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Comments

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The US Vs. Europe: Freedom of Expression Vs. Privacy

Grumbleduke Re:The Problem Isn't "Free Speech vs Privacy" (278 comments)

Just to clarify the EU court ruling didn't say:

1. You have no right to be forgotten by the Newspaper that published the story
2. You have a right to be forgotten by search engines.

It said something like:

You may have a right to be forgotten if your right to privacy in certain information outweighs the public interesting in knowing and accessing the information, and if removing the information from a search engine is a proportionate response.

EU law is often drafted in terms of proportionality, and the CJEU doesn't usually rule on the facts of a case, just gives guidance on interpreting the law. The key parts were that a search engine didn't have immunity just because it didn't host the original content (it was still processing data) and that just because the information was still available on a website didn't mean that removing it from a search engine was necessarily a waste.

about 4 months ago
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EU Court of Justice Paves Way For "Right To Be Forgotten" Online

Grumbleduke Re:Bad cases make bad law (199 comments)

I think that Google did make that point; it is Question 2(d) of the reference, and dealt with in paragraphs 62-88. I think whoever wrote that line meant to say that they'd failed to convince the Court of that point, rather than that they hadn't made it.

Imho this ruling isn't as "evil" or "censorship-based" as some commenters have made out, but also isn't nearly as pro-individual privacy.

As with most EU law, it comes down to proportionality; balancing the gain to the individual's right to privacy by removing the search result against the trouble to remove it (very low weighting) and the public's freedom of expression/right to know it (can vary).

In theory this is great; you and I can get the awkward things we did when we were young scrubbed before they turn up with job applications, but evil corporations can't use it to bury their dirty secrets, or politicians to hide uncomfortable pasts.

In practice, however, this kind of balancing is very expensive to do - and the Court seems to be encouraging direct claimant/search engine interactions (rather than going through the domestic courts), so we could see search engines just agreeing to take down everything they're told because they don't want to pay to fight or even examine the claims - as with defamation or copyright claims.

[It's also important to remember that this is a ruling on a 20-year-old law, the law technically hasn't changed, this is just the first time the CJEU has been asked whether search engines "process" personal information etc..]

about 5 months ago
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EU Court of Justice Paves Way For "Right To Be Forgotten" Online

Grumbleduke Re:Bad cases make bad law (199 comments)

Erm... Google did have standing. You can read the judgment of the court here.

Google was represented and their arguments are referred to throughout the ruling. Also represented were the Spanish, Greek, Polish, Austrian and Italian Governments, and the European Commission.

I don't think that it is possible to appeal Grand Chamber judgments in preliminary ruling applications such as this, but I could be wrong.

about 5 months ago
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Mathematical Proof That the Cosmos Could Have Formed Spontaneously From Nothing

Grumbleduke Re:...the first rigorous proof... of unprovables. (612 comments)

I'm sure the math can line up to make it "work" on paper but how exactly does one test such things?

You look for consequences of the theory. Things that would happen as a result of this, but which you won't expect otherwise.

A great example being the recent announcement by the BICEP2 people. The theory they were working on was inflation - which made the maths work on paper, but happened billions of years ago so was hard to test. But the theory predicted that inflation would have caused an "imprint" of gravitational waves in the microwave background radiation, something unlikely to happen otherwise - and these people were able to detect this imprint.

This is how science works sometimes. The theoretical physicists come up with a theory, the mathematicians prove it is possible and the experimental physicists find some consequence of the theory that can be tested.

about 6 months ago
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Jewish School Removes Evolution Questions From Exams

Grumbleduke Re:If you don't like it.... (431 comments)

Nope nope nope. Marriage isn't a right

It isn't the marriage which is the human right. It is the right not to be discriminated against on the basis of your sexuality or gender (or, in the case of mixed-race marriages in the US, race). Without same-sex marriage you have a situation where the state is saying "this couple can get married, but this couple can't because they are of the same sex."

Which is partly why same-sex marriage wasn't an issue in much of the Western world 40 years ago; discrimination on the basis of sexuality wasn't considered to be a thing - in some places same-sex relationships were still illegal. But that's progress for you.

I walk up to a pregnant woman, stab her in the gut, kill the 'foetus'. I should only be charged with assault (or possibly attempted murder).

I can't speak for most jurisdictions, but in England you couldn't be convicted of murder (or manslaughter etc.) unless the woman died. English law does not consider a foetus to be a "person", therefore it cannot be murdered.

However, if you were to cause damage to the foetus but it was still able to be born alive, then it becomes a person. If it subsequently dies as a result of your actions, that could be murder.

There is no universal definition of when life begins; there are something like 7 different points used across science and law, and ultimately someone has to make a judgement as to which definition will be used in each context.

about 7 months ago
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High Court Rules Detention of David Miranda Was Lawful

Grumbleduke Re:I have a question (169 comments)

Plus Miranda had very few specific rights when questioned; no right to a lawyer, no right to silence, possible prison time if he refused to co-operate.

about 7 months ago
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High Court Rules Detention of David Miranda Was Lawful

Grumbleduke Re:Did they read him his rights? (169 comments)

Except he didn't have any particular rights upon being questioned. No right to a lawyer, no right to silence etc.. Which is partly why this particular law is so controversial. If he had been arrested as a terrorist he would have had far more rights and greater protections.

about 7 months ago
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High Court Rules Detention of David Miranda Was Lawful

Grumbleduke Re:"Lord Justice Laws" (169 comments)

Except he was a claimant - English law abandoned plaintiffs a while ago.

But yes, Laws LJ has a great name for a judge, second only to the now-retired former Lord Chief Justice Lord Judge (born Igor Judge).

about 7 months ago
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High Court Rules Detention of David Miranda Was Lawful

Grumbleduke Re:Of course it's "lawful" (169 comments)

You've been reading the Telegraph too much.

