Clause 8 : Contents of initial obligations code. There was a ton of debate on this subject precisely because we don't yet know what this new code will contain. Anything that is outside the complete control of Parliament, in the form of Primary Legislation (like this Bill), is not going to be met with much approval. There has been much insistence on certain things being 'on the face of the Bill', rather than letting Ofcom or some other body decide things for themselves. The consternation is, I think, understandable.

Lord Clement-Jones suggested a time limit between somebody transferring a copyright-holder's file, and that person receiving a copyright infringement report (CIR). His suggestion was three months, arguing that if there is "some sort of Sword of Damocles hanging over a subscriber", then subscribers shouldn't have to respond to allegations beyond their memory, as it's unfair. The argument against this by Lord Young of Norwood Green was that people will take this as a default - that is, 'oh, we don't have to do anything for three months, then we'll get them'. He insisted that everyone should simply trust the code to get this right. Lord Clement-Jones retorted that Lord Young is "optimistic about the way the code will operate, but he is probably surrounded by rather more pessimism than he would like. "Trust the code" was his watchword, but the fact is that if the code is going to be created by different stakeholders, it will be like having a bunch of ferrets in a sack". Not quite sure I understand the last bit, but I think I know what he's driving at.

So, that's pretty much where it ended on 18th January. The House came together just two days later, on 20th January, to continue debating Clause 8. It got off to a shaky start, however - it seems as though the woman here didn't really know what to say. Christ, I'm a bystander and I think I could reel off the required words after all these debates. Maybe she was just confused by all the comings and goings.

Both Lib Dems and Tories were very concerned about the formation of another body to assist Ofcom in their activities, who may or may not be independent. In fact, the latter point was strongly debated, with Lord Clement-Jones wondering if they would need "the old test of the length of the Minister's thumb to decide whether independence is sufficient". The government assured everyone that this would be fine, but I'm sure this will rear its head in the future.

There was also some important (in my opinion) debate about the 'burden of proof' being on the copyright owners, not subscribers, when it comes to a case being brought against someone. The debates have made it very clear that 'innocent until proven guilty' is the default stance we should be taking (as I said in a previous post, I've heard nothing but support for subscribers against copyright owners throughout the debates), but the opposite stance appears to be the case here.

This discussion was linked to the contentious subject of costs. The government suggested a 75/25 split - 75% of legal costs paid by copyright owners, 25% by ISPs. Lord Howard of Rising stated that "copyright owners want a 50/50 split while the internet service providers want none of the costs. The Government seem to have made a final decision just to split the difference and have an easy life". Lord Clement-Jones chimed in that Lord Young "would not be taking the Digital Economy Bill through the House if he was really after an easy life". Lord Young made it quite clear that the 75/25 number is not set in stone, so no need to get hot and bothered about it now.

There was a bit of confusion at one point, as Lord Clement-Jones said he was going to give a speech if Lord Young was to speak about both Amendments 120 and 124, but he wouldn't if he did them separately. Lord Young seemed to get a bit confused by this. The fallout from this resulted in Lord Clement-Jones joking that he was "slightly hurt" by Lord Young's admonishment of his amendment grouping.

Lord Lucas made the pertinent point of asking how a subscriber can defend himself from accusations of illegal file-sharing, "other than by saying, "I didn't do it, guv"". His suggestion of a technical solution - like a program that will "inspect [your computer] and say, "Yes, you have taken the measures necessary and yes, there is no trace of unlicensed copyright material on this machine", sign it off and thereby provide sufficient proof that he is innocent" - may be difficult in practice. Nevertheless, what other options are there? Other than having to "surrender my laptop for three months or, as has happened in other civil cases, more than a year", there doesn't seem to be much choice. Lord Lucas was not satisfied with Lord Young's response, so he pledged to return to this at Report.

He made another interesting, though brief, amendment, suggesting that if there are millions of illegal file-sharers, and a fraction get accused of doing it, that's still hundreds of thousands of cases clogging up the civil courts. This was a point I mentioned in an earlier post. His suggestion was a simple fine, which would essentially make it like it is now, but government authorised and without all the bullying tactics. It makes sense: if you're going to go after people, you might as well save a lot of trouble. Lord Young insisted that the potential levels of damage are so wide-ranging that it wouldn't be practicable. Lord Lucas accepted that, but warned that the government will have "failed in their duty to their citizens if they do not keep to themselves a mechanism for making sure that at least the initial fine or punishment is within bounds". He referred to the astronomical amounts of damage demanded by companies in the USA.

Lord Howard was very keen to know if "no technical measure will be imposed until the appeal process has been completed". He, thankfully, received that assurance. I don't think anyone would like to lose their internet because of a false claim by a copyright holder.

There was a little more debate before, finally, Clause 8 was agreed, unamended.

Clause 8 passed - no amendments