Brexit, digital entertainment, tech and why I’m voting Remain

It would be against the UK’s interests to vote to leave the European Union: this is my attempt to explain why I believe this and why I will be voting ‘Remain’ on the Brexit referendum on 23rd June 2016.

For those of you who don’t know me: I’m a digital entertainment and tech lawyer with more than a decade of experience working in the UK, continental Europe and Silicon Valley. I advise video games, eSports, digital broadcast and tech businesses from indies and startups to global leaders on UK and EU legal and business matters. I’d like to think I have a pretty fair understanding of the legal and business realities of the UK’s membership of the EU. So, I’m going to focus on legal and policy issues for Brexit, partly because it’s my specialism, but also because there has been relatively little discussion about it and how it would affect the industries I advise. It is not even close to an exhaustive treatise on the topic, it is just my own thoughts a couple of days before the referendum. If you want to hear what the industries themselves think, here’s some links about what tech thinks about Brexit, and what the games industry thinks about Brexit (1, 2) [spoiler: they are all against Brexit]. Here we go… Continue reading Brexit, digital entertainment, tech and why I’m voting Remain

Digital resale rights in the EU: the state of play

What happens when you decide that you no longer want an e-book, film, tv episode, music track or video game which you bought and downloaded?  What happens if you decide you want to give it to a friend, relative or just someone who wants to buy it from you?  We’re in the middle of trying to find out the answer to that question.  It’s being argued out by consumers with businesses and it’s also now attracting the attention of the legal system. I thought my readers in the games and digital creative industries might like a practical summary on what’s been happening recently.  Here we go…

Continue reading Digital resale rights in the EU: the state of play

Do you own your kindle ebooks?

I just read this quick Wired post on whether you own your kindle ebooks.  This is what they said:

“If convenient euphemisms could somehow be outlawed, the “Buy now with 1-Click” button on Kindle pages would have to be relabeled “License now with 1-Click.” Amazon’s terms of service clearly state that, unlike those bulky slabs of arboreal matter that imparted knowledge to generations past, Kindle books can never be owned in the traditional sense. Instead, your $12.99 merely earns you the right to view the work on your Kindle. This arrangement gives Amazon the authority to snatch back that content if the company thinks you’ve been naughty—say, by copying and distributing ebooks or by engaging in fraud with your account. Continue reading Do you own your kindle ebooks?

Can the next generation consoles block used games?

The next generation Microsoft and Sony games consoles – Sony PlayStation 4 and the newly announced Xbox One – are coming pretty soon now.  There’s been much speculation about to what extent they might attempt to block used games sales, or even sharing of games.  For example, have a look at this BBC article.  Can they actually do that legally? Continue reading Can the next generation consoles block used games?

Games and the Digital Economy Act: an Update

Earlier this year I wrote about the impact UK Digital Economy Act, which was passed by the Labout government earlier this year, and the impact the Digital Economy Act will have on games once it comes fully into force.  Now that has taken a step closer.  Read on for more… 
So what’s going on?
The Digital Economy Act is (among other things) a big change to UK law on copyright infringement, because it mandates a new system in which rights holders (e.g. developers and publishers) cooperate with ISPs to locate, identify and take legal action against copyright infringers, such as people who download pirated games.  The most (in)famous aspect of the system is the threat that rights holders and ISPs would together be able to use ‘technical measures’ against infringers’ internet access, i.e. to throttle down or even cut off their internet access (although in the event this was toned down and now the Government effectively has the power to give those powers to Ofcom if it feels it necessary once DEA is fully in force).  Against a spirited resistance from a number of angles, the Labout government passed the DEA in its last days and left it to the UK telecoms regulatory body, Ofcom, and the Department for Business, Enterprise and Skills (BIS) to put together codes of practice/ that will actually govern how DEA would work (you can read the DEA itself here).
Now Ofcom/BIS are taking serious steps towards setting up that framework in which DEA will work.  Earlier this year Ofcom released a draft code of practice (which you can see here) and now BIS has released guidance on one of the most important/contentious issues: who is going to buy for all this anti-piracy action?
Over to Technollama, who gives a good summary of the key points:
  • The notification costs of ISPs and Ofcom as regulator are to be split 75:25 between copyright owners and ISPs
  • There should be no fee for subscribers to appeal against a notification letter. However the Government retains the power to introduce one at a later date should it become clear that a large number of vexatious appeals result.
  • The deadline for Ofcom to complete the initial obligations code will be extended by 3 months to reflect the need to notify the cost regulation separately under the Technical Standards Directive.”
So rights holders will have to stump up 75% of the costs, ISPs have to stump up 25%, and consumers pay nothing.  Which will be not enough for the rights holders, too much for ISPs and just about right for consumers (though they don’t really want the DEA anyway).  And we’re probably going to be talking about a fair deal of money here – it’s not cheap to locate, identify (through a Court process) and then sue illegal downloaders.

