An open letter from Boards.ie to Minister Sean Sherlock

Kiith · 26-01-2012 11:55pm

Signed earlier in the week, and just emailed both Minister Sherlock and Fine Gael. Also sent an email to Primetime complaining about their pathetic coverage of this issue.

MOH · 26-01-2012 11:56pm

I forgot about Prime Time. Am I going blind, or is it not available on RTE Player?

Pro. F · 26-01-2012 11:56pm

ResearchWill wrote: »

Can anyone point at the statements of a good qualified lawyer working in the area who says the law is bad. I have backed up my legal opinion, with a promise to get a legal team including my self if this law is used unfairly against boards. I have sent a email to Tom, with my details.

So again I ask for a lawyer who knows what they are talking about to say this law is bad. If a good argument is given I will sign the petition.

http://www.tjmcintyre.com/2012/01/legal-case-against-irish-sopa.html

This guy seems to me to make a strong case.

Have you mentioned him yet in this thread?

ResearchWill · 26-01-2012 11:57pm

Sharrow wrote: »

So none of the governments could find the time to put legislation in place after the X case ruling 20 years ago but they have managed this in a handful of months? Unfúckingbelivable.

Now that I agree with you about. It is still a shame that our politicians can't every take on a difficult issue.

BlueSmoker · 27-01-2012 12:01am

This has never being about creative content, to create something of value it needs to be shared open and freely where ideas come from, eg like this discussen (did you know that most of you by quoting each other are in breach of copyright, only saved probably by the terms and conditions to join this site)

But you still actually own the copyright to your posts, so if you want to post exactly the same post on another site you can, but for someone else to quote you on that post isn't it in breach of the copyright that boards has on your content, well no, because you have licensed boards to use your content (your words by signing up to here same way you have licensed the other site) they are still your words and you own them.

What I'm trying to say is that creative content always is with the supply of that creative content, the person who created it (unless they where employed to produce something, then the company who employed them owns it, alot of the time thats quite difficult to prove)

Most of what we are talking about in these laws is distribution rights, or who can get it to the market quicker, or communication of the idea, Like the ye old naval battles for the sea and shipping rights Distrubition. If they own the way to ship the content, they can dictate the market for it.

It really is as simple as that, they are only trying to tell you the artists are struggling or loosing out, they aren't. the talented newbies are still struggling, will the achieved artists are recieving millions to appear in a movie, record an album, by the way that on lend by the companies who own the rights to distributed the music or album.

Lets call it what it is shall we

Pro. F · 27-01-2012 12:02am

Spent about four hours researching this after I saw it on boards. Signed the petition and looking forward to phoning some TDs tomorrow. About to email friends to try and convince them to take action too.

Well done boards for bringing it to our attention. It was very effective and useful.

Just to point out, when I accessed the site on my phone (which I did first today) I didn't get the splash page. I wasn't accessing the mobile site so I don't know why boards.ie displayed differently.

Citizen_Kane · 27-01-2012 12:03am

ResearchWill wrote: »

I agree it's not just about the law, it is about the supposed abuse of the law. The recent copyright troll in the US got well and truly burned and will go bankrupt as well as losing his profession as a lawyer.

Again in case anyone thinks I blindly support this law I don't, I just ask for good argument against the law. The possible abuse of the law is not a good argument. I can request any number of injunctions on any number of issues, which will put the person on the other side to great worry and expences to fight, but that is not a good reason to stop the right to injunctions.

The requirement to pay damages should stop any blatant abuse of the process.

The potential abuse of the law is THE key argument.

Let me illustrate:

Gutenberg did not invent the printing press. He navigated the politics of the time by getting the German church to fund his moveable type innovation he stole from the Chinese. In return the church got to economically distribute the bible to the masses and woo them away from the mystical bonds which held them to their medieval masters.

By the time the European powers of the time had caught up with what is happening many 'pirate' presses were not printing bibles, but till then handwritten, proprietary works of knowledge which had until then only been accessible to the monied at a hefty fee. These were located on the German border, outside the juristiction of the church which had a patent interest on this moveable type thing they had invested in.

An organised, pan european, violent crackdown then began - and failed. Enter the enlightenment.

No disrepect, but looking at this through legal eyes and respect for centuries old copyright law principles which now protect corporations more than creators is to miss the point that we live in revolutionary times and the internet is an instrument of progress, freedom and enlightenment.

Don't **** with it.

ResearchWill · 27-01-2012 12:05am

Pro. F wrote: »

http://www.tjmcintyre.com/2012/01/legal-case-against-irish-sopa.html

This guy seems to me to make a strong case.

Have you mentioned him yet in this thread?

At last an argument. The problem is that his argument is self defeating. He states that this law may block legal content on the Internet. OK good argument, then he mentions recent ECJ case which backs him up. All very good so far, but wait, the Irish High Court must follow the ECJ. If the copyright holder is aware that his injunction will or may block legal content he is obliged to inform the court of this and bring to the attention of the High Court the legal case that says that content must be protected.

By giving this injunction power to only the High Court, we are all assured that judges will on receiving all the information make a decision, within the constitution, and the European convention on human rights.

Meteoric · 27-01-2012 12:07am

ResearchWill wrote: »

Yes I have heard a number of people say I don't understand how I will work with this law.

Can anyone point at the statements of a good qualified lawyer working in the area who says the law iact thats bad. I have backed up my legal opinion, with a promise to get a legal team including my self if this law is used unfairly against boards. I have sent a email to Tom, with my details.

So again I ask for a lawyer who knows what they are talking about to say this law is bad. If a good argument is given I will sign the petition.