No UK Court has ruled that prisoners have to vote (although many already can). The UK Supreme Court did rule that denying almost all prisoners the right to vote was incompatible with the European Convention on Human Rights, agreeing with the ECtHR. But they didn't order that any prisoner be given the vote.

The English and later UK Courts ruled against deporting Abu Qatada on the grounds that there was a real risk he wouldn't receive a fair trial in Jordan. It was clear from the beginning of the saga that this was an issue, and what the government needed to do to fix the issue, but pigheaded home secretaries decided to keep trying to deport him before fixing the issue. Once they had obtained the correct assurances he went quietly. A starting point for this case would be the final Court of Appeal ruling where they point out that Theresa May's appeal was fairly pointless, but they include the background and links to the earlier rulings. Incidentally, the first judgment involving him was in 2007, and first attempt to deport him was in 2005 - so the "decades" claim is false.

I can't find a copy of the third ruling; it wasn't made in 2014 or the last couple of weeks of 2013, and the article is lacking in any sort of citation. The article does, however, repeat the nonsense about judges ignoring the rules. The judges have been very clear that they have been applying the law as passed by Parliament, and whether or not Parliament approves of them, Theresa May's own departmental rules are not law and cannot overturn an Act of Parliament. Hence she's trying to put some stuff in the Immigration Bill to achieve the same thing (although there's a reasonable chance the Courts will declare that incompatible with the ECHR, or work around it to comply with the HRA).

I know that I'm a non-Telegraph-reading liberal, but I have nothing wrong with the first two cases mentioned, and cannot comment on the third in detail, but will generally go with a tribunal and appeals tribunal over the Telegraph when it comes to matters of fact or law.

about 7 months ago
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High Court Rules Detention of David Miranda Was Lawful

Grumbleduke Re:Of course it's "lawful" (169 comments)

There is also this one in 72, that shows the justices are really out of touch: "I accept that the Schedule 7 stop constituted an indirect interference with press freedom, though no such interference was asserted by the claimant at the time." So basically the justices expected a foreign citizen (Brazilian) to properly cite the UK legal code while being locked in a room by thugs. Seriously guys?!

That's not what they were saying (based on what I remember of the judgment and the witness statements). The argument was that at no point during the detention did Miranda claim to be a journalist or working in journalism at the time. Therefore the officers carrying out the detention had no reason to believe that they were interfering with press freedom on those grounds (they might have done so on others). There was no need for him to have cited the relevant English law (there's no "UK legal code").

This case was initially screwed by the fact that Miranda didn't give evidence. So the Court only had witness statements from the police officers, the UK Government and, eventually, Glenn Greenwald. So all the stuff about whether the length of time was reasonable wasn't questioned as there was no evidence to dispute it.

Another point worth making (that Laws LJ pointed out) is that while the text of the law may say that a police officer can do something, that doesn't mean that it is legal for the police officer to do that; there are other legal principles (such as common law/constitutional ideas, and duties imposed by other laws such as the Human Rights Act) that might stop it. So the main one referenced in the judgment was the common law requirement that police officers (and all public officers) act in good faith and with some justification.

If Miranda could have shown that the police officers didn't act in good faith (which he might have been able to do), the actions would have been illegal.

Personally I think that the Court thought that the stuff should have been legal, so took a very narrow and legally-precise approach to the case. If they'd wanted to find it illegal they could have taken a broader approach, looking at the context, questioning what the Government and Police were telling them. Hell, Laws LJ could have made up a completely new legal principle if he'd wanted to - it wouldn't have been the first time.

[Throwing away mod points for this, but this kind of thing is important to me.]

about 7 months ago
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Star Trek Economics

Grumbleduke Re:What do we do with all the people though? (888 comments)

Nobody likes the idea of paying somebody to sit around and do nothing. They want that for themselves.

Which is, perhaps, why these sorts of ideas have to be discussed in the context of fantasy and science fiction, where it is "safe" to discuss radical ideas. I've recently started re-watching Star Trek TNG and am surprised at just how anti-capitalist, anti-death penalty, pro-human rights, pro-socialism it is - but it works, because it is people in the twenty-fourth(?) century on a space ship.

The idea is, to quote First Contact, that "the acquisition of wealth is no longer the driving force in our lives, we work to better ourselves and the rest of humanity." Their society has got to the point where they don't care about money or ownership of stuff; they have recognised that it is meaningless. Or something like that.

about 7 months ago
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Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

Grumbleduke Re:or stop hiding... (377 comments)

Under English law, if someone is asleep there is a presumption that they have not consented to the sexual activity, and that the awake party (or parties) are aware of this.

However, it is just a presumption. If a defendant can raise some evidence to say that the other party had consented before (impliedly or explicitly), or they reasonably believed they have, the prosecution must then prove that there wasn't consent, and the defendant didn't believe there was.

So in most cases where someone is asleep and sex starts, it never gets reported to the police (even if it is, actually, rape). Alternatively, if it does come to the attention of the police, the victim might give evidence that they had consented (which might happen in Assange's case). In my limited understanding, these issues only go to the police when it is clearly rape, or there is some other factor. In Assange's case, it was they allegedly went to the police to ask if they could force him to take an STI test, and the police recognised that what was described could amount to rape etc. Which makes me wonder how many other women around the world have been in similar situations with him, but not felt able or willing to go to the police.

Being incapacitated with drugs etc. works similarly; there is a presumption of no consent, but the defence can try to remove it.

So in general, if you are likely to engage in any sort of sexual activity with someone, it is best to get a signed consent form filled out in advance (possibly witnessed) - at least, that's what I picked up from studying sexual offences...

about 8 months ago
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Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

Grumbleduke Re:or stop hiding... (377 comments)

What those quote are saying is that if the Swedish courts say he can be extradited, the Government can say he can't be.

