Some ramblings on Amendment 120A

The Digital Economy Bill is broken. I really hope it doesn't make it through before parliament is dissolved for the general election. More specifically I wish that in Lord Mandelson's case the dissolve was more literal.

The latest debacle is amendment 120A which has been passed by the Lords. The good part of this is that it strikes clause 17 from the Digital Economy Bill. However it inserts a new clause in the Copyright, Designs and Patents act 1988 which has some very loose terms and could be quite damaging.

This has been covered in the blogosphere and even mainstream media already in more depth than I can give it but I have spent a little while digging through the various acts / bills / amendments to try and get a better handle on it and thought I would share.

First there is the original Digital economy amendment.

120A adds clause 97B to the Copyright, Designs and Patents act 1988 after 97A. 97A itself is an amendment available as part of Statutory Instrument SI 2003/2498. This Statutory Instrument adds the EU Copyright Directive. 97B defers definition of a service provider to 97A. 97A defers definition of service provider to SI 2002/2013 covering the EC Electronic Commerce Directive. The definition of service provider here refers to provision of a nebulous "information society service".

Further searches give this definition:

"information society service" shall mean a service normally provided in return

for consideration electronically by distance selling at the individual retrieval of

the recipient (§ 1(1)2 of the Notification Act of 1999), particularly the online

marketing of goods and services, online information offers, online advertising

electronic search engines and data enquiry options as well as services which

transmit information via an electronic network and provide access to such a

network or store the information of a user; […]

Most of the press I have seen focuses on the non specific nature of the word "substantial" in clause 97B. Most comments I have seen have merely equated service provider to ISP. From my reading of the definitions, a service provider is someone providing an information society service which could be anyone from an ISP to a blogger.

I'm not sure if this makes me more or less happy about the amendments. My take on the whole kneejerk "Britain is banning YouTube!" is that under this definition Google is definitely a service provider. In that context then this clause merely asks them to remove content if asked to by the copyright holder. Given that they already do this and have established appeal processes this doesn't change much.