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[ NNSquad ] UK Digital Economy Bill : Internet Policing "model" code


----- Forwarded message from Sivasubramanian Muthusamy <isolatedn@gmail.com> -----

Date: Wed, 20 Jan 2010 20:32:02 +0530
From: Sivasubramanian Muthusamy <isolatedn@gmail.com>
Subject: UK Digital Economy Bill : Internet Policing "model" code

Hello

I am cross posting a news item posted in the ORG discuss mailing list for
comments from  the Privacy point of view.

The news item pertains to the release of the Internet Policing Code as part
of the UK Digital Economy Bill as seen at page
http://www.iptegrity.com/index.php?option=com_content&task=view&id=449&Itemid=9

Some excerpts from The Digital Economy Bill: Online Infringement of
copyright : initial obligations code:


>    * The rights-holders will report on alleged infringements to the ISPsin
> a new form of document called a Copyright Infringement Report (CIR)
> detailing the alleged infringement and supporting evidence
>


>    * Data protection regulations : copyright owners will be offered the
> opportunity to identify repeat  infringers of their own content (eg Disney
> will only want to take action against people who infringed against Disney
> content (sic)
>
> As a minimum we expect the code would require that the method of detection
> was via a robust and reputable technology (which was open to
> independent/Ofcom scrutiny), that a copy of the copyright material (or
> significant part thereof) was captured as part of the detection process, the
> copyright owner had verified that it had reason to believe that the usage
> identified was an infringement, the uploading IP address was captured and
> that an exact date/time stamp was taken.....
>

My observations are:

The final passage of this draft code as also some of the clauses of the
Initial Obligations Code revolve around the idea of right holders gathering
evidence. The implementation requires or allows the right holders to capture
the uploading IP address and recording the exact dateline stamp / identify
repeat infringers of their own content ( Disney focusing only on infringers
of Disney content

In conventional Jurisprudence, courts do not permit stolen evidence or
evidence gathered by means of espionage. Here the model code alters such
Judicial codes. How would a right holder gather evidence such as the
uploading IP address or record the exact dateline stamp or identify
'repeated' infringers of their own content ?

A right holder may be able to report publicly accessible 'windows' for
copyright violation such as a commercial online store that offers publicly
visible copyright infringed material for sale or hire. Any other practice of
gathering evidence, particularly about user violations,  would require
practices that are equal to stealing evidence in the real world. ( Do online
users willingly submit their online activity to be monitored?) Tracking
users for their copyright violation activity for the purpose of gathering
evidence would require copyright holders / their trade associations / agents
to look for and monitor online activity suspicious of copyright
infringement.

The model code appears to allow and encourage ( or would at least lead to )
espionage and indicates that the digital equivalent of 'stolen evidence'
would be accepted by authorities and copyright tribunals / courts.

In summary, it appears that the Government of UK wishes to create a
precedent whereby the Internet Policing Code would shatter real world codes
of Law and Order and Jurisprudence.

Responses to these observations can be seen in the archives of the thread
http://lists.openrightsgroup.org/mailman/private/org-discuss/2010-January/016271.html

If it is agreed that it amounts to online espionage and collection of stolen
evidence, it raises some fundamental questions that I found raised by a Year
IV student of Nalsar University of Law, Hyderabad by name Rohan Mohan on
some other issue - the issue of Telephone Tapping at page
http://www.legalservicesindia.com/articles/mom1.htm:

"[*Does] it take a thief to catch a thief? Should States imperil the liberty
and the right to privacy of entire populations in order to apprehend a
miniscule number of dangerous deviants?*"

Posted here for comments from the Privacy point of view.

Sivasubramanian Muthusamy
http://www.isocmadras.com
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----- End forwarded message -----