Net neutrality matters. The basic principle of equal access to the internet – and consequent absence of discriminatory restrictions upon or priorities for ISPs, governments, classes of content, kinds of equipment, or modes of communication – is crucial to the preservation of online freedom, ensuring that the internet remains a free, open, and democratic forum of communication. Much of the debate has concentrated on the position in the US, especially after the recent Federal Communication Commission’s (controversial) Open Internet initiative. However, the Canadian Radio-television and Telecommunications Commission had already issued its (equally controversial) internet traffic management review; and the EU has recently conducted a public consultation on The open internet and net neutrality in Europe.

Dr Daithí Mac Sithigh (UEA | Lex Ferenda | @macsithigh) has written a superb paper on net neutrality in the EU and Canada ((2011) 14(8) Journal of Internet Law 3; via SSRN):

Regulating the Medium: Reactions to Network Neutrality in the European Union and Canada

Abstract: In this contribution on network neutrality, the expression-related elements of this issue are considered, including a case study of Ireland, highlighting the broad powers enjoyed by ISPs, and discussing whether the problem is a genuine one. While noting that the matter has been the subject of various publications by a sizable number of US scholars, space is then given to comparing the state of the debate in Europe, Canada, and the United States, drawing on principles of telecommunications law. It is argued that the link between telecommunications and media regulation is at the heart of the net neutrality debates in Canada and (to a lesser extent) the European Union, and that the non-applicability of certain US doctrines in these jurisdictions (due to different market conditions and the established role of competition law) does not mean that regulatory or legislative action is unnecessary. Finally, it is contended that the consideration of net neutrality in the context of important social and political debates regarding speech, plurality, and innovation is a better approach than one focused on ex post identification of the most egregious examples of discriminatory practices.

Update (10 March 2011): Ars Technica reports that a key subcommittee of the US Congress has voted to undo net neutrality rules.

A little later than promised, here are some thoughts that occurred to me at the recent seminar on Promoting innovation – Reshaping the Law for the Digital Economy (which I blogged here and here). In the same way that browsers have a constant battle between features and speed, so the modern law of copyright is faced with a similar dilemma between encouraging and rewarding innovation. It is becoming increasingly clear that it has not solved this dilemma in a particularly satisfactory way. More than that, the most popular emerging solution – the introduction of a fair use defence to EU law – may not be sufficient for current needs, let alone for future developments.

At the seminar, Johnny Ryan argued that with the rise of the internet, where everything is in perpetual beta, we are in effect are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Copyright is a feature of this period: in the 1500s, it developed to protect the publishers; in the second half of the 1600s it came under increasing pressure to protect authors, and this was codified in the Statute of Anne, 1710; thereafter, the statutory protections were slowly expanded to other creators of other original works. The fundamental (even if increasingly questioned) justification for this development is that the copyright monopoly encourages the creation of original works.

This development of copyright has been a very slow process, but two current issues are putting significant pressure on this slow pace. The first is the evolution beyond the static to the plastic described by Johnny Ryan; the second is that the rate of this change is exponentially faster than heretofore. Copyright rules rules created for static texts which at best change slowly are rules that are ill-adapted to faster change and inappropriate to the modern reality of plastic texts. Read the rest of this entry »

As I said my first post yesterday, last Friday morning I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy, hosted by Google Ireland, co-sponsored by the Institute for International and European Affairs (IIEA), and chaired by TJ McIntyre. In that post, I summarized the presentations by Johnny Ryan (the internet has created a hinge in history when information is plastic and copyright law is a block upon total commerce) and Niall O’Riordan (for Google, a fair use doctrine in Ireland and Europe is an idea whose time has come). In this post, I’ll look at last Friday’s other presentations; and in tomorrow’s post, I’ll add a few comments of my own on some of the issues raised by the seminar.

