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Thursday, July 26, 2012

UK IPO Redacts Responses Critical of Rights Societies

A major tool in policy-making is the Consultation. It is often the only way for regular members of the public to have any sort of input in the legislative process. The problem comes when these consultations are skewed towards a set response, or worse, evidence is ignored or supressed; such as in the publication of responses focusing on Collection societies, where critical comments have been redacted, by the IPO.


Transparency and trust is an integral part of a consultation system. There has to be a trust that what is submitted will be listened to, and accepted, and that submissions are given equal weight. That submissions by Joe Public are given just as much importance as one by Multinational Corp. Plc., or from Industry Lobby Group Association. There is also a requirement that the consultation not be written as a foregone conclusion, and that it be a true inquiry.

Alas, in this particular one, there were significant problems. Let’s start first by saying that the new requirement for evidence (and what counts as evidence) was very welcome, but it’s something that should have been true for years, and not a new thing. However, the consultation read like a proposal in search of justification.

But perhaps the most worrying aspect is the redaction of certain parts of responses. In particular, several parts of my response were removed from the public release. However, it’s their handling of it that’s particularly worrying. The publication of the responses was today, yet I was unaware of it. I was aware that they were going to be published, but not that they had. It shows a lack of respect for facts and for transparency.

Here’s the letter that most people got:
Subject: Publication of Responses to the Copyright Consultation
Date: Thu, 26 Jul 2012 15:02:44 +0100
From: CopyrightConsultation <CopyrightConsultation@ipo.gov.uk>

Dear stakeholder,
We're writing to inform you that today, Thursday 26 July 2012, the Government published the responses it received during its consultation on Copyright. The Government received 471 responses from interested parties.
The submitted responses, with the exception of confidential submissions, are accessible via the Intellectual Property Office website, found here:
http://www.ipo.gov.uk/consult-copyright-response.htm The Government had initially planned to publish the full set of responses alongside its summary published on 14 June 2012. However, in the course of reviewing the responses received, it became clear that a small number of respondents had advanced criticisms or inappropriately criticised the activities of others in the sector. The Government has now carefully reviewed the submissions to establish any potentially defamatory material and has redacted any inappropriate or defamatory comments. Signatures or personal telephone numbers and email addresses have also been redacted for information security purposes.
Thirteen (13) organisations submitted after the consultation closed, and their late submissions are also available in the Intellectual Property Office website, found here:
http://www.ipo.gov.uk/pro-policy/consult/consult-closed/consult-closed-2011/consult-2011-copyright/consult-copyright-lateresponse.htm The Government would like to thank you, and all those who took the time to contribute to the Consultation.
Copyright Consultation Team
Intellectual Property Office

Note the section that says “The Government has now carefully reviewed the submissions to establish any potentially defamatory material and has redacted any inappropriate or defamatory comments.” The problem is that while defamation is easy to establish, what’s considered ‘inappropriate’ is very subjective. That and preceeding sentence significantly shows that the consultation was a justification for rubber-stamping.

Instead of that email, I got this one.

from: CopyrightConsultation <CopyrightConsultation@ipo.gov.uk>
to: Andrew Norton <ktetch@ktetch.co.uk>
date: Tue, Jul 24, 2012 at 12:04 PM
subject: RE: Data from consult-2011-copyright-respond 
Andrew - very grateful if you could call me on the number below to briefly discuss your consultation response.
 Many thanks
 Hamza Elahi
When I responded that I wasn't going to be able to phone him (since I’m not in the UK right now), but that he’s welcome to send me comments via email, and encrypt them if need be, I got this response

from: Hamza Elahi XXXXXXXXXXXXX@ipo.gov.uk
to: Andrew Norton <ktetch@ktetch.co.uk>
date: Wed, Jul 25, 2012 at 12:23 PM
subject: RE: Data from consult-2011-copyright-respond
 Dear Andrew
 Thanks.
 I wanted to speak to you, as a courtesy, to tell you that on legal advice we were going to have to redact some of the more forthright comments you made on collecting societies. There were a fair few redactions we needed to make, which it is probably best for us to go over on the phone, if you so wished, whenever is convenient for you, whether that is on your return to the UK or whilst abroad.
 Best regards
Hamza Elahi
Legal advice makes it seem like there’s a problem with defamation. So just what was so bad it had to be removed on legal advice? Luckily, we don’t have to rely on the IPO’s version, since I have a habit of posting my responses not long after I send them in, which is why I posted my response to this consultation back in March.

So, let’s see what needed redacting.

The first time is response 22, to the question
 22 What aspects of the current collective licensing system work well for users and rights holders and what are the areas for improvement? Please give reasons for your answers
The response published is
Almost no aspects work well for users or rights holders. The standard operating system for collecting societies is to demand all, demand often. There have been many cases in the recent past where agencies have gone above and beyond their mandate, and targeted people in shakedowns.
 XXXXXXXXXXXXXX
 In short, what aspects work well? None. What needs to be done? First of all, an audit needs doing, to ensure compliance with the law. Then, shut them down. At the very least start a new, independent one with significant oversight, because this one just DOES NOT WORK.
So, what’s missing? What is that XXXXXXXXXXXXXXX that couldn't be published?

