Sean Sherlock’s “Explanation” Fails Miserably to Clarify Anything
Posted on 25th Jan 12 by Mike McGrath Bryan | 
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And his bare-faced lying about not wanting to censor the Internet gets even worse…
Minister for Enterprise Sean Sherlock has, as we all know, recently began upon a quest to destroy the freedom of the Internet.
Hiding under a flimsy legal pretext, Sherlock has declared war on anyone that isn’t an ailing major label soaking in its collected irrelevance to actual fans of music and culture. The Internet in Ireland has not stood for it, with nearly 30,000 having signed a poll in opposition of the measures.
Sherlock has played the innocent, pretending to wish to find a compromise, and to clarify his position on freedom of the internet, which he has attempted in the below statement.
Legitimate Copyright Protection in Ireland: not SOPA – Sherlock
We all subscribe to the freedoms, the opportunities and the access to information that the Internet provides us with. Ireland is home to some of the world’s most innovative internet companies and we are determined to grow our reputation as a location where smart people and these smart companies can continue to innovate in this fast moving arena.
The last thing innovators need is a culture where the outputs of their creative endeavours have to be locked away or kept secret for the fear of theft. Ireland is very proud of the fact that we have a modern suite of intellectual property laws that by their very nature balance a range of competing interests and rights in a manner that is seen, right across the globe, as reasonable and proportionate.
Going right back to 22 December , 2002, the date by which every EU Member State had to have implemented Directive 2001/29/EC, every EU country has had to “ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by third parties to infringe a copyright or related right”. Having that provision enshrined in EU law and the laws of Member States for a decade has not restricted the development of the Internet or innovative internet companies. On the contrary, the Internet has flourished.
It may be useful to explain the background against which the requirement for the amendment to the Copyright and Related Rights Act 2000 has arisen. In the EMI & others versus UPC High Court judgment of 11 October 2010, Mr Justice Charleton decided that he was constrained by the wording of the Copyright and Related Rights Act 2000 and thus could not grant an injunction to prevent infringement of copyright against an information service provider (ISP) in the circumstances of “mere conduit” (transient communications). In doing so, he stated that Ireland had not fully transposed the relevant EU Directive(s). As you will appreciate, non-compliance with EU law is a very serious matter.
The “Mere conduit” principle provides that if an ISP does not initiate a transmission, or modify the material contained in a transmission and does not select the receiver of the transmission, it is granted a “safe harbour” against liability, by virtue of the e-Commerce Directive [2000/31/EC]. However, according to the same directive, this freedom from liability does not affect the power of the courts to require service providers to terminate or prevent copyright infringements.
As far as can be ascertained from the judgment (the State was not a party to the case), the type of injunction sought was to require UPC to prevent infringement of the record companies’ sound recording copyright, through its internet “peer-to-peer” services, possibly involving a “three strikes and you’re out” scenario. This is where the ISP sends three warnings of increasing severity and if the infringement continues, discontinues access to the Internet. It is sometimes referred to as a “graduated response”. I understand that blocking access to infringing online sites may also have been sought.
Two EU directives (the Copyright Directive 2001 and the Enforcement Directive 2004) require that the holders of copyright – authors, music composers, lyricists, record producers etc. – are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
The Department of Jobs, Enterprise and Innovation had considered that injunctions were available under Section 40 (4) of the Copyright Act and the inherent power of the courts to grant injunctions, which are equitable and discretionary remedies, granted according to settled principles, developed by the courts. However, this was not Mr Justice Charleton’s view. The record companies did not appeal the High Court decision and, consequently, the State has not had an opportunity to put forward its views on the legal principles involved nor on the construal of the relevant sub-sections of the Act, which we feel were not fully explored in the judgment.
The Attorney General’s Office was then asked (both by this Department and Department of Communications, Energy and Natural Resources) for its advice as to the implications of the High Court judgement. The prudent course, he advised, would be to introduce a Regulation to ensure compliance. After consultations with the Attorney General’s Office and the Department of Communications, Energy and Natural Resources, this Department launched a public consultation on the text of the proposed Statutory Instrument. The consultation attracted over 50 submissions from interested parties. For the avoidance of doubt, the Government has decided to introduce a Statutory Instrument to restate the position that was considered to exist prior to this judgment.