However, that decision still has to be made legally; i.e. in accordance with the law. So the Government couldn't (I hope) refuse an extradition because it was one of their ministers and they liked him. They would need a reasonable ground (or whatever their legal equivalent is - I don't know much about Swedish extradition procedures, but I do about English ones). While I disagree with this article's conclusions, it has some stuff pointing out how the Government would have specific grounds for refusing an extradition request... but to me it seems perfectly reasonable for them not to give hypothetical guarantees - particularly if those guarantees are enshrined in law anyway (such as not extraditing people for political crimes, or in cases of discrimination and persecution). If they get an extradition request, they can dismiss it immediately if it is manifestly unfounded under one of these grounds (or any other ground) but until they receive a request, they can't know if that's the case.

about 8 months ago
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Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

Grumbleduke Re:or stop hiding... (377 comments)

If he is in Sweden, having been surrendered, then the UK's permission will be needed to extradite him further. That's in Article 28(4) of the Framework Decision on the European Arrest Warrant:

...a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law.

It doesn't matter if Sweden drops the charges or accusations, they couldn't extradite him to the US without permission from the UK.

On the Agiza and al-Zery issue, to me that is an argument against extraordinary rendition happening from Sweden; it was well over a decade ago, and caused such a huge scandal nationally and internationally, with changes to rules and laws, that it is unlikely to happen again, in an even higher profile situation, with a new government. Iirc there was likely to be a major investigation with legal action against the relevant Swedish officials, but that wasn't likely to go anywhere as the foreign minster at the time was murdered between the renditions and the scandal breaking.

Were Sweden to break the law and extra-judicially surrender Assange to the US, there would be a major international scandal, as they would be almost certainly breaking Swedish, EU and ECHR law, to help the US in what is probably already an unpopular situation. I don't think it would end well for the Swedish government - not least because they'd struggle to ever get an extradition or surrender warrant in similar circumstances ever again.

about 8 months ago
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Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

Grumbleduke Re:Extradition from Sweden is easier (377 comments)

I think the person who wrote that page may have been a little confused. If you read a bit further down they copy the relevant part of the US-Sweden supplemental treaty:

If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the territory of the requested State for a different offense, the requested State may:

b) temporarily surrender the person sought to the requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody while in the requesting State and shall be returned to the requested State after the conclusion of the proceedings against that person in accordance with conditions to be determined by mutual agreement of the Contracting States.

That's the temporary surrender procedure - but if you note the first 6 words, it only apples after the normal extradition process has been successful; it is for situations where extradition is approved by the suspect is already on trial or in prison in the extraditing state. So it still has to go through the traditional tests and so on.

Anyone asserting that extradition from Sweden to the US would almost certainly happen should be treated with scepticism, as there is little evidence to support this either way - until there is evidence that the US is actually charging Assange with anything. What we can be pretty certain of is that he will get his full due process in Sweden, then the UK, then the ECtHR, before he ends up in the US.

about 8 months ago
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Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

Grumbleduke Re:He will (377 comments)

The thing is, Sweden have a proven history of being active in extraordinary renditions---sending people to be tortured by the CIA---and the Swedish authorities refused to confirm that he wouldn't be bundled straight off to the US.

And the UK has also been implicated in the extraordinary rendition stuff. And there was a big scandal about it in Sweden (over the 2 people who were subject to it), and a big international investigation, and chances are that some people in Sweden would have got in a lot of trouble had the responsible minister not been assassinated. The European community in general is somewhat ashamed of its involvement in the US's extraordinary rendition operations, and has taken steps to prevent further breaches of law.

The two renditions happened in 2001, over a decade ago, and since then Sweden has significantly changed its rules on renditions (causing something of a diplomatic incident with the US in 2006). The fact that Sweden was proven to have been involved, and came out and put a stop to it arguably makes them safer than other places which haven't put the same sort of restrictions in place.

As for not confirming that they wouldn't bundle him off... iirc what they didn't do was say that they would refuse extradition (which is perfectly fair), rather than saying they wouldn't bundle him off (which would be illegal anyway).

about 8 months ago
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Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

Grumbleduke Re:or stop hiding... (377 comments)

The problem is that the guy in that video apparently hasn't read the actual treaty. Nor, it seems, have the people who wrote this page on Justice4Assange which has the video embedded and even quotes the relevant passage of the treaty.

VI. If the extradition request is granted in the case of a person who is being prosecuted or is serving a sentence in the territory of the requested State for a different offense, the requested State may:

b) temporarily surrender the person sought to the requesting State for the purpose of prosecution. The person so surrendered shall be kept in custody while in the requesting State and shall be returned to the requested State after the conclusion of the proceedings against that person in accordance with conditions to be determined by mutual agreement of the Contracting States. [emphasis added]

Yes, there is a temporary surrender provision, but it only applies if the extradition has already been approved, i.e. if the Swedish (and English, and European) courts have approved it.

about 8 months ago
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Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

Grumbleduke Re:or stop hiding... (377 comments)

For the US to extradite him from Sweden they'd also need permission of the UK (under the EU Surrender/Extradition Framework). Which means the case would first have to go through the Swedish courts, then the English courts, maybe the CJEU and probably the ECtHR.

In contrast, extraditing him from the UK would require just the English courts and ECtHR - so would be significantly easier.

about 8 months ago
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Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

Grumbleduke Re:or stop hiding... (377 comments)

According to the English High Court, the rape allegation comes from him having sex with someone while she was asleep - the non-use of a condom being an aggravating factor.

The not-using-a-condom is a separate offence of sexual molestation, with the other woman. He's also accused of a second count of sexual molestation against her (for rubbing himself against her, against her will) and one of unlawful coercion for using force against her.

And yes, from my understanding of Swedish law, they do have different degrees of "rape", and even if they don't, they will almost certainly have different levels of sentence.

about 8 months ago
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Assange's Lawyers: Follow Swedish Law, Interrogate Him In the UK

Grumbleduke Re:or stop hiding... (377 comments)

It seems that every time Assange comes up I have to paste this, so here goes. From the English High Court judgment, he is accused of 4 offences, as follows:

1. Unlawful coercion

        On 13-14 August 2010, in the home of the injured party [AA] in Stockholm. Assange, by using violence. forced the injured party to endure his restricting her freedom of movement. The violence consisted in a firm hold of the injured party's arms and a forceful spreading of her legs whilst lying on top of her and with his body weight preventing her from moving or shifting.

