A judgement in  the UK High Court yesterday squashed the legal challenge to the Digital Economy Act by BT and TalkTalk. It  rejected  a series of legal claims concerning notification to the European Union, incompatibility with European Internet and privacy law, and dis-proportionality,  allowing only one very minor claim regarding costs.

 

It is  astonishing that the judge has come up with a judgement on this  complex matter in such a very short time. He has taken  less than a month. Compare it for example, the ECJ, where the Advocate General  took 3 months before he delivered an opinion on the Sabam v Scarlet case, another major European case on copyright enforcement.

 The judge, Mr Justice Parker,  is somewhat dismissive of BT and TalkTalk's arguments, and critical of them for delivering a substantial economic analysis ( the content of which is not public, but the judgement complains of  the volume of it).

 He instead comes down firmly on the side of the government -  which de facto,  is also the rights-holders.  It was notable that the government and the rights-holders sat together  - and laughed together - in the court-room.

 Overall, the judgement does not

seem to grasp the point of the legal challenge which was the impact of the DE Act on the ISPs. It dismisses arguments concerning the processing of traffic data and user's IP addresses.  I felt it does  so felt rather lightly, suggesting for example, that ISPs do no more than identify Internet subscribers.  BT's arguments were  strong on the privacy issues, and I wonder if it could be challenged again.

 

The judgement  agrees with the government's argument that the DE Act obligations do not yet have legal effect.

 

The judgement  dismisses the claim that the DE Act should have been notified to the European Commission. The  comments are a little  strange. It  says that we don't know whether the Commission would have been able to comment on the DE Act if it had been notified before being put Parliament, or whether the Commission would have been ‘left in the dark' as the government contends. Since  ‘this debate cannot be decisively resolved either way'  the judge dismissed it.  Surely, it was his job to make a decision on this point?

 

I find it odd that the judgement states that government figures supporting proposed legislation do not need to be correct.  All that has to be shown is that there is a substantial problem - in this case, that P2P file-sharing is substantially displacing ‘lawful sales' of music, without any qualification of what such ‘lawful sales' would be. Figures are then cited from government evidence, which reveal displacement of between 0-9%  from studies between 2006-2009, and in one case, from 2004,  up to 20%. On this basis, it seems the judgement buys into the assumption that copyright needs  these measures in the DE Act  for protection and that  the measures are proportionate.

 

 The judge was trying to achieve a balance and it was notable that throughout the hearing he asked the respective barristers for help with what  the balancing factors should be.  Should he balance, for example, the right to property against the right of freedom to trade?  However, the judgement is lacking in clarity on what exactly he is balancing. 

 

This balancing question relates  to the proportionality challenge, which is the hardest one to argue.  The judgement  does appear to have bought into  the rights-holder position that copyright is a property right, and the "protection" of property is an entitlement under that right.

 

The judgement   agrees with the government's position regarding  a chilling effect. The  rationale is interesting. It  seems to be saying  that we don't know how to measure a chilling effect,  or the economic impact of it, but, irrespective of that, it is unlikely to outweigh the benefit of protecting copyright.

 

However, I think it is here where the judgement comes unstuck. It  then says that copyright has non-economic elements, such as moral rights, which can be self-justified without evaluation. But, it also says that  a model which attempts to quantify the ‘social welfare' costs in relation to the proposed  copyright enforcment measures is purely an economic argument and therefore must be secondary to the non-economic benefits of copyright.

 

This particular line of argument does not make sense to me, and I do question the logic. It seems to me that the judgement is not clear what is being balanced. Is it the property right of copyright versus social welfare costs of enforcement?  Or is is a self-evident, non-economic benefit of copyright, against some other right? Or some other conflict of rights?

 

It does seem to me that the scales of justice  in this instance have become somewhat twisted  and merit some unravelling.

 

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 My book   The Copyright Enforcement Enigma  - Internet politics &  the 'Telecoms Package'

 addresses the underlying issues in the Digital Economy Act, especially the connection between copyright and telecoms.  It will be published by Palgrave Macmillan  on 15 October.

 

 

The correct attribution for this article is: Monica Horten (2011) DE Act  court  ruling - a  Twisted Balance    http://www.iptegrity.com 21 April 2011  

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