Informationoverlord

The Ninth Circuit Court of Appeal has vacated Mattel’s hard-won injunction on behalf of its Barbie doll, finding the remedy imposed by the District Court too broad.

In 2008, Mattel won a lawsuit claiming MGA had infringed its copyright and breached a contract because the designer of Bratz dolls was still under contract to Mattel when he developed the Bratz concept for MGA Entertainment, the makers of the rival (and currently more popular) Bratz doll range. A jury awarded Mattel $100 million.

Mattel had argued that Carter Bryant had come up with the Bratz dolls concept when he was working for Mattel. He left Mattel in or around 2000 for MGA and shortly after his move, MGA had started marketing the Bratz doll. MGA had argued that the Bryant had created the concept during a period of time when he was not working for Mattel. However, this argument fell by way side during the original case and Mattel convinced a federal jury that the employee conceived the Bratz idea whilst in its employ.

In April 2009, a federal judge upheld the jury verdict and imposed a constructive trust over all trademarks including the terms “Bratz” and “Jade,” essentially transferring the Bratz trademark portfolio to Mattel.

The Ninth Circuit has now ruled the District court erred in making this decision. “It is not equitable to transfer this billion dollar brand— the value of which is overwhelmingly the result of MGA’s legitimate efforts—because it may have started with two mis-appropriated names. The district court’s imposition of a constructive trust forcing MGA to hand over its sweat equity was an abuse of discretion and must be vacated. ” The Court pointed out that evebn the jury seemed to grasp this point when it awarded Mattel only $10 million, or about 1% of $1 billion it sought, because it found only a small portion of the Bratz dolls infringing.

The Court also took issue with the District Courts decision prior to trial, to find that Bryant’s employment agreement assigned his ideas to Mattel, and so instructed the jury. The Ninth Circuit judges however concluded that whilst the agreement could be interpreted to cover ideas, and a Mattel executive claimed during her deposition that it was common knowledge in the design industry that terms like “invention” and “design” did include employee ideas, the text doesn’t compel that reading and other Mattel employee contracts actually specified that ideas were covered.

Bryant’s 1999 employment agreement, which provides: “I agree to communicate to the Company as promptly and fully as practicable all inventions (as defined below) conceived or reduced to practice by me (alone or jointly by others) at any time during my employment by the Company. I hereby assign to the Company . . . all my right, title and interest in such inventions, and all my right, title and interest in any patents, copyrights, patent applications or copyright applications based thereon.” (Emphasis added.) The contract specifies that “the term ‘inventions’ includes, but is not limited to, all discoveries, improvements, processes, developments, designs, know-how, data computer programs and formulae, whether patentable or unpatentable.”

The court also found that the phrase “at any time during my employment” is ambiguous stating that it could easily refer to the entire calendar period Bryant worked for Mattel, including nights and weekends – or just working hours. The District court erred in deciding there was no ambiguity. It also erred in affording broad protection against substantially similar works to the original sculpt of the dolls; and whilst it didn’t err in affording the doll sketches broad copyright protection against substantially similar works, it did err in failing to filter out all the unprotectable elements of Bryant’s sketches – “Mattel can’t claim a monopoly over fashion dolls with a bratty look or attitude, or dolls sporting trendy clothing—these are all unprotectable ideas… This error was significant. Although substantial simi-
larity was the appropriate standard, a finding of substantial similarity between two works can’t be based on similarities in unprotectable elements. ”

The Court concluded ” On remand, Mattel will have to convince a jury that the agreement assigned Bryant’s preliminary sketches and sculpt, either because the agreement assigns works made outside the scope of employment or because these works weren’t made outside of Bryant’s employment. And, in order to justify a copyright injunction, Mattel will have to show that the Bratz sculpts are virtually identical to Bryant’s preliminary sculpt, or that the Bratz dolls are substantially similar to Bryant’s sketches disregarding similarities in unprotectable ideas.”

“Because several of the errors we have identified appeared in the jury instructions, it’s likely that a significant portion—if not all—of the jury verdict and damage award should be vacated, and the entire case will need to be retried.”

This has always been an interesting case and it looks like we set for several more years of it. A reading of the judgment gives hope to both sides. The court doesn’t say that Mattel has lost the case, but more that the District Court ignored too many ambiguous aspects of the case, resulting in an overbroad finding against MGA.

Porn publisher Perfect 10 has been back in court again. After failed attempts to get the courts to rule that Google, Amazon, Microsoft and others infringed their copyright by offering thumbnail copies of the images – usually uploaded or stored on other people’s websites, they have now failed in an attempt to get an injunction against German file-hosting service Rapidshare.

Perfect 10 claims by hosting copies of their content on their servers they are directly infringing their copyright, violating their distribution rights, and are additional guilty of contributory infringement.

Users of Rapidshare can upload files to the site and get an url which they can use to share access to that content with friends etc. Rapidshare does not offer a search facility or offer an index of files stored on its servers.

The District Court for Southern District of California found that as Rapidhsare did not make files available and index them in a manner that would make searching for content useful, it is not like Napster or other p2p services and is therefore not making infringing material available in the same way, and the court “declines to hold Rapidshare liable for direct infringement on a theory of deemed distribution.”

The Court did find that Rapidsahre had specific knowledge of direct infringement by some of its users – due to being contacted by Perfect 10, however the court found rapidshare was not contributorily liable because far from the evidence showing that rapidshare was doing nothing to address to presence of this content on its servers but that “[r]ather, the evidence suggests that RapidShare is using information provided by Plaintiff to locate and remove infringing materials, and is also taking independent steps to identify, locate, and remove infringing files.”

The Court did however say that rapidshare could not currently rely on any DCMA safe harbor protection as it yet to give the US copyright office specific information regarding its designated agent as specified in the legislation.

On Perfect 10’s claim that without injunctive relief, it will be forced into bankruptcy - an argument it used in its case against Google too, If I rememer rightly - Judge Huff responded that the evidence before her didn’t back up this claim and actually showed Perfect 10’s “apparent lack of interest in self-help measures and its delay in bringing this action.” Ouch. The motion for preliminary injunction was denied

The wrappers came off Viacom’s and YouTube’s motions for summary judgment in their copyright infringement case. The motions made for interesting reading as both sides choose to selectively target the other in their arguments.

Viacom

Viacom told the court that it is only interested in infringement pre-May 2008 (the point at which YouTube deployed digital fingerprinting and filtered for Viacom, when the parties signed a content deal). Viacom is therefore saying that since they signed their deal with YouTube they are happy with YouTube’s current practices, as regards infringing copyright material, and therefore don’t believe it currently induces infringement.