2. Sexual molestation

        On 13-14 August 2010, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity. Assange, who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used, consummated unprotected sexual intercourse with her without her knowledge.

3. Sexual molestation

        On 18 August 2010 or on any of the days before or after that date, in the home of the injured party [AA] in Stockholm, Assange deliberately molested the injured party by acting in a manner designed to violate her sexual integrity i.e. lying next to her and pressing his naked, erect penis to her body.

4. Rape

        On 17 August 2010, in the home of the injured party [SW] in Enkoping, Assange deliberately consummated sexual intercourse with her by improperly exploiting that she, due to sleep. was in a helpless state.

        It is an aggravating circumstance that Assange. who was aware that it was the expressed wish of the injured party and a prerequisite of sexual intercourse that a condom be used. still consummated unprotected sexual intercourse with her. The sexual act was designed to violate the injured party's sexual integrity."

So what he is is alleged to have done (whether or not he did so) is definitely rape under both Swedish and English law.

about 8 months ago

Submissions

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UK Pirate Party forced to give up legal fight

Grumbleduke Grumbleduke writes  |  about 2 years ago

Grumbleduke (789126) writes "The UK Pirate Party has been forced to shut down its proxy of The Pirate Bay. The Party had been running the proxy since April, initially to support the Dutch Party's efforts, then as a means of combating censorship after the BPI obtained uncontested court orders against the UK's main ISPs to block the site across the UK.

In a statement released through their lawyers, the Party cited the impossibly-high costs of legal action for their decision, but vowed to keep fighting for digital rights however they can."

Link to Original Source
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Canadian Judge Dissects 'Freemen' Pseudolegal Arguments

Grumbleduke Grumbleduke writes  |  about 2 years ago

Grumbleduke (789126) writes "While not new, the 'Freemen' movement has been gaining popularity recently across the US, Canada and the UK, with various 'gurus' giving information on how people can avoid fines and taxes by using certain legal strategies. Having encountered these sorts of arguments once too often, a Canadian judge has examined and demolished the main points used by these “Organized Pseudolegal Commercial Argument litigants.”

In an epic, 736-paragraph judgment (pdf) Associate Chief Justice J.D. Rooke (Court of Queen’s Bench of Alberta) discusses the main arguments put forward by “Detaxers; Freemen or Freemen-on-the-Land; Sovereign Men or Sovereign Citizens” and similar groups, and carefully explains why they are all legally nonsense. He offers guidance for judges, lawyers and others who encounter the techniques, but also directly addresses those using (or planning to use) these methods (paragraphs 663-668). However, he saves his anger for the 'gurus' who “purposefully promote and teach proven ineffective techniques that purport to defeat valid state and court authority, and circumvent social obligations for profit at the expense of naive and vulnerable customers” (paragraphs 669-675).

While this may be of use to legal professionals it remains to be seen whether those spreading these theories will stop, or merely see this as a corrupt system protecting itself."

Link to Original Source
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"Pirate" website owner sentenced to 4 years in prison

Grumbleduke Grumbleduke writes  |  more than 2 years ago

Grumbleduke (789126) writes "Anton Vickerman, who owned SurfTheChannel.com has been sentenced to 4 years in prison following his conviction last month for "conspiracy to defraud". This is the first successful prosecution of an individual in the UK for running a website merely linking to allegedly infringing content (several earlier cases collapsed or resulted in acquittals).

Vickerman was prosecuted for the controversial offence of "conspiracy to defraud" for 'facilitating copyright infringement', rather than for copyright infringement itself, and it is worth noting that the relevant copyright offence carries a maximum prison sentence of only 2 years, half of what was given.

FACT, the Hollywood-backed enforcement group who were heavily involved in the prosecution noted that the conviction "should send a very strong message to those running similar sites that they can be found, arrested and end up in prison", but it remains to be seen whether this will have any effect on pirate sites, or encourage development of the largely hopeless legal market for online film."

Link to Original Source
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ACTA rejected by European Parliament

Grumbleduke Grumbleduke writes  |  more than 2 years ago

Grumbleduke (789126) writes "Today the European Parliament voted overwhelmingly to reject the controversial Anti-Counterfeiting Trade Agreement. Despite attempts by the EPP Group to delay the vote until after the Courts have ruled on its legality, the Parliament voted against the Treaty by 478 to 39; apparently the biggest ever defeat the Commission has suffered.

However, despite this apparent victory for the Internet, transparency and democracy, the Commission indicated that it will press ahead with the court reference, and if the Court doesn't reject ACTA as well, will consider bringing it back before the Parliament."

Link to Original Source
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UK Anti-Piracy Law Survives Court Challenge

Grumbleduke Grumbleduke writes  |  more than 2 years ago

Grumbleduke (789126) writes "The UK's controversial Digital Economy Act survived it's second court challenge today. Two ISPs had appealed last year's ruling that the measures included did not breach EU law and, for the most part, the Court of Appeal agreed, ruling in favour of the Government and the 10 unions and industry groups supporting the law in court.

The decision was welcomed by the industry groups, but criticised by the UK's Pirate Party, whose leader pointed to the lack of evidence that the law would have any positive effects. A UK copyright specialist noted that the ISPs may still appeal the decision to the UK's Supreme Court, seeking a reference to the Courts of Justice of the European Union, and wondered if the law could now attract the same attention from the Internet as SOPA and ACTA.

The law is still some way from being implemented, and the first notifications are not expected to be sent to alleged file-sharers before 2013, and the next steps could also be open to a legal challenge."

Link to Original Source
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English Judge finds Google not liable for 'Internet Graffiti" on their services

Grumbleduke Grumbleduke writes  |  more than 2 years ago

Grumbleduke writes "In a week dominated by attacks on their new privacy policy, finally some good news for Google, along with other web hosting providers. As reported by the Telegraph, a High Court Judge has ruled that Google is not responsible for publishing comments on their services (in this case, Blogger), no matter how offensive they are.