Concerns have been expressed that the proposed Statutory Instrument mirrors the Stop Online Piracy Act (SOPA) in the United States. These concerns are not based on fact. The purpose of the Statutory Instrument is simply to provide explicitly that injunctions may be sought, as obligated by the two EU Directives cited above. It should also be noted that such injunctions are available in all other Member States of the European Union by virtue of the two Directives already referred to. In granting such injunctions the courts must take account of Court of Justice of the European Union judgements. These require that a fair balance be struck between the various fundamental rights protected by the Community legal order and the principle of proportionality. That would include, inter alia, the protection of the fundamental rights of individuals who are affected by such measures, the freedom to conduct a business enjoyed by operators such as Internet Service Providers, the protection of private data and right of freedom of expression and information.
In proposing to amend the legislation, I am particularly conscious of the importance of online content and digital businesses in the Irish context and, accordingly, am simply seeking to ensure Ireland’s continued compliance with its obligations under the relevant EU Directives following the decision of the High Court in the aforementioned UPC case.
I trust that this information will clarify the issue.
What follows is an open letter to Mr. Sherlock from the Internet:
Dear Mr. Sherlock,
Guess what, guy? It doesn’t.
If anything it muddies the waters further by implying that you don’t wish to restrict the internet, yet wish to restrict internet service providers.
Who’s been your advisory council here, you muppet? And if you do represent content providers in Ireland, how come none of the independents are in support of your one-sided “instrument”?
Until you release the wording of this bill and allow for alterations, you are doing nothing but complying with corporations and their moronic lobbyists.
Sincerely,
The Internet
Previously: EMI launch lawsuit, fail to realise their long-standing irrelevance.
Tags: fuck Labour, Sean Sherlock, stopsopaireland
This is fairly important legislation – which is why it’s so disappointing to see the level of debate lowered to net trolling and ill informed nonsense.
Firstly – European directives and High Court rulings are far from a ‘flimsy legal pretext.’ Whether we like it or not, legally this is an issue that needs to be solved somehow.
Secondly – We, the internet users and those with an interest in this need to act constructively and not resort to playing the man instead of the ball. Calling the relevant Minister a muppet? Bit schoolgroundish, no?
Instead of ‘flaming’ people, generating shit memes and telling ministers they suck, lets be constructive.
No other vested interest in a government issue would react to legislation with such mind-numbingly conteractive bile as so many keyboard warriors have in the last few days.
Disappointed drop-d couldnt be the exception in this case. If this is your contribution lads, stick to the choons.
I can see where yer coming from, but bear with us – it just defies belief that he’s pushing this legislation through despite the wishes of over 30,000 people that stand to be affected; the employers that will surely be scared away like Twitter and Google in Dublin and the smart economy we hope to build; and the long-term ramifications of this move – that anything we say could held liable for copyright infringement under this flimsy pretext (which was a reference to the much-parotted (and failed) EMI vs. UPC case).
There is a lot on the line and it is both worrying and immensely frustrating that we are in this situation at the moment. We usually aim for an authoritative voice, but if this goes through, there is a very real likelihood that there will be no authoritative voices at all, full stop.
I understand your feelings, but I agree with Dave. Name-calling won’t stop any bill, and I wouldn’t like to live in a country where it did.
Your frustration must be immense, but I think your approach here is more about expressing that frustration than it is about alleviating it by halting the bill.
Why? Because If I was a TD I would bin your email without a second thought, and that’s what any reasonable person would do. Doesn’t this kind of approach encourage people to think of 30,000 internet signatories as a shouty mob?
[...] Sean Sherlock Explains Nothing [...]
30,000 Internet signatories are 30,000 votes that will turn their back on Labour next election. Regardless of what he thinks, he has to pay attention because if he doesn’t, he’ll be dead in the political water.
We could be less explicit about it, but that would just be downplaying the issue at hand.
It’s not about being less explicit. It’s about employing a tactic that is likely to work or simply giving vent to your feelings.