Liability of apps providers
Published on 10 Aug 2009 at 4:25 pm.
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Filed under Misc.
Blog Author: Mark Owen
Content is “sold” for the Kindle eBook reader over a private Amazon network, Whispernet. This is only available in the US. Publishers upload content to the network which Amazon then makes available. Warranties are given to Amazon by the publisher as to its right to do this.
Two George Orwell novels, 1984 and Animal Farm, were made available over Whispernet and copies were “purchased” by a number of Kindle users. It subsequently emerged that the publisher who had uploaded the content did not enjoy the necessary rights to do so. It is what happened next which is interesting. Rather than simply removing the books from the Kindle store and looking to the other party for compensation in the event that the real right-holder sued Amazon, Amazon went further and deleted the copies from the users’ Kindles.
Uproar followed and then a swift mea culpa from Jeff Bezos.
Much of this was caused by the manner of the deletion, with users apparently unaware what had happened and why and concerned that there was an invasion of privacy. Some were also unclear whether in fact all they had was a licence to the content rather than a permanent right. That issue is not a new one and lies at the heart of the private use debate, ie if you’ve bought a CD why can’t you also copy it onto your iPod. However, the episode raises interesting questions about the effects of new methods of distribution on service provider liability.
Amazon apparently took the view that because it had the technical ability to remove the content then it had to do so. Because of the nature of Whispernet, books remain on it even once they have been “acquired” by end users. If so then Amazon may be in exactly the same position as a host of a network containing unlawful content, and potentially liable for it.
What is also interesting is the potential for expansion of a service provider’s liability beyond situations where it is hosting unlawful content to those where it is no longer strictly speaking hosting the material but retains some ability to disable it, through digital rights management software, even after it has been distributed. This may have implications not just for Kindle/Whispernet but also app stores.
Project Canvas – what will be on the new platform and on what terms?
Published on 29 Jul 2009 at 2:24 pm.
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Filed under Misc, Project Canvas.
Blog Author: Tony Ballard
What is Project Canvas exactly? And on what terms do content providers have access to it? Prompted by complaints from some parts of the industry, the BBC Trust has now (23 July 2009) published some additional information.
One key point is that Project Canvas is very much a broadcaster’s response to the internet rather than vice versa. It will not have full internet browser functionality, as will apparently be made clear when members of the public buy a Canvas box. Instead, purchasers will be able to use it to access a number of services, very much like a Freeview box, except that in addition to the main Freeview channels they will also be able to access on-demand services such as the BBC iPlayer, the ITV Player, BT Vision and web applications such as flickr, facebook and YouTube (at least if they decide to come onto the platform). But there will be no general access to the web. A service provider’s content will be available on the platform if the service provider has subscribed to the platform’s electronic programme guide or EPG, but not otherwise. The point is that, like Freeview, it is a platform for service providers. It will be open to all of them, subject to certain detailed criteria which remain to be specified but which will relate to technical integration, the integrity of the platform (no bugs) and/or (sic) application of the laws of the land.
EPGs are gateways, as the BBC itself has remarked elsewhere (in relation to Sky’s EPG). They offer opportunities for anti-competitive behaviour and can be a “competitive bottleneck”, as Ofcom has put it. Control of an EPG by a vertically integrated operator hands to the operator a degree of influence over the likely success or failure of competing services. An EPG for television programme services is therefore regulated - both as a licensable content service and as an associated facility under Part 2 of the Communications Act. The provider of an EPG must not engage in any practice prejudicial to fair and effective competition and access must be provided on fair, reasonable and non-discriminatory (FRND) terms. But the law has not yet caught up with on-demand and other services – the EPG regime applies only to conventional broadcast services. It does not apply to on-demand programming or other web applications (nor will implementation of the AVMS Directive change things).
The BBC Trust tells us that all respondents to the initial Canvas consultation highlighted the importance of fair and reasonable access on the Canvas guide. The original proposal had not analysed this element because it was supposed that a common guide would be subject to Ofcom’s code, which requires fair, reasonable and non-discriminatory treatment of channels wishing to be placed on the guide. But of course that is true only of conventional television channels.
The FRND regime is not, in fact, a panacea anyway. It has not proved particularly effective in the past and, although better than nothing, this consultation might be an opportunity to consider a more muscular regime. There are indications in the additional information that has now been published that the BBC intends to apply the FRND regime across the board but they are (perhaps inadvertently) equivocal – a number of “business rules” are proposed but they do not address the fact that the existing regime applies only to conventional channels and it is expressly stated that the business rules will be intended primarily to comply with any “legal” obligations on Canvas, which would not include any obligation to apply the regime to on-demand and other services. There is no clear commitment to apply the FRND regime to those other services. This matters because it affects fundamentals such as access to the platform in the first place, prominence of positioning and what Canvas charges for the privilege of being included in the EPG.
