking down laws as the US Supreme Court and French Constitutional Court has done from time to time.

Judge Parker argued in his judgement on several occasions, most importantly while considering proportionality, that the judgement between one course of action and another, the balancing of the rights of businesses and entrepreneurs, the rights of the copyright holders, the rights of the regulators and the rights of the citizenry in the creation of statute law was fine and that “careful balance” was required to make a decision. He argued that where “careful balance” was required, it should be exercised by elected politicians and not a Judge. He showed a restraint not exercised by many of his predecessors.

I just wonder if he has placed a duty on Parliament to demonstrate that it has exercised “careful balance”. I argued in my earlier articles that I wouldn’t want to argue that the extraordinary process by which the DE Act became law, with a truncated debate in the House of Commons, and passage after a general election had been announced was the exercise of “careful balance”. The Government argued that it had undertaken a consultation exercise , arranged for significant time to debate this in the House of Lords and conducted an impact analysis which again now seems to be a necessary part of the legislative process, at least for Government proposed legislation. None of this negates the fact that the House of Commons, the only elected parliamentary body did not have sufficient time to exercise “careful balance”.

Is this now a requirement for Parliament?

Have the courts, and legislative practice weakened the concept of parliamentary sovereignty?

Must Parliament now prove it has exercised “careful balance”?

When I wrote my reviews, I merely reported on the Judge’s statement that he felt the impact analysis to be comprehensive and that little could be added, and that it supported the passage of the law, or required “careful balance” and hence legislative not judicial review. Personally I’d like some guidance as to how bent an impact analysis needs to be before it would invalidate a law. The impact analysis does not cover the Welfare Economics argument which is that the monopoly profits of the copyright traders would create a greater public good if spent on other stuff. The court admits that it is not good on evaluating the so-called lost income of the copyright traders and neither is the impact analysis. The impact analysis does not cover the international trade impact of the DE Act. So how fucked does an impact analysis have to be before it invalidates a law. Is this now another constraint on Parliamentary Sovereignty?

The third area of concern to me is the ruling on Privacy. Basically, the right to privacy and the duty to find and punish criminals was compared. Our internet addresses are private data, but it seems that the copyright holders have aright to pursue criminals. The problem in my book, is, how do the copyright holders, who now have the right to breach the privacy of both the innocent and allegedly guilty, publish their processing methods, which is required under law? How do they collect the actions of citizens legally to notify the alleged infringers’ service providers? The judge ruled that this is a permitted processing method, but surely they’ll still need to register as data users, and permit their data subjects to place data protection queries. How is that going to happen? I am deeply unsure that the copy right holders can put themselves in a position to legally collect information.  Also none of this addresses the issues of in the UK, the right to silence; it is another way in which the DE Act privatises crime prevention. The privacy issues bleed into the right to a fair trial.

One of the reasons we need a robust privacy law, is that we need to explore the track record of entrapment by copyright holders. Some copyright holders have published honeytraps and own the hosting software, which allows them to entrap so called Pirates. This must be made illegal. Some large corporations,  have enforcement arms pursuing the victims of their marketing divisions.

Hollywood’s cunning attempts to privatise the criminal justice process in the pursuit of copyright crime, most egregiously breaches the US Constitution’s 4^th Amendment,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

by allowing private actors to breach the privacy of alleged infringers. It also contravenes the 5^th, the right not to incriminate oneself. We have similar rights in the UK and Europe. The Parker ruling does not make it clear how these private actors can meet the needs of European privacy law and legally spy on citizen’s internet usage.

Judge Parker ruled the law legal because, he saw copyright enforcement is a fundamental right on a par to citizenship privacy & free speech, he also saw hunting crime as allowing exceptions to citizen rights, and that elected politicians trump judges.

Interestingly I wonder if he has created a duty for Parliament to exercise careful balance and to create evidence based law?

This article has been written in a hurry, apologies, I want these ideas out there so I can continue the conversation but I have not been back to the judgement to xref my statements as to its contents, I have worked from my notes and, in particular, I really need to go back to the impact analysis words in the judgement, which starts at S. 247

Shivaun argued that Google manipulates its sort order to benefit its own alternative properties, particularly the price comparison sites. (Foundem is a vertical price comparison site.) They argue that over 90% of European search is fulfilled by Google, and that when Google chose to discriminate against them, their traffic fell off to a business breaking trickle.

