Lords’ Digital Bill Amendment Could Block YouTube

The House of Lords has dismissed a clause of the Digital Economy Bill, which would have given Business Secretary Lord Mandelson the power to alter copyright law. However, the Lords have replaced it with a new – and arguably more draconian – clause, which allows copyright owners to ask the high court to cut off websites that host illegally-shared files.

In a surprise amendment on Wednesday, the Liberal Democrats removed the clause that gave Mandelson the power to amend the Copyright Designs and Patents Act 1988, “for the purpose of preventing or reducing online copyright infringement.”

Mandelson loses copyright powers

It was originally argued that the power to amend  the Copyright Act was necessary to enable the government to respond more efficiently to new methods of viewing and transmitting copyright material, and “future-proof” the legislation to combat digital piracy. According to the Bill, these powers would be handled by “statutory instrument”, so could not be blocked by MPs or the Lords.

Government ministers were forced to back down on the clause in January, following a barrage of complaints from ISPs, technology companies and political parties. Most notably, Lord Mandelson received a public letter from Google, Facebook, Yahoo and eBay, condemning the proposal. “We believe the Bill’s Clause 17 opens the way for arbitrary measures,” the companies complained. “This power could be used, for example, to introduce additional technical measures or increase monitoring of user data, even where no illegal practice has taken place”.

While the removal of Clause 17 is a cause for celebration among many of these institutions, many are now expressing increased concern over the amendment, added by a pair of Conservative and Liberal Democrat Lords, which would allow courts to “prevent access to specified online locations for the prevention of online copyright infringement”.

Courts get copyright take-down powers

If approved, amendment 120A would enable courts to issue an injunction against any website accused of hosting a “substantial proportion” of material that infringes copyright. This could ultimately result in the offending site being forced offline.

“I believe this is going to send a powerful message to our creative industries that we value what they do, that we want to protect what they do, that we do not believe in censoring the Internet but we are responding to genuine concerns,” said Liberal Democrat peer Lord Clement-Jones. He also described the proposal as a “more proportionate, specific and appropriate” method of tackling copyright infringement.

However, the UK Internet Services Providers Association (ISPA) has already said that its members are “bitterly disappointed” with the amendment, describing it as “negligent … misjudged and disproportionate”.

“ISPA has been supportive of Peers’ excellent scrutiny of the Bill to date,” said Nicholas Lansman, ISPA Secretary-General. “However, in this instance, our members are extremely concerned that the full implications of the amendment have not been understood and that the reasoning behind the amendment is wholly misguided. We would therefore urge the Conservatives and Liberal Democrats to urgently reconsider their position and vote against this amendment.”

The Open Rights Group (ORG) has also opposed the amendment, claiming that it leaves individuals and small businesses open to massive copyright attacks. “This is exactly how libel law works today: suppressing free speech by the unwarranted threat of legal action,” said Jim Killock, executive director of ORG. “The expense and the threat are enough to create a ‘chilling effect’.”

The end for YouTube?

It has been suggested that the amendment would be likely to spell disaster for sites such as YouTube, which allows users to upload material without the knowledge of the site’s owners. “For the first time, Sony and the rest can now go to court and demand that every ISP in the UK blocks YouTube,” wrote cyber-law expert Lilian Edwards in a blog post. “There will in reality be no, or few, court applications – just non-publicised notifications. This is essentially legislation for covert extralegal censorship for the benefit of entrenched private interests.”

The Digital Economy Bill was first announced as part of the Queen’s Speech in November 2009. As well as the issue of copyright, the Bill has caused further controversy with its suggested measures for tackling illegal file-sharing through an escalating series of sanctions, starting with sending letters to illegal downloaders and culminating in slowing down the connection speed of offenders or temporarily suspending their connections. The governemtn also proposed to bring in a £6-a-year broadband levy, designed to fund next-generation broadband.