Oh and, as importantly, Ofcom is given another bit more time in which to finalise the actual legal framework in which DEA will have to operate.

What does this mean for games?
For the games industry, fundamentally the position remains the same: once DEA is fully operational (a gold star to anyone who spots the film quote there), it will become a powerful weapon for all rights holders – including developers and publishers – to use against content piracyNow we know that, if developers and publishers want to use that weapon, they will not only have to to identify and pursue the pirates (in accordance with the rules that Ofcom hasn’t finalised yet), they will have to pay 75% of the costs as well.  Whether that operates as a brake on using the DEA powers against games pirates, well, we’ll have to see.
One other point which I keep making, that we don’t know the answer to yet, is whether DEA can/should apply to ‘innocent’ copyright infringement, in particular fan mods or games UGC.  I think legally it does apply to that kind of content, but will devs/publishers actually use the DEA to take action against that kind of content?  Really that’s the classic question about third-party content: yes, on the one hand it acts as a homage to your game and can even drive traffic etc, but on the other hand it is content which is outside your creative, legal and financial control.  We’ll have to see.
As and when there are further developments (probably when Ofcom releases the next draft or the final code of practice), I’ll write another update. 
[image author: Andrew Dunn, obtained via Wikipedia]
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Need to Know: Games and the Digital Economy Bill

The UK Digital Economy Bill has real implications for all UK creative industries, including games, meaning gamers and the UK games industry should be paying attention to the Bill’s progress through Parliament.  This post summarises what the Bill is and why it matters.

What is the Digital Economy Bill?
The Digital Britain Bill (“DEB” for short) is essentially the UK Government’s attempt to bring UK technology/IP law up to speed with the challenges of modern technology, particularly online piracy.  The Government’s Explanatory Notes give further helpful background here.
DEB actually covers a whole range of reforms, from IP to digital infrastructure to digital radio switchover.  But the aspects of DEB which are most relevant to games, and which also happen to be the most controversial generally, are these:
  • A new online copyright infringement regime (known popularly as Three Strikes, but it’s not really – see below) and
  • Proposed new Government powers to amend copyright laws without Parliament’s prior approval
DEB also proposes a new games classification system – more on that here.
New copyright infringement regime
The old deal…

Under the existing law right now, if a dev/publisher (i.e. the rights holder(s) for a game) wants to take legal action against a illegal downloader of that game (call him/her ‘X’), very basically the dev/publisher needs to:
  • Identify how and where the illegal downloading took place;
  • Find out the IP address of X;
  • Get a Court order forcing the relevant ISP to disclose the account details for that IP address, so that it can work out who X actually is; and
  • Commence legal action against X and prove to a judge that s/he did the illegal downloading and therefore infringed its copyright.
This can be expensive, difficult and lengthy because: (i) ISPs have historically refused to help rights holders to sue their own customers (hence the need for a court order); and (ii) actually finding the illegal download requires the rights holder to expend IT resources.  (It is mainly for this reason that the music industry in particular has tried to use these kinds of lawsuits to make examples of high profile pirates, rather than trying to sue everyone who downloads copyright materials illegally).
The new deal…