Viacom’s argument is that it is clear that the YouTube founders: Chad Hurley, Steve Chen and Jawed Karim, made a deliberate decision in 2005 to build a business based on piracy. They cite emails exchanges between the founders admitting early on the site is full of copyrighted material but that they needed to keep it up on the site to build traffic. They pointed in particular to exchanges between Hurley, still YouTube’s CEO, and Karim. During discovered Hurley informed the prosecution that he had lost his entire email repository. When then presented with copies of those emails retrieved from Karim, which showed all three were aware that 80% of their hosted content was infringing copyrighted material and that they wanted to “concentrate all our efforts in building up our numbers as aggressively as we can through whatever tactics however evil”, Viacom claims Hurley developed “serial amnesia” about any of those conversations.

Even more damning a memorandum personally distributed to YouTube’s entire board of directors by Karim just 6 months before the sale to Google stated: ” As of today episodes and clips of the following well-known shows can still be found: Family Guy, South Park, MTV Cribs, Daily Show, Reno 91 1, Dave Chapelle. This content is an easy target for critics who claim that copyrighted content is entirely responsible for YouTube’s popularity. Although YouTube is not legally required to monitor content (as we have explained in the press) and complies with DMCA takedown requests, we would benefit from preemptivelv removing content that is blatantly illegal and likely to attract criticism. ”

Viacom then turns to Google – who it commends for running a totally legal rival video hosting service, Google Video, before its purchase of YouTube for $1.8 billion in October 2006. It points to internal Google documents where Google identified YouTube as “a rogue enabler of content theft”; “business model is completely sustained by pirated content”, and “it’s a video Grokster”.

It seems Hurley was not the only person to have difficulty finding and remembering what happened in the early days. When asked to produce any relevant documents including emails that dealt with the acquisition of YouTube, Google CEO Eric Scmidt managed to find just 19. He explained this by stating it had “been my practice for 30 years to not retain emails unless asked specifically” – this from a company that launched Gmail in 2004 so people would never have to delete an email again. Viacom also point to the testimony of Larry Page who apparently could not even remember whether he was in favour of Google buying YouTube or not.

Next Viacom point to the fact that YouTube had the ability to deploy fingerprinting and filtering technology – they has a licence for Audible Magic from early 2006 – but either choose not to at all, or only agreed to do so with media organisation who agreed content licences with them. Viacom claims YouTube withheld applying these technologies to their content until May 2008 when the parties signed a content licencing agreement.

It continues to say that YouTube continued to be aware that much of the content on the site was infringing and yet took no action to do anything about it. They argue they could quite easily have removed obviously infringing material.

When it comes to the law, Viacom argues that as in Grokster, YouTube is guilty of inducement and is not entitled to any of the affirmative defences, available under s512(C) of the Digital Millenium Copyright Act (DMCA), to protect it from copyright infringement liability. In particular, it states that service providers will not be liable “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” This protection is available only if the service provider satisfies a number of statutory requirements. For example, the service provider must not have actual knowledge that the material or an activity using the material on the relevant system is infringing, must not receive a direct financial benefit from infringing activity, and must expeditiously remove or disable access to material if it is notified that the material is infringing or is the subject of infringing activity.

Viacom contended that YouTube does not qualify for § 512(c) immunity because YouTube had actual knowledge and was aware of infringing activity on their site and did not act to stop it; it had the ability to control infringing activety and remove any content – as they do frequently with adult material - but chose not to; turned a blind eye to acts of infringement for the sake of profit from web traffic and ad revenues; and that it did not store video clips “at the direction of a user.”, as it actively creates “Flash-formatted” copies of video files uploaded by users and allows streaming of those clips, making it a direct infringer of copyright because its copyright infringement is not from web hosting but from broadcasting videos.
This final line of argument seems a little odd, as YouTube still creates version of uploaded conetnt in this way post May 2008 where Viacom apparently has no issues with the site.

Viacom also point to the fact that YouTube has signed licencing deals to distribute their service and the infringing content over third party platforms – such as the iPhone – an action that it clearly not storage, and so is not protected by DCMA.

YouTube

Google/YouTube, perhaps unsurprisingly, choose to ignore the sites beginnings and the initial days of the Google take over and instead concentrate on what the site has become. It argues that whilst it can’t control what its user upload it has taken numerous steps to keep illegal material off the site: it’s T&Cs; copyright tips; 10 minute limit; registered a DCMA agent; removes infringing materials as result of DCMA request; terminates and blocks accounts of users suspects of being repeat infringers; and employs team to help copyright owners remove unauthorised material.

YouTube states the problem with Viacom’s case is that the actual actions of Viacom undermine its own case. Firstly, it points to Viacom’s own failed attempt to buy YouTube in 2006. If Viacom saw it as a video Grokster, why did they want to buy it, and why were they already negotiating a possible content licencing agreement before Google acquired the site? It also states that it was Viacom, not YouTube that scuppered a deal between to two in 2007 by requesting more money than any other content partner– although YouTube are quiet on the allegation of withholding fingerprint technology for only those who signed content licencing deals.

It states that in February 2007 the two companies agreed that Viacom would present a super takedown notice. YouTube says that within 24 hours ‘virtually all’ the videos had been removed. The following month Viacom launch this legal action, demanding one billion dollars.

YouTube produced its own email evidence that from early 2006 onward Viacom employees and its agent BayTSP were actively uploading clips to the site, infact they even had a documented policy to ensure that some content stayed up on the site. In November 2006, just after Google took charge 316 infringing South Park clips were found on the site, and yet Viacom only requested the removal of one.

YouTube accuses Viacom of using stealth marketing to get fake accounts set up to promote uploaded viral videos from Viacom from the ‘grassroots’. A number of commentators have expressed the view that the FTC might be interested in this evidence.

In relation to the 63,497 clips in this case (which includes one from the FA Premier league of ONE second duration) YouTube stated most were the subject of DCMA notices and taken down in response. However, YouTube claims its discover in the case shows that many of these clips were posted at Viacom’s direction. This is an accusation that seems to have been backed up by Viacom twice having to ask the court to remove clips from the list - 241 clips in October 2009, after realizing that many had actually been uploaded by Viacom employees, and this week a further 6 clips that were mistakenly included back in October in addition to removing another 187 clips ‘ in order to streamline the issues in this case’.

YouTube argues that if Viacom is still only just discovering what was a legitimate authorised copy of its content in the site as opposed to an unauthorised one three years after starting the case how was YouTube supposed to identify this ‘obvious infringing activity’ within hours or days. Whilst the courts had found that service providers must remove material on their own where infringement would be apparent form a brief and casual viewing, YouTube argues that Viacom has shown that even it is incapable of doing this successfully. Additionally, if Viacom deliberately refrained from sending takedown notices for certain clips, how could YouTube be obligated to remove those same videos on sight.

