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March 20, 2012 | Jim Killock

ORG Board nominations extended until Thursday 10pm

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.

[Read more]

March 19, 2012 | Javier Ruiz

Community calls for free open data in consultation

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 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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March 16, 2012 | Nishma Doshi

Lessig, Doctorow, Seltzer - ORGCon tickets selling fast!

One week until ORGCon 2012!

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!

[Read more]

March 14, 2012 | Javier Ruiz

Response to Open Data article in The Guardian

The Guardian published quite a good article today in relation to a public announcement on Open Data by Francis Maude, and we wrote a response highlighting some issues they missed:


 While the advances since 2006 are undeniable, the comment above shows there is a long way to go. The new Public Data Group that will amalgamate OS, Land Registry and some other data providers will perpetuate the monopoly model while giving away minor data concessions. The issue here is the basic core public data infrastructure (mapping, stats, etc.) required for every other service and open data project. This is the "too difficult" box that could hamper innovation beyond some college project apps.

 So far Google Maps has allowed many open data projects to exist, but as we see in the recent privacy policy debates free is not "free", the price is that users must feed their personal data for the machine to work.

This brings another critical issue with the current government's Open Data agenda. There is an unhealthy conflation of transparency, data on public services and personal data, all of which converge towards the "Open for Business" principle.

Transparency of government has not advanced because now you can get data instead of paper print outs. In our area of digital issues and copyright, policy is being carried out with the same influence of lobbyists hiding behind commercial confidentiality in order to refuse Freedom of Information requests.

Public scrutiny of data on public services, such as hospitals and schools, is very welcome and can indeed save lives. But in the government's Open Public Services agenda this data would mostly enable an open market of qualified providers, without concrete commitments from public bodies and clear mechanisms for improving outcomes. Recent NHS debates show that this model is very controversial to say the least.

Personal data was not part of the original Free Our Data campaign but it is becoming a central pillar of the policy. This ranges from sharing medical records with pharmaceutical companies to opening up data on welfare and benefits. While some of these initiatives are not strictly open data, as they will have restrictions on access, they are being thrown in the same policy bag. Despite assurances that personal data will be anonymised, there is almost complete consensus in the tech community that this is not possible in an open environment. 

 Beyond individual privacy, we could question the legitimacy of seeing Public Big Data - composed of millions of individual digital breadcrumbs - as simply an economic asset to be shared with the likes of Experian. Instead we should see it as a common treasure trove that should be democratically governed towards the public good.


The Open Rights Group will be discussing some of this issues in our forthcoming conference ORGCON 2012, come along!

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March 14, 2012 | Peter Bradwell

One week to win a new right to parody

The Government is running a consultation asking how it should change copyright law. We think the reforms they propose would allow people to do lots of useful things that copyright prohibits. That includes allowing people to put CDs onto their iPods, or permitting academic researchers to do smarter analysis of vast amounts of information.

We've been campaigning on one proposal in particular: for a new right to parody using copyrighted work.

At the moment, parodies that use work covered by copyright are not permitted without the permission of the rights holder.

The Government is thinking of changing that. We think that's a great idea, and one which would help nurture and support a new ecosystem of creative engagement with the cultural works around us. It's a simple choice. Is this kind of creativity something that we want the law to support, or deter? We think it should support it. You can help us make that happen.

The consultation (the proposals for parody are on page 83) is nearly closed - the deadline is March 21st. We have one more week to tell policy makers that we need a right to parody.

You can help by writing to the consultation to tell them why you think this is a good idea. Or you can use our simple form to submit your opinions if you like.  

For a video artists' story of what kind of creativity is involved, take a look at Swede Mason (creator of the hilarious Masterchef Synesthesia) describing what he does and why he wants a new right to parody on ORGZine.

So what's the problem?

Videos, music and text don't just entertain us, but are used to sell us products, influence our judgement and as a way to say something about the world. That means copyrighted works are strands of our cultural fabric, not just products to consume.

