An open letter from Boards.ie to Minister Sean Sherlock

bpb101

just sent in a b***H of a letter to him
thoughts anybody.


Minister Sherlock.

This copyright law to be introduced into Ireland is a complete disgrace that seeks to punish the powerless in society.
I believe this law will not stop the 'breach' of copyright but will encourage the support of those who illegal download, and sell copyrighted material.

Minister sherlock, I do not download , nor associate with anybody who illegally downloads copyrighted material. However,Minister i can only presume that people who download 'the odd' Hollywood film ,will be more lightly to be afraid of downloading themselves , and hence seek the real 'pirates' who download and burn to DVDs Hollywood film or chart Cd's

This is what encourages piracy.


Minister , i ask of you, if i take make a song, created myself and i play the song to an audiences, and somebody in the audiences records the song on their mobile phone and uploads this video to the popular websites of Youtube and Facebook , am i entitled to sue under this new law? Because these websites are responsible for what there users post. And also am i entitled to sue all who have watched the video? And will these people possible spend time in prison?

If i am not entitled to sue , tell me how this scenario would differ to the upload of a popular Hollywood film?


Minister i would be grateful if you could reconsider your law to be introduced as this law WILL damage the future of the Internet and computer industry of Ireland.

Minister this law will not help Hollywood...


Sincerely
Barry Burke.




p.s. i thought i would put in big capital letter JUNIOR minister sherlock , but decide against it :L

Scofflaw

NiallSparky wrote: »

I have just come from a 'debate' in the Dáil with Sean Sherlock on the SOPA-Ireland legislation which he is signing. Deputy Catherine Murphy & I submitted amendments which went some way to controlling the damage which may be caused by this legislation, as voiced by over 77,000 people in a petition, by the owners of Irish online companies, by credible copyright lawyers and by the association representing Internet Service Providers in Ireland (whose members include Google).

Not a single letter will be changed in the Government's proposal. Worse, Sean confirmed at the end of the debate that he had already stated clearly before the debate that nothing would be changed. I don't know which I'm more frustrated about - the fact that potentially damaging legislation will now be introduced, which will not achieve the intended objectives of clamping down on copyright abuses, or that our parliamentary democracy has been shown so clearly to be the sham so many told me it was when I first decided to run for election.

Ridiculous state of affairs, it really is.

This is, I'm sorry to say, I keep banging on about the democratic deficit here in Ireland. The Dáil does not, cannot, as it currently stands, hold the government to account as it is supposed to do.

cordially,
Scofflaw

expectationlost

missingtime wrote: »

I heard this I felt it was a bit one sided...

The guy from Aslan was on complaining about the isp's not tracking people downloading his tracks.

they had aslan on http://taint.org/2010/10/11/231501a.html this aslan this is a fake stat right but ts been in court case irish times todayfm but none of those bother to check it.

Mellor

bpb101 wrote: »

just sent in a b***H of a letter to him
thoughts anybody.

Copy it into word, and run spell-check.
I'm no grammar nazi. I don't expect full punctuation on boards. But that's essentialy a letter to a government official. Lack of capitals, spaces/symbols in the wrong places, "if i take make a song", just looks sloppy.

As for your point, I don't think the fact that you can't sue somebody for recording you at a gig and uploading to facebook is a major issue with the law.

FreudianSlippers

bpb101 wrote: »

Minister , i ask of you, if i take make a song, created myself and i play the song to an audiences, and somebody in the audiences records the song on their mobile phone and uploads this video to the popular websites of Youtube and Facebook , am i entitled to sue under this new law? Because these websites are responsible for what there users post. And also am i entitled to sue all who have watched the video? And will these people possible spend time in prison?

If i am not entitled to sue , tell me how this scenario would differ to the upload of a popular Hollywood film?

I know I said I'm not posting here any more until something is done about the trolling; but I wanted to point out a very glaring issue here in relation to the above. Irish SOPA and ACTA do not have a prima facie effect on when a rightsholder can sue under the CRRA 2000, they change what remedies they can seek (potentially) and from whom they can seek them.