Kate O’Sullivan (Director of Regulation and Public Policy, UPC Ireland) pointed out that intermediaries (such as Google, Facebook, and ISPs) are caught in the middle between content producers seeking to enforce their rights as against users, and it is not appropriate that ISPs should be judge and jury in such a cause. Section 40(3) of the Copyright and Related Rights Act, 2000 (also here) provides that the mere provision of facilities by an ISP, for example, which enable the making available to the public of copies of a work “shall not of itself constitute an act of making available to the public of copies of the work” and therefore shall not for that reason amount to a copyright infringement.

She examined the main rights of each of the three main involved: rights holders, subscribers, and intermediaries. Read the rest of this entry »

Last Friday morning, I attended a seminar on Promoting innovation – Reshaping the Law for the Digital Economy (Irish Times | SiliconRepublic here and here). It was hosted by Google Ireland and co-sponsored the by Institute for International and European Affairs (IIEA); and the morning was very ably chaired by TJ McIntyre (blog | Chair, Digital Rights Ireland | Consultant, Merrion Legal | UCD). There were five presentations; in this post, I’ll deal with the first two; in the next tomorrow’s post, I’ll deal with the remaining three; and in a third post, I’ll add a few comments of my own on some of the issues raised by the seminar.

First up was Johnny Ryan (IIEA | author A History of the Internet and the Digital Future) speaking on “A hinge in history: the conditions of the digital future and the need of rights reform”, and setting the scene for the debates that would follow. (Update: Johnny comments below that video of his presentation is now available). For him, we live in the age of the perpetual beta. Before Gutenberg’s printing press, hand-transcribed manuscripts made information fluid. By contrast, after Gutenberg, the printed book fixed information in static form. But now, online, information is very flexible and plastic, again. Consider a wikipedia page: everything is open to challenge and experimentation – and perpetually beta. We are reverting back to the pre-Gutenberg plasticity of information. In historical terms, this is the norm. It is the post-Gutenberg era of fixed information which is the anomaly. Because of the internet, we have moved from a read-only (RO) culture to a read-write (RW) culture, a remix culture, where we can all adapt and re-invent, and this participation can be anywhere: anyone can be Andy Warhol, and the internet can be your Factory. This is the hinge in history of his title.

He argued that as we have moved from a RO to a RW culture, so can we move from RO to RW business. Read the rest of this entry »

It all began innocently enough: just before Christmas, Sunday Times journalist John Burns wrote a piece lamenting the shortcomings of blogging in Ireland. Leading bloggers naturally begged to differ. A month later, the spat was picked up by Trevor Butterworth writing on Forbes.com, who noted that “it’s hard to think of a free country more suited to blogging than Ireland”. By the same token, it’s at least as hard to think of a country more given to litigation; and the point was illustrated by a story retailed almost en passant in Butterworth’s piece:

As one journalist told me, Ireland’s media is currently abuzz over a “confidential” legal settlement against a blogger, who allegedly had to pay almost $140,000 in damages for a libelous post, seen by few, swiftly purged from the site, and readily apologized for.

This was intriguing. By the end of the week, John Burns in the Sunday Times had the full story:

A blogger has agreed a €100,000 settlement after libelling Niall Ó Donnchú, a senior civil servant, and his girlfriend Laura Barnes. It is the first time in Ireland that defamatory material on a blog has resulted in a pay-out. … In December 1, 2006, a blogger who styles himself as Ardmayle posted a comment about the couple … Following a legal complaint, he took down the blog and in February 2007 he posted an apology which had been supplied by Ó Donnchú’s and Barnes’ lawyer … However, the pair subsequently issued separate proceedings. It is understood that the €100,000 settlement was agreed shortly before the case was due before the High Court.

Indeed, there had been quite a detailed report at the time in the Sunday Independent; and in the last week, many blogs have pored over the story.

There’s nothing new in online defamation; the same basic legal principles apply online as they do offline; the medium may change, but the legal consequences of the message remain the same. Read the rest of this entry »

I suppose if I spent ages thinking about it, I could find a spurious thread linking three stories that caught my eye over the last few days, but in truth there is none, except that they update matters which I have already discussed on this blog. (Oh, all right then, they’re all about different aspects of freedom of expression: the first shows that copyright should not prevent academic discussion; the second shows that hecklers should not have a veto; and the third is about broadcasting regulation).