Following a 1999 libel case, it has generally be understood that service providers such as Google are publishers of the content on their systems, and lose any immunity they have as soon as they are warned the content is defamatory, leading to an extra-judical take-down system.

In this case, where Google was being sued by a UK politician over allegedly defamatory comments on a Blogger post, the Judge held that the hosts were not even publishers and so not liable at all. Going further, Mr Justice Eady commented that even if Google were a publisher, they would not be liable as being notified that the comments may be defamatory was not enough to count as "actual knowledge." Google could not be expected to assess whether or not each statement was defamatory, or defensible.

This ruling marks a welcome, if subtle, change in the law. It should reduce the chilling effect of libel threats on UK-based service providers, as they may no longer be required to remove content or face substantial legal costs themselves."

Link to Original Source
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UK Law Enforcement Starts Seizing Music Blogs

Grumbleduke Grumbleduke writes  |  more than 2 years ago

Grumbleduke (789126) writes "Via Dajaz1 (a site that is no stranger to unjustified copyright takedowns) we learn that the popular R&B website rnbxclusive.com (warning: threatening message on site) has allegedly been seized by SOCA, a UK law enforcement agency, and its operators arrested on fraud charges.

Not only does the replacement message contain a number of factually dubious claims, it also shows the visitor's IP address, browser and operating system, and threatens to track and monitor them.

At a time when copyright lobby groups are strongly pushing for even greater powers through laws such as SOPA and ACTA, one is left wondering why they think they need them, when police can shut down websites such as this at will."

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Pirate Party UK Launces Election Campaign

Grumbleduke Grumbleduke writes  |  more than 4 years ago

Grumbleduke (789126) writes "Following the recent publication of its manifesto the Pirate Party UK has officially launched its campaign for the upcoming general election. The Party — which is pushing for significant reform to copyright and patent law, protection for personal privacy and government transparency, and greater freedoms of speech and communication — is hoping to stand ten candidates across England and Scotland. The Party is now trying to raise the £10,000 or so minimum it will need to fund the candidates. In announcing the campaign Andrew Robinson, the party leader and prospective candidate for Worcester, said, "We have a strong team, who want to stand up for your rights, for your freedoms, for your interests, but we desperately need to raise funds. This is the only chance we will have in the next few years to get our voices heard. Help us get these candidates on to the ballot papers." With the election expected in a little over a month, time is running out for the Pirates to make their first stand in the UK."
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The UK's very own DMCA; only worse.

Grumbleduke Grumbleduke writes  |  more than 4 years ago

Grumbleduke (789126) writes "During today's debate in the UK's House of Lords on the much-criticised Digital Economy Bill the unpopular Clause 17 (that would have allowed the government to alter copyright law much more easily than it currently can) was voted out in favour of a DMCA-style take-down system for websites and ISPs. The new amendment (known as 120A) sets up a system whereby a copyright owner could force an ISP to block certain websites who allegedly host or link to infringing material or face being taken before the High Court (and made to pay the copyright owner's legal fees). This amendment was tabled by the Liberal Democrat party who had so far been seen as the defenders of the internet and reason and with the Conservative party supporting them passed by 165 to 140 votes. The UK's Pirate Party and Open Rights Group have both strongly criticised this new amendment.

The Bill is currently in Report stage in the House of Lords, and will then and will then have to pass through the (elected) House of Commons. The government has indicated its desire to push through the legislation before the upcoming election."

Link to Original Source
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UK's Anti-filesharing Bill Could Breach Human Righ

Grumbleduke Grumbleduke writes  |  more than 4 years ago

Grumbleduke (789126) writes "The UK Parliament's Joint Committee on Human Rights has recently reported on the controversial Digital Economy Bill which seeks to restrict the connections of anyone accused of infringing copyright using the internet. According to the BBC, the committee noted the lack of details in the Bill as it stands, asking for "further information" from the government on several issues. They also raised concerns that some punishments under the bill could be "applied in a disproportionate manner" and said that the powers the bill granted to the Secretary of State (i.e. Lord Mandelson) were "overly broad". These echo the concerns raised in recent months by the Open Rights Group, a consortium of web companies including Facebook, Google, Yahoo and eBay and the UK's Pirate Party.

The Bill is currently being scrutinised by the House of Lords and if it passes there, will likely be forced through the Commons quickly, despite the opposition from the public, industry and members of parliament. The committee's full report can be found on the parliament website, here."

Journals

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Musings on politicians and science.

Grumbleduke Grumbleduke writes  |  more than 3 years ago

[Originally a comment from this story. Copied here because it got rather long.]

As a mathematician/physicist who is gradually turning into a lawyer/politician (in the UK) the lack of scientists in high political places doesn't surprise me at all - the two groups have some fundamentally different ways of thinking about things.

In science, in general, everyone is working towards the same goal. While we all want funding and there is only a certain amount to go around, we're all trying to find some sort of "truth" about the little area of reality we study. If someone comes along and disproves one of our theories, we might feel a little upset, but we can keep going somewhere else. Furthermore, individually, we aren't important - what matters is the theory. A theory should (in theory...) be equally valid whoever suggests it, should be able to stand on its own merits and a scientific attack on a theory (which should be encouraged, of course) is only an attack on the theory, not the theorist.

In law, everything is very adversarial (in the UK and US, and similar common law countries) - there is a prosecution (or claimant/plaintiff) and a defendant and each side is trying to discredit the other. Neither side is really interested in the facts, but is interested in proving their case. Everything is personalised (even if it shouldn't be) and cases can easily come down to the advocates, not the facts. Politics is fairly similar (due to involving lawyers); it doesn't matter what a policy is, what matters is who is pushing it and how - a terrible, unscientific policy (banking regulation, tax breaks for the rich, ID cards, spending cuts, student tuition fees etc.) can be forced through by being well-marketed. Most of the population has little idea what the person they're voting for's policies are, and even less what they are likely to actually do - they vote for the person or the party. If a policy becomes particularly unpopular, it can end up bringing down the politician attached to it.