To break it down:

somebody in the audiences records the song on their mobile phone - Without consent, the very making of a recording is already prohibited under Section 203 of the CRRA 2000.

uploads this video to the popular websites of Youtube and Facebook - Again, already prohibited under Section 40, 205 and others of the CRRA 2000.

am i entitled to sue under this new law? - No, you are entitled to sue under existing law.

Because these websites are responsible for what there users post. - here is where we start getting interested in what this new SI will do. You are already entitled to sue YouTube/Facebook/Boards/etc. for hosting or linking to (linking is qualified but not a discussion for this morning) copyright material. That's a main reason why these sites are already so quick to take down materials if requested by the rights-holder.
However, this SI will potentially (and goes much further because of the open-ended nature of the wording) allow the rights-holder to apply to the court for an injunction as against the ISP to wholesale block sites which have hosted or linked to infringing material until a set time or, possibly but unlikely in the light of Scarlet Extended, indefinitely.
What they cannot do, however (again in light of Scarlet Extended), is get an injunction that would force an ISP to install filtering systems to 'monitor' and shape traffic. I guess the way I see it most clearly in my mind is that there is a loophole where although it has been ruled that the courts cannot force an ISP to watch all traffic and say "this person is using thepiratebay for legal downloading so that's ok, but this person is downloading copyright material illegally so we block them" but they can say "thepiratebay hosts some legal files but mainly illegal; so we can balance the rights of the rights-holder and thepiratebay and on balance we block everyone on our ISP from going there".
Most people believe this was not the intent in Scarlet Extended, but it will take someone or an ISP going to the ECJ to question blocking for us to get a clear answer.

And also am i entitled to sue all who have watched the video? - You technically already can under Section 371 CRRA 2000 but it's highly impractical. Nothing would change with the introduction of this SI. It would also not allow a "three strikes" rule for customers in light of Scarlet Extended and EMI v UPC.

And will these people possible spend time in prison? - No, under the CRRA 2000, it is a summary offence and carries a penalty on conviction to a fine not exceeding (the Euro equivalent of) IR£1,500

If i am not entitled to sue , tell me how this scenario would differ to the upload of a popular Hollywood film? - It wouldn't change who you could sue and in light of EMI v UPC it wouldn't allow the uploader to be cut off either. The small difference between an uploader and downloader is that the rights-holder can sue for more damages and an uploader could/would, potentially face jail time under the CRRA 2000. The SI doesn't really change anything in relation to who you can sue.

SEEMagazine

I've voted for Sean on every opportunity, up to and including the last General Election. I know him well, and his family.

To say that his actions dishearten me is an understatement.

I've already sent word back, which will reach him from a trusted source, pointing out that this legislation will threaten his seat, and, if for no other reason than that alone, he should cease and desist with his line of action.

To use a common tinterwebs parlance: I am disappoint.

Hopefully he'll see sense in the future and shelf this plan. It smacks too much of Kitt and his music legislation from a few years back.

Scofflaw

FreudianSlippers wrote: »

I know I said I'm not posting here any more until something is done about the trolling; but I wanted to point out a very glaring issue here in relation to the above. Irish SOPA and ACTA do not have a prima facie effect on when a rightsholder can sue under the CRRA 2000, they change what remedies they can seek (potentially) and from whom they can seek them.

To break it down:

somebody in the audiences records the song on their mobile phone - Without consent, the very making of a recording is already prohibited under Section 203 of the CRRA 2000.

uploads this video to the popular websites of Youtube and Facebook - Again, already prohibited under Section 40, 205 and others of the CRRA 2000.

am i entitled to sue under this new law? - No, you are entitled to sue under existing law.

Because these websites are responsible for what there users post. - here is where we start getting interested in what this new SI will do. You are already entitled to sue YouTube/Facebook/Boards/etc. for hosting or linking to (linking is qualified but not a discussion for this morning) copyright material. That's a main reason why these sites are already so quick to take down materials if requested by the rights-holder.
However, this SI will potentially (and goes much further because of the open-ended nature of the wording) allow the rights-holder to apply to the court for an injunction as against the ISP to wholesale block sites which have hosted or linked to infringing material until a set time or, possibly but unlikely in the light of Scarlet Extended, indefinitely.
What they cannot do, however (again in light of Scarlet Extended), is get an injunction that would force an ISP to install filtering systems to 'monitor' and shape traffic. I guess the way I see it most clearly in my mind is that there is a loophole where although it has been ruled that the courts cannot force an ISP to watch all traffic and say "this person is using thepiratebay for legal downloading so that's ok, but this person is downloading copyright material illegally so we block them" but they can say "thepiratebay hosts some legal files but mainly illegal; so we can balance the rights of the rights-holder and thepiratebay and on balance we block everyone on our ISP from going there".
Most people believe this was not the intent in Scarlet Extended, but it will take someone or an ISP going to the ECJ to question blocking for us to get a clear answer.