DEB now proposes a new legal regime which would go something like this:
  • When a rights holder (i.e. the games dev/publisher) believes that an ISP customer has infringed copyright (e.g. by downloading a pirated game), the rights holder can send a “copyright infringement report” to the suspected pirate’s ISP.
  • The ISP will then send a notification letter to the account holder and must add that account to a register of customers who are believed to have infringed copyright.
  • The Government would then be able to require ISPs to take “technical measures” against the suspected pirate.  This seems likely to include wide reaching action like broadband throttling or ultimately even account suspension (though the Government doesn’t intend to specify exactly what “technical measures” means or how they will actually work until after DEB has become law).
This proposed new regime is meant to be easier and cheaper because: (i) rights holders and ISPs work together; and (ii) a lot more action can be taken against pirates, potentially even suspending their net access altogether.  However, there is no suggestion that the Government is proposing a ‘three warnings and then we cut you off’ scheme.  So DEB does not = Three Strikes; it’s more complicated/nuanced/vague than that.

Anyway, the proposed new regime has caused a great deal of controversy in both mainstream media and teh internets, to say the least…(that much is clear from a quick Google of “Digital Economy Bill” if nothing else).  Here’s why…

Practical issues
  • How exactly would the new ‘technical measures’/three strikes regime work?
  • How will rights holders actually find pirates?  If it is through technology like deep packet inspection, that will itself cause a lot of controversy (remember BT and Phorm?)
  • Who will pay for all of this?  The rights holder or the ISP, or both?  What about the legal costs if cases are taken to court?
  • Even if you can get the address of the account from which the piracy took place, how do you prove on the evidence who the person in front of the pc actually was? (Remember the complaints against Davenport Lyons?)
  • What rights of compensation (if any) will customers have, particularly if technical measures are taken against them wrongly?
  • What impact will this have on rights holder/ISP/customer relations in the long term?
  • How will the ‘technical measures’, like broadband throttling, actually work?  Who will be accountable for their use?
Humans Rights issues/The right to a fair hearing?
How is the customers’ side of the story to be heard when ‘technical measures’ are taken against him/her?  The right to a fair hearing is a fundamental human right and is given legal force in the UK by the Human Rights Act 1998 and European Convention on Human Rights, but – so far – DEB has little to say about this.  This report from Parliament’s Joint Select Committee on Human Rights explains the issue succinctly:
We do not believe that such a skeletal approach to powers which engage human rights is appropriate. There is potential for these powers to be applied in a disproportionate manner which could lead to a breach of internet users’ rights to respect for correspondence and freedom of expression. We set out a list of points that the Government should clarify in order to reduce the risk that these proposals could operate in a manner which may be incompatible with the [European Convention on Human Rights…
There is little detail about the right to appeal in the case of copyright infringement reports or decisions about the inclusion of certain individuals’ information on copyright infringement lists. We consider that statutory provision for a right to appeal to an independent body against inclusion on any infringement list would be a human rights enhancing measure.”
In fairness, we should point out that attempts have been made to address these issues so far; it is not at all as if DEB has sailed through Parliament so far.  For example, Lord Lucas in the House of Lords has been active in trying to reform DEB generally, and particularly regarding this new ‘technical measures’ regime (more here).


In a nutshell, not a great deal has happened to address these concerns.  DEB provides that a consumer has a right to appeal to court if “technical measures” are made against him, but there is a great amount of detail about how this is meant to actually work that just isn’t clear yet.