YouTube also points to the recent decisions in cases featuring fellow video sharing site Veoh (v UMG and v Io Group) in which against UMG a request for summary judgment was refused and against lo Group the case was dismissed. In the Veoh case in particular the court agreed that the created on flash videos and associated actions by the site fell within the scope of § 512(c), because all of them are narrowly directed toward providing access to material stored at the direction of users. YouTube argues it does the same, so should be equally protected.

Both motions make compelling reading when read alone. It seems likely however that both motions will be dismissed and the case will head to the courtroom.

Eric Goldman, Associate Professor of Law at Santa Clara University School, asks the interesting question. If Viacom is right that YouTube induced infringement in 2005-06, but doesn’t currently induces infringement (after all, Viacom isn’t contesting post-May 2008 activity) How the courts determine when YouTube flipped the switch from inducing to not? And does flipping the switch cure any of the past infringement, or does it only cut off future claims?

Keep watching this one.

The report stage of the Digital Economy Bill at long last produced some real amendments to the Bill, but the biggest one has left some thinking the ‘improvements’ may in fact do more harm.

From the moment the bill was first published last year Clause 17, which gives the government “a power to amend the Copyright, Designs and Patents Act 1988 (CDPA) in future, to reflect fast-changing technology,” found opposition both within parliament - Lord Clement-Jones called it a Henry VIII clause - and with search and social media companiessuch as Google, eBay, Facebook and Yahoo who wrote to Peter Mandelson this week asking for clause 17 of the to be deleted from the draft law arguing the “clause is so wide that it could put at risk legitimate consumer use of current technology as well as future developments.”

The government who had already amended the clause once were set to amend it further this week but were trumped by Lord Clement-Jones who tabled his own amendment to replace the clause with one of his own.

The government’s proposed amendment would have made it clear that the scope of amendments to Part 1 of the CDPA is limited to Chapter 6 of Part 1 of the copyright Act, and clarified that the clause could only “be used only to make enforcement of rights easier or more efficient, not to define what constitutes copyright infringement”

Lord Clement-Jones’ clause introduced the power to shut down / block access to websites hosting infringing material by allowing “the High Court to grant an injunction requiring ISPs to block access to sites where there was a substantial proportion of infringing material that is either hosted by the particular site in question or accessed through the particular site. The injunction would be granted only where rights holders had first requested ISPs to block access to the site and when they had also requested the site operator to stop providing access to the infringing material, either by removing the material itself or removing the ability to access it.”

Lord Young responding for the government - and being in the interesting position (for a change) of making sense - pointed out the amendment was not a good idea for several reasons: (i) the provisions would need to be notified to the European Commission under the technical standards directive…subsections (6) and (7) of the proposed new clause would not count as notification in draft. Without the proper three-month notification, the provision would not be enforceable (ii) Blocking access to websites is an enormous step. It is worth noting that many and possibly most sites containing infringing material will also contain legitimate material. Finding a way of blocking infringing material without impacting disproportionately on legitimate uses is likely to be difficult, and (iii) sites that link to other sites that would be caught by this proposed clause but which do not have any control over or even knowledge of the content to which they link. That could lead to search engines being on the wrong end of a blocking order, something which will cause significant public disquiet.

Lord Erroll who supported an amendment that would have completely removed Clause 17 from the bill, as he would have prefered to see the next Parliament conduct a proper review or rewrite of the CDPA also saw a problem with Lord Clement-Jones’ amendment. ” We have to remember that the Bill does not just deal with streamed video, film and music. It also involves text-it can be applied to ordinary short text and brief things like that. What do search engines do? They search text and reproduce it in an aggregate form so that you can find what you are looking for. That means that, almost certainly, all search engines will be infringing from day one.”

Lord Clement Jones responded that he did not think this a problem. “I do not believe that this will involve thousands of sites. As soon as the ISPs notice that this legislation has gone through, they will alter their behaviour. We have seen what has happened in Sweden where there has been a steep fall in pirate sites, and I believe that it would be exactly the same under this legislation. [I] also cannot accept the Minister’s points about the EU technical directive in this case…If the Minister thinks that the wording of proposed new Section 97B is not precisely apposite for the purpose, it can always be changed at Third Reading to make sure that it is valid. We would welcome amendments to that effect.”

The clause was be put to the vote. It passed by 165 -140, and so is now in the bill.

UK ISP Talktalk reacted strongly to the new clause, calling the measure “draconian” and “futile”. Director of strategy and regulation, Andrew Heaney Heaney said “The amendment seems to require ISPs - and by implication their customers - to pay costs to rightsholders unless we bar a site prior to an injunction being granted against it. The amendment proposes that if a rightsholder’s application for an injunction against a website is ultimately successful, the ISP has to pay the rightsholder’s costs for making that application. This will inevitably encourage ISPs to bar access to a site immediately, in effect turning us into judges deciding which sites our customers can and cannot access.”

It certainly seems that the Lib-Dems have manged to get the bill looking ven more likr America’s DCMS than the government - a feat in itself. How long will sites be blocked? who will review the sites to see if they can be unblocked? It seems to me all this clause now does is as the earl of Erroll said in the debate, give the entertainment indutries yet another stick - this time through lawyers - “to threaten people with huge costs in court unless they roll over and give lots of money up front, so that people end up settling out of court.”

As on the day the bill was first published, Clause 17 must go.

A number of reports appeared last night – such as this one (since update by the Guardian’s Charles Arthur) claiming that the UK government were back-tracking on the so called ‘three strikes rule’ to deal with persistent alleged illegal p2p filesharers. It came as the government published their response to a petition on the government’s e-petition site.

“We the undersigned petition the Prime Minister to abandon Lord Mandelson’s plans to ban individuals from the internet based on their use of ‘peer to peer’ file sharing.”

The government’s response describes the aims of the Digital Economy Bill, and the hope that warning letters will be enough to “secure our aim of a 70% reduction in illegal peer to peer file sharing. If that proves not to be the case, the Bill provides a reserve power obliging an ISP to apply ‘technical measures’ to a customer’s internet account to restrict or prevent illegal sharing. Technical measures might be a band width restriction, a daily downloading limit or, as a last resort, temporary account suspension. A proper independent appeal would be available against application of technical measures. More widely we also include a reserve power to amend the Copyright Design and Patent Act. This will allow us to tackle quickly any misuse of emerging technologies for copyright infringement and provide an element of future proofing.”

What got the media claiming the government had changed its tune came at the end of the response where it states:

“We will not terminate the accounts of infringers - it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal – cases.

We added account suspension to the list of possible technical measures which might be considered if our measures to tackle unlawful file-sharing through notifications and legal action are not as successful as we hope. This is but one of a number of possible options on which we would seek advice from Ofcom – and others – if we decided to consider a third obligation on technical measures. However what is clear is that we would need a rapid and robust route of appeal available to all consumers if we decided technical measures were needed.”