And also am i entitled to sue all who have watched the video? - You technically already can under Section 371 CRRA 2000 but it's highly impractical. Nothing would change with the introduction of this SI. It would also not allow a "three strikes" rule for customers in light of Scarlet Extended and EMI v UPC.

And will these people possible spend time in prison? - No, under the CRRA 2000, it is a summary offence and carries a penalty on conviction to a fine not exceeding (the Euro equivalent of) IR£1,500

If i am not entitled to sue , tell me how this scenario would differ to the upload of a popular Hollywood film? - It wouldn't change who you could sue and in light of EMI v UPC it wouldn't allow the uploader to be cut off either. The small difference between an uploader and downloader is that the rights-holder can sue for more damages and an uploader could/would, potentially face jail time under the CRRA 2000. The SI doesn't really change anything in relation to who you can sue.

Yes - privacy concerns (and the prohibitive cost) prevent any requirement for the ISPs to do filtering at the user level, while internet access as a right prevents removal of individual's access to the internet.

However, you have no general right to access any given website, and it would be insane to grant such a thing, because it would open the idea of suing your ISP because their network failed to route properly, or a hosting company for downtime of a favourite site hosted by them. So what is being passed here is the capacity to block access for everyone to a given website.

Nor is there any right for you to have your website necessarily accessible to everyone at all times - again, such a right would lead to similar liabilities for ISPs and hosting companies (and parental control software, etc).

The obvious retaliation to such a move is to claim that the injunction was unfair, and led to a loss of business. I can't see a supervening right that would prevent the blocking.

cordially,
Scofflaw

oscarBravo

Scofflaw wrote: »

So what is being passed here is the capacity to block access for everyone to a given website.

Well, that's the theory. In practice, however, there are only two ways for me as an ISP to implement such a block: I can sabotage my name server so that it refuses to resolve the domain name, or I can add route filtering to my edge routers so that they refuse to forward traffic to a specified IP address or network.

Both measures are futile, because they are easily circumvented (the DNS block by changing DNS servers or statically configuring a host entry; the IP block by changing the IP address of the server). That's leaving aside the moral hazard inherent in such practices - if we perform such blocking (albeit on instruction of a court), are we still a mere conduit?

That's leaving aside such concerns as burden of proof and the whole slippery slope argument.

The obvious retaliation to such a move is to claim that the injunction was unfair, and led to a loss of business. I can't see a supervening right that would prevent the blocking.

I don't see a straightforward defence to such an injunction, no. What worries me is the vista of a customer of mine suing me because I've blocked access to his perfectly legitimate files on (say) Dropbox because a record company convinced a judge that some people might be using that site for piracy.

In the long run, the ISPs are the ultimate losers here, however it pans out.

DavidCollins

Bruton replied to my email (First exchange, second exchange).
I'm actually impressed with Bruton, he's responding to my concerns and giving details and informed replies. I still disagree of course, but it forces me to up my game which is good.
These letters are posted for informative reasons, don't copy without credit (though I seem to have linked a screenshot I don't own. Hmmm....).