Alec and Mark took a similar line to each other, Google is one click away from failure, relevance including sort order is subject to competitive pressure & no-one has a right to a place in a search engine’s sort order. Alec in his blog post points at James Grimelmann’s article,“Some Skepticism about Search Neutrality” who makes similar points, although Grimmelmann argues that vertical search sites are rarely useful or usable. Margaretten dealt with this less judgmentally by pointing out that Google also prefers sites with original content, which is why aggregator sites do less well. He reinforced the point that there are good reasons to devalue vertical search sites, although Foundem can prove that they were specifically penalised. Grimmelman distinguishes between regulating for “Search Neutrality” which he opposes and anti-trust law which he argues is different and has its own theory and practice. The meeting missed this dichotomy between monopoly regulation and search neutrality.

Shivaun Raff was backed up by a spokesperson from Streetmap, who provided some evidence that Google had manipulated their sort order when they launched Google maps in order to better compete with the established players. I hope that they have made a submission to the Commission. The talk in the bar after was that streetmap lost out due to Google Maps technical superiority particularly features such as navigation, user generated content, personal customisation and world wide coverage; however even if this is true it doesn’t necessarily mean that the allegation of malicious action is unjustified.

I’ll be interested to see if the Commission come to consider Google to be a monopoly. It dominates in search, and its maps and mail are wildly popular but it’s definitely second choice for microblogging (g+) where it’s outgunned by twitter and facebook, identity assurance where Google Profile trails behind twitter and facebook, picture blogging (Yahoo), bookmarks (delicious and reddit) and blogging (wordpress). It’s interesting to consider this in the light of some changes made by google to their user experience over the last couple of months where they are staring to build walls around their services to make it harder to share one’s data with other companies services. For instance, they have wrecked Google Reader for me since I can now only share news via Google+, there is now no open XML feed for these. I’ll explore this in another post soon.

La Quadrature Du Net, a french based digtal liberty campaign, argue in their blog posting, that ACTA will have a chilling effect on ISP and Search providers forcing them to police their users and inhibit their business. LQDN say,

“By putting legal and monetary pressure on Internet service providers (in a most subtler way than in previous versions of the text), ACTA will give the music and movie industries a weapon to force them to police their networks and users themselves. Such a private police and justice of the Net is incompatible with democratic imperatives and represent a real threat for fundamental freedoms.”

It also proposes increasing criminal sanctions for commercial scale infringement. This is definitely not the same as commercial activity and it also reinserts the criminalisation on aiding and abetting which industrial content have been trying to criminalise for the last five years, and seems to weaken all the national copyright exclusions. The treaty has self maintenance clauses, which have no citizenship accountability. It’s been negotiated and written by bureaucrats and lobbyists and having got (some of) the law they want they don’t want any pesky elected politicians looking to change and update it; they see that as their prerogative.

La Quadrature Du Net have published a call to arms for Europe’s citizens to campaign to have the treaty rejected  by the European Parliament. (They also have a campaign Wiki here.)

To further understand what’s happening, check out this article, entitled “Why the EU will repent ACTA at their leisure” published on a blog called Br0ken Teleph0n3, which was pointed out to me by Glyn Moody. In it, the author, Ian Grant, makes some startling predictions illustrating the weakness of the treaty for Europe’s citizens.

• There has been no parliamentary scrutiny to determine if the treaty conflicts with the current state of European law. No-one knows if it conflicts or not. (See my, or others, review of the last UK judgement determining if strong copyright enforcement conflicted with EU law or not, it shows there’s a lot of law to contradict.)
• The European Parliament’s technical assessment recommends postponing the signing of ACTA, that there is little benefit to the EU’s citizens. The rejection of this recommendation has led to the resignation of the EU Parliament’s Rapporteur. Interestingly, five EU member states have opted out of the signing process. (How’s that work?) For the record, they’re Germany, the Netherlands, Estonia, Cyprus and Slovakia.
• It seems doubtful that the US Senate will be asked to, or consent to ratification.
• India, China and Brazil have not been asked to, and are unlikely to agree to the treaty.
• As discussed above, the penalties for copyright infringement are likely to be increased. There is no embedding of copyright exclusions, for research, education or personal use in the treaty.

We seem to be on the path to agree a treaty in the economic interests of US entertainment and industrial software companies, where Europe’s competitors will not, and we give up many fundamental freedoms for the privildge.

I shall be writing to my MEPs this evening. I suggest you look at some of these links and think about this as well.

They position Storm as a parallel messaging, disk less system.

M Davey asks if this has much use in Capital Markets here.

I wonder if ‘Time Series Order’ might not be a serious inhibitor to its adoption, but Chief Engineer, Nathan Marz on his blog seems to think it could be part of the answer to a large number of problems.