An open letter from Boards.ie to Minister Sean Sherlock

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.

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.

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.

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.

MOH wrote: »

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.

Well let's look at section 40 (4) (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.

Now that section currently exists, so your example the person can be sued for damages if your interpertation is right. But the important bit is fails to remove infringing material as soon as practicable thereafter. Remember the above is not a new section, it has been on the books since 2000. The new section 5 (a) adds the ability to the other remedies, already in being, to be able to get injunctive relief. The basic rules in injunctions, the balance lies with the granting the relief, and damages are not an adequate remedy.

Dodd wrote: »

Sorry.
I have read all the post in this thread and was not re-faring to you as being for this.
Just so we get that right.

No problem, I just wanted to make sure new people who have not read all my posts don't get the wrong idea.

bobbytables wrote: »

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.

I totally agree, and yes the law needs to catch up and quickly. I heard recently a judge gave out to a lawyer for using an iPad. The law always seeks certainty, certainty is in the past, how such a case WAS decided. But the law is getting it, judges are getting it. Remember it was Charlton J. who put a stop to EMI, yes I know parts of the judgement was a bit out there but to be honest lawyers are trying to catch up. Well some anyway.