At today’s Irish Digital Forum at The Science Gallery were from top: Sean Sherlock (junior minister for jobs and innovation), Simon McGarr (solicitor, Stop Sopa Ireland Campaign), Tom Murphy (Boards.ie) and Paul Durrant (Internet Service Providers’ Association of Ireland).
Sean Sherlock: “If you look at question 86 of the Copyright Review Committee, it says ‘have we missed anything?’, is the question. ‘What have we missed?’ That opens up a space for anybody to make a submission on anything relating to issues not covered by the questions. It doesn’t matter that you don’t have a technical knowledge around the questions because not everybody does, including myself if I’m honest about it. People may laugh but I, you know, not everyone is going to have a complete deep knowledge about the 86 questions that apply here.”
Simon McGarr: “But that’s exactly what you’ve suggested people do if they want to express their opinion. That they plough through those 86 questions. You haven’t done them yourself?
Sherlock: “No, I, I, I have.
McGarr: “Have you answered them?
Sherlock: “No, no, I have looked at the questions..
McGarr: “Can we see? Can we correct them?
Sherlock: “You see, I think, I don’t mind people being facetious, you know, you can be facetious if you want to be Simon, OK?”
McGarr: “I’m always facetious.”
Sherlock: “Well it doesn’t become you, right? And let’s…”
McGarr: “No that is a real question because minister that’s the question that you responded to people with when you, when after you signed this SI [Statutory Instrument]. You said that people should go now and participate…”
Sherlock: “I think you should tone it down. I think you should tone it down.”
McGarr: “People should participate…”
Sherlock: “I think you should tone it down.”
McGarr [to Tom Murphy]: “Do you? Do you think I should tone it down?”
Murphy: “Yes I think you should tone it down.”
McGarr: “OK, right, I’m too loud. Apologies.”
Sherlock: “I met with Tom [Murphy] earlier on. Tom set out a very cogent argument to me about how his business model has evolved but the legislation is behind the curve in relation to his business model. And Paul [Durrant] makes the point that the ISPs now find themselves in a position where they have to put away a war chest, if you will, to meet the potential for litigation so that if two citizens or two competing interests post something and there’s a challenge around it, or somebody seeks injunctive relief, they’ve got to spend a pot load of money, defending those interests, so what that has thrown up for me as a minister is a challenge around well ‘how do we address this?’ Even aside from the consultation process, how do we address it and meet the challenge of addressing that? And it’s a legitimate question that you pose and I don’t have the answer now but…”
Murphy: “I think to be fair people’s anger with, that you’re sensing, which is palpable I guess, the anger is that you had that chance two months ago and you did not listen.”
Sherlock: “No, that’s not true. I mean…”
Murphy: “You signed exactly that wording exactly as it was, you rejected an alternative SI that was…wait now, you’ve had your say…an alternative wording which was put forward by a technical group, which was perfectly reasonable. The argument to say ‘Europe said we must do this, we must do something, this is something, therefore we must do this’, that doesn’t stand. Cause Europe said ‘you must do this’. Now, first of all, Europe said you must do an act, legislation for an injunction, I accept that, right. Europe has also said that we must incorporate the X case into our legislation and that’s been 15 years right, so? I don’t think that we have to rush it through necessarily right. So there wasn’t any rush apart from the fact that we were being sued by EMI for not providing this. So that’s point one. Point two is that this is Schrödinger’s Law [named after the physics experiment]. Now you want to talk about the reality and the present, and not living in the past and the here and now. Is that every day myself and my team [at Boards.ie] have to make decisions as to what we allow people to say. That is abhorrent to me as a free speech advocate. I hate deciding what it is you can all say. I want you to get sued if you say something bad, I don’t care about that. But if you say something good, fine, it should stand. ‘Live and die by your own words’. And I have always said from day one on Boards, you own your own words. The problem is that we end up with Schrödinger’s Law. The law doesn’t exist until a judge observes it and it’s innocence or guilt is decided then. Now we don’t know in advance so I can’t be compliant with a law that just doesn’t exist yet. Now we don’t know what will get us into trouble, we don’t know what will cause us to have a court case or an injunction taken against us. We don’t know if allowing someone to stream their webcam from their bedroom, which happens to be showing the rugby match in the background is illegal. We don’t know if linking is illegal, for sure. We don’t know if all sorts of vagaries, we don’t know. So we have to have to make these decisions. We walk into court, we find out from the judge, the judge goes ‘no that’s illegal and it turns out that you’ve broken the law’ and ‘now in retrospect you will be punished for that’. That’s the way this rule works because the judges are making the decisions as to what is illegal…”
Murphy [To Sean Sherlock]: “Why didn’t you sign the alternative [SI], that was much better and it still gave the injunctive relief?”
Sherlock:” I’ll tell you why we didn’t sign the alternative. We didn’t sign the alternative Tom. We were given, we relied on the advice of the Attorney General.”
Murphy: “Was he shown the alternative?”
Murphy: “She. There was two of them. Both of them she?”
Sherlock: “No there’s one Attorney General, but I’m referring to the Attorneys General…”
Murphy: “OK, come on. So you showed…did you show the alternative to her?”
Sherlock: “We would have had contact with the office, yes.”
McGarr: “Did you show her the alternative?”
