Yesterday the ruling in the Golden Eye case was handed down. It's overall pretty useful news for those who've been concerned aboutthe practice of what's been called 'speculative invoicing.'

This practice sees copyright owners or representatives writing en masse to alleged infringers of copyrights (in this case Golden Eye were seeking around 9,000 of O2's customers' details), demanding large sums (typically over £500, and in this case £700) with threats of court action attached. The letters tend to overstate or misrepresent the case and hence pressure the consumer into settling. In reality cases are hardly ever brought to court. When they are brought in front of the courts ACS:Law and Golden Eye have sought to discontinue the cases, and thus avoid judicial scrutiny, if a default judgment cannot be obtained. 

If these sounds like a money making scheme first and a genuine attempt to protect creators rights second (or perhaps not even ranked), that's because they are. 

As we've written about before, the decision has ramifications for how the Digital Economy Act will function because it provides more details about how copyright owners can seek the details of alleged infringers and subsequently pursue them through the court. The ruling is so useful because it addresses some of the key issues with this practice, issues which open a means for undesirable practices mentioned above. Here are three of the big points from yesterday's ruling that should help address these problems. 

1. Fair letters to alleged infringers

The new ruling means that letters sent by copyright-owners or their representatives will have to properly safeguard the legitimate interests of consumers, in particular those who are innocent of wrong-doing. The Judge found that the draft letters Golden Eye proposed were 'objectionable in a number of respects' in a number of ways, including the claim that an application could be made to the ISP to disconnect the users' internet account (paragraphs 124-130).

The judge also agrees with Consumer Focus that the demand for £700 from alleged infringers is 'unsupportable'. 

This should significantly restrict the ability of such companies to send out intimidating ‘pay now – or else' letters in the future, such as those seen in the high profile case of ACS Law. In a separate hearing soon, the High Court will impose conditions on the wording of the letters.

2. Standards of evidence

One of the biggest concerns about the pursuit of alleged infringers is the proof required against them. IP addresses can be a fallible way of identifying a subscriber, because there can be errors not only in matching IP addresses to the user, but also because identifying a subscriber does not mean you have identified an infringer. The judge explicitly acknowledges this in paragraph 103, part vi) of his judgment:

Even if the monitoring software is functioning correctly and the ISP correctly identifies the subscriber to whom the IP address which has been detected was allocated at the relevant time, it does not necessarily follow that the subscriber was the person who was participating in the P2P filesharing which was detected. There are a number of alternative possibilities, including the following:

• The IP address identifies a computer and someone else in the same household (whether a resident or visitor) was using the computer at the relevant time (which might be with or without the knowledge of the subscriber).
• The IP address identifies a router and someone else in the same household (whether a resident or visitor) was using a computer communicating via the same router (which might be with or without the knowledge of the subscriber).
• The IP address identifies a wireless router with an insecure (either open or weakly encrypted) connection and someone outside the household was accessing the internet via that router (in all probability, without the knowledge of the subscriber).
• The IP address identifies a computer or router, the computer or a computer connected to the router has been infected by a trojan and someone outside the household was using the computer to access the internet (almost certainly, without the knowledge of the subscriber).
• The IP address identifies a computer which is open to public use, for example in an internet café or library.

And the judge goes on to say that 'It is not possible to estimate an overall likely rate of erroneous identification. All that can be said with certainty is that there will be an unknown percentage of errors.'

So there is a need to build in an appreciation of such problems into the Norwich Pharmacal Order process and the Digital Economy Act. The fact that there will be an unknown percentage of errors in a given sample of IP address matching such this should have significant ramifications for the Digital Economy Act. For example, it should seriously undermine the idea that to challenge an allegation of infringement an internet subscriber should have to pay £20 to appeal.