I again ask you, apart from quoting what I have said without addressing the question, what can be gained from rushing an SI through without any consideration will do apart from create bad law? You have not presented any argument to explain how the law that is about to be enacted will not cause the problems that have been outlined by people that work in the field. My sense is that the people who run boards want to enforce copyright have been doing so but the law as written will cause them major difficulty. Why not talk to the stake holders work out something that might work and enact that?
Avoid all the lawsuits and all, because the sites like boards who try to do the right thing will be the ones being injuncted not the pirates because they do try to respect copyright but cant monitor every post

Pro. F · 27-01-2012 12:09am

ResearchWill wrote: »

The recent copyright troll in the US got well and truly burned and will go bankrupt as well as losing his profession as a lawyer.

Are you talking about the guy who was suing hundreds of people at a time in huge joint cases for pirate downloads of pornography?

27-01-2012 12:09am

foxerv1 wrote: »

I read the full text that Sean Sherlock published online, where is the rest?

EDIT:

I assume you mean these?

(3) Subject to subsection (4), the provision of facilities for enabling the making available to the public of copies of a work shall not of itself constitute an act of making available to the public of copies of the work.

(4) Without prejudice to subsection (3), where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable thereafter that person shall also be liable for the infringement.

Think about the impact of those subsections on an operation like boards.ie for a minute.

boards.ie provides a facility (this message board) that enables people (us) to make available to the public (anyone reading) copies of a work. But subsection 3 says that this does not mean that boards.ie is making copies of the work available to the public. So boards.ie is not breaking the rules by running the board.

Someone posts something on boards that is a breach of copyright. Under subsection 4, the owner of the work has the right to notify boards.ie that this has happened. If boards.ie don't remove the copyright material as soon as practicable, they'll be liable for the breach. Now it doesn't say this, but by definition it means that if boards.ie do remove the copyright material, they won't be liable for the breach.

Why are these subsections relevant? Because if I own a copyright, my right to seek an injunction against boards.ie (or anyone else) is without prejudice to those subsections. If I want my injunction, I can't get it just by saying that people can put copyright stuff on boards.ie - because subsection 3 doesn't allow for that. I have to show that people actually did put copyright stuff on boards.ie, that I asked for it to be removed, and that it wasn't.

What's wrong with that?

DeVore · 27-01-2012 12:12am

ResearchWill wrote: »

At last an argument. The problem is that his argument is self defeating. He states that this law may block legal content on the Internet. OK good argument, then he mentions recent ECJ case which backs him up. All very good so far, but wait, the Irish High Court must follow the ECJ. If the copyright holder is aware that his injunction will or may block legal content he is obliged to inform the court of this and bring to the attention of the High Court the legal case that says that content must be protected.

By giving this injunction power to only the High Court, we are all assured that judges will on receiving all the information make a decision, within the constitution, and the European convention on human rights.

Every time you say "High Court" or "Judge" or "Case" I hear "10-30,000 euro". (I'm glad you are paying our bills on this from now on

)

But seriously, we were dragged into a legal battle in the North this year and an hour of Senior Counsels time was 5,000 euro. One hour, 5 grand.

that was for ONE post in the mixed martial arts forum. We cant afford this. No one can.

Dodd · 27-01-2012 12:12am

alphaadam wrote: »

I sent TD Sherlock a letter in which I suggested he watch this very insightful and truthful you tube video about the real truth behind SOPA in the USA and consequently elsewhere in the world.

I would strongly recommend that all the board users look at this video too. If only to discover the deceit, lies, manipulation, false power and greed of the people behind these laws

http://www.youtube.com/watch?v=Ea-j499o5dc&feature=youtu.be

Now you know the truth

Do something else about it. I hope TD Sean Sherlock enjoys watching the video.

Kind regards

People of Ireland

What he says might be true but he comes across as a raving loony.

ResearchWill · 27-01-2012 12:12am

Citizen_Kane wrote: »

The potential abuse of the law is THE key argument.

Let me illustrate:

Gutenberg did not invent the printing press. He navigated the politics of the time by getting the German church to fund his moveable type innovation he stole from the Chinese. In return the church got to economically distribute the bible to the masses and woo them away from the mystical bonds which held them to their medieval masters.

By the time the European powers of the time had caught up with what is happening many 'pirate' presses were not printing bibles, but till then handwritten, proprietary works of knowledge which had until then only been accessible to the monied at a hefty fee. These were located on the German border, outside the juristiction of the church which had a patent interest on this moveable type thing they had invested in.

An organised, pan european, violent crackdown then began - and failed. Enter the enlightenment.

No disrepect, but looking at this through legal eyes and respect for centuries old copyright law principles which now protect corporations more than creators is to miss the point that we live in revolutionary times and the internet is an instrument of progress, freedom and enlightenment.

Don't **** with it.

If you read one of my earlier posts, I make the very point you do in relation to IP, I used the example of the world wide web, e-mail and unix as examples of the principles of open free exchange of knowledge. If I did not make it clear I will now my own view is that strict copyright can cause stagnation. But that is not what this is about this is, in relation to this SI, in light of the jurisprudence of the Irish Courts in relation to injunctions, in light of the EU law in the directive, is this law a bad law. I have seen no valid argument to say it is.

Now if you want a iscussion about IP that's a different issue.

stagolee · 27-01-2012 12:13am

Meteoric wrote: »

I again ask you, apart from quoting what I have said without addressing the question, what can be gained from rushing an SI through without any consideration will do apart from create bad law? You have not presented any argument to explain how the law that is about to be enacted will not cause the problems that have been outlined by people that work in the field. My sense is that the people who run boards want to enforce copyright have been doing so but the law as written will cause them major difficulty. Why not talk to the stake holders work out something that might work and enact that?
Avoid all the lawsuits and all, because the sites like boards who try to do the right thing will be the ones being injuncted not the pirates because they do try to respect copyright but cant monitor every post

I agree with this, i'm hardly a legal expert in any way and my impression on reading about the proposed law (that it is a very bad thing) may be wrong.
However the important thing which i think we should all agree on is that the law IS very significant and will affect some businesses based in this country. Should it not then be given proper consideration instead of quickly bundled in the back door so to speak?