It is quite clear that the EPG regime applies only to the conventional channels. If the touchstone for the Canvas is compliance with current law, it is not enough. The safeguards of current law do not extend into the on-demand and web application area and the Trust must fill the gap.
Remedies for illicit peer-to-peer file sharing: a conflict of fundamental rights
Published on 1 Jul 2009 at 5:05 pm.
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Filed under Misc, Digital Britain, illegal file sharing.
Blog Author: Tony Ballard
Nobody, least of all the government, expects that dealing with illegal peer to peer file sharing will be easy.
Digital Britain sensibly recognises that convenient access to legal content is as much part of the solution as putting new obligations on ISPs. It is looking to industry for the former and is designing legislation for the latter.
BIS, the Department for Business Innovation and Skills, in its 16 June consultation document on illicit p2p file-sharing, has set out details of the legislative proposals. They involve giving new powers and duties to Ofcom. If the initial measures to warn off illicit file sharers and gather information do not work, Ofcom will have powers to require their ISPs to take a variety of technical measures against them, from content filtering to blocking.
If blocking means denying a person access to the Internet, issues of freedom of expression may emerge as they have done in France, where a similar remedy (in the HADOPI law) was challenged on the ground that it infringed the free communication of thoughts and opinions enshrined in the 1789 Declaration of the rights of man and citizen. The Constitutional Court struck down part of the law but not because it was inimical to freedom of expression. It held that there was a balance to be struck between this and other fundamental rights, including the protection of property such as the rights of authors. What was unacceptable was that the power to deny a citizen access to the Internet should be conferred on a mere administrative authority (Conseil Constitutionnel, Decision no. 2009-580 of 10 June 2009).
This is not the first time that illicit file sharing has led the courts to declare a need to balance conflicting fundamental rights. In Productores de Música de España (Promusicae) v Telefónica de España SAU (Case C 275/06). the European Court of Justice had to consider an ISP’s refusal to disclose to rights holders the names and addresses of subscribers whose computers had been used for illicit file sharing on the ground that to disclose them would breach national data protection rules([2008] 2 CMLR 17). The Court took a broad view of the exception for the protection of the “rights and freedoms of others” in Article 13(1) of the Data Protection Directive, holding that it includes the protection of rights of property and their enforcement. The disclosure could be made without offending against the requirements of the Directive.
The BIS consultation document does not explore these issues, although it recognises (in paragraph 4.23) that the new powers will be contentious. It ducks them. Its approach seems to be to aim to confer the necessary powers and leave Ofcom to work out whether it is able lawfully to exercise them. What it says (in paragraph 4.28) is that Ofcom will have regard to any “relevant legal requirements (for example in privacy and data protection legislation and the e-Commerce Directive).” Unless a challenge of the kind made in France emerges, it sees that it will be for Ofcom to strike a balance between conflicting rights so far as illicit file sharing is concerned. If it does not do so, its decisions will no doubt be subject to judicial review (which may be the answer to any such challenge).
European law guarantees a number of fundamental rights but where the Internet brings them into conflict with each other the courts are not treating them as absolute. They are evidently taking a nuanced approach to them and accept that a balance must be struck. Perhaps what the French decision indicates most clearly is that the courts will wish to ensure that proper safeguards are in place but will not apply these guarantees dogmatically.
Nevertheless it is interesting to see that the outline of the Digital Economy Bill in the government’s draft legislative programme published on 29 June refers to giving Ofcom powers for the initial measures to warn off illicit file-sharers and to gather information but makes no reference whatsoever to the powers to apply technical measures. Is the government thinking again?
Is an Age Verification Law on the Cards?
Published on 13 May 2009 at 4:23 pm.
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Filed under Misc, Age Verification.
Blog Author: Mark Owen
The purchase of many types of goods and services requires the purchaser to be of a particular age, usually 18 or over. The list of items includes many which are regularly referred to in political debate and in the press including various types of weapons, alcohol, remote gambling and adult material. With the growth and use of digital access devices such as mobile phones and PCs by children, there continues to be much political wringing of hands about the verification of the buyer’s age. A member of the House of Lords, Baroness Massey of Darwen has attempted to address this and has introduced a private members bill, the Online Purchasing of Goods and Services (Age Verification) Bill which would require anyone selling age-restricted goods and services over the internet to take steps to verify online whether the purchaser is old enough to buy them. The Bill passed its second reading in the House of Lords following a debate there on 8 May 2009.