Yesterday's judgment highlights the need for Ofcom to check that allegations of copyright infringement under the DEA by copyright owners (in the for of “copyright infringement reports”) is supported by reasonable and robust evidence that there may have been copyright infringement on that connection. Ofcom need to set a strong standard of evidence in the forthcoming Initial Obligations Code, and make provisions on the means of obtaining evidence. 

This is required by the Digital Economy Act and when the DEBill went through parliament the House of Lords fought hard to get these safeguards in reference to the large number of people coming forward saying they were wrongly accused by ACS:Law.

If Ofcom do not make such provisions in the Initial Obligations Code there is a risk that a high number of entirely innocent subscribers will be placed on the “copyright infringement list” (after three notifications), which means they would be subject to technical measures once the 'technical stage' of the DEA commences.

Who defends the publics' interests?

These cases happen, of course, without the consumers whose details are being sought being present. And often, certainly in this case, the ISP (Telefonica, trading as O2 in the UK) did not challenge the request beyond ensuring they were remunerated for the administrative costs. In this case, the court asked Consumer Focus to act on behalf of the consumers who would be affected by the release of the data - which saw the request examined and led to the detail of the examination. They've done a fantastic job and deserve much credit.

But there's one final point to mention.  We can't expect Consumer Focus to do this each time a case comes before the court simply because ISPs don't want to spend time and money ensuring their customers' details aren't handed out too freely. ISPs hold vast amounts of personal data about their customers and and when ISPs receive these kind of Norwich Pharamcal applications in future, we should expect that they:

• Check that the application is supported by evidence and that the evidence justifies the order sought.
• Verify that the applicant is able to comply with the terms of the order (for example, to keep the personal data confidential etc)
• If the information sought goes beyond name and address of the subscriber, check that the provision of further personal data is justified by the evidence and for the purpose of the order (for example, if the personal data is sought to take legal action for alleged copyright infringement, other personal data such as the credit card details, would not be justified).).

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If you're looking for videos from today's incredible ORGCon extravaganza...go over to visionOn ORGCon tv video page!

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I have received the following valid nominations, to elect three Board members for a term of three years:

1. Wayne Myers
2. Seb Schmoller
3. Ryan Jendoubi
4. Richard King
5. Owen Blacker
6. Milena Popova
7. John Elliott
8. Gervase Markham
9. Dave Levy

We are now fixing the election timetable. Thanks to everyone for putting their names forward.

For more information on the election, please see these pages. There will be a short hustings at 4.30pm at ORGCon.

Update: Wayne Myers has withdrawn from the election, for the commendable reason that he believes there is a very strong field of candidates

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Julian Huppert MP has asked the government a couple of very interesting questions about what they are doing to support or promote freedom of expression and other fundamental rights in the UK. The questions were asked of the FCO and the Department for Culture, Media and Sport. They were both given some pretty clear responsibilities towards rights online by the Cyber Security Strategy published last year (see page 40).

DCMS are given responsibility of:

"Helping to shape the development of cyberspace:

- Promoting an open and interoperable cyberspace
- Promoting the fundamental freedoms and rights that we enjoy"

And the FCO:

"Protecting our way of life

- Ensuring our security without compromising our values"

The strategy also sets out a number of more detailed actions, also on page 40.

We've heard some very welcome commitments before from the Foreign Office about freedom of expression and privacy online, most notably at the London Conference on Cyberspace and in the Foreign Secretary's reply to ORG and other freedom of expression advocates following the conference. We've heard less from DCMS on how they will consider these issues and build in a respect for rights online in their own policy, and that of other departments. Given they are responsible for developing many Internet focused policies, that will include powers to regulate information online, it is important to know whether and how these issues are being considered. 

In both cases the Ministers reply that they have been engaged in the issue in some sense, although it is fair to say the answers from the FCO are slightly more detailed. All eyes are on the Communications Green Paper, that we are assuming will actually be published at some stage. It looks like it will be useful to assess the proposals in the Green Paper against papers such as the Council of Europe's "Internet Governance 2012-2015 Council of Europe Strategy" that the Minister Ed Vaizey refers to in his reply. 