Niall0001 · 27-01-2012 12:13am

alphaadam wrote: »

I sent TD Sherlock a letter in which I suggested he watch this very insightful and truthful you tube video about the real truth behind SOPA in the USA and consequently elsewhere in the world.

I would strongly recommend that all the board users look at this video too. If only to discover the deceit, lies, manipulation, false power and greed of the people behind these laws

http://www.youtube.com/watch?v=Ea-j499o5dc&feature=youtu.be

Now you know the truth

Do something else about it. I hope TD Sean Sherlock enjoys watching the video.

Kind regards

People of Ireland

Unbelievable & shocking it only has 74 views. Anyone with even the slightest interest in the topic of this thread should watch this. Scumbags.

DeVore · 27-01-2012 12:14am

Deleted User wrote: »

Think about the impact of those subsections on an operation like boards.ie for a minute.

boards.ie provides a facility (this message board) that enables people (us) to make available to the public (anyone reading) copies of a work. But subsection 3 says that this does not mean that boards.ie is making copies of the work available to the public. So boards.ie is not breaking the rules by running the board.

Someone posts something on boards that is a breach of copyright. Under subsection 4, the owner of the work has the right to notify boards.ie that this has happened. If boards.ie don't remove the copyright material as soon as practicable, they'll be liable for the breach. Now it doesn't say this, but by definition it means that if boards.ie do remove the copyright material, they won't be liable for the breach.

Why are these subsections relevant? Because if I own a copyright, my right to seek an injunction against boards.ie (or anyone else) is without prejudice to those subsections. If I want my injunction, I can't get it just by saying that people can put copyright stuff on boards.ie - because subsection 3 doesn't allow for that. I have to show that people actually did put copyright stuff on boards.ie, that I asked for it to be removed, and that it wasn't.

What's wrong with that?

If thats what this law enshrined. I'd sign up to it. Its what we do for defamation at the moment anyway.

Our advice is that its very unclear what it says and it doesnt seem to be that.

I'm going to bed, I've had an unsurprisingly knackering day.

oscarBravo · 27-01-2012 12:16am

ResearchWill wrote: »

There is nothing stopping you going to the High Court and representing yourself.

I'm a business owner. I'm a software developer. I'm a hacker and a nerd and a pretty bright guy in many respects.

What I'm not is a barrister, and - with the greatest of respect - if I represent myself in the High Court against a highly-paid and learned Senior Council, I'm going to lose, and I'm probably going to be lumped with the legal costs of the person bringing the injunction.

Or maybe I won't - but there's a chance I might, and being hit with the costs of just one such case would put me permanently out of business. I can't afford the risk of losing a High Court challenge, so I'm not going to challenge one.

Which leaves me in a difficult position if I'm served with an injunction that is next to impossible, or at least difficult and time-consuming. I have to weigh up the cost of complying with it - including the potential for loss of business - against the possible cost of challenging the injunction in court. It's a lose-lose situation for me.

There is nothing stopping you showing that it is impossible to do what is requested.

...and nothing stopping opposing council from claiming that it's possible. If the judge agrees with them, I'm faced with what I still consider an impossible task, and quite likely legal costs as well.

In any injunction the court must weigh up competing rights. They do it all the time, say in family law proceedings the couple are separating, one party gets a windfall and wins a million in the lotto, but she is moving the money out of Ireland, well then the other party may seek an injunction to stop that. Now that person must give an undertaking as to damages.

It's not a comparable case. As the party served with the injunction, I don't stand to gain a million euros by winning. I have nothing whatsoever to gain; just various different possibilities of losing.

The court can not order the impossible, judges are getting more savy about the Internet, I can assure you if this law is abused, if each person who signed the petition only gave a few euro you would be able to fight the injunction.

I don't want to have to fight the injunction. I don't want there to be an injunction.

The existing Act spells out quite clearly that an injunction may be sought against someone who is making copyrighted material available to the public without the owner's permission, requiring that it be removed. The remedy is clear: remove the material from public availability.

This is straightforward. EMI tell YouTube that a video on their website breaches their copyright; YouTube remove the video.

By contrast, the proposed amendment sets no parameters - none whatsoever - on the injunctive relief that a copyright owner can seek against me. They can demand that I block a website from all my customers; that I prevent specific customers from using my services; that I block certain types of content. This is the nub of the complaint - unlike the existing law, there is no limit to what a copyright owner can ask of me.

It's all very well to claim that I can fight the injunction in court, but if I have to travel to the High Court, I've already lost - and I didn't even do anything wrong.

KERSPLAT! · 27-01-2012 12:19am

No. 55003
Signed and will pass on the word

ResearchWill · 27-01-2012 12:19am

DeVore wrote: »

Every time you say "High Court" or "Judge" or "Case" I hear "10-30,000 euro". (I'm glad you are paying our bills on this from now on )

But seriously, we were dragged into a legal battle in the North this year and an hour of Senior Counsels time was 5,000 euro. One hour, 5 grand.

that was for ONE post in the mixed martial arts forum. We cant afford this. No one can.

I know the highest paid SC's in the republic and none of them get 5k an hour or anything near it. The most expensive solicitors firm charges 750 an hour, in my opinion a rip off but if a person wants to pay it well fairs do.

I can promise you, if any large company over steps the mark a line of lawyers will form on a no fould no fee basis to take the case, as in light of previous cases and the ECJ they will win and I would like nothing better than EMI paying my bill in that case.

Sponge Bob · 27-01-2012 12:21am

Sledgehammers and nuts come to mind. There should be an arbitration/takedown escrow process first and with legals to follow if that is unsatisfactory.

It could be done with a simple website. The Megacontent Corp requests that Drumsnot Community Council take down that Shrek clip on their website sort of stuff.