It’s quite amusing, as it’s actually a fully sourced list of various actions not considered ‘nice’ performed by collecting societies. When your consultation aims to give extra powers to private companies, the last thing you want is a list of all the bad things those companies do. Here it is…
… and targeted people in shakedowns.
 In the past few years, there have been reports of UK Collection societies calling up small businesses, and threatening them if they hear music in the background (http://www.techdirt.com/articles/20090202/0128383597.shtml), carollers, charities (http://torrentfreak.com/charity-forced-to-pay-copyright-police-so-kids-can-sing-071209/) have been targeted for fees, as have schools (http://torrentfreak.com/uk-copyright-cops-target-kids-schools-community-centers-081015/). Even people who sing to themselves have been targeted because they’re doing so at work (http://news.bbc.co.uk/2/hi/uk_news/scotland/tayside_and_central/8317952.stm) and let’s not forget their targeting of employers like Kwik Fit (http://news.bbc.co.uk/2/hi/uk_news/scotland/edinburgh_and_east/7029892.stm) and even the police (http://torrentfreak.com/police-chief-faces-high-court-anti-piracy-action-120608/). Incidentally, The EU Court of Justice just ruled that in cases like these, there are no fees to pay (http://euobserver.com/871/115621#.T2cCyGfYteQ.twitter)
 Nor are abuses confined to UK collection societies. Spanish group SGAE has been fined in the past for gate-crashing private events in the hunt for licensing fees (http://elpais.com/diario/2008/12/08/sociedad/1228690805_850215.html Spanish). Belgian group SABAM wanted truck drivers to pay licenses because of the radios in their cabs (http://torrentfreak.com/copyright-police-want-truck-drivers-to-have-licensed-cab-music-110327/) while they have also been caught out by one TV show claiming royalties for music that they not only don’t represent, but which never existed.(http://torrentfreak.com/music-royalty-society-collects-money-for-fake-artists-bathroom-equipment-and-food-110308/)
 Of course, the prize for showing how badly Collection Societies work has to go to GEMA, a Germany agency. Sony’s CEO of international business, Edgar Berger gave an interview recently where he noted that GEMA’s greed was costing them millions in YouTube licensing alone. Sony artists are blocked in Germany, and the reason, according to Berger is “It’s not because of us. You must direct this question to the German collecting agency GEMA; they licensed the copyright very restrictively.” (http://www.welt.de/wirtschaft/webwelt/article13881492/Das-Internet-muss-frei-sein-nicht-umsonst.html) GEMA has even blocked noted copyright scholar Lawrence Lessig’s recent TEDtalks video “How the law is strangling creativity” in Germany – how’s that for irony?(https://twitter.com/#!/lessig/status/180351028854661121)
 In short, what aspects work well?....
As you can see, while inflammatory, no statement is unqualified, and all are sourced. Since it’s clearly not defamation (Allowable defences are justification (i.e. the truth of the statement), fair comment (i.e. whether the statement was a view that a reasonable person could have held), and privilege (i.e. whether the statements were made in Parliament or in court, or whether they were fair reports of allegations in the public interest – these comments qualify on all THREE counts) then the only reason left would be that the IPO considers them inappropriate. However, being inappropriate doesn’t require legal claims, so something is seriously wrong.

If you are looking to sell collection societies as a good thing, however, it would be inappropriate to criticize them, by doing things like quoting court decisions, or major news organisations. That would prejudice the results of the consultation towards the truth.

Let’s move on to the next redaction, in question 30
30 What criteria do you think should be used to demonstrate that a collecting society is “representative”? Please provide reasons for your answer.
 I don’t think that now, a collecting society CAN be representative. Thanks to technology, now anyone can be a creator at any time. Thus unless the majority of the population is signed up to one, they are not representative. Instead, they are representative of only a small section of the industry, usually the high-end professionals, and those with major backing or experience. XXXXXXXXXXXXXX
 Granting any new powers to existing collecting societies should not be done. Instead a reduction of powers and abilities should be considered, as should audits to assess the business methods of said societies.
So, what was the redacted bit there?
It’s a bullying experience for those that do not want to be part of their way of business, or who want to start out but have a contrary idea.
Of course, if you’ve eliminated much of the response to question 23, then yes, this sounds defamatory, but when you see the many issues you can see the bullying, and the way they attempt to squash others.

In fact, that’s the common theme of the redactions, which I’ll just mark in red now. Without the earlier references to abusive practices, these seem like unqualified statements, but they have a solid basis in fact, and indeed they are fair comment when taken in context with the earlier statements.