Dear David Many thanks for your further email. You are correct to say that Ireland is a dualist state. As such, when Ireland signs an international treaty, the provisions of the treaty are binding on the state, but not binding in the state (i.e. a citizen cannot rely on provisions of an international treaty in domestic court, unless that treaty has been incorporated into Irish law by an Act of the Oireachtas). However, EU primary and secondary law is not "international". The supremacy and direct effect of European law are long established legal principles of the union. The Irish courts are bound to follow the jurisprudence of the European Court of Justice. Article 220 (ex Article 164) of the TEU, requires the European Court of Justice to ensure that the law is observed in the interpretation and application of the Treaty.
In Scarlet the court found that the national court had not respected the EU requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other. As such, the ECJ precluded the national court from granting an injunction made against an ISP which requires the ISP to install the contested filtering system.
The European Court of Justice clearly held that holders of intellectual property may apply for an injunction against an intermediary (e.g and ISP) whose services are being used by a third party to infringe their rights. This power is given, under Article 8(3) of Directive 2001/29 and the third sentence of Article 11 of Directive 2004/48.
Furthermore, even though the protection of the right to intellectual property is enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’), the ECJ was clear that there is nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected. Any general monitoring obligation on an ISP would be incompatible with Article 3 of Directive 2004/48, which states that the measures referred to by the directive must be fair and proportionate and must not be excessively costly.
It is up to the courts to strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures.
Kind regards

Richard Bruton TD
Minister for Jobs, Enterprise and Innovation

Dear Mr. Bruton,

I thank you again for your for your detailed response.

However while Irish courts may follow the jurisprudence of the Scarlet case, the case itself provides no way of defining "the scope of such injunctions." It only deals with the specific area of an ISP monitoring their content and filtering appropriately. Incidentally, the Scarlet Case does not prevent an ISP from blocking a webside due to legal action. Indeed, a Belgian ISP (Belgacom) has recently blocked a website due to legal proceedings despite being in a country where the Scarlet case is binding: http://i.imgur.com/uAa16.jpg (screenshot of blocked website)

The key problem with this proposed Statutory Instrument has always been it's vagueness. You're advocating a system where a rightsholders think up a given injunction, launch the injunction against given technology company, and only after the technology company has spend much time, energy and resources in defending themselves will the courts finally decide whether the injunction is valid or not (assuming they don't settle first). This pattern will repeat itself countless times over several years, causing irreprable damage to the tech industry. The injunctions could be based on on anything from linking to a YouTube music video, pasting song lyrics into your blog, having social networking site where users happen to post links to copyrighted content. The injunctions could be launched against websites, social media sites, ISPs, content aggregators, search engines, any sort of company that could be argued to be an "intermediary" (a term that is not defined anywhere in directives, legislation or proposed Statutory Instrument ) to copyright infringment could conceivably be on the receiving end of an injunction.

Even if a technolgy company does not actually receive an injunction, the fear and uncertainty of what actions could cause an injunction would be hugley stifling to innovation. A single incorrect judgment by a judge could cause huge trouble for the tech industry that may not be fixed for years (enough time to put Ireland seriously behind other countries given how fast the industry moves).

In the EU directives you mention, Directive 2001/29 states "The conditions and modalities relating to such injunctions should be left to the national law of the Member States" and this is repeated verbatim in Directive 2004/48.

Leaving such a significant area of law be "up to the courts" is clearly against both the EU Directives and the best interests of the Irish Economy.

Regards,
David Collins

Scofflaw

oscarBravo wrote: »

Well, that's the theory. In practice, however, there are only two ways for me as an ISP to implement such a block: I can sabotage my name server so that it refuses to resolve the domain name, or I can add route filtering to my edge routers so that they refuse to forward traffic to a specified IP address or network.

Both measures are futile, because they are easily circumvented (the DNS block by changing DNS servers or statically configuring a host entry; the IP block by changing the IP address of the server). That's leaving aside the moral hazard inherent in such practices - if we perform such blocking (albeit on instruction of a court), are we still a mere conduit?

That's leaving aside such concerns as burden of proof and the whole slippery slope argument. I don't see a straightforward defence to such an injunction, no. What worries me is the vista of a customer of mine suing me because I've blocked access to his perfectly legitimate files on (say) Dropbox because a record company convinced a judge that some people might be using that site for piracy.

In the long run, the ISPs are the ultimate losers here, however it pans out.

I would say in both cases that your defence is that you were complying with a lawfully given court order - or let us say an order given by a lawful court, in case the injunction is overturned. That would seem to be sufficient - the only liability you might have would be if you had in any way gone beyond compliance with the letter of the law.

