Click through for this month’s update, including:

• Filesharing will be throttled in digital Britain
• Do your MEPs agree with ORG?
• Calling all recruiters
• ORGzine needs you!
• Monthly press round-up

Corporate lobbying in the European union has long been recognised as a significant problem for citizens. Friends of the Earth and others organised the ‘Worst EU Lobby Awards’ which in 2006 voted that DG Internal Market provided the ‘worst priviliged access’ by manipulating a consultation on EU patent policies, including of course, software patents.

Of course, businesses need to make their views known, which in practice means lobbying. The problem is how it’s done. As the Lobby Awards say, there is disinformation, creation of ‘astro-turf’ (fake grassroots) groups, and it is easy for lobbyists to secure privileged access.

There is only one real answer, which is transparency. Transparency is created by rules, but also public attention. That includes the media, but also civil action, through groups like ORG. We need to change what we ourselves can change: which means getting better at bringing the EU’s work to public attention, to make sure we get the best results.

There is of course also a question of who gets into positions of influence within the larger corporations. Some policy decisions will simply be matters of financial interest, but sometimes what is needed is people who understand the principles to get into the jobs and explain why customer interest is aligned with business interest.

This is particularly true with privacy concerns. There are a number of interesting examples of former campaigners and highly-regarded experts working in companies where they can hopefully do good. Caspar Bowden (MS) and Bruce Schneier (BT) are names that spring to mind.

Open Rights Group will therefore be particularly interested in the work that Richard Allan does at Facebook, as Policy Director. Richard is currently on ORG’s Advisory Council and has had a long track record of sensitivity to privacy issues as an MP and campaigner. Open Rights Group, other NGOs and Facebook will not always agree – but we think it is a very valuable decision for Facebook to appoint somebody whose personal views have been close to ours. Hopefully it will mean a well-informed and constructive debate.

We are looking for nominations to our Advisory Council, who contribute policy guidance to Open Rights on both a strategic and day-to-day basis.

We are particularly seeking expertise in copyright. Individuals with very good knowledge of a major UK political party would also be useful, as would experienced campaigners. Individuals with expertise in other areas of concern to ORG, including digital regulation, privacy and open knowledge would also be welcome.

Please send suggestions to advisory at openrightsgroup dot org by the end of 30 June 2009. For more information on the current team and their responsibilities, see here.

Nominations need not include the agreement of the individual concerned, as we will approach them after reviewing nominations. Nominations will be reviewed by the Advisory Council and approved by the Board of Directors.

Digital Britain promises to ‘tackle piracy’ online. Extensive powers of blocking, filtering and reducing access to the internet will be put in place if anti-infringement letter writing campaigns are not successful.

If ‘secondary legislation’ (rubber-stamped papers to parliament) is passed, new powers would be given to Ofcom to require ISPs to restrict access of alleged infringers.

There is no suggestion of a requirement to take users to court before curtailing their access. This looks like HADOPI-lite: muzzling of users and potential harm to the internet’s infrastructure and lawful businesses, to protect failing business models in the entertainment. Regulations around enforcement will be drafted by industry and approved by the regulator, Ofcom.

We deeply regret the proposed blurring of Ofcom’s role, supposedly to protect competition and the public interest, to one of altering market access and conditions in favour of incumbent players.

Those most likely to be affected by these heavy-handed proposals are not the ‘hardcore’ infringers government alleges it wishes to target. The victims will be the innocent, naïve, and collaterally-damaged legitimate services, alongside traditional ‘consumers’ who will find the market benefits of near zero-marginal cost distribution potentially reduced by near monopoly control of a small number of rightsholders.

We will be working to produce further information on this and other parts of the Digital Britain report in the coming weeks, including opening up the BBC’s content, but for now we reproduce the basic proposals from Lord Carter, so ORG’s supporters can start a conversation.

Let’s be clear: artists need to be paid and copyright needs to function well in the digital world. But clamp downs that damage the internet’s open-ness and our human rights further undermine copyright’s reputation.

If you want to do something today, write to your MP to let them know this will rebound, either by restricting innovation and competition, or undermining copyright’s reputation. Remind them that it is our human right to have a legal process before being found guilty and punished.