If Drumsnot Community Council are non compliant then perhaps High Court.

meglome · 27-01-2012 12:24am

ResearchWill wrote: »

I can promise you, if any large company over steps the mark a line of lawyers will form on a no fould no fee basis to take the case, as in light of previous cases and the ECJ they will win and I would like nothing better than EMI paying my bill in that case.

Can I have that in writing?

Meteoric · 27-01-2012 12:27am

ResearchWill wrote: »

I know the highest paid SC's in the republic and none of them get 5k an hour or anything near it. The most expensive solicitors firm charges 750 an hour, in my opinion a rip off but if a person wants to pay it well fairs do.

I can promise you, if any large company over steps the mark a line of lawyers will form on a no fould no fee basis to take the case, as in light of previous cases and the ECJ they will win and I would like nothing better than EMI paying my bill in that case.

Have court cases? Why not just make good law that will probably still be challenged but by fewer people at less cost? Can Sean Sherlock show us his wording is based on legislation that is effective in other European countries and has held up in court there?

27-01-2012 12:29am

DeVore wrote: »

If thats what this law enshrined. I'd sign up to it. Its what we do for defamation at the moment anyway.

Our advice is that its very unclear what it says and it doesnt seem to be that.

I'm going to bed, I've had an unsurprisingly knackering day.

I have to say (speaking as a layman) that it does look as if that's what the Order is doing - or at least trying to do.

But if it isn't clear, then that can be fixed by making it more obvious that the new subsection 5A is without prejudice to the existing subsections 3 and 4, and by making it clear that the injunction sought must be:-

(i) for the removal of the copyrighted material;

and

(ii) subject to the copyright owner having followed the notice procedures provided for in subsection 4.

My reading is that the courts will do this anyway, but if there's any fear that they won't then the above change would make sure that they have to - and that would pretty much put the kibosh on anyone who thought they could chance their corporate arm with threats of nuisance injunction applications.

ResearchWill · 27-01-2012 12:31am

oscarBravo wrote: »

I'm a business owner. I'm a software developer. I'm a hacker and a nerd and a pretty bright guy in many respects.

What I'm not is a barrister, and - with the greatest of respect - if I represent myself in the High Court against a highly-paid and learned Senior Council, I'm going to lose, and I'm probably going to be lumped with the legal costs of the person bringing the injunction.

Or maybe I won't - but there's a chance I might, and being hit with the costs of just one such case would put me permanently out of business. I can't afford the risk of losing a High Court challenge, so I'm not going to challenge one.

Which leaves me in a difficult position if I'm served with an injunction that is next to impossible, or at least difficult and time-consuming. I have to weigh up the cost of complying with it - including the potential for loss of business - against the possible cost of challenging the injunction in court. It's a lose-lose situation for me. ...and nothing stopping opposing council from claiming that it's possible. If the judge agrees with them, I'm faced with what I still consider an impossible task, and quite likely legal costs as well. It's not a comparable case. As the party served with the injunction, I don't stand to gain a million euros by winning. I have nothing whatsoever to gain; just various different possibilities of losing. I don't want to have to fight the injunction. I don't want there to be an injunction.

The existing Act spells out quite clearly that an injunction may be sought against someone who is making copyrighted material available to the public without the owner's permission, requiring that it be removed. The remedy is clear: remove the material from public availability.

This is straightforward. EMI tell YouTube that a video on their website breaches their copyright; YouTube remove the video.

By contrast, the proposed amendment sets no parameters - none whatsoever - on the injunctive relief that a copyright owner can seek against me. They can demand that I block a website from all my customers; that I prevent specific customers from using my services; that I block certain types of content. This is the nub of the complaint - unlike the existing law, there is no limit to what a copyright owner can ask of me.

It's all very well to claim that I can fight the injunction in court, but if I have to travel to the High Court, I've already lost - and I didn't even do anything wrong.

While the SI sets no limits, other than the court considering informing the person if they think it is necessary. The law around injunctions does set limits. I know that you like others are scared of the law. Just like a lot of lawyers are scared of technology. But fear of the unknown does not always mean the unknown is bad. If my computer starts going funny, and you tell me it's ok I know all about that will have it fixed in a jiffy, I will trust you. You can't promise my computer won't delete all my data, you can't promise my iPhone won't crash at the worst possible time but you can promise that you will do all in your power to fix it. Now I am asking you to put your trust in the High Court, will copyright holders try to abuse this law, ya maybe, as they have tried to abuse many laws in the past, but if we look at cases like the copyright trolls in the US we see how they usually come to a sticky end.

I know injunctions, I move them all the time and some of them very serious, I know how judges hate giving blanket power to one party ex parts, again I just mention the recent case of the guy last week who took multiple injunctions. It's funny over the last 40 year tech and the law have had a funny relationship, but you know they are working it out.

bigdaddyliamo · 27-01-2012 12:31am

Petition signed, 55200+ so far...

ResearchWill · 27-01-2012 12:33am

meglome wrote: »

Can I have that in writing?

I have already sent my contact details to boards, with the promise, that not only will I act for them if they are unfairly targeted, but I will get a solicitor and SC to do same.

Citizen_Kane · 27-01-2012 12:33am

ResearchWill wrote: »

If you read one of my earlier posts, I make the very point you do in relation to IP, I used the example of the world wide web, e-mail and unix as examples of the principles of open free exchange of knowledge. If I did not make it clear I will now my own view is that strict copyright can cause stagnation. But that is not what this is about this is, in relation to this SI, in light of the jurisprudence of the Irish Courts in relation to injunctions, in light of the EU law in the directive, is this law a bad law. I have seen no valid argument to say it is.

Now if you want a iscussion about IP that's a different issue.

