SOPA Box – debating the future of the internet in Ireland

31 Jan 2012

Ahead of this evening’s Dail debate on the statutory instrument that amends the Copyright Act 2000, two of the leaders behind the Stop SOPA Ireland petition – Michele Neylon and TJ McIntyre – answer’s questions on impending changes to Ireland’s copyright laws.

Last week, Neylon and McIntyre, along with Simon McGarr and Ian Bergin, launched the Stop SOPA Ireland petition that amassed more than 35,000 signatures.

The petition contributed to a decision by Minister Sean Sherlock, TD, to hold a debate on the legislation in the Dail today.

The statutory instrument is designed to fill a perceived loophole in existing copyright legislation whereby courts were unable to grant injunctions against ISPs in illegal download cases.

The statutory instrument affair has morphed into an overall debate about whether it is right or wrong to block internet access. The timing was also interesting in that the instrument was due to be signed into law a week after the highly publicised SOPA/PIPA protests in the US.

If any good can come of this, it is that it is abundantly clear that careful, balanced and reasonable debate is needed to ensure that rights holders can protect revenues, artists can get paid and that internet freedom and innovation continues unrestricted.

Questions and answers on the Irish SOPA:

Having read the proposed Statutory Instrument, are you satisfied that concerns of an ‘Irish SOPA’ have been allayed?

Michele Neylon: Not entirely. The ISPAI’s letter on the subject captures quite eloquently most of the concerns I’d have.

My main fear is that if the courts are left to decide then we’ll spend a lot of our time defending ourselves from spurious claims. I know from talking to the minister in person that he doesn’t want that kind of outcome, but I also know that a lot of the Irish legal professionals have a very poor understanding of the internet and can easily fall prey to the “easy route”, which is all too often to pursue the provider instead of the perpetrator. In other jurisdictions there are much stronger protections for the service provider. They seem to be quite lacking in the EU, though I understand that the EU Commission is planning an open consultation this year.

TJ McIntyre: No. The current draft is almost identical to the previous version. The only changes are stylistic. The concerns expressed last June by ourselves and ALTO remain.

Ireland is gaining a reputation for being the internet capital of Europe due to the presence of many of the international headquarters of global internet companies, such as Google and Facebook, and many other technology giants. Has the existence of the Statutory Instrument in your view damaged Ireland’s reputation in the eyes of the international tech community?

Michele Neylon: It’s a bit of a PR nightmare, but depending on how the Government and industry handle it moving forward there’s no reason why it would have a negative impact in the long term. The problem with the digital industry is that for the most part it’s reactionary as opposed to being pro-active. If we, as an industry, can constructively engage both with Government and the IP lobby, then I’d hope that we’d be able to turn Ireland into a country where the balance is right. However, if we continue not engaging with each other then it will never end well. IRMA, for example, refused to engage with us when we tried to agree processes with them in relation to takedowns.

TJ McIntyre: Yes. Ireland is aiming to establish itself as a location for intermediaries – in particular, cloud computing providers – making this all the more surprising. The refusal to clarify what intermediaries are affected – whether, for example, search engines might be subject to orders under the SI – is worrying for those establishing such operations here.

Even if the statutory instrument (SI) is debated in the Dail, do you think it’s going to be signed regardless due to the overall Government majority or will the debate pave the way for more considered legislation?

Michele Neylon: I suspect that the SI will be signed, but I’d like to think that it would now be viewed as an interim measure. Once the SI is signed then the Government might be “off the hook” in relation to the case being brought against the state by EMI. If they could then move to introducing either new primary legislation or a significant overhaul of the current legislation, I think we could view this as a “win”.

TJ McIntyre: There is scope for compromise and I think that the Minister for State is open to improvements to the SI. The Dail debate should precipitate this.

Regardless of the statutory instrument, Ireland has already signed along with other EU nations the Anti-Counterfeiting Trade Agreement, which puts in train powers to restrict ISPs in illegal downloads cases. What are your views on ACTA?

Michele Neylon: It makes me nervous. I’m yet to hear any convincing arguments in favour of it from anyone. However, from what I have been able to gather, ACTA is still up for discussion, ie, while several of the EU countries might have signed something last week it’s not a given that it will be fully enacted in all the member states as it still has to be fully debated and ratified.

TJ McIntyre: ACTA presents its own problems. For the most part, Digital Rights Ireland has focused on Irish developments as there are already excellent groups such as EDRI and the EFF working on ACTA. However, Ireland’s signature of ACTA means nothing in itself – to have effect it must be ratified and implemented into national law. We can and will still fight this, and the campaign against ACTA is just getting started at EU level.

Regardless of SOPA, PIPA or ACTA, the harsh reality is creative industries and owners of copyright are being harmed by illegal downloading. It is now 13 years since Napster burst onto the scene and no amicable solution has been found to protect rights holders and allow internet innovation to continue without the threat of draconian legislation. What in your view could be a solution? Are models like Spotify and Netflix the answer?

Michele Neylon: Like any debate, there are two sides. The IP lobby is backed by big business with deep pockets who have done a very good job of presenting a united front to governments around the world. We in industry, however, have done a very bad job overall in showing that we are supportive of copyright protection balanced with strong protections for “fair use” and user generated content, etc. Netflix and iTunes have shown that when someone is given easy and economical access to content, they don’t mind paying for it. The problem, of course, is that the record labels and Hollywood still insist on trying to restrict the free flow of information in a hyper connected world. I pay for Netflix and and spend a silly amount of money on iTunes. However, in order to get the more recent releases I’m obliged to circumvent the restrictions that the record companies and studios put in place. It’s not a coincidence that proxies and VPNs are so popular.

TJ McIntyre: We know that blocking and three-strikes type laws don’t work and in any event are easily evaded. We’ve also seen that consumers are happy to pay for services such as Netflix and to buy via iTunes. Digital downloads are taking off. There will inevitably be some leakage – but not enough to justify undermining the fabric of the internet. In the 1970s, the movie industry saw VCRs as the equivalent of the Boston Strangler. In the 1980s, the music industry tried to ban the double cassette recorder. In those cases they failed, but now they again seek to prohibit new technology – but this time in a way which presents much greater risk to civil liberties. By seeking to control the internet they seek to destroy the elements of the internet which guarantee freedom of expression and privacy – and worse, to do so in a way which won’t achieve its intended result.

John Kennedy is a journalist who served as editor of Silicon Republic for 17 years