Stop SOPA Briefing Document for TDs and Senators

In preparation for today’s activities in the Dáil and hallways of the Oireachtas, stopSOPAireland.com has prepared a well-formatted and easily printed parliamentary briefing document for TDs and Senators, laying out the issues in 10 points.

NOTE: This document and the corresponding Supplementary Briefing Doc are available here.

Fantastic things you can do with this document:

• If you are meeting with a TD, senator or staff member today, please put a printed copy in his or her hands.
• If your favourite senator or either of your TDs are active on Twitter or Facebook, please politely let them know, once, that this document is available for download with a link to this post.
• If you are able to print a copy and drop it into the constituency offices of your TDs, please take the time to do so. If they are in Dublin, their local office can fax a copy to them.

Less fantastic things to NOT do with this document:

• Please do not mass email it to TDs. We have already circulated this document via email to every TD and Senator! Deluging them with copies isn’t a good way to get them on-side.

Thank you for any efforts you can volunteer to get these points into the hands of the people who can make a difference today.

What the Brief Says:

“…the owner of the copyright in the work concerned may apply to the High Court for an injunction against a person who provides facilities referred to in subsection (3) where those facilities are being used by one or more third parties to infringe the copyright in that work.”
– Excerpt from the June, 2011 Draft Regulations: S.I. No. of 2011
European Communities (Copyright and Related Rights) Regulations 2011

1. This vague and alarming language will give the Irish courts an open-ended power to grant orders against ISPs and other intermediaries who provide facilities which might be used to infringe copyright. A single user illegally sharing content on a site like Facebook or YouTube could be grounds for a rights holder to seek an injunction forcing Irish ISPs to block access to those sites.
2.  Ireland has benefited enormously from the presence of international internet and technology companies, who employ tens of thousands of Irish workers. For what purpose does a ‘Jobs Government’ seek to undermine Ireland’s reputation in this area, and put the jobs of these international technology companies in Ireland at risk?
3. Where the Minister of State intends to prevent access to sites whose primary purpose is to enable users to engage in copyright violation, he has instead delivered draft wording which enables a court to block any site with any non-infringing purpose where any user has so much as linked to any infringing material.
4.  Sean Sherlock may continually state that blocking access to websites ‘is not his intent’ but the intent is irrelevant. What counts are the words in the actual text. A final version of this order has yet to be made available for public scrutiny or debate on the proposed text.
5. The Minister of State is publicly and simultaneously saying two mutually-contradictory things:
   • That he doesn’t want to enable courts to enforce the wholesale blocking of web sites,
   • That he does want the courts to be able to grant injunctions like the one denied to EMI – which would have ordered a site to be blocked in its entirety from all UPC customers.
6. There is no evidence of provision for website owners to have any safe harbour, representation or even a right to oppose the injunction before it is granted. The effect of this will be to deny due legal process to any person or company lacking the considerable financial resources necessary to mount a high court action.
7.  Charleton J. in EMI v. UPC [2010] IEHC 377 referred to any legislative intervention being properly a matter for the Oireachtas. The Opinion of the Advocate General in Scarlet (Extended) v. SABAM (Case C-70/10) similarly referred to a need for legislation in this area to be “democratically legitimised” (at para. 113).
8. If a matter is so significant that it must be debated by Cabinet, it is by definition not a matter which is suitable to be enacted without the vote of the Oireachtas. A Ministerial Order (Statutory Instrument) is only intended to bring in secondary legislation, tidying up the administrative side of policies and laws already passed through the Oireachtas.
9. Indeed, FG and Labour’s joint Programme for Government explicitly states they will not incorporate EU regulations into law except by primary legislation, and that sneaking them in by statutory instruments is ‘unacceptable.’
10. The measure proposed will likely be found in contravention of the European Convention on Human Rights. Freedom of speech is infringed when, as will inevitably occur in this case, publications and companies and individuals self-censor for fear of vaguely-worded legal consequences. It will – it cannot but – lead to a widespread culture of ‘prior restraint’ censorship. Government action that brings about such ‘chilling effects’ is not legal behaviour.

By definition, as well as from experience, legislators know very well that laws enacted in haste are usually bad laws; laws that experience no scrutiny from the legislature before passage are frequently bad laws; and laws which lack so much detail that they cannot possibly be properly defined except by the intervention of the courts are always bad laws. This one is all three.

(V5.1, updated 10:40 am)