The problem with this is that nowhere in the bill does it actually say the government will terminate the accounts/cut off infringers, in the first place. The government and a media obsessed with talking about ‘3 strikes’ (which again, is not stated anywhere in the bill even though the government has indicated that something of the sort could operate – although a strike could mean 50 or 100 or any other number of ‘alleged’ infringements). Even the relevant section heading in the bill is ‘Obligations to limit internet access’ . According to the Bill’s current text the technical measures employed :

(a) limits the speed or other capacity of the service provided to a subscriber;

(b) prevents a subscriber from using the service to gain access to particular material, or limits such use;

(c) suspends the service provided to a subscriber; or

(d) limits the service provided to a subscriber in another way

I agree with the Open Rights Group who say this ‘backtrack’ is a red herring.

‘Temporary account suspensions’ sound like the government would to suspend accounts for a few hours, or at most a day, to fit most people’s idea of ‘temporary’ and ‘suspension’. We doubt ‘suspensions’ would be so brief. We can assume what the government means to you and me is ‘disconnection’.

Indeed one of the problems with this bill is that it contains a worrying lack of actual detail that is being hived off into ‘Codes’ and Statutory Instruments. Parliament is being asked to sign off on a bill and trust the government to fill in the blanks later. Gordon Brown’s favourite Judge, Simon Cowell , along with the likes of Sir Terry Pratchett (disappointed in you Terry) who have written to the government urging them to stand firm and push this bill through would have been in a panic this am with some of the headlines but can rest assured that the government is still doing their industry’s bidding.

January is the time of year where you are meant to look ahead to what is in store during the coming year. So here’s my look back/ahead.

IT/Internet
Copyright

‘3 Strikes’ permeates across Europe
In a move to combat internet piracy, several countries have adopted or proposed laws that would involved cutting off internet access to ‘alleged’ illegal p2p filesharers. South Korea became the first country to implement a three-strikes law, closely followed by Taiwan. France adopted the ‘Hadopi law’ in September, although it has yet to become law, with the French data protection agency currently holding up to act, over concerns at how the punishment procedure of the Hadopi law would work in practice. Both the New Zealand and UK governments have put forward proposals ( The Digital Economy Bill in the UK) which would possibly result in ‘3 strikes’ rules.

Meanwhile Singapore, Germany and Spain are amongst the countries that have said they will not cut off subscribers. Spain’s proposed law – passed by the cabinet - would target websites accused of facilitating piracy. First warning letters would be sent, then an appearance before a panel of experts, who would decide whether to then refer the case to a judge, who would then have to power to order the closure of the site.

New European rules, which need to be implemented by all Member States by June 2011, included Article 1(3)a of the new Better Regulation Directive (Directive 2009/140/EC ) – the argument over the wording of which almost scuppered the whole Telecoms Package – which states that any measures to restrict the fundamental rights or freedoms of citizens may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards…including effective judicial review and due process. A prior fair and impartial procedure and an effective and timely judicial review shall be guaranteed.

As more countries adopt ‘3 Strikes rules’ I would expect to see laws challenged under this article. In the debates on the Digital economy Bill in the UK, several Lords have already questioned whether the current drafting language of the UK’s bill would stand up to a legal challenge under the directive.

Broadband
Operators will be pressing ahead with were either rolling out or trialing superfast broadband of up to 100Mbps and more in Europe. This will be key for many operators as Value Added Services become the name of the game in attracting customer and reducing churn. According to a report from Informa – Beyond Triple Play: Value added services for broadband operators – Music subscriptions, online storage, home monitoring and games subscriptions were the most attractive value added services operators could offer. These were the most highly valued by consumers and the potential revenue to operators and the effect they could have on decreasing churn was highlighted. Orange (France) Telia (Sweden), SKT (Korea) Telfonica (Spain),TDC (Denmark) DT (Germany) and Virgin Media (UK) were amongst those identified as pursuing a broad service range. Booz & Company also identified VAS as one of the five distinct shifts they saw effecting the Telecoms industry in 2010.

Online Music
Make or break year for the likes of Spotify and Mog who both launched free/subscription based music streaming services in 2009. It will be a question of how long the big labels will stick with them before bailing out. To be fair to the labels they are at long last realising that they have to be more daring if they want to combat illegal filesharing by offering a real variety of alternatives, but I still would not be surprised to see Spotify or Mog ultimately fail. The Biggest threat to all of these online music services will likely come from telcos/cable operators bundling music download and streaming packages into their TV/Broadband/Phone offerings. BskB has launched such a service in the UK and Virgin Media is due to do the same (although due to Record company cold feet, it looks like this will not be the game changing ‘all you can eat’ service that it might have been).

Tablet Computers
Can Apple make the Tablet a must have? No. A must want perhaps, but a must have? I just don’t see it. For starters, it will be Apple priced. But it will be a Kindle Killer some say. Maybe, but: it will be Apple priced. To use it as your main computer, you’ll need a real keyboard and mouse to use with it in the home/office where pissing about using a virtual keyboard not only gets boring but doing so on the tablet is ergonomically unsound and screws your back in. [obviously should anyone from Apple want to sent me one to try out, I’ll be more than happy to let you try and convert me to its merits]

Telecoms

As mentioned above, Booz & Company five distinct shifts they saw effecting the Telecoms industry in 2010.
1. Growth Shifts to the East and South -Much of the growth in the telecom industry will shift from mature Western markets toward developing countries.
2. Focus Shifts to Value-Added Services – Much of the telecom world is being rapidly commoditized—from connectivity and basic services to low-end handsets, to networking equipment to the networks themselves—prompting virtually every player in the sector to seek out new sources of value. The clear solution: services.
3. The Digital Generation Sets New Expectations - As rivals in the telecom sector battle to move up the value chain, the world is quickly moving toward an ‘all digital, all the time’ model.
4. Operational Efficiency Becomes Even More Critical - The commoditization of large swaths of the telecom value chain is forcing every player in the industry to create the most efficient operations they possibly can— outsourcing non-core functions such as engineering and network and field services operations, even spinning off entire passive infrastructures that are no longer central to creating real value, and completely overhauling their business processes.
5. Regulators Take a Renewed Interest in the Sector - As telecom players move to add more services that require faster networks, many policymakers and regulators around the world are moving to support these efforts. No longer does the ideology of the free market hold complete sway over regulatory thinking. Instead, regulators are becoming more prescriptive and more interventionist as they look to support economic growth through large-scale broadband network deployment—in some cases even engaging directly in such investments.