Intellectual property is a diversion that you have now flirted with. To end my discussion with you (ResearchWill) I will submit my closing:

To believe that Sean Sherlock is 100% sure of the completely positive implications of this action is to still believe, as we were told, that there is no bailout.

I hope that you are as sure about the soundness of it as your resilience in arguing the legal validity. I am convinced of it's legal validity.

Just because it is legally valid does not make it prudent, wise or necesary. The only entity to stand to benefit by it is the entertainment industry. The interests of the Irish People needs representation too. This is due democratic process - not legal process.

As they say - the law is an ass.

Goodnight

oscarBravo · 27-01-2012 12:34am

Deleted User wrote: »

I have to say (speaking as a layman) that it does look as if that's what the Order is doing - or at least trying to do.

But if it isn't clear, then that can be fixed by making it more obvious that the new subsection 5A is without prejudice to the existing subsections 3 and 4, and by making it clear that the injunction sought must be:-

(i) for the removal of the copyrighted material; ...

The amendment deals explicitly with intermediaries; in other words, ISPs.

As an ISP, I can't remove copyrighted material. I don't have it to remove. It's not on my equipment.

It passes through my equipment on the way from the party hosting it to the party downloading it. This amendment allows for an injunction against me... but what effect will that injunction have? The SI doesn't say, which means the copyright holder gets to decide, uncircumscribed by law. That's my problem.

skelliser · 27-01-2012 12:38am

a solicitor is represented in the high court by a barrister.
so thats not only the solicitors fee but the barristers fee which is substantially more then a solicitors.
Hence the figure of 30,000 euro to challenge the injunction.

Marcus Suridius · 27-01-2012 12:41am

Fair play to everyone at Boards, great thing to show support. Ill be out to have my voice heard in Dublin.

https://www.facebook.com/events/168063729963049/

ResearchWill · 27-01-2012 12:44am

Deleted User wrote: »

I have to say (speaking as a layman) that it does look as if that's what the Order is doing - or at least trying to do.

But if it isn't clear, then that can be fixed by making it more obvious that the new subsection 5A is without prejudice to the existing subsections 3 and 4, and by making it clear that the injunction sought must be:-

(i) for the removal of the copyrighted material;

and

(ii) subject to the copyright owner having followed the notice procedures provided for in subsection 4.

My reading is that the courts will do this anyway, but if there's any fear that they won't then the above change would make sure that they have to - and that would pretty much put the kibosh on anyone who thought they could chance their corporate arm with threats of nuisance injunction applications.

Ok here is the section 40

Making available right.

40.—(1) References in this Part to the making available to the public of a work shall be construed as including all or any of the following, namely:

(a) making available to the public of copies of the work, by wire or wireless means, in such a way that members of the public may access the work from a place and at a time chosen by them (including the making available of copies of works through the Internet);

(b) performing, showing or playing a copy of the work in public;

(c) broadcasting a copy of the work;

(d) including a copy of the work in a cable programme service;

(e) issuing copies of the work to the public;

(f) renting copies of the work;

(g) lending copies of the work without the payment of remuneration to the owner of the copyright in the work,

and references to “lawfully making available to the public” shall mean the undertaking of any of the acts referred to in paragraphs (a) to (g) by or with the licence of the copyright owner.

(2) References in this Part to the making available to the public of copies of a work shall include the making available to the public of the original of the work.

(3) Subject to subsection (4), the provision of facilities for enabling the making available to the public of copies of a work shall not of itself constitute an act of making available to the public of copies of the work.

(4) Without prejudice to subsection (3), where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable thereafter that person shall also be liable for the infringement.

(5) Without prejudice to subsection (4), the Minister may prescribe the form of the notice to be given under that subsection and the form shall specify—

(a) the name and address of the person claiming to be the owner of the copyright in the work concerned,

(b) the grounds that the person requesting the removal of material has for such removal, and

(c) a list of the material which is to be removed.

(5A) (a) The owner of the copyright in a work may, in respect of that work, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 200111 O.J. No. L. 167, 22.6.2001, p.10. on the harmonisation of certain aspects of copyright and related rights in the information society applies.
(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction and the court shall give such directions (including, where appropriate, a direction requiring a person be notified of the application) as the court considers appropriate in all of the circumstances.

(6) References in this Part to “performance”, in relation to a work, shall include—

(a) delivery, in the case of lectures, addresses, speeches and sermons, and

(b) any means of presentation of sounds or images, or any combination of sounds or images or representations thereof, including presentation by means of a sound recording, film, broadcast or cable programme of the work.

(7) Where copyright in a work is infringed by its being performed, played or shown in public, by means of apparatus for receiving sounds, images or data or any combination of sounds, images or data, or the representations thereof, conveyed by any means, the person by whom sounds, images or data or any combination of sounds, images or data, or the representations thereof, are sent shall not be regarded as liable for the infringement and a performer shall not be regarded as liable for the infringement to the extent that the infringement relates to his or her activity as a performer.

(8) There shall be a right of the owner of copyright to make available to the public copies of a work or to authorise others to do so which shall be known and in this Part referred to as the “making available right”.

5(a) must be read in conjunction with the rest of section 40. Again I ask anyone to point out what is wrong with this section. Real problems not made up ones real ones.

Boards.ie: Danny · 27-01-2012 12:44am

Pro. F wrote: »

Just to point out, when I accessed the site on my phone (which I did first today) I didn't get the splash page. I wasn't accessing the mobile site so I don't know why boards.ie displayed differently.

Could be any number of reasons, the blackout notice doesn't appear on touch or mobile (m.boards.ie) or if you have javascript disabled. I checked the full site on my HTC after it went live and while it wasn't the prettiest on a tiny screen it did the job

Spacedog · 27-01-2012 12:48am

ResearchWill wrote: »

I have already sent my contact details to boards, with the promise, that not only will I act for them if they are unfairly targeted, but I will get a solicitor and SC to do same.