Another key difference comes from the "burden of proof". In science (in general), if someone makes a claim of sorts, it is up to them to prove it; challenging is expected and encouraged and it is up to the theorist to bring evidence. In theory, a theory is never proven (outside mathematics), merely accepted as likely based on the evidence. Contrast this with law or politics - here, if someone makes a claim, and another challenges it, it is expected in politics, or required in law, that the challenger make the case and present evidence; thus a politician can get away with all sorts of ridiculous claims, ("ID cards will stop terrorism", "copyright infringement is killing kittens" etc.) provided disproving them is problematic, or any challengers aren't given a platform to speak.

[This leads to all sorts of problems; consider the classic (if hypothetical) case where a homoeopath comes along and makes the claim "my homoeopathic treatment can cure the cold according to studies". The scientist says "that's complete rubbish, prove it." The homoeopath then cries defamation and says "Aha, no - you have to disprove it!". Suddenly the scientist is in a libel lawsuit, costing several years and millions of £s. The area of global warming is a similar story; the science is mostly done, but politicians will still argue, spreading FUD.]

FUD (fear, uncertainty and doubt) is also an interesting difference. To a scientist, actively creating fear, uncertainty and doubt should be considered abhorrent (while doubt is good, it should be lessened with time, not increased). To a lawyer or politician, it is one of the fundamental tools; in fact it is the primary weapon of a defence lawyer, whose job is to create as much doubt as possible.

This has turned into slightly more of an essay than planned, but I shall carry on anyway...

The legal and scientific approaches are so different that it can obviously be troubling for either side to deal with the other (I am treating legal and political together - while they aren't that closely aligned in the UK, from what I understand in the US the gap is smaller due to some legal officials being elected, and the costs involved with running for office). Sadly, it seems that our societies are putting more faith in lawyers and politicians than in scientists (just look at films, TV series etc. - a classic example being the start of Stargate Universe where [spoiler warning] the noble, honest politician sacrifices himself to save the mission, while the evil, scheming scientist is just that). It is little wonder to me that we're digging ourselves further and further into a great hole of ignorance, despair and superstition - when you put your faith in the messenger not the message, that is a risk you run.

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A Guide to the Digital Economy Act - Part 2

Grumbleduke Grumbleduke writes  |  more than 4 years ago

This is the second in a series of posts explaining what the Digital Economy Act will do, how it works and how it will affect individuals. It is aimed at providing an objective and descriptive overview of the legislation, rather than opinion or comment on the content. The first part can be found here. This part covers the technical measures that can be imposed on a subscriber to limit their Internet access. Some parts may be legally technical.

The Initial Obligations Code of the Digital Economy Act 2010 is designed to reduce online copyright infringement by educating those accused of infringing and warn them of the legal consequences if they persist. However, any legal action taken against the alleged infringer is restricted to what could be done before the Act came into force; i.e. a copyright holder must first sue the ISP to obtain the identity of the subscriber, and then they must sue the individual subscriber. This is where the second prong of the measures to tackle online copyright infringement comes in; the obligations to limit Internet access.

Obligations to Limit Internet Access

These are defined in Sections 9 to 12 of the Digital Economy Act (which create Sections 124G to 124J of the Communications Act). They consist of technical obligations (imposed by the government on ISPs) and technical measures (put in place by ISPs on their subscribers). However, Section 124H (2) states that these cannot be put into place until at least 12 months after an Initial Obligations Code is in force but this does not stop Ofcom working on the Code before then. The earliest these obligations are likely to come into force is January 2012.

Technical Obligations

Under Section 124H (1) of the Communications Act 2003 (as amended by the Digital Economy Act) the government may impose "technical obligations" on ISPs if they consider it appropriate. A technical obligation is defined in Section 124G (2) as an obligation on an ISP to impose some sort of "technical measure" against some or all of its subscribers, solely for "preventing or reducing" online copyright infringement, provided those subscribers are already on a copyright infringement list as defined in the Initial Obligations Code. This only means that the subscriber must have received at least one notification under the IOC - as with much of the content of the Digital Economy Act, the rest of the details are left to Ofcom.

Technical Measures

The types of technical measures that can be imposed are listed in Section 124G (3) and are listed as follows:

  1. Something that "limits the speed or other capacity of the service provided to a subscriber" - this would include bandwidth throttling or placing download caps.
  2. Something that "prevents a subscriber from using the service to gain access to particular material, or limits such use" - this would likely be website-, protocol- or port-blocking targeted at the specific subscriber (rather than the entire service).
  3. Something that "suspends the service provided" - and this is the infamous disconnection. Note that there is nothing that states these measures must be removed after a certain time period, so this "suspension" could last indefinitely.
  4. Something that "limits the service provided ... in any other way" - and finally a completely generalised measure. Essentially, this means that government can force any limit on anyone's Internet connection provided they can show it might prevent or reduce online copyright infringement.

The Technical Obligations Code

As with the first set of obligations, the technical measures must also be regulated by a code, created by Ofcom and approved by Parliament. This is defined in Section 124I of the Act and the following section lays out a set of conditions it must satisfy. These are fairly similar to the requirements of the Initial Obligations Code and include that the Code must be objectively justifiable - Section 124J (1)(e), proportionate - 124J (1)(g) and transparent - 124J (1)(h).

How will this Affect You?

At the moment it is hard to determine the precise effects of the technical obligations code as it is much more loosely defined than the initial obligations code. In particular, the threshold for applying the measures is based on the IOC and there are virtually no limits on what the measures can consist of. It is most likely, however, that those in favour of the imposition of technical measures will be seeking as harsh penalties as possible for those who may be infringing their copyright so it is likely that people may see their Internet slowed down, filtered or even their accounts disconnected (although it will probably be called a "suspension" - the two words are interchangeable). In theory such punishments will only apply to those who have infringed copyright, but there are no restrictions on the level of evidence required to impose such punishments contained within the text of the Act.