Convergence and Consolidation
Started to happen in 2009, and likely to increase in 2010. In the UK, for example, Carphone Warehouse’s purchase of Tiscali UK, and the merger between Orange and T-Mobile’s UK businesses. If the latter merger is cleared some commentators expect ‘3′ to once again become a potential target for whether 02, Vodafone or even BT. Elsewhere, Deutsche Telekom has said it is seeking further partnerships and investment opportunities under a new strategy to address the growing convergence between TV, the Internet, and mobile service segments; Portugal Telecom (PT) is targeting overseas growth in its Brazilian markets and is looking at investing in further mobile operators in sub-Saharan Africa, including Mozambique; Belgacom CEO Didier Bellens said the operator plans to develop new technology and expand overseas. It sees opportunities in the former Soviet region, including Uzbekistan and Kazakhstan; Turkcell, is seeking investment in North Africa and Middle East region, where it does not have a strong presence.

There are also a number of IPO/Licensing opportunities in 2010

Australia: SingTel is considering selling a minority stake in its Australian unit Optus through an initial public offering (IPO) in Australia during 2010.
Azerbaijan: Fixed-line incumbent Aztelecom and regional operator Baku City Telephone Network (BGTS) are both likely to be privitised.
Bangladesh: The Bangladesh Telecommunications and Regulatory Commission (BTRC) has announced that 3G mobile licences will be auctioned this year.
Colombia: The Information and Communications (ICT) Ministry is preparing to award up to three new mobile telecommunications licences in 2010
Costa Rica: The Costa Rican regulator plans to award three new mobile concessions during the first quarter of 2010.
Côte d’Ivoire: The l’Agence des Télécommunications de Côte d’Ivoire (ATCI), plans to issue two 3G licences in 2010.
Czech Republic: The Czech regulator CTU intends to issue the fourth 3G licence in the course of 2010.
Denmark: TDC may be planning an IPO in 2010.
Egypt: Orascom Telecom Holding is seeking a partner to merge with in 2010/2011 , with small/medium sized operators in emerging markets or in Europe favoured.
India: The country will auction 3G licences this year (following many delays in 2009, mainly due to spectrum ownership)
Kosovo: Ministry for Economy and Finance plans to privatise incumbent operator, PTK, in 2010.
Libya: The Libyan government has announced plans to sell stakes in both its mobile operators—al-Madar and Libyana—through an IPO.
Pakistan: The country could eventually offer 3G licences during 2010.
Poland: Poland’s fourth-largest mobile carrier Play may be sold in 2010, whilst number one mobile operator, Polkomtel, is considering an IPO.
Serbia: The telecoms regulator RATEL, plans to award the country’s second fixed telephony licence early 2010.
UK: Cable & Wireless will demerge its businesses fully by the end of March 2010 . The operator has operationally split its two distinct business units into a Worldwide unit and a CWI international operator, as it forges ahead with the separate listing of the two operations on the stock exchange.

Nokia v Apple v Google
Whilst Nokia is still the biggest handset vendor (in market share) in the world, the end of 2009 saw Apple (through the iPhone) overtake Nokia to become the most profitable handset vendor. Nokia is expected to put a lot of effort into the US market in 2010, with Strategy Analytics believing that “a successful fight on Apple’s high-profit home turf can simultaneously help to revitalize Nokia’s margins and to put a check on Apple’s surging growth.”

Nokia and Apple swapped patent suits during 2009, with Nokia accusing Apple of infringing 10 Nokia patents for technologies such as wireless data, speech coding and security. Apple hit back accusing Nokia of infringing 13 its patents including graphical interfaces, teleconferencing, power conservation and touch screen technologies. Expect the hostilities to continue through 2010.

Nokia is also facing competition in the mobile operating system market where its Symbian system has for a long time been market leader, from Google’s Android operating system. Google’s move to launch their own branded handset, as Apple did with the iPhone, will also likely impact on both Apple’s and Nokia’s finances during 2010.

Media
Video on Demand
This year will see the UK version of Hulu and Arqiva’s SeeSaw do battle in the UK market. SeeSaw is built on the ‘Project Kangaroo’ technology platform that Arqiva bought from BBC Worldwide, ITV and Channel 4 following a Competition Commission decision to block the project claiming it would reduce competition and harm consumers. Those involved and many politicians criticized the decision saying instead of ensuring and financial benefits of the service stayed in the UK, it handed potential profits to the likes of Hulu. For example outgoing ITV head, Michael Grade said “”As a result of the Competition Commission turning down the decision to launch Project Kangaroo, I guarantee an American company will take the lion’s share of our content in the UK very soon…Google or Hulu. Hulu is looking to launch in the UK. As a result of the commission’s decision, UK creative money will go to the Americans and not get reinvested in the UK.”

As Grade mentioned, YouTube will also feature in this shake up having already secured its first long-form on-demand UK TV content with Channel 4.

I totally agree with Grade and others on this. Whilst it is hard to argue that the Competition Commission decision was flawed on legal grounds, the end result for the creative industries in the UK– which the government claims to care so much about – is potentially devastating.

Sports Broadcasting Rights
All eyes will be on the European as the Court of Justice it hands down an opinion in the Pubcasting case (The Football Association Premier League Ltd v QC Leisure and others / Karen Murphy v Media Protection Services Limited) – C-403/08 & C-429/08 - It looks at whether licence agreement provisions restricting foreign broadcasters from selling decoders, etc., for use outside their territory, is an illegal restriction of competition contrary to Article 81 of the EC Treaty, and also seeks guidance on the meaning of the expression “illicit device”.
This case could have a huge impact on the whole issue of copyright for broadcasts, and the idea that rights may be licensed to exclusive licensees in particular member states (for considerable sums) As the licensing methods under consideration in this case are also employed in other forms of sports broadcasting, the outcome will be closely awaited, given its potential to impact the industry’s approach to these issues.

YouTube Copyright Case
Both Viacom and Google have now asked a federal court for summary judgment in their copyright infringement case: Google says it doesn’t knowingly store or play copyrighted clips on the site, and if it does, it is protected by the Digital Millennium Copyright Act. Google also cites last year’s ruling in the Veoh/Universal Music Group case, in which a court ruled in favour of the Youtube. Viacom reiterates its initial argument, which is that Google and YouTube knew what they were doing and profited from it, which means the DMCA does not protect them.

Google should be feeling confident in this case, although one suspects that this case has a few more years in it yet.

Social Media
There’s an App for that. Yes, as we all get more mobile it has now become essential for your website/service to have an App (iPhone/Android/Symbian) people – myself included - now take whether or not there is an app to allow seamless access via mobile online into account before signing up for/using online services. (Yes, Shelfari, Library Thing etc this is why I don’t use you anymore)

Facebook Phone?
Google Buys Twitter?
Google Buys Evernote?
Nokia Buys Evernote?