Technology has made it easier to make creative re-workings of these things. And this kind of creativity is woven into the experience of cultural life online. There are 23,000 Beyonce parody videos, nearly 2,000 Adele parodies, and around 4,000 Madonna parodies.

Making these parodies can help people learn creative techniques, entertain their friends with a funny spoof for friends, or make a point about the original work.

But this kind of creativity sits on the wrong side of our law when it uses parts of the copyrighted work without permission. One reason for this is the absence of an exception for parody under copyright law.

That means that entertaining, important or just plain funny films, songs or other works can be taken out of public view at the say so of the copyright holder.

  • We heard from Greenpeace, who told us that their parody of Volkwagon's 'Star Wars' themed adverts, designed to highlight apparent lobbying by German car manufacturers against stronger CO2 emission laws in Europe, was taken down from YouTube for copyright infringement just as their campaign gained momentum.
  • Comedy sketch writers 'Mother's Best Child' had their Olympics parody video, published as a commentary following the riots, removed after a couple of days having accumulated over 90,000 views, becoming the number 1 comedy video on YouTube.
  • Musician and video maker 'Eclectech' parodied the James Blunt's song "You're Beautiful" with a game that involved throwing tomatoes at a characature of James Blunt, who was singing a song called “You’re Gullible”. The creator of the video received legal threats, which led to the take down of the soundtrack. Visitors are now encouraged to play the tomato throwing game while the (now) mute figure mouths the song and the lyrics appear as subtitles.
  • Video artist Swede Mason found that the TV company behind Masterchef initially told him to take his runaway viral hit 'Masterchef Synesthesia' down off YouTube, and that he is down to his last 'strike' on YouTube under their take down policy. 

When copyright puts creativity like this on the wrong side of the law, we think that copyright stops being something that simple incentivises people to create and rewards them for it, and works instead as a veto over culturally useful or interesting or entertaining activity. We think the law should encourage this kind of creativity instead.

So what can we do?

We need to convince policy makers that we need a new right to parody. That means if you make parodies, enjoy them, support them, or think this is an important issue, now is the time to submit a response to the consultation.

You can do that by writing to this email addressYou have until March 21st. So get your skates on!

But isn't writing to the government difficult? 

It's actually easy to respond - they're just people who want to know what as many people as possible think about what they are proposing. You just have to tell them what you think. 

Remember that short and to the point is helpful. The IPO will get lots and lots of responses. Being clear about what you want to say will help get your point across. So stating whether you had a problem with copyright when making parodies, or found some parodies using copyrighted work to be of value, is great. Long stories about the details of the first time you saw comedy are probably less so!

What should I say?

It's completely up to you what you tell the consultation team, of course. Some background might help, and we have some suggestions about the issues you might want to cover.

I make parodies. What should I say?

If you make parodies and think you'll benefit from a new exception, it's really important that the Government hears from you.

Tell them what kind of parodies you make, the creative process involved, and about your experiences of copyright. For example, if you've been asked to take something down, or had videos removed, then tell them. Say why you think what you do is something the law should support.

You could try to include details about how many views you've had to your videos and video site channels if possible.

Won't this hurt artists who make the works being parodied?

We don't believe that is the case. The Government wants to introduce this as a 'fair dealing' exception (see page 75 of the consultation for an outline of what fair dealing is). This means that a parody that does not compete with or substitute for exploitation of the original, which involves work that has been published, and which uses the amount necessary for the intended purpose, will be allowed. That includes parodies made for commercial gain (so that a parody artist could make money out of their work if they wanted to.)

We think this is the best way to support parodies and safeguard against any undesirable effects on the creators of the parodied work. We don't think parodies will competitors with the original commercially – there is no suggestion, for example, that Weird Al Jankovic songs eat into the sales of the artists he parodies.

Furthermore, this won't mean that an artists' creation will be associated with an undesirable cause, because making a parody is not the same as 'passing off' a work as something made by somebody else. A parody is not the original - that's inherent to the concept. 

If you think that the Government should define what a parody exception should or shoudl not include, or limit the kind of parodies that people should be allowed to make, tell the consultation team.