Fortunately, both sets of measures are subject to an appeals process, which will be described in the next section of this guide.

The author is a law student and Governor of the Pirate Party. Any comments, corrections or suggestions are welcome and can be emailed to duke 'at' pirateparty.org.uk.


This work is licensed under a Creative Commons Licence and should be attributed either to the author or a spokesman for the Pirate Party UK (in which case a link should be provided to the PPUK site).

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A Guide to the Digital Economy Act - Part 1

Grumbleduke Grumbleduke writes  |  more than 4 years ago A Guide to the Digital Economy Act - Part 1

This is the first in a series of posts explaining what the Digital Economy Act will do, how it works and how it will affect individuals. It is aimed at providing an objective and descriptive overview of the legislation, rather than opinion or comment on the content. The first part contains a general introduction and focuses on the Initial Obligations Code. Some parts may be legally technical.

The Digital Economy Act 2010 (c. 24) is a law of the United Kingdom. It consists of 48 sections and two schedules, received Royal Assent on 8th April 2010 and came into force on the 8th June. The Act contains new government powers over Internet domain names, material on Channel 4 and independent television networks, radio licensing (including provisions for a radio 'digital switch-over') and laws about the classification of video games. It ends with a section that should help libraries loan out audio- and e-books - although it does not go quite as far as it could. However, the most contentious parts of the Act are the sections on Online infringement of copyright (sections 3-18) - which contain the framework for disconnecting Internet users accused of infringing copyright by amending the Communications Act 2003. So, does this mean that we should start checking our email and post for threatening letters sent under this legislation? No - well, not yet.

The Act itself (from now on, referring to sections 3-18, and the new sections 124A-124N they add to the Communications Act - it is a little technical) does not contain any actual measures. The only solid duties it places are on Ofcom (the "Independent regulator and competition authority for the UK communications industries"), asking them to produce reports on everything to do with online copyright infringement on a yearly basis and produce an Initial Obligations Code and a Technical Obligations Code. These code contain the measures for "tackling" online copyright infringement, but even the initial code is unlikely to come into force before 2011.

The Initial Obligations Code

Sections 3-7 of Digital Economy Act form a framework for an Initial Obligations Code. This is a set of rules, drafted or approved by Ofcom (and to be put into law via a statutory instrument by Parliament), which gives instructions to ISPs and copyright owners on how they can or must deal with cases involving online copyright infringement. The Act contains some guidelines as to what must be included in the Code (in the new Section 124E of the Communications Act but it is up to Ofcom to come up with a final version. This is expected to be done by September, so it can be sent to the EU for approval (about three months) before coming into force early next year.

How it Works

The idea behind the Initial Obligations Code is quite straightforward, but how it works is a little complicated:

  1. A Copyright owner (A) (such as a record label, film studio, or even the author of this blog post) finds evidence that suggests that a certain IP address is being used to infringe some of their copyright.
  2. (A) finds out which ISP (B) is responsible for assigning that IP address and sends them a copyright infringement report (CIR) which contains their accusation (and a few other things listed in Section 124A (3) of the Communications Act).
  3. (B) checks their records to see which of their subscribers (C - this could be you) was assigned that IP address at the time the infringement allegedly occurred and sends them a notification (via email or post) telling them about it (and including various things listed in Section 124A (6) of the Communications Act).
  4. (C) can contest this, on various grounds (although not necessarily on the grounds that they did not do it) through a badly-defined appeals process but if they do not, or if their appeal is unsuccessful, the ISP (B) keeps a record of them and the number of CIRs they (B) has received about them (C).
  5. After a certain threshold has been reached (this could be a certain number of CIRs about a particular subscriber, a certain number of notifications have been sent or any other threshold the code contains) the ISP (B) puts that subscriber (C) on a copyright infringement list (CIL) - a list of all the CIRs they have received (more specifics, although not many, in Section 124B (2) of the Communications Act).
  6. At some point, the copyright owner (A) can demand that the ISP (B) hand over their CILs - however (and this is an important bit) the information must not enable (A) to identify (C). Essentially, all this list does is tell the copyright owner which of the CIRs they send are about the same subscriber (C) but without telling them who that subscriber is.

That is it. The result of this is that the copyright owner has a list of which subscribers they have accused of infringing their copyright repeatedly. Note: in order to take any action against them (e.g. sue them or send them their own threatening letters) the copyright owner still needs to take the ISP to court to obtain the subscriber's details and identity. These are the details that are in the Digital Economy Act itself. Any other information about this has likely come from the draft code published by Ofcom, rumours or misinformation.

How will this Affect You?

At this point, it should be emphasised that this Code is still being drafted and the earliest it will come into force is January 2011. At the moment Ofcom are consulting on the draft code and all those interested are encouraged to participate in the consultation. However, once in force, what will happen to the individual subscriber is not that different to what has been happening already, but on a larger scale and with a few more protections for them.

The first a subscriber will know about the process is when they receive their first notification from their ISP (under point 3 above). This will give details as to what is going on, why it has been received and the various processes that will follow. It should also contain details on the appeals process (if there is one) and any possible defences that can be used. The subscriber then may receive other warning letters but then it will be a case of waiting to see whether or not the copyright owner takes further action - most likely in the form of a threatening letter (of the type being sent by some law firms already) or possibly going straight to legal summons.

What to do now?

For now the best thing to do here is read up on the Ofcom Consultation on the Initial Obligations Code (more details, including the official Pirate Party response, should be appearing shortly) and try to submit a response. There is an easy online form for submitting a response although it does require reading through the document itself. Other than that, we must wait to see what for the Code takes and whether or not it will be approved by Parliament and the EU. There is no reason to be afraid for now, but that does not mean we should not be campaigning against these sections of the Act.