The questions and answers:

Question 1, to the FCO

Dr Huppert: To ask the Secretary of State for Foreign and Commonwealth Affairs

(1) what steps he has taken to use multilateral and bilateral channels to discuss how to apply the framework of international human rights law in cyberspace and new challenges in guaranteeing such rights;

(2) what steps he has taken to fulfil the Government's undertaking to promote fundamental freedoms and rights in cyberspace.

Mr Jeremy Browne: The UK Government are committed to promoting fundamental freedoms and rights in cyberspace and believe that the existing framework of international human rights law is, in principle, as applicable online as it is offline. We are committed to furthering this debate internationally through multilateral and bilateral discussions, as well as through wider multi-stakeholder engagement.

The UK Government have actively participated in a wide range of international events to discuss human rights in cyberspace. This has included the attendance by the Minister for Culture, Communications and Creative Industries, my hon. Friend the Member for Wantage (Mr Vaizey), at the Council of Europe/Austrian internet freedom conference in October 2011. The Secretary of State for Foreign and Commonwealth Affairs, the right hon. Member for Richmond (Yorks) (Mr Hague), initiated an interactive panel discussion on freedom of expression on the internet during the London Conference on Cyberspace in November 2011. The UK attended the Dutch Ministerial Conference on internet freedoms in December 2011 and also participated in the Swedish-inspired panel discussion on freedom of expression in the margins of the Human Rights Council in March 2012.

The UK has joined a coalition of like-minded states who will work together to promote and protect online freedoms. We welcomed the adoption of the Organisation for Economic Co-operation and Development (OECD) recommendation on internet policy-making principles in December 2011 and are actively supporting the Council of Europe, as part of our chairmanship, in their efforts to advance the protection and respect for human rights on the internet.

We also encourage states that restrict freedoms online to uphold their international human rights commitments. We lobby governments for change on the ground, including by raising individual cases and publicly supporting those who seek to exercise their rights. 

Question 2, to DCMS:

Dr Huppert: To ask the Secretary of State for Culture, Olympics, Media and Sport what assessment he has made of the potential effect of proposals in the forthcoming Communications Green Paper on fundamental freedoms and rights as outlined in Objective 3 of the UK Cyber Security Strategy.

Mr Vaizey: The forthcoming Green Paper will reflect the work already underway to deliver against the cyber security strategy, published last November. The Government are a strong supporter of freedom of expression on the internet and will continue to encourage States that restrict access to online media to uphold their international human rights commitments. In October last year, I attended the Council of Europe/Austrian conference in Vienna, in my capacity as Minister for Culture, Communications and Creative industries. This was to help facilitate endorsement of the “Internet Governance 2012-2015 Council of Europe Strategy” in early 2012, which identifies priorities for 2012-2015 to advance the protection and respect for human rights, the rule of law, and democracy on the Internet.

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Following the decision in Richard O'Dwyer's court case, we wrote to the Home secretary regarding his possible extradition, expressing concern about the exertion of jurisdiction by the US. We have now received a reply from the Home Office.

In our letter we expressed our concerns about websites and their operators being subject to US law because they merely used a .com, .net or .org domain.

The US Government claims that they can assert jurisdiction since these domains are managed by American companies, such as Verisign.

The response was from Damian Green, the Minister of State for Immigration and, according to the letter, the Minister responsible for extradition (even though it is the Home Secretary who makes the big decision on whether extradition should go ahead). He states that the US is entitled to seek Mr O'Dwyer's extradition since the UK courts have held that the US does have jurisdiction. It is disappointing that the Minister has opted to describe to us the processes involved regarding requests for extradition, instead of addressing our very specific concerns of the wider implications of this decision. Our letter and the subsequent response can be found below.