The House of Lords have had their second day debating the Digital Economy Bill, and started talking about the issue that takes up most of the bill – Online infringement of copyright, which covers clauses 4-17 of the bill. The first amendments discussed would come before Clause 4.

Lord Razzall moved an amendment to insert a new clause on the obligations of copyright holders that that any ‘copyright holders seeking to take action against subscribers for online copyright infringement must use the process set out in sections 124A to 124E of the Communications Act 2003 except in cases of actual or likely extreme prejudice.’

This clause was mainly aimed at stemming tide of solicitors letters accusing people of illegal file-sharing and the treat of court action unless they pay up. Lord Howard, whilst agreeing that this was undesirable argued that the reduction in this practice should be a natural consequence of the successful implementation of this part of the bill, not a result of our having imposed a legislative block on rights holders “The difficulty of successfully suing someone through the judicial process for these copyright breaches is well established. The large number of people involved in file-sharing, the enormous number of files being shared and the low value of each individual copyright breach all point to our hope that the provisions lead to a significant reduction in illegal sharing without the courts being used.”

Lord Birt and Lord Triesman argued that the current bill is a proportionate response to the problem of illegal file sharing; Lord Whitty disagreed “it is not sensible to approach it by effectively alienating large chunks of the population when there is an alternative. The alternative may take longer, but it is clear that, both in the present system of going to the courts and in the potential of the system proposed in the Bill, proportionality will go out of the window.”

Lord Davies emphasised that the bill is not about criminalising people, and that “the behaviour we are tackling is civil infringement, not a criminal one.” He also said the “Peer-to-Peer file-sharing is already illegal “; a point picked up on by Earl Errol who stresses that the phrase used should be “peer-to-peer unlawful file-sharing.”

Lord Lucas – who declared that his main income from outside of the house is from the sale of copyright material – once again pointed the finger of blame at the copyright holders, in particular the film industry: “People love going to the cinema to see something like “Avatar”. It is an extraordinary experience on a big screen. However, why do the companies not sell DVDs and allow the downloading of copies of the film at the same time? It would not reduce their cinema take; it is nothing like the same experience. It just gives people who would never go to the cinema the chance to see the film. These companies created the piracy problem. They are continuing to create it. We must not, in this Bill, give them the illusion that they can stay where they are and that beating up on their customers is the solution to all their problems. ”

Amendment Withdrawn

Lord Clement-Jones then moved an amendment relating to compliance with fundamental rights, and a statement that the Secretary of State must demonstrate that any measures are proportionate and necessary and balance the rights of public and rights holders under ECHR before they are implemented.

His proposal was supported by Lord Lucas and Whitty, Baroness Miller and Earl Errol who stressed the importance of the bill being compliant with the wording of the new Framework Directive. The Government (Lord Davies) replied that “believe, of course, that the Bill is consistent with the EU framework provisions.” Lord Clement-Jones was not convinced: ” The Minister claimed that the Bill is compliant with EU law. He claimed that elements such as the fact that subscribers can be heard as a right of appeal make the Bill compliant. The reason for the amendment is that we do not believe that the Bill is compliant with those principles. There is a lack of specific statement about the burden of proof, the allocation of costs, and the quality of the evidence. There are many aspects that need to be explicit but are not stated. We need a set of guiding principles.”

Amendment Withdrawn

Clause 4: Obligation to notify subscribers of reported infringements

A group of amendments tabled to clarify the text of the bill including: making clear that the information provide to copyright holders/ISPs is of alleged breach of copyright not of infringement itself; the bar being set too low for the evidence needed by rights holders, in particular by making evidence needed simply the ‘appearance’ of copyright infringement; the removal of the term ‘unlawful peer-to-peer filesharing’ from the obligation to notify subscribers of copyright infringement clause making it about any copyright infringement; and the question of defences for internet subscribers who connection was used by others to download/upload copyrighted material.

Earl Errol stated the issue of ‘alleged’ breach was an example of where the text should be change to ensure compliance with EU law.

Lord Young responded that the text did not need changing as “Clause 4 already expressly recognises that the infringement described in a copyright infringement report is only “apparent”. Equally I think that the copyright infringement reports amount to more than mere allegation. New paragraph (b) requires the copyright infringement report to include, “a description of the apparent infringement” as well as evidence that shows the subscriber’s IP address and the time at which the evidence was gathered, so that there will be-I stress this-a clear and robust audit trail.”

Lord Young also told the Lord the government had provided ‘a draft outline of the initial obligations code’ , which according to Lord Clement-Jones includes statement that “The CIL will facilitate targeted civil action by copyright owners against the most serious alleged infringers”

Lord Whitty was concerned that the scope of the bill seemed to have been expanded beyond dealing will illegal p2p file-sharing and widened to potentially all forms of infringement and over all technologies. Lord Young replied that he could not see how restricting these provisions could do anything other than prevent the possible future beneficial use of the provision should the occasion arise. Lord Whitty remained concerned that having an open-ended extension to other forms of copyright violation – especially ones where rights holders already had the right of redress in the courts was “quite dangerous.”

Baroness Miller questions the effect the drafting of the bill will have on corporate and communal facilities such as Internet Cafes, communal wi-fi, university networks etc, concluding that as drafted it would be “extremely discouraging” to anyone wanting to provide such connection.

Lord Young “We recognise that libraries, other wi-fi operators and open-access providers such as universities serve an important function …We do not think that they are caught as individual service providers, which we think they are not, or as consumers However, the fact remains that they can take easy steps to prevent infringers using their connection. They can apply controls so that file-sharing sites are blocked at a subscriber level, particular protocols are blocked or that the amount of bandwidth available is limited to make file-sharing on such connections unrealistic.” In response to a follow up question of would action be taken against those who didn’t adopt these controls, he added the government had “no intention of penalising communal organisations unreasonably.”

Baroness Miller asked why a person should face having their internet access curtailed in anyway due to the actions of others and points to the fact that if a friend borrows your car and gets caught speeding it will be them, not you who is liable for the fine and penalty points. The bill as drafted however would still make the person providing the connection, the internet subscriber , solely liable.

Lord Davies responded that you had to start somewhere and that if someone received an initial letter they could then take measures to prevent further misuse of their connection if they had not been the alleged infringer themselves.

Lord Clement-Jones, Lord Lucas and Baroness Miller all asked Lord Davies and the government to set out what defences would be available to someone who receives these letters. If not in the bill would they be in the ICR code? Lord Davies avoids answering the question and merely says “. If it reached the stage that the subscriber had got past the early stage and the issue was of such seriousness that the copyright owner was concerned to take court action, all the normal defences under copyright legislation would apply and the defendant would be within the framework of law in the same way as for any other offence. The Bill does not change or challenge that.”