Who else thinks a new parody exception is a good idea?

We've heard from many people who support the idea. Here's a few:

Graham Linehan, writer of IT Crowd, Father Ted and the theatrical adaptation of The Ladykillers:

One of the reasons digital technology is so exciting is because every individual has access to a multitude of creative tools and just as many ways of reaching a huge audience. From simple photoshop jokes to short films or even feature films, we are living through a revolution in creativity, and parody is an important part of that revolution. Now, as someone who works in what is sometimes called Old Media, I have a layer of lawyers between what starts on the page and ends on the screen, but most don't. As a result, I see too many examples of funny, creative parodies forced off the Internet for no good reason.

I hope politicians are brave enough to ensure that, through a new parody exception, we have a copyright law that allows aspiring comedians to make the most of the wonderful opportunities of the digital age.

Rob Manuel, editor of, and the B3ta creative community:

For the last ten years I've co-run a website called Our site does 15 million pages per month and our newsletter is read by over 100,000 people. is about grassroots creativity, encouraging people to pick up the tools of the internet and use them to make jokes, entertain each other and ultimately help people flower their creativity into new careers. Along the way we've played a part in the careers of a generation of people who are the bright new talents in the UK's creative industry. Our alumni include Ben Wheatley, one of the most feted directors of recent years who has just had a hit film with Kill List, music producer Swede Mason who has taken his mash-ups into the top 40 and figures like Joel Veitch, Jonti Picking and Cyriak whose animations have become a mainstay of advertising.

In the ten years of B3ta we have had various problems with lawyers and copyright holders. Unfailingly business uses copyright to suppress criticism and humour, so we're very excited by a new exception for parody and pastiche. This would be enlightened policy making.

Those who can afford lawyers use copyright to shut down legitimate criticism. We fully support the proposed move to allow parody and pastiche to be exempt from copyright. This would be sane and fantastic policy. We hope the government does the right thing.

Campaigners including Greenpeace and Campaign Against the Arms Trade (and Open Rights Group) said in a letter to the government:

Exceptions for commentary and criticism already exist. But these do not go far enough. Parodies are one of the most effective means to campaign, and should be a vital tool for civil society and campaigning organisations. Copyright without a parody exception amounts to an over-regulation of our activity. It too often inhibits our work, resulting in a chilling effect including a fear of developing effective parody campaigns and, when we do, 'take downs' of our content.

This is why we support moves to establish an exception for parody within copyright law. Such an exception would provide greater legal certainty, especially important for smaller organisations, and make it clear that copyright cannot be used as a weapon to restrict legitimate criticism.

Alex Cox, director of the film Sid & Nancy:

The protection afforded to parody in the USA remains immensely important - I cannot legally draw and sell a picture of Mickey Mouse, but I can legally draw and sell a picture of Mickey Mouse drinking the blood of innocent artists and creators. To infringe upon this right as UK law currently does is morally outrageous and a breach of my freedom to speak, or write, or draw, or film as I see fit.

I actually find it pretty bizarre that just because something is considered funny (or, more specifically, parodically funny) it is deserving of more protection from draconian copyright law than something (whatever, a statement, a piece of art, a document) which is  'serious'. Commenting, sampling, building upon and creating derivatives is a basic fact of all artistic practice, not just parodies.

The rest of copyright law should be brought in line with the USA's approach to parody - artists need the freedom to create. These constant infringements of our creative and social rights by massive media corporations, and the continual extensions of copyright terms are censorship, impure and simple.

Wait. Haven't we been here before?

Yes. This is not the first independent review to arrive at these conclusions – the 'Gowers' review in 2006, for example, also proposed a parody exception. But intense lobbying from rights holders meant the proposals for this kind of sensible reform were dropped. Instead we got the Digital Economy Act.

That's why it's so important that people who care about this say so to the consultation team.

So get your skates on – you only have seven days left!