Legislation to reduce unlawful peer-to-peer file-sharing

The key elements of what we are proposing to do are:

Ofcom will be placed under a duty to take steps aimed at reducing online copyright infringement. Specifically they will be required to place obligations on ISPs to require them:

• to notify alleged infringers of rights (subject to reasonable levels of proof from rights-holders) that their conduct is unlawful; and
• to collect anonymised information on serious repeat infringers (derived from their notification activities), to be made available to rights-holders together with personal details on receipt of a court order.

Ofcom will also be given the power to specify, by Statutory Instrument, other conditions to be imposed on ISPs aimed at preventing, deterring or reducing online copyright infringement, such as:

• Blocking (Site, IP, URL);
• Protocol blocking;
• Port blocking;
• Bandwidth capping (capping the speed of a subscriber’s Internet connection and/or capping the volume of data traffic which a subscriber can access);
• Bandwidth shaping (limiting the speed of a subscriber’s access to selected protocols/services and/or capping the volume of data to selected protocols/ services); and
• Content identification and filtering.

This power would be triggered if the notification process has not been successful after a year in reducing infringement by 70% of the number of people notified.

Virgin have today announced that they are on the way to providing an ‘all you can eat’ music service, although they have so far only secured a deal with Universal.

It’s encouraging to hear that labels are now working to bring their content online, as they have also with Spotify. What’s less encouraging is the clear implication that the agreement of Universal was made contingent on imposing sanctions on Internet users without court action. Virgin will disconnect accounts temporarily when they are found to have been used to ‘persistently infringe’ copyright, but without judicial oversight.

This raises several questions. Firstly, it shows the perils of mixing up the role of ISP and content provider. As content provider, they have motivations around protection of their products and services, whereas as ISP, their business depends on providing connectivity.

Secondly, Virgin could be breaking their terms and conditions of service with their customers, or will have to make them rather odd. They will presumably contract with users to provide an internet connection, yet without proper oversight, and without a means for users to defend themselves, Virgin will breach at the very least the spirit of that agreement when imposing sanctions.

It’s difficult to imagine any sanction like this properly avoiding targeting homes that share connections, like student digs, or internet cafes, or shared households in general.

If the most persistent offenders - as Virgin claim - are those targeted by these kinds of response, then they are also those most likely to find technical means to hide their actions. This means those who get caught and suffer sanctions are more likely to be innocent, while the most likely to be infringing will not be caught.

This leaves us somewhat wary. Is this the route that ISPs will take, once their businesses mix provision of copyrighted material with supply of the internet? If so, questions about ‘net neutrality’ look that bit more real, especially given these comments from Virgin’s CEO.

So, despite having called for deals like this, which offer legitimate ways to access digital content, we cannot simply welcome this with open arms. It feels like Universal in particular are experimenting, but are still overly fearful of their own customers. Labels need to avoid this: they have great products, and people will pay fair prices. They should pursue deals like this, and make them more widely available, rather than dependent on specific ISPs.

We will also be keen to hear about the rates going back to artists. Part of the social compact that has been widely forgotten in these debates is that fans want artists to be paid, but low royalty rates on music products have convinced the public they are not paying creators, but content owners. We hope that Universal will show that artists benefit from the sorts of deals the labels are finally starting to make.

mySociety, as many of you will know, are campaigning for the next Speaker to agree with three internet-friendly principles:

1. Voters have the right to know in detail about the money that is spent to support MPs and run Parliament, and in similar detail how the decisions to spend that money are settled upon.

2. Bills being considered must be published online in a much better way than they are now, as the Free Our Bills campaign has been suggesting for some time.

3. The Internet is not a threat to a renewal in our democracy, it is one of its best hopes. Parliament should appoint a senior officer with direct working experience of the power of the Internet who reports directly to the Speaker, and who will help Parliament adapt to a new era of transparency and effectiveness.

The Open Rights Group fully supports my Society’s call. Please think about letting your MP know that you think the next Speaker should sign up to these principles.

News that Lord Carter will quit government in July raises serious questions about the future of the Digital Britain proposals, which are due to be released next Tuesday.

