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Glyn Moody's look at all levels of the enterprise open source stack. The blog will look at the organisations that are embracing open source, old and new alike (start-ups welcome), and the communities of users and developers that have formed around them (or not, as the case may be).

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The Great IPRED Consultation Fiasco

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Last week I made a couple of urgent pleas to readers to complete the major EU IPRED consultation, which was being conducted on the Web. Since I needed to be able to refer to my own answers, I saved these as a draft online so that I could go back to them, polish them, and then submit them.

The day after I had spent the best part of an hour filling in the extremely biased questions (about which more below), I went back to my Web tab that had the form. But now my answers had disappeared, leaving only a generic page for the consultation. No problem, I thought, I'll just go back to the email that I had received with the magic Web link, and use that again. I clicked on the relevant link - and was taken straight back to the generic page. No online form was to be seen, nor could I access it from anywhere on the page.

By now, it was last Thursday, and I was conscious that time was running out for this consultation, which closed, rather weirdly, in the middle of Easter weekend. Noting that there was an email address for problems, I fired off a quick note, asking for help. In the meantime I thought it might be prudent to fill in another form in case the answer did not come back in time. As I did so, I saved it as a draft, until I got to the end. But when I tried to save that completed form, the system wiped all my answers, wasting another hour of my time.

I was now getting seriously worried about the deadline. I had heard nothing back from the help desk, but meanwhile had found another email address, to which I sent a rather more urgent cry for help. Even though I still clung to the hope that somebody, somewhere, would answer my emails and find my lost entries, I once more started filling in the form - but this time, I did not save as a draft, wrote only skeleton answers, and submitted the whole thing immediately.

Those answers were mostly monosyllabic, and certainly did not capture my full views on this important topic. Expressing these was very difficult because the questions were so slanted in one particular direction that they made it hard to explore viewpoints that did not chime with the already-fixed opinion of the questionnaire.

For example, the whole of the first section was about how vital intellectual monopolies were, and how terribly infringement harmed them. There was no possibility to choose options saying that such monopolies were no longer relevant in a digital world based on sharing, or that infringements were largely a by-product of an outdated copyright system that is unable to cope with a world of digital abundance.

Similarly, the section on "Efficiency and effectiveness of civil proceedings" did not even contemplate the fact that civil proceedings might be the wrong thing to do, that they might involve innocent people, and that they might be counterproductive. Instead, question after question simply hammered away at the dogmatic idea that every infringement was bad, just as it had hammered home the dogma that all intellectual monopolies were good.

A particularly disgraceful section is entitled "Right of information" - that's the right of monopoly holders to get personal information about those allegedly committing infringement. There is no recognition that those people might be innocent, or that they had any right to privacy. Instead, the questions are all clearly pushing to get answers saying that it's too hard to get "information", implicitly because of those pesky privacy laws that get in the way of punishing the public (one question specifically asks about "limits imposed by data protection rules", as if that is some kind of problem that needs resolving with IPRED 2).

Another section makes the unjustified assumption that ISPs should automatically act as a private police force for copyright holders:

The public consultation process on Directive 2004/48/EC revealed that measures allowing right holders to inform about the fact that an infringer/alleged infringer offers infringing/allegedly infringing goods and/or services via the services of offline or online intermediaries are sometimes seen as insufficient. It has also been argued that, where such measures exist, it is sometimes unclear under what conditions the intermediary should impede access to infringing goods and/or services upon receipt of a notification sent by a right holder.

As you can see, there is no acknowledgement whatsoever of the possibility that ISPs shouldn't be "impeding" - lovely euphemism for throwing people off the Internet et al. - access. Note, too, how we move from "infringer/alleged infringer" to "infringing goods and/or services" as if it is always crystal-clear when infringement takes place. Numerous cases show us that is not the case.

Finally, note the following rather astonishing question and "clarification":

In cases of notorious infringers of intellectual property rights, do you consider that there should be particular consequences (i.e. including e.g. suspension of the infringer's/alleged infringer's account) resulting from a notification mechanism?

For the purposes of this survey, "notorious infringers" are considered as infringers who have been the subject of a number of procedures based on the notification mechanism.

According to this definition, anyone who as has been accused - no proof required - of infringing on copyright is automatically a "notorious infringer". That's a staggering redefinition of people who may well have been unjustly accused by a system that imposes no penalty for false accusations, and it's indicative of the shoddy framing of this whole questionnaire..

Indeed, I have to say this is the worst such consultation I have ever seen - and believe me, I've filled in a few. The use of the Web input form meant that you can't see all the questions online, since it reconfigures dynamically as you answer questions. Given that many of the questions are badly worded, it's only too easy to tick a box that causes you to miss dozens of important questions.

This flows from the totally biased way the consultation has been framed: it's clearly aimed at holders of intellectual monopolies who want to enforce them more strongly. The idea that the public might have a right to express its views clearly never entered the European Commission's collective head. That the public might - heaven forfend - even be against more punitive punishments for those dreadful "notorious infringers" was clearly inconceivable.

Apparently, I'm not the only one who finds the IPRED consultation awful; for example, Monica Horten calls it "seriously problematic" - a rather restrained comment, I think. Nor was I the only one that had problems submitting my comments. I asked on Twitter, and heard about people who had similarly spent hours filling in the form, only for it all to be vaporised without warning when they submitted it. Some people didn't even get that far, since they didn't receive any replies to their request for the magic email link (and you do have to wonder why this extra obstacle was put in people's way - anybody would think they were trying to make it as hard as possible...)

Oh, and if you're wondering what happened with those emails that I fired off into the void last week, begging for help, well, I did get a reply - today. It read:

Thank you for your request.

Please notice that the mentioned IPM survey has been closed in the meantime by the responsible authority.

Helpful.

Actually, I got two emails today. The second one said:

Your help request has been resolved. [their emphasis]

Well, I have news for them: it hasn't. I shall be writing to the person directly responsible, who is apparently jean.bergevin@ec.europa.eu. If you had problems too, you might like to write to him - politely, of course. One option is to include michel.barnier@ec.europa.eu, the head of the relevant directorate with overall responsibility for this area.

Personally, I shall not only be complaining, but also asking for the deadline for replies to be extended until the end of April, and for people to be able to submit their replies using rather more convenient, and far less biased, method. Stay tuned...

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