In Scarlet the court found that the national court had not respected the EU requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other. As such, the ECJ precluded the national court from granting an injunction made against an ISP which requires the ISP to install the contested filtering system.

Actually, that's an interesting point. As businesses become more reliant on the net to do business - let's take the Doll's Hospital, which closed its George's Street shop recently, intending to move entirely online - the 'freedom to conduct business' demands a heavier weight in the balance against IP rights. If the Doll's Hospital were, for example, to breach Mattel's IP, through use of the Barbie trademark or the like, an injunction against their website is effectively a closure of the business, which seems massively disproportionate.

cordially,
Scofflaw

FreudianSlippers

Scofflaw wrote: »

Yes - privacy concerns (and the prohibitive cost) prevent any requirement for the ISPs to do filtering at the user level, while internet access as a right prevents removal of individual's access to the internet.

However, you have no general right to access any given website, and it would be insane to grant such a thing, because it would open the idea of suing your ISP because their network failed to route properly, or a hosting company for downtime of a favourite site hosted by them. So what is being passed here is the capacity to block access for everyone to a given website.

Nor is there any right for you to have your website necessarily accessible to everyone at all times - again, such a right would lead to similar liabilities for ISPs and hosting companies (and parental control software, etc).

The obvious retaliation to such a move is to claim that the injunction was unfair, and led to a loss of business. I can't see a supervening right that would prevent the blocking.

cordially,
Scofflaw

I would agree, but the Scarlet Extended decision is a step in the direction of preventing ISPs from blocking entirely. That will never be clear until the ECJ hears and decides on that issue.

It could certainly be argued that it is outside the TOS and contract with the ISP to block websites without good reason (obviously the balance of copyright protection is a good reason).

Spacedog

DavidCollins wrote: »

(though I seem to have linked a screenshot I don't own. Hmmm....).

THATS MY SCREENSHOT, LINKED ON BRUTONS EXCHANGE SERVER!!!! AHHHHHH!!!!

Seriously though, Nice work David, I'd love to hear the argument against the alternative wording proposed in the 'debate'.

Perhaps a statement from Judge Charlton himself regarding his intent would be apt, seems like a single line quote from his judgement is being used to justify all of this.

FreudianSlippers

Scofflaw wrote: »

Actually, that's an interesting point. As businesses become more reliant on the net to do business - let's take the Doll's Hospital, which closed its George's Street shop recently, intending to move entirely online - the 'freedom to conduct business' demands a heavier weight in the balance against IP rights. If the Doll's Hospital were, for example, to breach Mattel's IP, through use of the Barbie trademark or the like, an injunction against their website is effectively a closure of the business, which seems massively disproportionate.

cordially,
Scofflaw

No, because the balance would have to be what the main thrust of their website is. Thepiratebay was considered to hold much more copyright protected material for illegal download than legal download.
One would have to prove that the website in question was either hosting or linking to copyright material and that they had no defence to the action (in the case of the Doll Hospital, fair use could certainly be argued).

What is the thrust of the website?

The problem with the SI is that it is open-ended and not specific enough to guarantee that a court (after all we are courts of precedent) could not turn around later and rule that the balance only needed to be slightly towards infringement?

Scofflaw

FreudianSlippers wrote: »

No, because the balance would have to be what the main thrust of their website is. Thepiratebay was considered to hold much more copyright protected material for illegal download than legal download.
One would have to prove that the website in question was either hosting or linking to copyright material and that they had no defence to the action (in the case of the Doll Hospital, fair use could certainly be argued).

What is the thrust of the website?

I'm not sure that contradicts what I said, despite the initial "no"!

FreudianSlippers wrote: »

The problem with the SI is that it is open-ended and not specific enough to guarantee that a court (after all we are courts of precedent) could not turn around later and rule that the balance only needed to be slightly towards infringement?

Yes, I think it's been remarked that the SI essentially leaves the clarification more or less entirely for the courts - which one could argue is better politics, in that it makes the use of the Ministerial prerogative less didactic, but worse legislation.

cordially,
Scofflaw

oscarBravo

FreudianSlippers wrote: »

No, because the balance would have to be what the main thrust of their website is. Thepiratebay was considered to hold much more copyright protected material for illegal download than legal download.

