"Hi and thanks for the post. I actually know a great deal about copyright law (which is understandable if you google my full name hehehe) and yes there is an argument via copyright and case law to back it up (google and archive.org are just 2 organisations which have fallen foul of copyright judgements as a result of caching) however there is precious little case law in the UK on this front."
Yes, I see! Don’t forget, though, that English copyright law is different from in the US. There isn’t a lot of case law because the CDPA is fairly clear and does not need a lot of interpretation.
"If you have explicit terms on your web site denying consent then obviously copyright becomes a much stronger argument. I have to say I don't actually agree with some comments I have seen from people claiming that their web activities are copyrighted as they are not actually "works" they are interactions/actions so I am not convinced the customer has any argument regards copyright. It could be argued that someone editing their blog, or creating other types of content (over a non-encrypted link) falls under copyright but Phorm are arguing that they don't profile POST data."
Phorm might not profile it, but as I understand it, the ISP is reproducing POST data in order to decide whether to send any of it to Phorm or not. If the reproduction of a copyright work is unlicensed, then it is an infringing act. If, say, the reproduction for this purpose is happening at the ISP on different kit and as part of a separate process from the straightforward direction of traffic, then it would be relatively easy to separate this potentially infringing reproduction from the lawful (impliedly licensed) reproduction on the ISP's normal, production servers.
"provide the hardware and source code for inspection to prove that they are not processing POST data but this would be very expensive and the Judge might refuse the request on the grounds of "Trade Secrets"."
In England and Wales (Scotland has a different legal system) instead of discovery, there is disclosure. As part of the parties’ legal duty to the court, the onus is on each party to volunteer any documents to the other side that may harm its own case. A judge would not refuse a disclosure request on trades secrets grounds: the most he might do is limit the ability to read the information to lawyers and expert witnesses.
"I am steering clear of the copyright aspects at the moment, I may include something at a later date though."
Copyright is such a well-understood area of the law, I would be inclined to put it in. I would anticipate that your paper might be shown to lawyers, and a copyright argument will be seen as mainstream and therefore be more accessible than the newer, less well-understood things like RIPA.
"Incidentally are you a law student/graduate? I ask because that was one of the best explanations of copyright I have seen on a non legal forum, so if you are not qualified or studying law then I take my hat off to you for taking the time to research it so thoroughly."
Thanks very much! I do work in a relevant area.
"Another point though is this, if we are assuming no implied consent from web sites (or explicit terms denying consent) then I think RIPA is the stronger legislation to use in court simple because it is criminal. Whereas Copyright Infringement can be criminal if it occurs for commercial gain or profit it is more often than not a civil matter. The injunction is a good idea and one I already expressed last week, although I was looking at a High Court injunction under RIPA based on the consent angle as opposed to an Injunction under Copyright Law (which would also be using the consent argument)."
Copyright infringement is criminal, whatever the motive. The judges in the Chancery division understand copyright very well, and deal with injunctions in that respect quite often. RIPA is new, and judges might have to think about it a bit longer. But rIPA also covers the parts of the transaction that are not likely to be subject to copyright. So the two approaches look as though they might be complementary.
"It is an interesting debate though. With Intellectual Property being the litigant's favourite target at the moment and with harsher penalties being lobbied for (even an attempt to change infringement from civil to criminal offences) it could be that copyright law might be seen as a more serious issue than RIPA in the eyes of the Judge (which is actually really a scary thought because I can't think of anything more serious than unlawful interception in my mind)."
More familiar, at any rate, to High Court judges.
I wonder if I sense a reluctance to get into copyright because of your previous brush with it, which is understandable - but maybe think of it as a neutral (ish) tool that you can now use for a virtuous end?
"Anyway I am probably waffling because I have been up all night and all day so forgive me if I am, and again thanks for the post
"
It all makes perfect sense to me. And thanks for what you are doing.