Murphy: “Did you tell her the alternative SI? Yes or no answer?”
Sherlock: “I’m telling you, honestly, and truthfully, that we did have regard to the alternative SI.”
McGarr: “Did you show the Attorney General the alternative SI?”
Sherlock: “And if you look…”
Murphy: “Did you show the Attorney General the alternative SI?”
Sherlock: “If you look, if you look at..if you look…”
Murphy: “That’s a no. Are you just saying no in a long way?”
Sherlock: If you’re asking me did I personally hand her..
Murphy: Did the Attorney General see it? No.
Sherlock: The office. Her office did.”
Sherlock: “Aah no, her office did. Her office did have regard to it.”
Murphy: “That’s a politician’s answer if ever there was one.”
After telling Angela Dorgan, director of First Music Contact, in the audience, that her concerns will not be heard by Sherlock and the government, Tom Murphy explained:
“I’ll tell you why you won’t be listened to. Because I went to the CRC meeting on Saturday morning and there was, there was 50, and I counted them, roughly 50 lobbyists, paid lobbyists, me two librarians and a bloke who wanted to talk about his DVD region encoding. Right. Those people are paid. They’re daily job is to protect that industry, their daily job is to lobby, lobby, lobby and when it’s made to seem like we have a middle-of-the-ground answer it will be because so much has been done on their side that 99% of the win will be there on their side and the crumbs will be left to us. Because, when we got around through the copyright holders, the intermediaries, the fair use, a big sign came up saying ‘now we’ll talk about the users of copyright’ and nobody said a word. There wasn’t one single person. And eventually I put up my hand and I said, I think it’s instructive that there’s nobody hear to speak for the users. There was 80,000 people who signed his [McGarr’s anti-Sopa Ireland] petition and it wasn’t listened to and that’s just the tip of the iceberg.”
Sean Sherlock’s intro (extract): “I’ve endeavoured to engage with everyone on this as best I can…I’ve learned from the past couple of months that the way to drive legislation forward is to engage the online community. We need to move beyond the traditional methods of consultation, through advertising in the traditional media and so on and so forth. We need to embrace the online community and get you guys as part of the consultation process.”
Tom Murphy’s intro (extract). “My name is Tom Murphy and, depending on who you listen to, in the Senate I am a ‘subverter of the State’ and in the Dail I am a ‘keyboard warrior’. Normally I don’t face people, I usually write this sort of stuff so forgive me if I’m not a great public speaker. I’ve a few points to make. We live in the crack between you the public and the ability to publish, we’re a platform on which you’re able to put your thoughts and words. We have some issues with the copyright law, as it stands at the moment, I’d like to enumerate them. The first is, is that it’s vague in the extreme. There are no details as to what’s considered a distinct breach of the law. It isn’t clear even if we’d be given notice whether we’d be dragged into an injunction situation or not. The judge is being told to consider the possibility that we should be informed. Two, the mere threat that allowing a user to post content, and that content could land a server in court will ensure that that service never exists. If what you say could get me into court tomorrow, there’s no way in hell I’m going to let you say it. That is the basis of this problem, is that we stand in between you and your ability to publish and that, as a shareholder, I must protect my shareholders and so I am split – my loyalties lie between my shareholders and your freedom of speech. It’s not fair. This is akin to letting the Bank of Ireland take proceedings against the national toll roads – when a getaway driver uses the M50, after robbing a bank. It’s not the toll road’s fault that they built a road which was used for an illegal purpose. This will kill innovation. It scares away foreign investment. And number five, is that this won’t even work.”
Simon McGarr’s intro (extract): “What we’re discussing isn’t a copyright law. As a lawyer, I can tell you a secret. Law is very boring. Legislation is very dull and draft SIs and consultative documents are not fun. We’re not meant to admit that in public but that is true. What is important is the fact that copyright laws that we live inside are a collection of society’s decision about how to reward and restrict creativity. They’re a reflection of our culture. They’re a vocalisation of what collectively we think our culture should be. Unlike almost everybody on the panel here I don’t represent a commercial interest. In fact, the minister pointed out I represent no interest, but my own. Well, that’s citizens for you. We collectively represent our interests when we agree amongst ourselves that we will share a common position. But individually we each should hold our own positions, we should have our own interests. And my interest here is that the debate in copyright is not lost between pulling between different commercial interests. Tom has a commitment to free speech but he has a legal commitment to his shareholders, as a director and he recognises that. The ISPAI has a legal commitment to their members. I say that…and well of course, EMI has a commitment to its shareholders. Each one of them should pursue their interests. But their interests do not define the public interest. And I say that there’s a broad middle and a consensus between commercial interests is not the same thing as the public interest. A process which seeks to have the commercial interest come together around a table and hammer out a deal is not necessarily a deal that’s good for us. We’re citizens. It’s a republic. And I’m here today simply to say on the podium here that if we’re going to discuss our culture that we should start from the position by saying it is our culture, that we should make the decision as to what the legislation should involve. There is a Copyright Review Committee currently running but it is extremely technical and difficult to get involved in it. The minister has referred several times to the 82 questionnaire, well I can tell you, I couldn’t get to the 82nd question. But there’s no obligation on us to get through the questionnaire. We don’t have to. We can make our submissions ourselves…Between committee and law, strange things happen’.”