Ireland’s Post-SOPA Tsunami

I have made two corrections to this post in response to comments received after intial publication. They relate (a) to Micheal Martin’s comments in the Dail, a matter clarified in the accompanying footnote and (b) the fact that the Greens had already left the coalition government when allegations arose in February 2011 that new copyright enforcement measures were to be rushed through before the election. Happy to correct any further inaccuracies.

1. Is the Statutory Instrument and Irish SOPA?
The labelling of the copyright amendment as Ireland’s SOPA has been contested by some as inaccurate. There are differences, it is true. Most obviously SOPA is designed to target ‘foreign’ websites, whereas the Irish SI (Statutory Instrument) makes no distinction between foreign and domestic web sites.

Secondly the SI focuses on copyright questions whereas SOPA takes aim at a broader range of alleged ‘intellectual property’ infringements. Participants in the counterfeit medicine trade as well as suppliers of counterfeit materials to the military and federal agencies are made subject to increased punishments. In addition SOPA is more forensic, and paradoxically thus, transparent in the terms of the anticipated consequences: IP (internet protocol) blocking (probably jettisoned at this point), exclusion from search engine results, isolation from financing via advertising or payment systems.

But it is precisely as a result of the open-ended language of the Irish legislation that there is a justifiable fear that such means could be deployed at the discretion of an Irish judge. IRMA’s behaviour – from the negotiation of private enforcement agreements with Eircom to their current suit against the Irish state for the losses sustained as a result of unauthorised uses – indicates how ill-advised it is to make available such an unbounded instrument for their use – these people have just got a bad attitude.

Fianna Fail’s leader Micheal Martin said Sherlock was ‘perhaps not perfectly’ handling the ‘issue’^[1], which might appear unduly mild unless one recalls the allegations published in Siliconrepublic last February. Therein it was rumoured that the then Fianna Fail/Green coalition minority government intended to rush through copyright enforcement orders via Statutory Instrument just as they were about to be booted out by the electorate (this claim was later rejected by then minister Mary Hanafin).^[2]

Apart from the concerns about the substantive questions about legal consequences, there is a problem with method. When it takes a Freedom of Information request to discover that Enda Kenny held a private meeting last summer with the new head of the Motion Picture Association of America, former Democrat Senator Chris Dodd, then the suspicion that vested interests are intervening in a surreptitious manner to shape the law is fully justified. All the more so when it happens quietly in Castlebar ^[3].

A pattern emerges in the history of attempts to prevent users from sharing files, that of keeping the public at a safe distance from decision-making: private agreements between companies in the digital media market, closed-door audiences for lobbyists with political leaders, secondary legislation requiring no official vote so as to give form to the policy conclusions.

2. The Fight Against ‘SOPA Ireland’
StopSopaIreland went live on the evening of January 23rd, providing information on the amendment, a petition to register opposition, and appealing to users to contact local politicians. Within a week the petition had garnered 75,000 signatures, 50,000 of them identified as coming from Irish internet protocol addresses.

On the night of January 25th, a series of government websites were targeted and shut down by means of a distributed denial of service attack; twitter account AnonOpsSweden identified it as a response to the copyright proposals. In response to a question by independent TD Catherine Murphy, a fifteen minute exchange took place in the Dail on January 26th, and Sherlock later announced that a longer debate was scheduled for the 31st. As the campaign picked up steam a call circulated for a demonstration in Dublin on January 28th.

Demonstration against SOPA/ACTA & the Copyright Amendment, Dublin, January 28, 2012.
Photo by Dara Robinson.

Another demonstration has now been called in Dublin for next saturday February 4th, a day which will see coordinated protests against ACTA worldwide.

In an echo of the SOPA campaign there is an interesting contrast between the mood in online and offline media, and the a perceivable shift in the sense of how influential they are respectively. Forums such as boards.ie, and online only news operations such as thejournal.ie and broadsheet.ie have been important platforms for criticism of the proposals, whereas an earlier generation’s not especially informed attitudes can still call the print press home.

3. Empty Disavowals
For the reasons explained in section 1, Sean Sherlock’s protestations that the amendment is nothing like SOPA are unconvincing. He and his department have issued a bizarre commentary to accompany their draft amendment, which nominally purports top demonstrate why it is not like SOPA. This statement opens with the patently untrue claim that

‘We all subscribe to the freedoms, the opportunities and the access to information that the Internet provides us with’

because online copyright enforcement by definition means a limitation on that freedom. And there could be a reasonable argument as to whether or not that is appropriate, just as there is, for example, in the area of child pornography.

So why dissimulate, why can he not just spit it out and say ‘we are going to limit the freedom to do what you want on the internet and place obstacles to the free exchange of data because we believe that copyright protection wins out’? The answer of course is that the politicians are fearful of how that will make them appear in the public eye. They have watched the anti-SOPA tsunami break land in Washington DC and don’t like the look of what it has left in its wake.

Of course were they to be clear about this they would have to provide a justification for their reasoning. As pointed out by ALTO the government has not carried out any Regulatory Impact Assessment to assess the results of the proposed change. Therefore any economic basis for the change can only come from figures provided by one or other of the industries implicated (and the figures bandied about seem to emanate exclusively from the music industry), or else from some other source which has not been made public.