The Pirate Bay
Published on 6 May 2009 at 2:04 pm.
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Filed under Misc, illegal file sharing, Copyright Infringement.
Blog Author: Tony Ballard
It was unfortunate for the team of individuals who brought the Pirate Bay website to the world that they were in Sweden. As they have discovered to their cost, copyright infringement in Sweden is not only a tort but also a criminal offence.
On 17 April 2009 they were found guilty of aiding and abetting their file-sharing users to infringe the copyright in music, films and computer games by making them available to the public. They were sentenced to one year in jail and ordered to pay the equivalent of some millions of dollars to the music and film companies whose works were distributed by some 700,000 users through the peer to peer file sharing network set up by the Pirate Bay. (more…)
Digital Rights Agency – A Workable Solution or Just a Hope?
Published on 1 May 2009 at 3:59 pm.
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Filed under Misc, illegal file sharing, Digital rights.
Blog author: Nicolas Murfett
The problem of illegal file sharing has been around since the dawn of the internet. Traditionally the problem was limited to the select few with the technological resources to be able to do it. Then in 1999 Shawn Fanning created Napster. Since then there has been a dramatic rise in the perceived acceptability of sharing copyrighted material online. The BPI (British Phonographic Industry) suggests that illegal file sharing has in the last three years cost the British music industry alone over £1.1 billion in lost revenue. The answer as to how best to tackle illegal file sharing has eluded both government and the industry alike. It is unlikely that the Swedish court’s decision to send the team behind Pirate Bay to jail will offer a solution either. (more…)
The BBC – The Solution to Universal Connectivity?
Published on 24 Mar 2009 at 1:19 pm.
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Filed under Misc, Broadcasting, Digital Britain, Broadband.
Blog author: Tony Ballard
The interim Digital Britain report proposes a digital “Universal Service Commitment” (USC) in broadband by 2012. This is not quite the same kind of thing as the universal service obligation (USO), which requires BT (and Kingston) to provide basic voice and data to all at affordable prices and which is regulated pursuant to the Universal Service Directive. But the report says it is building on the underlying principle of universality and is looking to update it to reflect changed market and customer expectations in terms of technology. It proposes a USC of say 2Mb/s funded by service providers. (more…)
Project Canvas - IPTV in the Living Room
Published on 25 Feb 2009 at 1:51 pm.
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Filed under Misc, Broadcasting, Internet, Television Licensing, IPTV, Project Canvas.
Blog author: Tony Ballard
In an article in the Financial Times in early January this year, Mark Thompson wrote that the debates last year on the future of public service television had missed the most serious challenge - how it could migrate beyond traditional television to digital platforms, and how demand for universal high speed broadband could be stimulated by content delivered free at the point of use. It has been widely assumed that when he spoke of restructuring the industry he was speaking of the well-known elements - Channel 4, BBC Worldwide, Five and Project Kangaroo - and the debates that have followed, including Ofcom’s public service broadcasting blueprint, Carter’s Digital Britain and the Competition Commission’s rejection of Project Kangaroo as anti-competitive, can hardly be said to have grappled with this challenge.
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Broadcasting Regulation Extension: Linear Services on the Internet
Published on 19 Feb 2009 at 3:41 pm.
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Filed under Misc, On-demand, Broadcasting, AVMS Directive.
Blog author: Tony Ballard
Discussion about the implementation of the AVMS Directive has tended to focus on such eye-catching topics as product placement and the extension of broadcasting regulation to VOD. As we await the publication by DCMS of its policy decisions, the timetable for which has been slipping recently, it is worth reflecting on another less well heralded innovation that the Directive will introduce - the extension of broadcasting regulation to linear services on the internet.
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TV Licence Fee and Online Services
Published on 27 Nov 2008 at 11:58 am.
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Filed under Misc, Internet, Licence Fees, Television Licensing.
Blog Author: Tony Ballard
Debates about the scope of the television licence fee have something of the quality of those ancient debates attributed to St Thomas Aquinas among others about how many angels can stand or dance on the head of a pin. Of sometimes stunning irrelevance to the practical world, they nevertheless enable those concerned to engage with the theology of broadcasting, that area of policy debate that has shaped the broadcasting sector since the 1920s.
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