That's a subjective standard, though. I don't use Dropbox for copyright infringement, but I've heard that others do. If someone convinces a judge that it's "largely" used for copyright infringement, I've lost a useful tool (and I'll probably have to jump through hoops and break my routers' and servers' configurations in a futile attempt to block it).

FreudianSlippers

Scofflaw wrote: »

I'm not sure that contradicts what I said, despite the initial "no"!

The initial "no" was actually in relation to a section of what you said (I should have been clearer):

If the Doll's Hospital were, for example, to breach Mattel's IP, through use of the Barbie trademark or the like...

I don't think the rights-holder would be even remotely successful there. There is no reason to block the website for simply putting a Barbie word or image on their site; they would just sue them.
Blocking of sites really only would occur in thepiratebay example where the entire thrust of the website was to provide or provide links to copyright infringing material.

Scofflaw

oscarBravo wrote: »

That's a subjective standard, though. I don't use Dropbox for copyright infringement, but I've heard that others do. If someone convinces a judge that it's "largely" used for copyright infringement, I've lost a useful tool (and I'll probably have to jump through hoops and break my routers' and servers' configurations in a futile attempt to block it).

Is there a standard for compliance with such an injunction?

cordially,
Scofflaw

FreudianSlippers

oscarBravo wrote: »

That's a subjective standard, though. I don't use Dropbox for copyright infringement, but I've heard that others do. If someone convinces a judge that it's "largely" used for copyright infringement, I've lost a useful tool (and I'll probably have to jump through hoops and break my routers' and servers' configurations in a futile attempt to block it).

The Court would have to balance that. Arguably the site's main use would have to be for infringement purposes. I'm sure there is a level of intent in relation to sites like thepiratebay - dropbox, for example, has a clear policy in relation to copyright material. It would take a lot to convince a court that the main purpose of that site was to infringe copyright material.

However, that being said, I agree that the slope is slippery and it depends on the judge/court on that day. Of course it's a subjective standard on one hand; but on the other you have to trust the court to be the arbiter of objectivity and hold that scale. She is our old friend Justitia

FreudianSlippers

Scofflaw wrote: »

Is there a standard for compliance with such an injunction?

cordially,
Scofflaw

Non-compliance likely; they would almost certainly take it to the ECJ, who, I would doubt could agree that on the balance it is appropriate or proportionate to block a website that has valid use and purpose without breaching Scarlet Extended and implementing a filtering system.

It's the same principle as courts not being forced to block bit torrent itself, rather, blocking indexing sites.

Scofflaw

FreudianSlippers wrote: »

The initial "no" was actually in relation to a section of what you said (I should have been clearer):



I don't think the rights-holder would be even remotely successful there. There is no reason to block the website for simply putting a Barbie word or image on their site; they would just sue them.
Blocking of sites really only would occur in thepiratebay example where the entire thrust of the website was to provide or provide links to copyright infringing material.

No, I agree (!) there, but the point of the example wasn't the question of fair use or the thrust of the website, but the increased vulnerability of purely online businesses to website blocking. I think the legislators may well be thinking in terms of "a business which has a website" rather than the fact that there are increasing number of businesses conducted entirely online.

In the former case, the business loses some marketing/support/sales capacity - in the latter, the injunction effectively blocks the entire business.

cordially,
Scofflaw

FreudianSlippers

Scofflaw wrote: »

No, I agree (!) there, but the point of the example wasn't the question of fair use or the thrust of the website, but the increased vulnerability of purely online businesses to website blocking. I think the legislators may well be thinking in terms of "a business which has a website" rather than the fact that there are increasing number of businesses conducted entirely online.

In the former case, the business loses some marketing/support/sales capacity - in the latter, the injunction effectively blocks the entire business.

cordially,
Scofflaw

Agreed, it is certainly the correct argument to make now (a finger in the dyke in a way) to show the, for lack of a better phrase, "slipperiness of the slope".
Today injunctions blocking sites whose sole or almost sole purpose is copyright infringement or complicity in copyright infringement, tomorrow blocking sites who breach copyright in any manner.