Is that promise a legally binding contract? Does DeV have to give you a euro or a paper clip in exchange to seal the deal?

ResearchWill · 27-01-2012 12:48am

Section 205 becomes as follows,

Making available to public copies of recordings of qualifying performances.

205.—(1) Subject to subsection (2), a performer has the exclusive right to authorise or prohibit the making available to the public of copies of a recording of the whole or any substantial part of a qualifying performance and it is immaterial whether the copy is made directly or indirectly.

(2) Where a copy of a sound recording is—

(a) played in public, or

(b) included in a broadcast or cable programme service,

the right conferred by this section shall be deemed to be satisfied by the payment of equitable remuneration as specified in section 208 .

(3) A reference in Parts III and IV to the making available to the public of copies of a recording shall include the making available to the public of the original recording of the live performance.

(4) There shall be a right conferred by this section which shall be known and in Parts III and IV referred to as the “making available right”.

(5) A reference in Parts III and IV to the making available to the public of copies of a recording of a qualifying performance shall include—

(a) making available to the public of copies of a recording, by wire or wireless means, in such a way that members of the public may access the recording from a place and at a time individually chosen by them, including the making available of copies of recordings through the Internet,

(b) showing or playing a copy of the recording in public,

(c) broadcasting a copy of the recording,

(d) including a copy of the recording in a cable programme service,

(e) issuing copies of the recording to the public,

(f) renting copies of the recording, or

(g) lending copies of the recording without the payment of remuneration to the rightsowner.

(6) The making available right is infringed by a person who, without the consent of the performer, undertakes or authorises another to undertake any of the acts referred to in subsection (5).

(7) Subject to subsection (8), the provision of facilities for enabling the making available to the public of copies of a recording of a performance shall not of itself constitute an act of making available to the public of copies of the recording.

(8) Without prejudice to subsection (7), where a person who provides facilities referred to in that subsection is notified by the rightsowner that those facilities are being used to infringe any of the rights conferred by Parts III and IV and that person fails to remove that infringing material as soon as is practicable thereafter, that person shall also be liable for the infringement.

(9) Without prejudice to subsection (8), the Minister may prescribe the form of the notice to be given under that subsection and the form shall specify—

(a) the name and address of the person claiming to be the owner of the rights in the recording concerned,

(b) the grounds that the person requesting the removal of material has for such removal, and

(c) a list of the material which is to be removed.

“(9A) (a) The rightsowner of any right conferred by Parts III and IV may, in respect of that right, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 200111 O.J. No. L. 167, 22.6.2001, p.10. on the harmonisation of certain aspects of copyright and related rights in the information society applies.
(b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction and the court shall grant such directions (including, where appropriate, a direction requiring a person to be notified of the application) as the court considers appropriate in all the circumstances.”.

(10) Where the making available right is infringed by a copy of a recording being played or shown in public, by means of apparatus for receiving sounds, images or data or any combination of sounds, images or data, or the representations thereof, conveyed by any means, the person by whom sounds, images or data or any combination of sounds, images or data, or the representation thereof, are sent shall not be regarded as liable for the infringement.

fatgav · 27-01-2012 12:48am

Stupid question... but has anyone other than Sean Sherlock come out in favour of this law?

ResearchWill · 27-01-2012 12:49am

skelliser wrote: »

a solicitor is represented in the high court by a barrister.
so thats not only the solicitors fee but the barristers fee which is substantially more then a solicitors.
Hence the figure of 30,000 euro to challenge the injunction.

Incorrect, on all cases I have been in the Solicitors fee has eclipsed mine by between 3 and 10 times. 30000 for SC barrister and solicitor does not equate to 5000 an hour, 5k a day is more likely, which in reality is about 3 days work. BTW I wish I got those sort of fees most don't, and just because the fee is higher does not mean the cheaper guy is not as good. I like most lawyers I know have taken good cases for free, because it's right.

Dodd · 27-01-2012 12:53am

fatgav wrote: »

Stupid question... but has anyone other than Sean Sherlock come out in favour of this law?

Yes some people posting in this thread are for it.

ResearchWill · 27-01-2012 12:54am

Spacedog wrote: »

Is that promise a legally binding contract? Does DeV have to give you a euro or a paper clip in exchange to seal the deal?

If Dev promises to pay me a euro, for my promise that will be a legally binding contract.

27-01-2012 12:56am

oscarBravo wrote: »

The amendment deals explicitly with intermediaries; in other words, ISPs.

As an ISP, I can't remove copyrighted material. I don't have it to remove. It's not on my equipment.

It passes through my equipment on the way from the party hosting it to the party downloading it. This amendment allows for an injunction against me... but what effect will that injunction have? The SI doesn't say, which means the copyright holder gets to decide, uncircumscribed by law. That's my problem.

First of all, my apologies. I was reading a link to what The Journal thought would be the text, but which in fact has been superseded.

http://www.thejournal.ie/readme/reader-irelands-sopa-a-faq/

Now that explains why boards.ie reckon it's vague. The text in the link above is easily workable and understandable, and I think even Tom would agree that if it was the text of the Order there wouldn't be a big problem.

But the final draft is a lot more obscure because it refers to the Directive. The problem with the text of the Directive is quite simple. It refers to intermediaries, and even goes so far as to describe how they can be part of the problem - but it doesn't define them.

In other words, the Directive says the Member States should allow injunctions to be taken against "intermediaries", but does not give any direction as to what an "intermediary" is.

Jaysus, that's a bit mad. :eek:

Doesn't really do much for my arguments either.

:D

Now having said that, the preamble to the Directive says that "the conditions and modalities relating to such injunctions should be left to the national law of the Member States". What that means is that the Minister is in a position to bring clarity to this if he wants. Or he can leave it to the Courts to do that.