Minimum - if minimal - standards for broadband; hopefully, additional thinking about privacy online; and the controversial and much disliked Digital Rights Agency are all expected in the final report.

Pressure from groups such as Consumer Focus as well as ORG emphasised the need to reform copyright in the interests of consumers, through additional user rights such as ‘format shifting’, which remains illegal in the UK.

Consumer groups are also engaged to ensure that letter writing and copyright enforcement measures are proportionate and remain within the courts. ORG is further concerned about “bandwidth throttling” and other “sanctions”, particularly if they are not subject to judicial oversight.

The government has not shown significant understanding of innovation and what generates profits in online digital industries. It has prioritised the interests of incumbent players and arguably - perhaps understandably - hasn’t fully grasped the mettle of future internet access and speeds.

But with Lord Carter departing, there is a serious question as to whether the government will push the Digital Britain agenda forward at all. Who will pick up the brief; will they support and desire the completion of its recommendations; will they be able to build up the political will to see any proposals through Parliament, especially as its mood darkens?

An extremely large amount of energy has been put into this report, from the government and interested parties that have written consultation and “discussion paper” responses. Despite the processes’ very obvious faults and omissions, stalling at this stage would be disappointing.

But despite these flaws – and whatever the actual proposals we see next week - there are serious questions now as to what action we can realisitically expect this process to produce. Many of the policies will no doubt trudge forward as part of government’s bureaucratic business, of course. But not all, especially those that are a little more difficult or adventurous, and therefore particularly good or bad. Potentially, a lot of people will have wasted a lot of their time.

From LQDN:

The Constitutionnal Council, highest jurisdiction in France gave its decision1 concerning the HADOPI “three strikes” law, final stage before the promulgation of the law. It decided that presumption of innocence is more important than the idiotic schemes from the entertainment industries to artificially prolong their obsolete models.

All sanctioning power (ie. disconnecting internet users) has been removed from the HADOPI.

“This is a great victory for citizens who proved they can altogether act to protect their Freedom. HADOPI’s ‘three strikes’ is finally buried. All we have now is a big tax-sponsored spam machine for the entertainment industries. But this is not the end of Sarkozy’s will to control the Internet. The next law, LOPPSI, is already on tracks and will be about filtering the content on the Internet. Citizens must celebrate this great victory but remain watchful…” declares Jérémie Zimmermann, cheerfully.

Stand back from the media frenzy concentrating on Labour’s woes for a moment, and ask yourself what these elections mean for digital rights.

Several parties that broadly supported digital rights concerns did well in this election, including, in the UK, UKIP and the Greens. The Liberal Democrats also had a fair showing.

Across Europe, the Green Party have been very supportive on patents, copyright and privacy, and gained in strength. ALDE, the Liberals, have also been helpful, and remained roughly as strong.

The two groups that have been most difficult to influence have been the traditional left and right parties, the PES and EPP. Both have suffered in the election. Between them, they are likely to continue to dominate the parliamentary agenda, but more digital rights-friendly voices are stronger.

But the biggest shock from a digital rights perspective is the election of the Swedish Pirate Party, with one representative, or two if the Lisbon Treaty is adopted. Their membership and votes have been boosted by the Pirate Bay trial, although they are separate organisations. The Open Rights Group’s perspective is rather different, but we welcome their election, because it will force a public debate on issues which of concern to us.

Politicians would be making a mistake to simply mock or ignore this new if eccentrically-named political force. The Pirate Party have shown that politicians can lose their jobs if they fail to defend our rights. They have demonstrated that young people want the public benefit from the new digital world. The Pirate Party have demonstrated that privacy rights and fair copyright systems matter to people enough to vote for them.

Their election will open up a debate about how well the public interest is served by our current copyright and patent laws. Their position is for a five year copyright term, and a file sharing exception. These are somewhat extreme positions – but the very respectable ‘cultural flat rate’ proposal might in practice be something similar to a payment made in exchange for a file sharing exception. And many copyright academics feel the economically optimal term for copyright is nearer 15 years than the life plus 70 years that most authored works can claim.