Scofflaw

FreudianSlippers wrote: »

Non-compliance likely; they would almost certainly take it to the ECJ, who, I would doubt could agree that on the balance it is appropriate or proportionate to block a website that has valid use and purpose without breaching Scarlet Extended and implementing a filtering system.

It's the same principle as courts not being forced to block bit torrent itself, rather, blocking indexing sites.

That misses the point a bit - the ISP, in order to claim that it is complying with the injunction, must presumably have to meet some test to show they're doing so. The test cannot be that no customer of the ISP can access the site through the various dodges referred to by oscarBravo, because that places an undue burden on the ISP.

cordially,
Scofflaw

FreudianSlippers

Scofflaw wrote: »

That misses the point a bit - the ISP, in order to claim that it is complying with the injunction, must presumably have to meet some test to show they're doing so. The test cannot be that no customer of the ISP can access the site through the various dodges referred to by oscarBravo, because that places an undue burden on the ISP.

cordially,
Scofflaw

Oh yeah, sorry. Yes, they just have to show that they (however they do so) put a block on that site. They cannot be forced to implement measures to ensure that this block cannot be circumvented on a personal level.
My understanding is that it would require far too invasive "deep packet inspection" (excuse me if this is not the correct phrase) and would breach the Scarlet principles. This is actually why I believe (as do others) that Scarlet is actually a good step towards preventing site blocking as well as "filtering". Blocking isn't necessarily fit for purpose for either the rightsholder or the ISP.

In essence, the ISP only has to do what is Ordered but still in compliance with the law. That is a basic display that if you are the "average user" on their site and you attempt to access the blocked site that you cannot do so.

oscarBravo

Scofflaw wrote: »

The test cannot be that no customer of the ISP can access the site through the various dodges referred to by oscarBravo, because that places an undue burden on the ISP.

I would try to argue that cluttering DNS server zone files and routers' RIBs with blocking cruft is an undue burden in its own right, but I doubt I'd get very far.

One problem with such cruft is that it can't be garbage-collected. If I'm required by a court to DNS-block leetwarez.com, and they move the server to leetwarez.net, I'm not ever going to be in a position to remove the leetwarez.com bogon from my zone files unless the injunction is lifted, which isn't likely ever to happen.

It offends my tidy-minded sense of how stuff is supposed to work.

Shad0r

Signed and emailed. I also tweeted Sean Sherlock to ask why he's determined to ruin our tech economy...that or else I pre-emptively accused him of doing it

Neil

DavidCollins

Was checking Twitter @seansherlocktd to see what Shad0r posted, and came across this instead: http://www.siliconrepublic.com/new-media/item/25696-irelands-sopa-no-reprieve

Sent a letter to Sean Sherlock (restating some of my Bruton points, but there you go). I also CCed finance@irishtimes.com which I did with most of my Bruton emails.

Dear Sean Sherlock,

Having not received a response to my previous email, and seeing your intention to push ahead with the Statutory Instrument, I feel the need to send you another email.

Aside from the fact that the SI could easily be seen as ultra vires and declare unconsititutional (a la Cooke v. Walsh or perhaps more relevantly Laurentiu v. Minister for Justice) due to the fact it amends legislation to give extra power rather than act within it's "principals and policies", it also has many other problems:

• It's a significant legal change that needs debating and advice from those in the tech industy
• It could be extremely harmful to the technology sector as companies will not know what steps to take to avoid an injunction
• It would take countless court cases for the law in this area to be developed. By this time several technology companies will have to have spend huge amounts of money, time and resources trying to defend their rights. For small companies, this could mean the difference of whether they survive. For large companies this could mean whether they set up or stay in Ireland.
• A single mistake by a single judge could take years to remedy. For such a fast moving industry, this is an enternity, and could cause many Irish companies to fall behind.
• It is overly broad and could apply to areas such as linking copyrighted content, social media sites that allow users to post their own content and even people making their own remixes.
• The term "intermediary" is not defined in Directives, Statutory Instruments or Legislation and so could apply to websites, social media sites, ISPs, content aggregators, search engines, and countless other technology companies
• The EU directives you say you are following (Directive 2001/29 and Directive 2004/48) both state "The conditions and modalities relating to such injunctions should be left to the national law of the Member States" which clearly imply that this is something to be dealt with in legislation and not by the courts
• There has been controversy about the issue. Passing it as a Statutory Instrument could be construed as a way to circumvent debate and pass law without regard to the concerns or desires of the Irish voter.
• There is no benefit to the Irish people or the Irish Economy even if this works exactly as intended, conversly it could do huge damage to the Irish Economy and will cause uncertainty and fear due to it's vague nature.
• The Scarlet case, which has been claimed to establish limits on this legislation, provides no such limits. All it does is specify one single type of injunction (ISPs monitoring and filtering their content) that is not valid. Blocking websites is still perfectly legal under the Scarlet case and such an action has already been taken by a Belgian ISP in blocking a website.
• The fact that this SI would allow injunctions to cause ISPs to block websites would have huge free speech implications. Is it possible sites like Dropbox could be blocked? A service which has been used for piracy but also as a vital tool by many businesses?

