Mandybill LibDem peers agreed to drop their controversial net-blocking clause from the Digital Economy Bill after the government advised that the proposal would be legally unenforceable. It means the Bill now heads for the Commons with one of the key copyright infringement countermeasures up in the air, although it's likely to be a return to Plan A (ministerial superpowers) rather than judicial oversight by the Courts, as the LibDems' Plan B proposed.
The original Section 17 was written to deal with music and movie business concerns that a third of infringing material was being downloaded via cyberlockers, such as RapidShare. It gave the Minister considerable powers to order new countermeasures - extending copyright law on the hoof.
A clearly exasperated Lord Clement Jones, who had tabled the replacement Clause 17, said he'd done so in response to the concerns of internet activists, such as the ORG, who had objected to the 'Ministerial Superpowers'. He instead proposed a Clause 18, which revised Section 97B of the Copyright Act, giving limited injunction abilities to the courts. He clearly felt he couldn't win either way - critics who had raised the alarm about netblocking had ignored his many safeguard clauses, he suggested.
"We drafted new amendments as a result of discussions with the Open Rights Group and others, which we believe will go some way towards meeting the objections of critics. They may not be officially endorsed by the Open Rights Group, but we are grateful for its assistance none the less," he said pointedly.
He pointed out that one safeguard specifically protected sites like YouTube. A hysterical academic, Lilian Edwards, had told the Guardian newspaper that YouTube would be blocked by Section 18.
"These Benches opposed and helped to defeat the Government’s proposals, which would have given them wide powers to change copyright law by order," Clement Jones explained. Instead, the LibDems backed a 'backstop' replacement - first revealed here at El Reg in January - which took the issue from the Minister and handed it to the Courts, extending and clarifying their power to grant injunctions blocking websites.
Clement Jones agreed to withdraw the Clause. For the government, Lord Young implied Plan A was back on the table:
"We need instead to look at something that would work legally by giving the Secretary of State a power to bring forward regulations to achieve the desired effect, while taking into account all the points made during the House’s consideration of the clause," he said.
"I take it from the Minister — and hope that this is the case — that this is not a reintroduction of Clause 17 but a much more targeted approach to consulting over regulations with a specific target," Clement Jones replied.
Just say no
The Lib Dem frontbencher had a swideswipe at freetard activists - including those in his own party - who objected on principle to every attempt to enforce IP rights
"It is incumbent on those who are absolutely dead-set against this kind of measure to demonstrate just how these new models can be set up unless there is adequate protection against copyright infringement", he said.
Surprisingly, Conservative Lord Lucas, who had tabled many ISP and Google-friendly amendments to the Mandybill, said he agreed.
Lucas said he'd gone shopping to buy Stephen Fry reading Harry Potter, but the first three pages of Google's search results all pointed to illegal versions.
"It was extremely difficult to find something that was legal ... I do not see why search engines should not be able to block these things."
"There will always be people who will go to great lengths to find stuff that they should not. They are a small minority and it takes a lot of their time. We want to deal with the ordinary people who are finding it terribly easy to find illegal material. It is as if every street was lined with stalls selling counterfeit goods," he said.
Clement Jones had introduced dozens of amendments modifying the powers, and won significant concessions. He'd clearly been miffed by suggestions last week that giving Courts blocking powers meant he was captive to producer interests.
But maybe the Honourable Lord is getting a taster of how "internet politics" is conducted by activists. It's a PR game, not the art of winning achievable goals. You must object to everything, all the time, then blog and Twitter about how the end of the world is imminent. Never stand still (it presents a target) and never support anything positive. You are the sellotape, holding down the
Lord Whitty, who chairs the freshly-minted government quango Consumer Focus, pointed out the obvious:
"Closing down a significant number of subscribers does not mean that any money whatever goes to the creative artists. The only people who will immediately benefit from it are perhaps a few well-heeled organisations and their rather unscrupulous lawyers."
The Bill itself is scheduled for two readings in the Commons, and if it passes, will qualify for the pre-election free-for-all called Wash Up, where legislation is bundled through after considerable horse trading. If the Digital Economy Bill gets that far, it's not clear whether the Rapidshare proposals (whatever they may be) will survive this process. ®