Report (1st Day)

Part of Digital Economy Bill [HL] – in the House of Lords at 7:15 pm on 1st March 2010.

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Photo of Lord Lucas Lord Lucas Conservative 7:15 pm, 1st March 2010

My Lords, in moving Amendment 15, I shall speak at the same time to Amendment 31. The Minister knows what this is about; we talked about it extensively in Committee. It seems to me that now is the time to take all the good intentions expressed all the way round the House and reach some sort of conclusion.

The purpose of this bit of the Bill, which we are just coming to, is to produce a sensible and civilised way whereby copyright owners can effectively enforce their copyright in a situation where the theft of copyright material has got seriously out of hand. We have made a lot of progress in this Bill, and with the amendments which the Government will bring forward, to produce that effect-something which will start off by being educative, and which will be punitive only after very reasonable procedures have been gone through. I hope very much that it will be effective.

Unfortunately, there have sprung up what I would describe as abuses. They may not technically be abuses, but they are certainly abuses of current practice so far as the citizens subject to them are concerned.

The game works roughly like this. You find an owner of an obscure bit of copyright that is available on the internet, preferably something pornographic and extremely nasty. You then employ a piece of software whose innards have never been exposed to the public, or tested in a court, to produce allegations that a particular set of IP addresses have made that copyright material available for upload over the internet. You then take tens of thousand of these cases to court and, using a Norwich Pharmacal order, obtain the details of the relevant subscribers from their internet service providers. You then write them a letter, which has basically three elements to it. First, it says: "You have committed this transgression of copyright". Secondly, it says: "If you force us to take you to court, we will pursue you for a very large sum of money". Thirdly, it says: "But we offer you this opportunity to settle for a mere £500 or £800"-or whatever the figure is-"and we will forget all about the perils of court and the vast sums for which you might otherwise be liable, because basically we are very good people, and all that we are seeking to do is to protect our copyright".

This scam works because of the impossibility of producing proof against this allegation. How can you prove that you did not do this thing? You have an internet connection, and they say that it was done over that internet connection. It is no good producing your computer, because you committed the offence using a different computer. It is no good saying that you are a 97 year-old widow and that you hardly know how to use the telephone, let alone the internet, because, nevertheless, you have an internet connection and they say that it was abused. It is extremely difficult to produce evidence to gainsay this. All you can do is deny it, and one of the things that they say in the letter is, "Don't bother to deny this without producing evidence that you didn't do it".

The result is that a very large people of number pay up, as a result either of the first letter or of the letters that follow. As far as I can discover, despite the tens of thousands of orders that have been granted, the solicitors involved have never taken a seriously contested case to court, because getting money out of people on the basis of the compromise offer is actually what is lucrative.

There may or may not be truth at the root of this, but this is a route for obtaining redress for copyright abuse which has been neglected, and with good reason, by the reputable end of the copyright industry. It produces a great deal of distress and indignation among many thousands of our citizens, and it ought not to be allowed to continue now that we are producing a better and proper route for redress for copyright owners, particularly where we are looking at volume cases-where we are looking at large volumes of infringement. That is exactly what the Bill aims to deal with.

My Amendments 15 and 31 look at a couple of possible ways of dealing with this. We could act on the internet service providers and give them a defence against revealing the details of their subscribers-we could say that either they or a court must be satisfied that a fair and accurate process was being used-or we could give the court the power to say, "No, here is this Act which provides a proper remedy for copyright owners who are suffering from the sort of abuse which is alleged in these letters. Let them use that route because that is fairer for consumers and a fairer basis on which to operate, which is what Parliament has decided, and lay off the techniques which are being used to extract money at present".

Mostly, to date, one firm has been involved, but now a second firm is getting involved. The news of how lucrative this is has spread. If we do not do something about it, we will have more firms creeping into this business. There is plenty of copyright in unpleasant material. There are plenty of opportunities for these firms to make money. It is high time that we do something effective to put a stop to it. I do not mind which of the amendments the Government choose. I suspect that if I was forced to choose between them, I would choose the one put forward by the Liberal Democrats. It might not be perfectly drafted, but if we get it into the Bill now, the Government will have an opportunity to redraft it for Third Reading. But this must not be allowed to continue. I beg to move.