It would seem that passing copyright law as legislation, with clear input from technology stakeholders, reasonable debate and clear definitions of the terms and conditions involved and a final vote to pass it as law; is a far more preferable option to pushing forward with an Instrument that is legally, socially, economically and politically precarious.

I look forward to your response.

Regards,

I feel I need to do more than send emails, but reasonably worded letters are better than nothing.

johnnydenims

I am going back to college to study law specifically IT related law should be lucrative in the future for sure:)

Scofflaw

Spacedog wrote:

In fairness there's not much for ISPs to track in the case of Aslan downloads:

Spacedog, save it for AH please. Post deleted.

moderately,
Scofflaw

expectationlost

Spacedog wrote: »

THATS MY SCREENSHOT, LINKED ON BRUTONS EXCHANGE SERVER!!!! AHHHHHH!!!!

Seriously though, Nice work David, I'd love to hear the argument against the alternative wording proposed in the 'debate'.

Perhaps a statement from Judge Charlton himself regarding his intent would be apt, seems like a single line quote from his judgement is being used to justify all of this.

tjmcintyre looks at a speech of his http://www.tjmcintyre.com/2012/02/law-should-be-predictable.html?spref=tw
"The law should be predictable as to what is mandated and what is forbidden"

i don't think all this will cost him his seat, the election is too far away and there still too many people voting for Sherlock junior

btw David Collins are you somebody?

DavidCollins

expectationlost wrote: »

btw David Collins are you somebody?

Not somebody in the limelight if that's what you mean. But everybody is somebody!

Got a reply:

Thank you David for your considered opinion. I respectfully suggest you research the definition of an SI. It is amending existing legislation. I ask that you also research scarlet v sabam and factor in charter if fundamental right s and ecommerce directive.


I take your points. It could be argued that any legal instrument is open to being tested in the courts. That's the very essence of our democracy.


Please also bear in mind that the Copyright review committee is to publish it's consultation paper. I do sincerely hope you will have regard to this when published.


Thank you and best wishes




Sean

Sean Sherlock TD Minister of State

Okay, first paragraph I disagree with. I'm pretty sure SI's aren't that flexible but I'll need to cement my points with quotes before I respond (probably from the judges in the cases I cited).
It occurs to me I forgot to make the point about Sabam not being binding in Ireland, or at least only acting as a guidance. As such, he brings up the Sabam case again asking me to research it, along with some EU Charters. Of course, he's not saying which specific areas I should pay attention to.

As for the Copyright Review Committee, whoa, since when were they involved in this? Who are they?
I looked some stuff up and found this:
http://www.djei.ie/press/2012/20120131c.htm . Incidentally, the link is useful for understanding Sherlock's stance on this. He talk about how Ireland could face expenses if their copyright system is not changed (possibly referring to Ireland being sued by the Music companies), and actually mentions Boards.ie and how he believes it will not receive an injunction (because of the "hosting exemption") .
With regards to the Committee, it was set up on 9th May, 2011 and will be producing a paper shortly.
I'm confused. Is it just going to support his point? Even if it does a huge problem with this legislation is with how it's implemented. So many other things too...

It's going to take me a while to get a response to this one, and I've got other things to do that's going to delay the response further.
I still can't shake the feeling I've been brushed off, but still need to provide a reasoned response.