First, I had noted the proclivity of the estate of James Joyce to be vigorous in defence of its copyrights; but it lost a recent case and now has agreed to pay quite substantial costs as a consequence:

Joyce estate settles copyright dispute with US academic

The James Joyce Estate has agreed to pay $240,000 (€164,000) in legal costs incurred by an American academic following a long-running copyright dispute between the two sides. The settlement brings to an end a legal saga that pre-dates the publication in 2003 of a controversial biography of Joyce’s daughter, Lucia, written by Stanford University academic Carol Shloss. …

More: ABA Journal | Chronicle | Law.com | San Francisco Chronicle | Slashdot | Stanford CIS (who represented Shloss) esp here | Stanford University News (a long and informative article).

Second, I have long been of the view that hecklers should not be allowed to veto unpopular views, and none come more unpopular that holocaust-denier David Irving. Now comes news that NUI Galway’s Lit & Deb society have withdrawn their controversial invitation to Irving for security reasons:

David Irving address in NUIG cancelled due to ‘security concerns’

The proposed visit of the controversial historian David Irving to the NUI, Galway Literary & Debating Society has been cancelled. In a statement the Lit & Deb said the cancellation was “due to security concerns and restrictions imposed by the university authorities”. …

Read the rest of this entry »

Following on from my comments about email disclaimers, via TJ and OUT-LAW.com here and here, I learn of the decision of the Court of Appeal in England and Wales in Patchett v Swimming Pool & Allied Trades Association Ltd [2009] EWCA Civ 717 (15 July 2009) on the efficacy of website disclaimers. The plaintiffs asserted that they had suffered financial loss by relying on a mistaken statement on the defendants’ website, and the defendants countered that that clause on the site which urged visitors to the site to make further enquiries effectively disclaimed liability. In the Court of Appeal, Lord Clarke MR for the majority (Scott Baker LJ concurring, Smith LJ dissenting) held, at pargarph 39:

… I do not think that it can fairly be held that [the defendants] assumed a legal responsibility to the [plaintiffs] for the accuracy of the statements in the website without the further enquiry which the website itself urged.

And, in the next paragraph, he concluded:

When application was being made for permission to appeal it was suggested that special considerations apply to representations on websites. I do not think that the mere fact that the representations were contained on a website supports the conclusion that a duty of care is owed. As ever, all depends on the circumstances. Some websites are interactive and it may be possible, applying the principles outlined above, to conclude in particular circumstances that a duty is owed. However, I agree with the judge that that is not the case here.

So, website disclaimers can be effective in principle, but – as ever with the law – whether they are in any given situation will turn on the facts of the case. I supposed I’d better see to a disclaimer for this site then.

The European Legal Network, a professional network of legal experts facilitated by the Freedom Task Force which promotes free software licensing as part of the work of the Free Software Foundation Europe, has just announced the launch of the International Free and Open Source Software Law Review. It is a peer reviewed biannual journal for high-level analysis and debate about Free and Open Source Software legal issues, and it will receive financial and administrative support from the NLNet Foundation, which supports organizations and people that contribute to an open information society. Edited by Andrew Katz and Amanda Brock, its focus includes copyright, licence implementation, licence interpretation, software patents, open standards, case law and statutory changes. Unsurprisingly, it operates a strong Open Access Policy, providing immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge.

Given recent developments relating to Creative Commons licences for Ireland, I was particularly taken by two pieces in the first issue discussing Jacobsen v Katzer and Kamind Associates 535 F.3d 1373 (Fed.Cir.2008) (pdf), in which the Court of Appeals for the Federal Circuit granted a preliminary injunction to enforce the terms of the OSI’s open source Artistic Licence (see JOLT | Lessig | OSI | Stanford CIS; Brian F Fitzgerald and Rami Olwan “The legality of free and open source software licences: the case of Jacobsen v. Katzer” in Mark Perry and Brian F Fitzgerald (eds) Knowledge Policy for the 21st Century (Irwin Law, Canada, forthcoming) (abstract).

Long may the International Free and Open Source Software Law Review prosper!