AS YOU’VE PROBABLY heard by now, Junior Minister for Innovation Sean Sherlock is due to sign a Statutory Instrument that could potentially enable copyright holders (like music labels, or even you or I) to force Internet Service Providers (ISPs, like UPC or Eircom) to block access to websites with copyright-infringing content (i.e. much of the internet).

Over the past few weeks, but especially in recent days, awareness of and opposition to this proposed law has grown immensely. The campaign stopsopaIreland.com has collected over 30,000 signatures, and hundreds (possibly thousands) of emails, calls and other communications have been made to Mr Sherlock and other TDs. A vigorous online opposition to the law has developed.

I listened to RTE Radio 1 on Tuesday, when Sean Sherlock spoke to Mary Wilson, defending the new law. His justifications for the new law - summarised here – should be addressed, so this debate can move forward without the same sound bites being trotted out again. So here they are, with responses.

This is not SOPA-type legislation

Respectfully, what is it, then? This is a law that enables copyright enforcers to use courts to force ISPs to block access to sites. Though it does not have all the features of SOPA (or PIPA) in the US, it has major similarities. Of course, this could be cleared up if the government would make public the exact wording of the proposed law. One of the most worrying things in this whole debate is that they won’t.

“This is a restatement that we held was already present in Irish law”

As a matter of pure logic, changing the law to a “restatement” – whatever you always thought it should be – is still changing the law. The right to force ISPs to block access to particular sites is not presently the law, as Justice Charlton held in EMI v. UPC, the case that seems to have led to this furore. Specifically, he said “a blocking injunction is not available in Irish law”.

To be fair, I believe Mr Sherlock means that the government thinks copyright holders should have a right to block access to ISPs. But when did this become their position? Was it in the Labour programme for government? Is the party unified on this? (With Fine Gael in agreement?)

This is required by the EU E-Commerce Directive

The government is taking the position that this change is something Ireland must do to do to be EU law-compliant, under the e-commerce directive, a (by now aging) piece of Euro-legislation. This is at least possible. Though it’s also possible that those laws have been supervened. The law on the subject is in a “state of chassis”, as Joxer would say.

Importantly, no European Court has held Ireland in breach of its obligations under the e-commerce directive. Neither has the European Commission, TJ McIntyre notes in his helpful FAQ. So why bother make this law that might or might not solve a problem that might or might not exist?

I wonder if anyone in the cabinet has read EMI v. UPC in full? Here it is. As as side note to that generally interesting (if long!) decision, I’d worry that the facts accepted by Judge Charlton about the scale and effects of piracy in this decision are based almost entirely on unchallenged evidence by music executives.

It’s “just not true” that this legislation could block Youtube, Google, etc.

Mr Sherlock says Irish internet users have no reason to worry about this legislation interrupting our ordinarily scheduled internet programming. But why not? If Youtube has copyrighted material without permission, presumably an injunction could be issued to Universal Music, or you, or I, or any other copyright holder who wishes to force ISPs to block access to Youtube. Unless Mr Sherlock has made an exception specifically for Youtube. Which of course would not be a good solution, because thousands of other sites would have similar problems.

The Irish internet is not comfortable with Mr Sherlock’s assurances on this one. The Stop SOPA Ireland campaign rumbles on, with tens of thousands of signatures gathered.

Hang on, what about the music makers and movie makers?

Why does the government need to trot out all these legatistical reasons for the new law anyway? What about the people it’s supposed to protect?

I don’t mean EMI or Warner. As I said in my earlier post on this, legacy copyright businesses built around marketing and distributing records are now naturally and permanently in decline. The market for music has opened up, and the world has moved on. To make laws focused on preserving their market share would be like outlawing cars to save horses.

Meanwhile, music discovery and distribution is increasingly online and social, and artists are finding new ways of reaching their audiences without a record company (eg Radiohead (website), Lana Del Ray (Youtube), the RubberBandits (Facebook).

Having said that, the StopSOPAIreland lobby should think about the thousands of smaller people who make a living in music, or writing, or other creative art forms today. They deserve protection. What would they like to see happen?

Many artists find Youtube more a friend than enemy. They can reach millions with their art or music without ever impressing a music executive gatekeeper. Great stuff gets clicks, eyeballs, and ears, which can be monetized, especially with Youtube opening up ad-revenue sharing deals.

Getting the Stakeholders Right

The StopSOPA lobby should appreciate the difficulty of Mr Sherlock’s position, with EMI suing the Irish state to force it to pass a SOPA law, and the possibility of all this being smacked down by the pretty awful ACTA treaty.

Perhaps this whole controversy might arise from a simple misunderstanding of who the real stakeholders are. This isn’t just between UPC and EMI. Copyright exists to encourage and enable creation of artistic and other creative work for the good of society.

So a final message for Mr Sherlock: The real stakeholders here are the creators – musicians and other real creatives who might need protection (though you should ask them), internet-based companies (who don’t want to be hit on the head with injunctions), and ordinary internet users (who like their internet). These are the people the government needs to consult with in developing this law, not just Eircom and EMI.

Paul Quigley is co-founder of Newship.com