It does rather look as if he is taking the lazy option, doesn't it?

oscarBravo · 27-01-2012 12:56am

ResearchWill wrote: »

While the SI sets no limits, other than the court considering informing the person if they think it is necessary. The law around injunctions does set limits.

With the greatest of respect, you're not addressing my concerns. You're making soothing noises. I'm not reassured - not because I don't believe you, but because I think you're dismissing my concerns without bothering to understand them.

Your entire perspective is that there's a limit on how much damage a copyright owner can do to me in the High Court. My problem is that that limit is already orders of magnitude beyond anything I can afford.

I'll say it again: if I have to drive to Dublin as a result of something that one of my customers did without my knowledge, I'm already the victim of someone else's legal issue. I don't want to have to go to court, and that's the only defence I currently have against this over-broad SI.

I know that you like others are scared of the law. Just like a lot of lawyers are scared of technology. But fear of the unknown does not always mean the unknown is bad. If my computer starts going funny, and you tell me it's ok I know all about that will have it fixed in a jiffy, I will trust you. You can't promise my computer won't delete all my data, you can't promise my iPhone won't crash at the worst possible time but you can promise that you will do all in your power to fix it.

That's all very well, but the worst-case outcome is that - despite my best efforts - you've lost all your data.

Maybe I'll get someone to argue my case pro bono, both solicitors and barristers. Will that guarantee that I can't possibly be hit with any legal costs?

Now I am asking you to put your trust in the High Court, will copyright holders try to abuse this law, ya maybe, as they have tried to abuse many laws in the past, but if we look at cases like the copyright trolls in the US we see how they usually come to a sticky end.

I get several emails every week from lawyers in California informing me that my customers are downloading copyrighted material, and demanding that I take action against them. At the moment, they are only emails. If this SI is enacted, each of those will be an injunction, and I'll be forced to choose between kicking off paying customers on the say-so of some randomer who is under no obligation to prove anything in court, or spending my valuable time (and probably money) fighting the injunctions in the forlorn hope that the High Court will see things my way.

ResearchWill · 27-01-2012 12:56am

Dodd wrote: »

Yes some people posting in this thread are for it.

Just so people are clear I am neither for nor against the law, I just want proper informed debate. A bland it's bad is not enough, if people want to stop this law they better know it inside out, I have done more to help that cause than any person who is blindly following the herd.

27-01-2012 12:58am

ResearchWill wrote: »

Ok here is the section 40

Cheers, guv, but see my post above. I was working from the wrong link to The Journal.

I have to say I'd be a bit less confident now that I've gotten to the right page. I reckon the Minister still has some work to do to get this right.

MOH · 27-01-2012 1:00am

Deleted User wrote: »

Think about the impact of those subsections on an operation like boards.ie for a minute.

boards.ie provides a facility (this message board) that enables people (us) to make available to the public (anyone reading) copies of a work. But subsection 3 says that this does not mean that boards.ie is making copies of the work available to the public. So boards.ie is not breaking the rules by running the board.

Someone posts something on boards that is a breach of copyright. Under subsection 4, the owner of the work has the right to notify boards.ie that this has happened. If boards.ie don't remove the copyright material as soon as practicable, they'll be liable for the breach. Now it doesn't say this, but by definition it means that if boards.ie do remove the copyright material, they won't be liable for the breach.

Why are these subsections relevant? Because if I own a copyright, my right to seek an injunction against boards.ie (or anyone else) is without prejudice to those subsections. If I want my injunction, I can't get it just by saying that people can put copyright stuff on boards.ie - because subsection 3 doesn't allow for that. I have to show that people actually did put copyright stuff on boards.ie, that I asked for it to be removed, and that it wasn't.

What's wrong with that?

I just got halfway through the EMI/UPC decision before I started going blind, so I'm not quite thinking straight at the moment

But suppose someone shares a torrent link on boards, copyright owner complains, it gets deleted, user gets banned. User re-regs, same happens again, get banned. Maybe IP blocked. Same then happens with a number of other users, which could in fact be the same user, on a different IP.
Can the copyright holder not then apply for an injunction claiming that boards are continuing to repeatedly facilitate copyright violation by refusing to put a system in place to prevent this happening at all?
Which leaves boards facing the cost of either going to court, or spending money developing some way of pre-emptively preventing such links.

And that's just boards - what happens on smaller sites with less resources?

(And I know right now that the initial target is the ISPs, but when that doesn't work, because the hardcore pirates will easily get around it, EMI et al will expand their focus).

As an aside, reading that decision I was quite alarmed at the way some of it was phrased - in a couple of places, "upload" and "download" seemed to be used interchangably, and some of the figures seemed either contradictory or unbelievable.
For example, certain encryption methods on peer-peer exchanges that could defeat the detection system are dismissed as irrelevant since "only 0.3%" of subscribers user them.
Then later it's determined that there's probably a hardcore of a couple of hundred subscribers who are responsible for most of the piracy.
Surely they're the ones most likely to be using the evasion methods that were earlier dismissed?

Then there's the acceptance of an international figure of .42 pirates per broadband line, yielding a total of 675,000 people in Ireland downloading illegally. The source of this information isn't given (unless I missed it), but this completely ignores the fact that broadband in many areas of Ireland runs at pitiful speeds by international standards - it's comparing apples and oranges.

I'm too tired to go through it all right now, and maybe I'm misunderstanding or misinterpreting some of it, and maybe I don't have all the facts - but it makes me a bit uneasy.

ResearchWill · 27-01-2012 1:00am

oscarBravo wrote: »

With the greatest of respect, you're not addressing my concerns. You're making soothing noises. I'm not reassured - not because I don't believe you, but because I think you're dismissing my concerns without bothering to understand them.

Your entire perspective is that there's a limit on how much damage a copyright owner can do to me in the High Court. My problem is that that limit is already orders of magnitude beyond anything I can afford.