It's not easy to understand exactly why the US are asserting jurisdiction in this case. It's easier to look at this from the other end. Why are the UK Government allowing a man that ran a website in Sheffield, the legality of which has not been established here, to be taken by US authorities for trial in the USA, where he faces graver punishments?

The answer is not only important for Richard O'Dwyer and his family, but for anybody running a website here who wants to understand which nations law enforcement authorities they are subject to. We had hoped the Government would at least be clear why they are allowing this to happen, and would do everybody the service of an explanation. Instead, the reply amounts to: 'this is acceptable because the court said it is acceptable.' Which sounds more like the Government enjoyed a rubber stamping exercise, rather than an examination of the issues.

Legal expert Graham Smith has written an excellent Q&A about copyright and extradition, ahead of his talk at ORGCon on these issues next Saturday. There are still a few tickets left.

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Following my letter to ORG supporters on Monday, we have had a flurry of nominations requests.

Several have asked for an extension to the deadline in order that they can complete their nomination by finding a proposer and seconder as required by the rules.

In order to be fair to everyone, I am extending the deadline for nominations until Thursday at 10pm.

The election is for three board members for a term of three years. As before, the Board will appoint extra members to balance skills and experience. You can find our current Board members here.

Information about the election and the Board's duties is here:

The Board is the governing body of the Open Rights Group, and meets every two months. It appoints the Executive Director, oversees the work and strategy of the organisation, ensures that we fulfill our aims and objectives, and grows in size and effectiveness.

They appoint the Advisory Council to help with policy. They approve the annual accounts and deal with our legal duties as a company. Board members are also welcome to attend Advisory Council meetings and help with the professional work of the organisation.

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Consultation responses published today show Open Data community wants free raw data. Will the new Data Strategy Board deliver?

The government published today their response to the consultation on a Public Data Group that will consolidate Ordnance Survey, Land Registry, Met Office and Companies House into a single data provider.

Charging for data: no decision yet

The responses to the proposals on charging models, showed that there is overwhelming support for freeing public data, particularly "raw data" that does not involved value added services. There were several hundred people who engaged with this question.

This level of response shows the strength and consistency of the reaction across a wide community, many of which would have been excluded had it not been for the outreach efforts of ORG and user-friendly sites such as ErnestMaples.com. Such a uniform reaction -- particularly coming from the innovators and civil society -- shows that the existing models are increasingly failing to deliver, and that further moves will need to be made if the stated aims of increasing civil involvement and fostering innovation are to be achieved.

The government will now have to continue thinking about it and report back at the end of 2012. This is actually a victory, and it means that the open data community has more time to ensure that we get a political response to a political issue from elected politicians, rather than being asked to produce yet more economic evidence.

The other proposed changes to actual data policy that we were consulted on: licensing, etc. work as predicted. There will be some improvements to bring more consistency with the Open Government License, and more stable terms and conditions. 

Data Strategy Board

There are no big surprises in terms of the structural changes proposed; the trading funds will continue selling data albeit in a more streamlined fashion, and a new Data Strategy Board will act as a public customer and promoter of open data. The DSB will be responsible for negotiating data supply for internal government use, and will advise each department on making the best deals. It will incorporate existing user groups for geodata and weather data, already dealing with similar issues, so it should start on its feet ready to run. The existing Public Weather Service Customer Group  is in charge of authorising payments from BIS to the Met Office. The DSB will have the mandate to audit the accounts of PDG members in relation to public sector contracts. In general, this public function of data commissioning of the DSB seems a sensible step, but the other half of its mission around opening up data is more problematic.

The Data Strategy Board will be given £7 Million (from savings made by bringing together the trading funds) to buy back data to be opened. This appeared to many people we involved in the previous consultation a circular waste of time and resources, while in other countries such as Spain and Norway government just makes a decision to open data and gets on with it. After all, the estimated £50 Million yearly cost of opening all this data is around a third of the price tag of a modern fighter jet.