So here we go

33 When, if ever, would a collecting society have reasonable grounds to treat members and non-member rights holders differently? Please give reasons and provide evidence to support your response.
They always have a reasonable ground to treat members and non-members differently. They should not collect for non-members work, and should not intimidate the public into licenses ‘just in case’ some of their members work is used. However, Collection societies seem to treat non-members as members for the purposes of collecting money.
 Again
34 Do you have any specific concerns about any additional powers that could accrue to a collecting society under an ECL scheme? If so, please say what these are and what checks and balances you think are necessary to counter them. Please also give reasons and evidence for your concerns.
I have significant concerns over the current powers such groups have. As stated before, they need a comprehensive audit and restructure, before they can even gain peoples trust or respect. At present, many consider them to be in the same category as low-class debt-collectors, the same kind you see on BBC Rogue Traders or Watchdog, and for the same reasons; underhand tactics, demanding money unnecessarily, and attempting intimidation to bring in funds.
and

44 What do collecting societies do well under the current system? Who benefits from the way they operate? Please explain your response and provide evidence for it.
As noted in the answer to 22 above, what they do best is intimidation, lies, and deception. Those that benefit from their methods of operation are the groups/organisations that get the major shares of the payouts and the company itself. Evidence is listed above in 22.
 Perhaps a bit hyperbolic, but a fair assessment from the evidence listed (which was redacted)
48 Is one year a sufficient period of time for collecting societies to put in place a code of conduct? Please provide reasons for why you agree or disagree? Please also provide evidence to show what a workable timeline would be.
In many cases, such societies require a ‘pay up now’ response. To expect to give companies with such bad reputations excessive time to leisurely change their practices into one that is acceptable to society is hardly fair, especially when these same companies demand instant compliance with their wishes.
 Do they have bad reputations? If you only read the information the IPO wants you to read, then no, they don't. If you've followed the news, and asked people in the industry (you know, deal with reality) then yes they do.
49 What other benefits or rewards could accrue to a collecting society for putting in place a voluntary code? Please provide evidence for your answer.
 Such societies are seen by many artists as unprincipled, only looking to rake in as much money as possible (see Sony & GEMA earlier). A society that starts to act in a responsible manner, would start engendering public trust and not be met with suspicion and disgust when out representing its members.
This one had the whole response redacted. 
65 Do you agree that the imposition of a statutory code should be subject to review? How long should such a code be in place before it is reviewed? Please give reasons for your response.
That would depend on the circumstances of the imposition. However, the saying ‘fool me once, shame on you, fool me twice, shame on me’ should be heeded. They are already getting away with significant abuses, and if, after a code, they continue, they should not get a THIRD chance to abuse their position.
 Except if you're the IPO, they've never done anything wrong.
106 Have you experienced a copyright dispute over the last 5 years? If so, did you consult lawyers and how much did this cost?
Yes. One of the projects we work on is the Muon1 Distributed Computing project, part of the Neutrino Factory based at the UK Government’s Rutherford Appleton Labs. We produce promotional videos, showing the results of past stages of the project. At the start of December 2011, one of the videos was flagged for copyright enforcement on YouTube, specifically the audio. The audio is always Creative Commons licensed music, so it was strange, and came from a Performing Rights society. I fought the claim personally, since I am knowledgeable in this field. 
However, another person would have had to at least consult a lawyer. The information is here http://www.ktetch.co.uk/2011/12/real-copyright-theft.html Earlier this year, I also distributed the MegaSong, released by MegaUpload. I had permission to do so from the copyright holder, and yet I got sent an infringement notice via YouTube from the Universal Music Group (UMG) who used their dominant position to send false takedown notices. I counter-noticed, and the maintained their claim of infringement, which they later acknowledged to be fraudulent, but permitted under a contractual agreement with Google Inc. I did not handle any legal issues myself there, but MegaUpload did file suit concerning the takedowns, which it has dropped and looked to be taking on Google (http://www.hollywoodreporter.com/thr-esq/megaupload-universal-music-group-lawsuit-dropped-283767),  before the FBI led New Zealand raid.
Finally, at present, I am providing technical knowledge and assistance to some lawyers who are fighting cases of speculative invoicing. There is the potential for me to be called as an expert witness on p2p technologies.
The thing is, all this is common knowledge. Any regular reader of Torrentfreak, Techdirt, or ArsTechnica knows all of the redacted information.

IT IS NOT DEFAMATION IF IT IS TRUE.

There’s the rub. Things are sourced, they’re not made up claims (but you know, there’s plenty of made up claims in past consultation responses, especially by the content industry.

The sad thing is, I did my research. I knew my facts and a lot of the things redacted are not only a matter of public record. So the question is why the UK IPO is trying to revise things, and distort the discussion.

It’s something I’m going to put to Mr Hamza Elahi. I’ll let you know what he says, and give you a rundown of other responses, and I’m certain to find entries that contravene the evidentiary requirements and/or are demonstrably false.

In the meantime, here’s the full submission again.

Norton P2P Research UK Consultation Response for March 21 2012


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