I'll say it again: if I have to drive to Dublin as a result of something that one of my customers did without my knowledge, I'm already the victim of someone else's legal issue. I don't want to have to go to court, and that's the only defence I currently have against this over-broad SI. That's all very well, but the worst-case outcome is that - despite my best efforts - you've lost all your data.

Maybe I'll get someone to argue my case pro bono, both solicitors and barristers. Will that guarantee that I can't possibly be hit with any legal costs? I get several emails every week from lawyers in California informing me that my customers are downloading copyrighted material, and demanding that I take action against them. At the moment, they are only emails. If this SI is enacted, each of those will be an injunction, and I'll be forced to choose between kicking off paying customers on the say-so of some randomer who is under no obligation to prove anything in court, or spending my valuable time (and probably money) fighting the injunctions in the forlorn hope that the High Court will see things my way.

Those guys are what are called copyright trolls, one has already been put out of business in the US. They are usually bottom feeders, if you ask them to give you information of what copyright they protect, plus the IP address of the persons and the times of alleged breach, you will find them shutting up pretty fast. They are usually no better than the my husband has died leaving me millions e-mails.

bobbytables · 27-01-2012 1:01am

This issue is still met with confusion, so the following is my own high level account of the big picture.

Over the last dozen or so years technical innovations layered on top of the traditional web introduced numerous means for the average joe to publish content on the web easily. "Content" could be anything from a post on boards.ie such as this one, Video content on YouTube, reviews of products/services on Amazon, contributions to knowledge resources like Wikipedia, the list goes on & on & on & is potentially endless. The explosion of such applications is what the media labelled web 2.0, a new generation of ways which the web can benefit humanity as opposed to the the earlier network of hyperlinked static content, controlled by the few. It meant that the world could benefit directly from the fact that anyone who cared to contribute could, as opposed to a much more limited set of publishers (primarily those in financially stronger positions, E.g. Corporations, etc). Bottom line, the potential of the web and sheer momentum that it currently has is directly attributed to the level of contributions it receives by people from different cultures and all walks of life. As a netizen from the start, it has been a true pleasure & privilege to be part of this global community on a daily basis.

Now that's all the good stuff, but like any good thing, it can also see various misuse cases. In this context such a misuse case is typically the publication of content through a legitimate platform that infringes copyright. Now you will have non technical people say things like "just distinguish the two" or "block one, but not the other" and that all sounds grand in theory, but from a technical perspective it's not that easy in practice. For starters we cannot automate the identification of content that infringes copyright at the time of publication with desireable efficacy. So therefore the platform managers typically moderate this content to the best of their ability, but it's a resource hungry task, again because we can't completely automate it.

So if it's a case that platform providers can be held liable for matters in relation to published content by 3rd party contributors, then that is a a MASSIVE overhead. One that will result in hindering or preventing the growth & evolution of our global online community, innovation, tech startups, etc, etc.

Now if you're non technical and have read & followed thus far, pat yourself on the back because so many others haven't. My fear is the power some of these other people have. For example I have spoken with legal professionals over years and I have lost count of the amount of times these professionals don't know what to say when they are confronted with technical facts in relation to legal matters involving technical systems. It's worrying. The best response I was given in a room full of people at a business seminar one day was "in some cases the legal system still needs to play catch up".

As a Software Engineer I don't walk in to hospitals and sign off on decisions in relation to medical matters affecting all patients while surrounded by doctors shouting at me to re-consider the impact of of my actions. If I did, I would listen as opposed to simply assuming their motives are based on an endorsement of illegal practice.

They don't understand, & I worry they still won't until it's too late. They'll see all the signatures & all the shouting and continue to make their decision on the basis of their own short sighted understanding, and backwards we'll go.

DeVore · 27-01-2012 1:01am

And I welcome debate. I'm no hypocrite I genuinely think its the only way we move things forward. Its the whole drive behind Boards in many ways.

I'll happily pay you a euro btw.

RGDATA! · 27-01-2012 1:01am

re:

http://www.youtube.com/watch?v=Ea-j499o5dc&feature=youtu.be

Dodd wrote: »

What he says might be true but he comes across as a raving loony.

not fair.
he's bombastic and hamming it up, a style i can take or leave, but not uncommon to many youtubers and radio/tv commentators.
anyway, his argument, in the context of this discussion, is surely more important than how he delivered it

he could have been quicker to the point, but he makes a solid case that the media companies behind SOPA were at the forefront of distributing file-sharing software and effectively encouraging and endorsing file sharing over the last decade or more.

no doubt that if companies like CNET (owned as he points out by CBS/VIACOM) and AOL (Warner) hadn't been plugging Limewire and Kazaa, Bittorrent etc, it wouldn't have been nearly as prevalent or mainstream today. Sure the tech would have still existed but not with nearly the same reach.

his argument (10 mins in) is that they created this culture as part of a long-term strategy to ultimately lobby for strong regulation in their favour.

oscarBravo · 27-01-2012 1:02am

ResearchWill wrote: »

Those guys are what are called copyright trolls, one has already been put out of business in the US. They are usually bottom feeders, if you ask them to give you information of what copyright they protect, plus the IP address of the persons and the times of alleged breach, you will find them shutting up pretty fast. They are usually no better than the my husband has died leaving me millions e-mails.

Each one contains a file name, an IP address and a date and time. I can PM you a redacted copy if you're curious.

27-01-2012 1:02am

MOH wrote: »

I'm too tired to go through it all right now, and maybe I'm misunderstanding or misinterpreting some of it, and maybe I don't have all the facts - but it makes me a bit uneasy.

Sorry you read all that I posted and then worked hard on your response - but I was reading the wrong source and let's just say that my thinking has been challenged on the subject.

I'm now more than a little doubtful about this.

An open letter from Boards.ie to Minister Sean Sherlock

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