Changes to copyright law
DEB also proposes to give the Government the power to amend copyright law through a shortcut procedure that bypasses Parliamentary scrutiny (this proposal is known popularly as ‘clause 17’).  The Government’s reasoning seems to be that it needs to be able to act fast in order to meet the increasing technological challenges to copyright protection. Example off the top of my head: the Government changes the law to make it easier to sue and heavily punish people who attempt to circumvent DRM protection.
This proposal has also come under heavy fire, so much so that the Government has had to back down and water down its original proposals.  Even so, it is not enough for some.  Again, the Joint Select Committee summarises the issue:
The broad nature of this power has been the subject of much criticism. In correspondence with us, the Secretary of State explained that the Government intended to introduce amendments to limit the power in Clause 17 and to introduce a ‘super-affirmative’ procedure. The Government amendments would limit the circumstances in which the Government could use their powers to amend the Act by secondary legislation and would provide a system for enhanced parliamentary scrutiny.”
Despite the proposed amendments we are concerned that Clause 17 remains overly broad and that parliamentary scrutiny may remain inadequate. We call for a series of clarifications to address these concerns.”


Under heavy criticism, the Government appears now to have effectively shelved clause 17.  However, at around the same time, the Lib Dems proposed a new section which would give a court the power to take actio against web sites which host “substantial” amount of copyright-infringing material, potentially forcing the entire site offline.  Critics pointed out that this could mean sites such as YouTube being shut down.  Then, further controversy was caused when it emerged the amendment had in fact been drafted by the BPI.  You couldn’t make it up, eh?

The Current status of the Digital Economy Bill


On 15 March 2010, the Bill passed the House of Lords and has now gone to the House of Commons.  In theory, a bill is first introduced to the Commons (the first reading, which is really a formality), then properly discussed for the first time in the second reading, then it goes to a committee/report stage for a fine tooth-comb analysis, before finally it has a third reading (essentially a closing debate).  Then, if the bill came from the House of Lords in the first place (which DEB did), it goes back to the Lords so they can review what the Commons have done for the bill, and then finally there is a vote.

BUT, there are several reports that the Government intends to ram DEB through before the general election, by having an extremely short second reading and dispensing with the committee/report stage altogether.  You can make up your mind as to whether having DEB brought into law before it has gone through the normal parliamentary process is a good or bad thing.  So far, the games industry and gamers seem pretty divided on the issue.

Of course, even if for some reason DEB doesn’t become law this term, then a new Labour or Conservative government would just have to deal with it after the general election.

Why is all this important for the UK games industry?

The games industry will be at the forefront of these developments. If the UK Government adopts via DEB a legal regime that permits technical action to be taken against the net access of suspected online pirates/copyright infringers, it would give the UK games industry a powerful weapon to deploy against games piracy/copyright infringement – which is of course often said to be the single greatest threat that the industry faces. So, in principle it would be possible to deploy ‘technical measures’ against individuals who repeatedly download and distribute illegal copies of games – which could for example prevent a repeat of Spore, said to be one of the most pirated games in history.
In fact, it may cover rather more than that – in principle, it may in the future be possible to take technical measures against all forms of online copyright infringement relating to a game, including individuals who distribute unauthorised game modifications (eg additional game levels or a total conversion mod) and/or who create user-generated content relating to games (eg unauthorised in-game footage posted on YouTube).
So the person who distributes a brilliant but unauthorised mod of a defunct but well-loved game, or the person who repeatedly posts unauthorised footage of upcoming or released games online, could potentially face technical measures against his/her internet access in the future. Obviously, the devil would be in the (legal) detail but, clearly, if this kind of action was possible it could transform the games industry.
BUT, and it’s a big but, time and again gamers have shown themselves to be hostile to what can be seen as attempts by the games industry to impose limitations on the way in which they can play and interact with games (as seen recently for example the continuing DRM saga).  The games industry would likely have to tread a fine line between relying on technical measures to protect their games but, at the same time, not alienating their customers or stifling the enjoyment and innovation derived from the creation and use of mods and other post-release user generated content.  It’s worth noting on that front that many games industry figures have already spoken out in favour of market-driven solutions to games piracy for example, rather than just relying on a legal regime.  But, one way or the other, in an industry which depends heavily on the loyalty and enthusiasm of its customers, this is likely to become an issue of great importance in the future. 
Ultimately, the question for the games industry may not be whether they can legally deploy these strategies to defend their games, but whether commercially they can risk it.
[image author: Andrew Dunn, obtained via Wikipedia]