Earl Errol, supported by Baroness Miller, requested that the government commit to giving a legal definition of ‘allowed’ in ‘ a subscriber to an internet access service has allowed another person to use the service’ citing the debated on the Computer Misuse Act and a discussion over the word ‘likely’, which was subsequently dropped from that bill. “In common usage the word “allowed” would mean that I had given positive approval to an action. However, I am not sure that that is the legal definition. It may be that “failure to prevent” is the legal definition…I would like by the next stage of the Bill to have a proper legal definition of “allowed”.”

Baroness Miller added that “the fundamental issue is that the subscriber is still, in the way that this is drafted, in the box labelled “guilty” until proven innocent. The Ministers may shake their heads, but until they have defined “allowed” then the subscriber is in the box marked “guilty” because they are not able to prove that they are innocent without going through the whole rigmarole of what is allowed in the Bill.”

Amendments withdrawn/not moved/unallocated

Lord Razzall also tabled an amendment that sought to add that A “copyright infringement report” is a report ” includes a sworn statement by the person making the report that the information collected has been obtained in compliance with all relevant laws, including data protection and privacy laws, and by persons entitled to gather such information.” Lord Davies responded that this will be cover by the ICR code, and that it was not usual practice to put a requirement in legislation that it should be implemented in accordance with existing legislation.

Amendments withdrawn/not moved.

Meanwhile Lord Mandelson was penning an amendment to be tabled on the controversial ‘ Clause 17′, which gives the government power to amend the Copyright, Designs and Patents Act 1988.

Current clause in bill.

Lord Mandelson’s amended clause would read:

17 Power to amend copyright provisions

In Part 7 of the Copyright, Designs and Patents Act 1988 (miscellaneous and

general) after section 302 insert—
15
“Prevention or reduction of online infringement of copyright

302A Power to amend Part 1 and this Part

(1) The Secretary of State may by order amend Part 1 or this Part for the
purpose of preventing any infringement of copyright by means of the internet if satisfied that—
(a) the infringement is having a serious adverse effect on businesses or consumers, and
(b) making the amendment is a proportionate way to address that effect.

(2) The following provisions apply to the power conferred by this section.

(3) Subsections (4) to (6) do not limit that power.

(4) The power may be exercised so as to make new provision or to amend
25
or repeal provision (whenever made).

(5) The power may be exercised so as to—

(a) confer a power or right or impose a duty on any person;

(b) modify or remove a power, right or duty of any person;

(c) require a person to pay fees.
30
(6) The power includes power to—

(a) make different provision for different cases;

(b) make transitional or saving provision;

(c) make any consequential amendment, repeal or revocation of

provision (whenever made) contained in or made under an Act.
35
(7) The power does not include power to create or modify a criminal

offence.

(8) An order under this section must be made by statutory instrument.

“(9) The Secretary of State may not make an order under this section unless—
(a) the Secretary of State has consulted the persons the Secretary of State thinks likely to be affected by the order (or persons who represent such persons) and such other persons as the Secretary of State thinks fit;
(b) following that consultation, the Secretary of State has laid a draft order and explanatory document before Parliament in accordance with section 302B; and
(c) the order is made in accordance with section 302C.
302B Draft order and explanatory document laid before Parliament
(1) If, after the conclusion of the consultation required by section 302A(9), the Secretary of State considers it appropriate to proceed with the making of an order under section 302A, the Secretary of State must lay before Parliament—
(a) a draft of the order, together with
(b) an explanatory document.
(2) The explanatory document must—
(a) describe the infringement of copyright that the Secretary of State is satisfied is having a serious adverse effect on businesses or consumers;
(b) describe the effect;
(c) explain why the Secretary of State is satisfied that making the amendment is a proportionate way to address that effect;
(d) give details of the consultation undertaken under section 302A(9), any representations received as a result of the consultation, and the changes (if any) made as a result of such representations.
(3) Where a person making representations in response to consultation under section 302A(9) has requested the Secretary of State not to disclose them, the Secretary of State must not disclose them under subsection (2)(d) if or to the extent that to do so would (disregarding any connection with proceedings in Parliament) constitute a breach of confidence actionable by any person.
(4) If information in representations made by a person in response to consultation under section 302A(9) relates to another person, the Secretary of State need not disclose the information under subsection (2)(d) if or to the extent that—
(a) it appears to the Secretary of State that the disclosure of that information could adversely affect the interests of that other person; and
(b) the Secretary of State has been unable to obtain the consent of that other person to the disclosure.
(5) Subsections (3) and (4) do not affect any disclosure that is requested by, and made to, a committee of either House of Parliament charged with reporting on the draft order.
302C Super-affirmative procedure
(1) The Secretary of State must have regard to—
(a) any representations,
(b) any resolutions of either House of Parliament, and
(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft order,
made during the 60-day period with regard to the draft order.
(2) If, after the expiry of the 60-day period, the Secretary of State wishes to make an order in the terms of the draft, the Secretary of State must lay before Parliament a statement—
(a) stating whether any representations were made under subsection (1)(a); and
(b) if any representations were so made, giving details of them.
(3) The Secretary of State may after the laying of such a statement make an order in the terms of the draft if it is approved by a resolution of each House of Parliament.
(4) However, a committee of either House charged with reporting on the draft order may, at any time after the laying of a statement under subsection (2) and before the draft order is approved by that House under subsection (3), recommend under this subsection that no further proceedings be taken in relation to the draft order.
(5) Where a recommendation is made by a committee of either House under subsection (4) in relation to a draft order, no proceedings may be taken in relation to the draft order in that House under subsection (3) unless the recommendation is, in the same Session, rejected by resolution of that House.
(6) If, after the expiry of the 60-day period, the Secretary of State wishes to make an order consisting of a version of the draft order with material changes, the Secretary of State must lay before Parliament—
(a) a revised draft order; and
(b) a statement giving details of any representations made under subsection (1)(a) and of the revisions proposed.
(7) The Secretary of State may after laying a revised draft order and statement under subsection (6) make an order in the terms of the revised draft if it is approved by a resolution of each House of Parliament.
(8) However, a committee of either House charged with reporting on the revised draft order may, at any time after the revised draft order is laid under subsection (6) and before it is approved by that House under subsection (7), recommend under this subsection that no further proceedings be taken in relation to the revised draft order.
(9) Where a recommendation is made by a committee of either House under subsection (8) in relation to a revised draft order, no proceedings may be taken in relation to the revised draft order in that House under subsection (7) unless the recommendation is, in the same Session, rejected by resolution of that House.
(10) Subsections (3) to (5) of section 302B apply in relation to the disclosure of representations under subsections (2)(b) and (6)(b) of this section as they apply in relation to the disclosure of representations under subsection (2)(d) of that section.
(11) For the purposes of subsections (3) and (7) an order is made in the terms of a draft order if it contains no material changes to the provisions of the draft order.
(12) In this section the “60-day period” means the period of 60 days beginning with the day on which the draft order was laid before Parliament under section 302B.
(13) In calculating the 60-day period no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.”