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March 13, 2012 | Chris Taggart

An open letter to Vince Cable

Opening non-personal government data forms part of the government’s growth agenda. Yet much of this data is almost useless without the core reference to tie it together – data which is under the control of your department.

Dear Mr Cable

I read with interest yesterday your letter to the Prime Minister about some of the issues facing the UK in the future, and in particular the need for a vision and for a connected approach across government. This struck me as timely and useful, as it hopefully signalled the intention of a change in policy at one of the main roadblocks to innovation in improving government and fostering innovation.

I am referring to the policy of your own department – the Department for Business, Innovation and Skills – to restricting access to core reference datasets, such as the Ordnance Survey mapping data, postcodes, and company data, and thus not just stifling innovation and growth but preventing a consistent and connected approach across government.

Though much about the future is unclear one thing is certain, that we are increasingly living in a data world. In that world innovation – and democracy – depends on the ability to access and reuse data, particularly the core reference data on which other data is based: what area a postcode refers to, where something is located, who runs and owns the companies for which we work or which receive government money.

In fact, opening non-personal government data forms part of the government’s growth agenda, and it has already published a considerable amount. Yet much of this data is almost useless without the core reference to tie it together – data which is under the control of your department.

When I met with your then junior minister Ed Davey a couple of months ago on this subject, I asked him point blank whether the government was going to publish huge amounts of data under a licence which allowed free reuse, but was going to restrict access to the core datasets which tied these together, that were in fact the core infrastructure for our digital world? He said, ‘We’ve got some ideas for innovative charging models.’

Let’s put aside the fact that government departments aren’t the right people to come up with ‘innovative charging models’ – they don’t have the right skills, experience, and unlike entrepreneurs like myself they aren’t risking their personal money, but the nation’s future. Let’s focus instead on a ‘connected approach across government’. This would seem a perfect example of a relatively minor source of revenue (maybe as little as £50 million, according to the report published yesterday by Policy Exchange) preventing such an approach, and with it a route to how the UK will ‘earn our living in the future’.

In my own area, OpenCorporates has in a year grown to be the largest open database of corporate data in the world – without, I should add, any help, encouragement or cooperation from BIS. We have just released a new feature that allows search for directors across multiple jurisdictions, massively increasing the ability of journalists, fraud investigators, investors, civil society, customers and suppliers to understand companies. Needless to say, UK companies aren’t included in this list because this data is restricted to those who pay.

One vision for the future would include making the UK a genuinely open and transparent place to do business, for example making UK Companies House as open as that in New Zealand, where all data is available openly and without charge. It would include making the UK leaders in the field of open data, not just generating a world-leading ecosystem of companies such as we have in motorsport, but pioneering the use of open data by companies of all types and sizes. And it would include the government being able to reuse and publish its own data without the corrosive and restrictive licences placed upon it by the likes of Ordnance Survey, and thus have a truly connected approach.

You have it within your power to help enable that vision – I hope you will act on it.

Chris Taggart

Co-founder & CEO, OpenCorporates, founder
Member  of Local Public Data Panel

NOTE: This letter was originally published here.

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March 09, 2012 | Peter Bradwell

Speculative invoicing 2: Golden Eye in court

This morning I was in court to see Golden Eye seek a Norwich Pharmacal Order (NPO) against Telefonica UK (known to you and I as O2). They want the details of some 9,000 of Telefonica's customers, so that they can write to them and ask them to pay £700 or face further action. Computer Active have a write up of this morning's hearing here

The rights involved are for adult films. it was amusing to see the judge being presented with a pair of Ben Dover branded underpants. This case is ultimately about the rules that allow rights holders, or those claiming to act on their behalf, to get the details of Internet subscribers so that they can pursue civil action. This procedure was used in the past few years in a way that led to lots of often innocent people face intimidating letters that overstated the case against them and which demanded £500, with threats of legal action to follow.

That kind of behaviour is much less about copyright enforcement than a means for those undertaking such schemes to make lots of money very easily. The ACS:Law case told us that something needs tightening up. Hence the scrutiny afforded to what Golden Eye are doing. 