Rather than acknowledging what is obvious to even the most cursory examination of the copyright debate, that there is a fundamental disagreement as to the legitimacy and necessity for copyright as currently constituted, the commentary continues with a massive bluff:

“Ireland is very proud of the fact that we have a modern suite of intellectual property laws that by their very nature balance a range of competing interests and rights in a manner that is seen, right across the globe, as reasonable and proportionate.”

But the SOPA saga demonstrates that this is untrue. So does the long fight against the HADOPI three strikes law in France. As do the massive demonstrations against ACTA in Poland last week. And so does the continued popularity of filesharing as a phenomena despite a massive and sustained attack on its participants through legal action and propaganda presented as ‘education.’ And what about the legions of lawyers and economists opposed to measures strengthening and extending copyright, some of whom are against it altogether? Don’t pretend there is a consensus of ‘reasonable people’, that’s a fiction. The ease with which these initiatives previously passed had more to do with how their content and consequences were concealed from the public, and the lack of enthusiasm on the part of industrial era media companies, themselves amongst the greatest beneficiaries of the copyright ratchet, to aerate these debates fairly,

4. Dail Debate, January 31st
Undoubtedly the full debate will shortly be available online, but the crux of it was simple enough. All of the opposition parties (FF, SF and independents) opposed the SI, albeit for different reasons, arguing that it was inappropriate subject matter for executive fiat and merited primary legislation with a full debate, or that it should be delayed and a special committee set up to investigate.

As a practical matter independent TDs Stephen Donnelly and Catherine Murphy also submitted an alternative SI in consultation with TJ McIntyre and Simon McGarr. It contains safeguards for data protection and other fundamental rihts; limits availability of injunctions to cases where damages would be inadequate; shifts the legal and technical costs of the injunction from intermediary to applicant (copyright owner), and requires that lawful data transactions be unimpeded by any order of the court. In addition the SI would be applicable time period for the instrument to two years, during which time they would expect there to be a debate over, and drafting of, primary legislation.

Objections ranged from the impact it would have on foreign direct investment, the costs which would be imposed on websites willing to contest injunctions, that it was an error to target intermediaries rather than ‘perpetrators’ of copyright infringements, and more general concerns about the impact on individual rights and freedoms. Interestingly all speakers referred to the huge amount of email they had been receiving on the subject from concerned individuals.

Sherlock was not having any of it. He parsed the alternative SI, insisting that these concerns were either unfounded or inherently integrated in European Court of Justice cases such as Sabam v Scarlet. These limits would as a constrain against any judgicial temptation to grant excessive injunctions, and require their decisions and remedies to abide by the principle of proportionality i.e. balancing the interests involved. This insistence on judicial discretion was perhaps the most outlandish aspect of his speech. Whilst asserting that the SI did not mark any change in government policy, he went on to say that given the unpredictable nature of future scenarios, they would prefer to deal with them on a case by case basis. What he means then is that there is a new policy: judges will invent the policy on the basis of how they ‘feel’ about the matter whenever the cases should arise. Justice Charlton himself outlined the danger in this approach in the very EMI/UPC decision which sparked all this.

As regards any future primary legislation, Sherlock expressed a preference for the affected parties ‘getting together’ and listeners got a good dollop of the stakeholder palaver. Of course parties like IRMA/EMI/MPAA won’t be quite as motivated, having got a measure in the bag and satisfied themselves they can get what they want.

And In Conclusion?
Light comedy, amidst general cluelessness, was injected when FG TD Jerry Buttimer spoke of the online activists as ‘keyboard warriors, some bordering on anarchism’. But only a moment later we were brought back to reality with a bang: asked whether he planned to sign the SI or consider alternatives, Sherlock announced that he’d dealt with all concerns, would not change the wording and would be signing it into effect. He did not say when exactly.

To be continued?

¹ This section originally read: “Leader of the opposition, Micheal Martin grotesquely described Sean Sherlock’s handling of the process as ‘perfect'”. This report was contradicted in comments by Paul Sammon, (see below), based on the official record. Whether my mistake derived voices in my head or the result of poor audio is unclear. I can always hope an eventual review of the audio will vindicate me, but in the meantime gracious concession seems fitting 😉

According to the official record Micheal Martin’s comment was:

“The Minister of State, Deputy Seán Sherlock, is handling the issue of on-line copyright, although perhaps not perfectly at this stage. So far the handling of it is giving rise, correctly or otherwise, to a damaging perception of how this country views Internet freedom.”

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² The first version of this post was corrected after a reminder from commenter Paulie Doohan that in the Green Party had in fact left the government, leaving FF on their own by the end of January 2011. Green TD Eamonn Ryan (formerly Minister for Communications, Energy and Natural Resources), blew the whistle on attempts to sneak copyright enforcement measures through the back door. Back to post

³ ‘Kenny met US online piracy campaigner’, Colin Coyle and Mark Tighe , The Sunday Times, 28th January 2012 (behind paywall). Back to post