[pp.int.general] More bad news from Denmark: Proposal to stop free speech on the internet

[Ole Husgaard]

Hi,

Something bad has happened again in Denmark. I did not find out until 
today because almost no media (including the net) has mentioned it. This 
time it looks like there is a clear intent to break the rules of free 
speech in our constitution.

Thursday last week the two largest opposition parties in our parliament 
filed a proposal for a parliamentary decision: 
http://www.ft.dk/Samling/20072/beslutningsforslag/B137/som_fremsat.htm.

The background for this is the recent case of blocking of The Pirate 
Bay. Remember that a small ISP with about 4% market share was ordered to 
their customer's access to TPB. This was not after a real court case, 
but was something like a preliminary injunction. In the first case IFPI 
et. al. managed to get access to the domain allofmp3.com blocked, and 
IFPI paid the "defendent" (not really a part in the case, just a 
messenger to shoot) Tele2 some money to avoid the court case which 
usually follows injunctions like this. The second case was when 
allofmp3.com surfaced under the new domain name mp3sparks.com, and this 
was blocked too. And then we recently had the blocking of TPB. In none 
of these cases any court has looked at the evidence, and in none of 
these cases the following parties have had a chance to speak to the court:
1) The blocked party (ie. allofmp3.com or TPB)
2) The people who had their access the these sites blocked.
3) The creators who had legal access to their works blocked. (Like the 
danish copyright-critic documentary Good Copy Bad Copy, which was 
transmitted on national swedish TV last week. The main creator of this 
documentary claims that the financial success of the documentary is due 
to the fact that it is freely available at TPB.)

But in the TPB case, Tele2 and the rest of the ISPs have stated that 
they want to fight the case in court. The copyright lobby does not like 
this, as the courts may throw out the case.

I see this proposal for a parliamentary decision (which contains factual 
errors in almost every single sentence, and language that makes me 
suspect it was written by IFPI) as an attempt to short-circuit this 
important upcoming court case, and instead create a tribunal that can 
decide cases of blocking due to copyright infringement without involving 
the courts. Because it is a proposal for a parliamentary decision and 
not a proposal for a law change it does not need the same extensive 
review, and this could be passed in a few months, with no media writing 
about it (most of the danish media is part of the case against TPB, on 
the side of IFPI) until after it has passed. The politicians proposing 
this probably thing they found a fair "balance", as the blocked party 
has a right to speak to the tribunal. (But the two other parties I 
listed above are still not to be heard.)

The tribunal consists of members appointed by our government and their 
decisions are to be binding on the ISPs. But while it is 
constitutionally legal here to block access to a site if a court has 
said so, blocking access before a court has spoken is clearly a 
violation of article 77 in our constitution, if the decision is done by 
our government and is binding on other parties.

The proposal talks about doing IP blocking instead of domain blocking. 
IFPI has told the media that they want IP blocking instead of the 
current domain blocking because it is otherwise too easy to "circumvent" 
the blocking by using DNS servers that do not lie when asked about the 
blocked domains.

The proposal says that there will probably be too many blocking cases 
for the tribunal to hear. Therefore there should also be a secretariate 
that tells the parties what the decision will be, if the secretariate 
knows, so the tribunal would only have to hear new and different cases. 
This sounds to me like we could have several thousand sites blocked in 
less than a year.

This proposal is really about dropping the concept of free speech on the 
internet!

Best Regards,

Ole Husgaard.