In court this morning, Guy Tritton represented Consumer Focus, who were there representing the interests of those whose details Golden Eye are looking to get hold of. Mr Tritton raised a number of concerns:

1. The court can't be sure of the evidence that Golden Eye have. The problems associated with connecting IP addresses with account holders mean that the process used by those seeking an NPO must be as robust and clear as possible. In this case, there are concerns about which system has been used, and if it meets such standards. Longer term, there is a need for benchmarked standards to which applicants for a Norwich Pharmacal Order must adhere to. As noted yesterday, the outcome of this particular point will have real relevance for how the Digital Economy Act works.

2. Problems with Golden Eye's role. There was some disagreement about whether Golden Eye can legitimately pursue this action - the copyright owners need to be party to the legal action, and the dispute is whether that is the case here. Furthermore Mr Tritton raised concern about the split of the profits from this speculative invoicing campaign; Golden Eye would receive 75% of the returns. Similar concerns about Golden Eye's role have been raised before.

3. The amount being requested. Individuals alleged to have infringed would be asked to pay £700. This is far and above the likely actual damages. Jonathan Cohen, representing Golden Eye, claimed that all those involved had, through the nature of the peer-to-peer site they were using, also been uploading. But the judge questioned how they could be sure of the scale of each individual's actions. They couldn't, was the answer. So the £700 figure could be seen as amounting to little more than an arbitrary figure, Mr Tritton claimed, and one that was way above actual damage. 

4. Other problems with the draft letter. Mr Tritton argued that the letter does not spell out to recipients that just because an IP address has been assoicated with an act, it does not mean the identified subscriber has infringed copyright or authorised others to infringe.

Perhaps most worrying was the claim in the letter that Golden Eye could apply to the ISP to get the subscriber to disconnect from the internet. The legal basis for this was challenged in court and it is worrying that Golden Eye uses the threat of disconnection to pressure subscribers into paying £700.

We've repeatedly been told that we're crying wolf and exaggerating for suggesting that the Digital Economy Act will lead to disconnection. It's interesting to see that exact threat being used by a rights holder in this forum.

Mr Cohen suggested that disconnection 'must have been the aspiration of policy makers' when writing the Act. Maybe, but those policy makers keep telling us that disconnection is not on the cards. Mr Cohen didn't accept the suggestion that this clause should be dropped. They're making threats that don't tally with what policy makers say about the technical sanctions that may be available under the Act. Golden Eye or the policy makers are wrong. If it's the former, then credence is added to the suggestion that the letters are designed to extract money through intimidating threats that don't ultimately withstand scrutiny. 

Some maths helped explain things - £700 times 9,000 equals a lot of money. £6,300,000, in fact.

The question is whether this is primarily a money making scheme, and if there is some injustice in the way that Golden Eye are taking this case on. For me, the whiff that this is a money making scheme with more than a passing similarity to ACS:Law didn't dissipate this morning.

Golden Eye have a week to respond to the expert evidence submitted by Consumer Focus. It will probably be a week after that that we see a judgment. It's possible that the judge will refuse the application on the evidence grounds, or set out conditions on future Norwich Pharmacal Orders and on the letters that organisations like Golden Eye can send out to alleged infringers. 

So Consumer Focus' intervention in this case could help make sure that Norwich Pharmacal Orders are not used for money making schemes. This case could push up the standards of evidence required in the application for a Norwich Pharmacal Order, and help nail down what a fair letter to alleged infringers looks like. That should have a material benefit for the many thousands of people who may otherwise have received confusing and intimidating letters, demands for money, and consequence distress. So it will be a significant judgment, and an important intervention.

[Read more] (4 comments)

March 08, 2012 | Peter Bradwell

'Speculative invoicing' returns

A court decision tomorrow may have a big impact on how the Digital Economy Act works. At issue is the strength of the evidence required against alleged copyright infringers facing possible civil action. It should help focus attention on the need for Ofcom to demand that water-tight standards of evidence are required for rights holder chasing alleged infringers through the Digital Economy Act.