The next part to this guide will focus on the Technical Obligations Code and the measures it can introduce.

The author is a law student and Governor of the Pirate Party. Any comments, corrections or suggestions are welcome and can be emailed to duke 'at' pirateparty.org.uk.


This work is licensed under a Creative Commons Licence and should be attributed either to the author or a spokesman for the Pirate Party UK (in which case a link should be provided to the PPUK site).

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The UK's DMCA; the controversial Clause 17 falls, but at what cost?

Grumbleduke Grumbleduke writes  |  more than 4 years ago

During another intense session in the House of Lords this afternoon a vote was finally held on the controversial Clause 17 of the UK's Digital Economy Bill. This clause would have allowed the Secretary of State to amend the UK's copyright law with a lot less oversight from parliament than usual. The government did not hide the fact that this provision would be used to clamp down on unlicensed file-sharers in various ways as the industry demanded. However, there was a bright side; the clause would have permitted Lord Mandelson (or more likely his successor) to do as he promised back in October and relax the UK's copyright law by bringing in the 'fair use' exemptions it so desperately needs.

Strong Opposition

However, as most people are aware, both the Conservative and Liberal Democrat parties (and many from within the Labour party) made it clear that they objected to these excessive powers being given to an unelected official. Finally, a vote was called on a relatively minor amendment that sealed Clause 17's fate. The clause was removed from the bill by a vote of 140 to 165, supposedly marking a triumph of democracy over the government's attempts to gain even more power. Unfortunately, what replaced it has already raised alarm across the online world.

The Alternative

The new text that was strongly pushed by the Liberal Democrats adds a new section to the Copyright, Designs and Patents Act 1988 (the basis for the UK's copyright law) entitled 'Preventing access to specified online locations for the prevention of online copyright infringement'. This section allows the High Court to grant an injunction that would force any service provider (such as an ISP) to prevent access to any specified website, service or other location to help prevent online copyright infringement. It is worth noting that the website or location does not even need to be hosting allegedly infringing material, just that the material is "accessible at or via" the location. This is clearly designed to force ISPs to block any website a judge can be convinced is hosting or linking to copyrighted material but could easily include hosting sites such as YouTube or even those that link such as Google itself.

Unintended Consequences

On the face of it, this might not seem too bad; a copyright owner would have to go to the High Court and plead their case, the ISPs and site owners would get a chance to defend themselves and it would be much the same as the current situation. Unfortunately, the debate made it clear that the provisions will work slightly differently. In practice, a copyright owner will first send a 'take-down' notice to the service provider (although it is not clear whether this will be the ISP or web hosting organisation) and the service provider will be expected to then censor the allegedly infringing content or fight the accusation in court. As we all know (and was mentioned in the Lords) legal action can be prohibitively expensive so it is likely that if this becomes law, we will see websites dropping or being blocked at the first sign of trouble.

The UK's DMCA

Does this sound familiar? At first glance this section would seem to closely resemble the provisions United States' Digital Millennium Copyright Act that allow a copyright owner to send a take-down notices. Since this became law there has been a steady flow (or torrent) of examples where this procedure has been abused. Such notices have been used to shut down competing websites, silence critics or for other malicious purposes and with the burden on the accused to prove their innocence it is likely we will see the same in the UK if this Bill passes in its current form. Despite the similarities with the DMCA, there are also some significant differences. Due to the speed with which this amendment was drafted and pushed through there are many significant holes in it. Take-down notices under the DMCA are directed at those who host content, requiring them to take down the material. Under this law, the notices would go to the ISP, effectively ordering them to block access to the specified site, without requiring that the offending site be notified. Secondly, the ISP is forced to pay all the copyright owner's legal costs if they choose to resist. We have already seen how quick certain ISPs have been to bow to legal requests without examining the evidence or challenging the accusations so it is unlikely they will put up a fight in this case, and due to the general fear of legal action and ignorance of the law (as recently demonstrated by a Consumer Focus study on copyright) it is hard to imagine that many individual site owners will feel able to take any action other than simply removing the (allegedly) offending content.

The Debate

The debate itself was rather heated. Lord Clement-Jones (LibDem) introduced his amendment with a passionate speech that demonstrated a lack of understanding. The Conservatives offered their support (led by Lord Howard) and the only defence that the government minister (Lord Young) found was that it might have negative effects on national security by driving file-sharers to encryption (which L Clement-Jones denied would happen). It was left to the Earl of Erroll (a cross-bencher) to stand up and explain, in great detail, the many flaws to this section. He repeated his call for a full review of copyright legislation - a call echoed by Baroness Miller, (LibDem) - and argued against both this new amendment and the original Clause 17, as usual, demonstrating a clear understanding of the issues and technologies involved. He was then 'corrected' (mistakenly) by L Clement-Jones who seemed unaware of the difference between an ISP and a website host (something reflected in the text of the amendment). The vote was finally called and the government defeated with Clause 17 being removed without a formal vote later. It its place now lies something that should be equally troubling to those who would have a free Internet.

What Happens Now

In response to the initial outcry (including a campaign by the Open Rights Group) Lord Clement-Jones published his justification for the amendment. The statement does little to remove the fears held by many opposing this and he demonstrates his lack of understanding; even the first sentence is factually incorrect - at no point in the Bill is P2P mentioned at all. While the initial consultations and debates only concerned the use of P2P software, by the time the Bill was published it had been generalised to all online activity. While advocates of sensible internet and copyright policy (such as the Pirate Party UK) have been opposed to this Bill since it was first mentioned, today's debate has managed to do the unthinkable and make it even worse, causing confusion and outcry even from within the ranks of the Liberal Democrats. Today's events clearly demonstrate that we cannot rely on the front bench of any major party to respect or understand the internet and modern technology. More than ever, it is clear we must support the Pirate movement.

by Duke, interim CAO of PPI and policy group leader of PPUK. This does not necessarily represent the views of either organisation. Feel free to quote or republish at will.

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