Many moderate reforms to copyright have been advocated by academic and groups like ORG and Consumer Focus - and resisted by rights holders in recent years. These include copyright ‘exceptions’ to give the blind the right to transform works into formats like Braille that they can understand, or the right for consumers in the UK to ‘format shift’ or create parodies of copyrighted works. We have also consistently argued for a sensible and balanced approach to copyright enforcement online. We can note that failing to take this concern seriously has led directly to the Pirate Party’s election.

The Pirate Party want patents abolished – they argue that public research would do a better job. There are good reasons to be skeptical about current patent laws, from prevention of distribution of drugs in the developing world, through the patenting of genes, to software patents. While the Open Rights Group does not want patents abolished, we are very critical of how these systems work in practice: they are in urgent need of reform.

The Pirate Party’s positions are great openings for a genuine debate about what copyright and patent laws are for. For once, we should expect the benefits to the public of ‘intellectual property’ laws to be forced into the centre ground, and be the subject of public discussion, rather than finding that the relatively narrow commercial consideration of the rights holders dominate an internalised policy debate within EU institutions.

Privacy concerns have also been strong a factor in their election. Sweden has seen resistance to implementing the Data Retention Directive, and the same link to protection of citizen’s interests has been made. These are serious debates, and by and large, existing political voices, with a few notable exceptions, have failed in their duty to protect our fundamental human rights.

The Pirate Party has made comparisons between its success and the first ‘Green’ breakthroughs to parliament, as a ‘single issue’ concern entering and changing political discourse. On one level, they are no doubt correct; but neither ‘digital rights’ nor ‘green politics’ is truly a single issue any more than ‘labour rights’; they are all fundamental re-examinations of the way we organise society.

For Greens, sustainability must change economics if the human race is to survive. For digital rights advocates, the information age can revolutionise democracy, culture and society, or, if technology and laws are misapplied, damage them severely. This is an over-arching, not niche concern, and building it into the work of European political groups can only be a good thing.

ORG is non-partisan, and the quality and chances of your candidates vary from region to region, so we are not recommending any party over another. Hopefully, the candidates’ pledges on key issues and their track records will help you decide who it’s best to vote for.

What is clear is that Labour have unfortunately refused to engage with groups like ORG who have asked questions about their candidates. We really don’t accept that Labour candidates are too busy to answer questionnaires for two key reasons.

Firstly, all the other parties have managed it. Secondly, elections are meant to be about debating the issues, and talking to the public, and groups like us are a major way of engaging with the real issues. Arguably, we’re one of the few real ways that an MEP candidate can talk about what they would do in Europe if elected, as most conventional media in the UK seem to think Europe’s not interesting enough to discuss in any detail.

Many Lib Dem, UKIP and Green candidates took the trouble to answer our questions. All of these parties have worked with ORG in the last parliament on copyright.

The Conservatives gave us a comprehensive answer, which we posted below the last blog post. We felt that several of the statements did not seem to tie with our stances, with the exception of backing the broader EU definition of personal data. The Conservative group, like Labour, backed copyright term extension. Both groups have an opportunity to revisit their exact stance as the issue has not yet been agreed at EU Council level.

Both Labour and Conservatives have supported the Data Retention Directive, which may yet be challenged as a breach of Article 8 of the European Convention on Human Rights. In a number of EU countries, including Sweden, there is obvious reluctance to implement the law.

Lastly, there is the question of ‘three strikes’ regimes and disconnection without court convictions. As research by the Communications Consumer Panel released yesterday showed, people now view the internet as a core service, and a key means to exercise their human right to freedom of expression. Yet the UK government and Conservatives seem reluctant to allow the Parliament to enshrine the rule of law, apparently for technical reasons. That is not acceptable.

It is vital for the EU Parliament to assert citizens rights in order for it to achieve legitimacy with the people who elect it. This is difficult enough, but the story of digital rights shows that citizens will act to defend their rights while others seek to erode them, and will expect Parliamentarians to act in citizens’ interests. Defence of our digital rights, based on our human rights and legitimate user expectations, is an opportunity for parliamentarians to gain the trust of citizens if they have the political courage to act.

Image credit: European Parliament