What's happening tomorrow?

Tomorrow a firm called Golden Eye International (no, really) will be in court seeking a 'Norwich Pharmacal Order' against Telefonica UK Ltd, which could see them handed the details of many thousands of individuals who they allege have downloaded adult films from unlicensed peer-to-peer services. The case will be heard in the Rolls Building in Court 6 at ten tomorrow (Friday, 9th March - and not half ten as listed in the link). 

Why should you care? The process involved here is called 'speculative invoicing'. It involves a company getting the details of subscribers from ISPs via a court order, then writing to them en masse threatening court action unless they settle for a reasonably large sum of money (for example, £700).

You may remember last year that a company called ACS:Law had a similar case thrown out by Judge Birss. The person behind ACS:Law, Andrew Crossley, was subsequently suspended for two years by the Solicitor's Regulation Authority (The SRA judgment is available here). ACS:Law tended to 'materially overstate their case', according to the judge, and relied on problematic evidence to connect apparent instances of infringement with subscribers.

Golden Eye have done this before - and had similar problems to ACS:Law. 

There are a number of problems. Here's three of the bigger ones:

1. The letters to people accused of infringement tend to be worded in such a way that they would believe the case against them is stronger than it is, and that their options are limited. For example, the letters from ACS:Law implied that a user was liable infringing on their account in all circumstances. The point is to make them pay, for fear of complicated, expensive and intimidating court case against them. 

2. The ISPs don't always challenge the 'Norwich Pharmacal Order'. Given what happened with ACS:Law, the ISPs have a responsibility to protect users by challenging requests for their users data.

3. The evidence against alleged infringers is often not robust. What kind of evidence should be required before an ISP is forced to hand over details of your account to a rights holder wishing to take legal action against you? For example, not only is the process of linking IP addresses to subscribers problematic, but that process identifies the owner of the connection and not the person who committed the infringement (these kind of problems were outlined by security expert Richard Clayton here).

Unless there is very robust evidence that the internet connections in question have been used to infringe copyright, then Norwich Pharmacal Orders should be refused.

When the information is given out too easily, with weak evidence and a hands-off ISP, often innocent people will face letters effectively strong-arming them into settling the case for not small sums. ACS:Law case clearly wasn't the end of this nefarious practice. The practice has seen people put through huge amounts of stress and inconvenience and financial harm. Not in the service of promoting creators' interests, but for cheap money making schemes.

Friday's decision and the Digital Economy Act

Under the Digital Economy Act, copyright owners would submit copyright infringement reports (CIRs) to ISPs (these are basically cases where rights holders think a particular IP address is responsible for an instance of infringement), and the ISP then match IP addresses with customer records. They then pass on notifications to that user. If a user gets a certain number of notifications (a number to be set in the initial obligations code, and which was set at 3 in the draft) then subscribers get placed on “copyright infringement lists”.

In advance of 'technical measures' being introduced, copyright owners would be able to apply for these Norwich Pharmacal Orders for personal data of those who are on the copyright infringement list, and then take them to court for civil copyright infringement.

Ofcom are required to define the standards of evidence required against alleged infringers through the Initial Obligations Code (see Consumer Focus' guide to the 'IOC' here).  The revised version of this is due out soon. Without stringent standards, there is a risk that people are wrongly placed on infringement lists and are subject to the civil action in the initial phases of the Act. Once the technical measure come into force, anyone on the blacklists can have technical measures imposed on their connection, which may include speed-bumping or disconnection. We're concerned that Ofcom will not have done enough to set that standard of evidence.

There's an interesting problem for the Act itself as well - if Ofcom's standards of evidence are not high enough, then they may face a situation in which Norwich Pharmacal Orders are turned down, undermining a key purpose of the Act - to make it easier for rights holders to take civil action against repeat alleged infringers. It would also leave potentially thousands of internet subscribers blacklisted on the basis of evidence that is not even strong enough to obtain a Norwich Pharmacal order.

We'll be reporting from the court tomorrow morning on what happens.



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