The Chilling Effect

The music industry is celebrating today after the House of Lords voted through an amendment to the controversial Clause 17 of the Digital Economy Bill. Civil liberties campaigners are less impressed with this outcome. The Digital Economy Bill has been a source of concern since it was first put forward; Liberty, Index on Censorship and the Open Rights Group (of which this site's editors are members) have campaigned against the bill, and Talk Talk have raised awareness through their site Don't Disconnect Us. We first wrote about our concerns with the Bill back in December. Since then the protest has gained momentum, with not only well-known privacy activists like Cory Doctorow adding their voices to the mix, but also professionals within the music industry. Billy Bragg , protest singer and co-founder of the Featured Artists Coalition, told Mark Thomas, "Perhaps the high-end artists are losing out, but for people down my end of the industry [file-sharing] helps, it spreads the word. The potential for artists is really incredible - stuff comes into the charts that hasn't even been promoted by the record industries, and they find that very frustrating."

Yesterday morning it was announced that Liberal Democrat and Conservative Lords were pushing to replace Clause 17 with Amendment 120a. One of those Lords, Tim Clement-Jones, explained his reasoning as follows:

Unlike Clause 17, amendment 120A depoliticises the process. The amendment will ensure any action will be heard before the High Court. The liberal principle of equality before the law remains intact allowing both sides to make their case before a judge, not by appeal to the Secretary of State.

This "not quite as bad as Clause 17" defence has not gone down well with most privacy campaigners. PanGloss, a UK-based cyberlaw blog, has a detailed breakdown of the pros and cons (with emphasis on the cons):

This is what the Americans call "chilling effects" on free speech. We are about to become very, very chilled (man). If you don't believe me, look at studies on notice and take down conducted in the UK, US and Europe - they unanimously show that ISPs and hosts faced with take down notices and potential legal liability, take down first,and worry about freedom of speech, or the true legal facts, very far second if at all.

The Pirate Party UK have responded with an in-depth analysis of the debate, concluding:

Lord Clement-Jones' justification for the amendment ... does little to remove the fears held by many opposing this and he demonstrates his lack of understanding; even the first sentence is factually incorrect - at no point in the Bill is P2P mentioned at all. While the initial consultations and debates only concerned the use of P2P software, by the time the Bill was published it had been generalised to all online activity. While advocates of sensible internet and copyright policy have been opposed to this Bill since it was first mentioned, today's debate has managed to do the unthinkable and make it even worse, causing confusion and outcry even from within the ranks of the Liberal Democrats. Today's events clearly demonstrate that we cannot rely on the front bench of any major party to respect or understand the internet and modern technology.

The upheaval within the Liberal Democrats has been dramatic. Many people have said that the Lib Dems' actions today have cost them a vote [1 2 3 4 5 6 7 8 9 10, etc], and the 'Lib Dems for some decent IT policy' group has more than tripled in membership in the last few days. Lib Dem member and fund-raiser Cory Doctorow took the party to task this afternoon in his Guardian column:

The reason web lockers are used for piracy is that they support privacy. A call to end web lockers is really a call to eliminate the public's ability to exchange personal information out of sight of the wide world. The only way you can be sure that someone isn't using a web locker to share a bootlegged movie is by shutting off my ability to privately send my mum a video of my toddler in the bath.

Yesterday evening a group of 25 prospective parliamentary candidates for the Lib Dems put their names to an open letter urging their current Parliamentary colleagues to think again.

A little background reading on Lord Clement-Jones, the most outspoken Lib Dem proponent of the Amendment, reveals that his outside interests include international law firm DLA Piper, of which he is a partner. DLA Piper's Intellectual Property and Technology practice manages nearly 400 IP lawyers specialising in internet copyright disputes. Lib Dem member Richard Wilson highlighted the following text from their website:

When disputes arise, your commercial objectives are our main concern. [...] Our IP experience includes IP litigation as well as representation in areas such as applications, prosecution, and filings for patents, trademarks, and copyrights. [...] The ability to advise on all aspects of technology law expands the efficiencies and breadth of service for our clients [...] we offer advice on all related IP matters such as advertising and promotion law, data security, digital media content, e-commerce/Internet transactions, and privacy protection. We also help develop compliance programs in response to new corporate policies or national and local government regulations, including IP, privacy, or quality control audits.

This revealing tidbit has already found its way onto another open letter, which appeared tonight on a hastily-assembled new website

Many have hoped that the Liberal Democrats and the Conservatives might jointly condemn Labour's civil liberties record - and, perhaps, after the election, start to reverse it. It sets a worrying precedent when Lib Dem and Tory peers unite in their support of corporate interests over online privacy and freedom of speech.