Accepting that this was the only way to advance on open data, the DSB will not actually decide how to spend that money, instead advising Ministers on commissioning free data without any apparent executive capacity. It will require a huge effort for this arrangement not to be derailed by short term considerations. We also need more clarity on how this will be carried forward in a sustainable process that incorporates future releases that maintain the quality of the data, let alone improvements. The obvious solution of hypothecating profits from sales of data into some ring-fenced open data fund was mentioned in the consultation responses, but not taken into account. Instead the DSB will advice ministers to negotiate for more funds in successive spending reviews, which in politic-speak for level of commitment is very little.

Even if as we hope the DSB manages to raise its head in dignity instead of being reduced to squabbling over how to spend government’s spare change, it is difficult to see where is the Open Data Strategy at work in DSB. The DSB will be in charge of evaluating the success of open data policies, such as OS Opendata, and writing business cases for more open data, but this risks becoming a never ending story. Only last week we were in Rotterdam in a EU sponsored event, where it was repeated a zillion times that the case for open data in terms of value to society is done and dusted, and that the EPSI Platform and other websites have all the studies and business cases. However, UK officials involved in the PDG keep saying a-la John Cleese that they want to see a solid economic model and that there is no real evidence for open data. How is the DSB going to break this political impasse? Ordnance Survey has been sitting on their own analysis of OS Opendata for months without publishing it. 

ORG’s view is that the PDG and DSG should be seen as transitional arrangements to allow public bodies time to change, and a first step in a real Strategy of moving towards a free national public data infrastructure - although given today’s announcement of the privatisation of major roads, we may need to start looking for a better analogy.

In the meantime, it will be important to see who will chair the DSB. The board will be run under BIS, specifically reporting to David Willets - Minister for Universities, but the Cabinet Office will appoint the chair. There will be a 30% quota for representatives of interests outside government, and it may make a difference who sits there representing open data reusers: start-ups or big businesses happy to pay for data if conditions are consistent. 

A newly created Open Data User Group will channel the demand for free data into the DSB and will have a seat in the DSB. This will involve public and external users, but last time we checked nobody knew who will be there, nor the balance between commercial, public sector and civic users. We know the idea is to engage as wide as possible, which is great, but in the end you have to decide on a limited shopping list, and the “open data community” seems to include anything from Google to teenagers hacking their smartphones. Independent developers and civic users should engage with the ODUG, if only to ensure it is not dominated by the voices of big commercial PSI users. It already has a Twitter account - @odugUK - and an interactive website.

And what should be our role here? There is a place in the board for a “Representative of Open Data campaign groups”. Should ORG try to fight from the inside?

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ORGCon tickets are selling out fast!

With Larry Lessig making a rare UK visit to talk about the copyright lobby and what we are up against; Cory Doctorow talking about the coming attack to control how your computer works, and Wendy Seltzer explaining what happened in the SOPA fight in the USA and where we need to go from there, we have some of the top international speakers on digital rights.

New UK censorship plans may be coming under the Communications Bill: we expect plans to control and censor search results and to block whole websites could be recommended as early as next week. ORGCon will be the first opportunity to talk about how we campaign against these dangerous plans.

Join ORG Now, and get a FREE ticket and a FREE book!

On privacy, Ross Anderson will be debunking the idea of “anonymisation” of personal data, Tom Lowenthal will be explaining the “Do Not Track” browser setting from Mozilla, aimed at stopping ad networks from following you around the web without your permission. Lilian Edwards will be explaining how Data Protection changes in Europe might give us new rights to defend our rights when companies abuse our personal information.

Privacy International will be telling us about the new plans to gather private communications data through the Internet and start fishing for potential criminals: a gross abuse of our rights. they will also be talking about the trade in surveillance technologies.

And on Open Data, we will be talking about the lack of “core reference” data sets, that will damage the goal of government transparency, as well if we should protect the public domain by making archival data more open.

What are you waiting for? Book your ticket now!

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