The Digital Economy Bill was debated for the first time in the UK’s House of Lords this week.

As is the case with the bill as a whole the main points of discussion centred around the provisions to deal with copyright and p2p filesharing, indeed it even offered an opportunity for Peter Mandelson to practice his stand-up comedy routine: ” I recognise that this House is probably the one place in Britain where peer-to-peer file-sharing is associated more with passing notes in the Lords’ tea room than with piracy”

He hit out at critics who have suggested that the government’s policy to tackle the problem of illegal filesharing focuses on coercion, saying this “is quite wrong” and that “there is a primary role for education about the value of copyright, and a very clear obligation on the creative industries to get their act together and build business models that provide access to content at a cost that makes the risk of breaking the law an unattractive option.”

It seemed that some of the critics he referred to were in the Lords. Lord Lucas seemed to sum up the views of many when he questioned where was the stick for the entertainment industries to go with the truck load of carrots the government were providing: ” We also need to bear in mind that the problems now facing the industry are, to quite a large extent, of their own creation. The industry has been extremely slow to listen to the demands of its customers, and has had something of an abusive relationship with them, seeking to punish them before thinking of how to serve them better. It has taken a decade for the industry to produce sensible alternatives to illegal file-sharing, and the fact that a generation of people have become used to an illegality comes down to the industry’s sluggishness. It is still slow. The football people have complained that there are sites where people can download streaming video of premier division matches. All that the companies offer is an annual contract for several hundred pounds. They do not offer per match deals at a reasonable price. If companies treat their customers in that way, they really should not be surprised that their customers try to get round the system.”

The presumption of innocence and due process where also high on the minds of some Lords, with Lord Whitty making the comparison with the theft of a physical product: ” the shoplifters who steal the actual DVD, which is worth a lot more than the rights of an individual download to the rights holders, have a fair trial and are subject to due process. They do not receive a letter, but, at the first attempt of enforcement, they are subject to due process. However, in this system, due process enters the equation only at appeal stage.”

Many of the Lords criticised the government for not delivering a draft of the code which would set out how the process for alerting people about alleged infringement and the appeals process would function. This, the Lords said, was the critical part of the provisions they were being asked to approve. Lord Clement-Jones expressed the views of several Lords when he said “the terms of the all-important initial obligations code must make it clear what those thresholds are. The thresholds must be proportionate and must not be set too low. We should know what they are before the Bill goes through the House.”

Other Lords questioned whether the internet provisions in the bill would actually do more to stifle the growth of a digital economy rather than growing it. Baroness Miller pointed to the potential effect on free wi-fi networks, pointing to the planned town-wide network due to launch in Swindon. She also agreed with Lord Lucas and questioned why the bill choose not to encourage new models but to protect the old models and why it “seeks to make one industry that has seen phenomenal growth, investment and innovation-the internet service providers-pay for the protection of another sector.”

One issue, however, united the Lords more than any other and that was Clause 17, which gives the government “a power to amend the Copyright, Designs and Patents Act 1988 in future, to reflect fast-changing technology.” Lord Razzall summed up the feeling on the clause – called a Henry VIII clause by Lord Clement-Jones - by stating:”Clause 17, which effectively gives the Government power to alter copyright law by statutory instrument, should be rejected. .. I just think that if we are going to alter copyright law it has to be done by primary legislation, rather than by statutory instrument.”

This is a view echoed by Google, eBay, Facebook and Yahoo who have written a joint letter to Peter Mandelson this week asking for clause 17 of the to be deleted from the draft law.

According to the four “Clause 17 – which gives any future Secretary of State unprecedented and sweeping powers to amend the Copyright, Design and Patent Act – opens the way for arbitrary measures. This power could be used, for example, to introduce additional technical measures or increase monitoring of user data even where no illegal practice has taken place…This clause is so wide that it could put at risk legitimate consumer use of current technology as well as future developments. We all acknowledge that new business models need to emerge to support creative content. They are inherently risky and entrepreneurs rely heavily on there being a consistent and stable approach to copyright enforcement. This clause would inject an unprecedented level of uncertainty in this regard. The industry as a whole had hoped that the outcome of Digital Britain would be a clear, workable set of principles by which the industry could operate. On the contrary, Clause 17 creates uncertainty for consumers and businesses and puts at risk the UK’s leading position in a digital Europe.”

The Bill itself has now goes into a Committee of the whole House of Lords where the first amendments to the bill will appear, and hoefully Clause 17 - for starters - will disappear.

According to the BBC the French National Assembly has passed the Hadopi law (by 296 to 233) which will implement a three strikes rule that would cut internet access to anyone ‘caught’ illegal file sharing. A new state agency, the Hadopi, would first send illegal file-sharers a warning e-mail, then a letter, and finally cut off their connection for a year if they were caught a third time.

The move comes as the UK music and film industries are putting pressure on Lord Carter to add a similar recommendation to his Digital Britain report.

The French move is a risky one, as it puts it on collision course with the European Union. Last week the European Parliament (EP) reinstated one of its first reading amendments for the EU’s new telecoms regulatory package by reinstating an amendment that guaranteed that an internet user’s internet access could not be restricted without a court ruling. “no restriction may be imposed on the fundamental rights and freedoms of end users, without a prior ruling by the judicial authorities (…) save when public security is threatened.”

The French Law which does not involve the accused person having their internet access blocked by any judicial authority would immediately be in breach of that law (if adopted). However: EU telecoms ministers, who have a final say on the EU legislation, could reject the amendment at a meeting on 12 June, but this would delay agreement and adoption of the whole telecom reform package for months. Also, as chances are there will be 12-24 months for Member States to implement any agreed new telecoms package; and that the infringement process of the European Commission is tediously slow (Countries are still only just being found in breach of EU law for the European Court of Justice for infringing the telecoms framework that was in place before the current one (which was passed in 2002); regardless of what the Commission eventually decides on this issue France may still go ahead with this plan.

In an open letter to David Lammy, UK Minister for Innovation, some of the UK’s most eminent economists and intellectual property scholars have hit out at government proposals to consider changing policy on copyright term extension for sound recordings.. The letter, which has also been sent to the Cabinet Office, the Treasury and the Culture Minister, voices serious concern at the lack of evidence justifying a change that seems to show the Government - like the European Commission who have also ignored their own evidence based research - prefers special interests over facts.