CyberLaw Blog

Archive for October 26th, 2009

BBC NEWS | Technology | Europe backs down on piracy plans: “Europe backs down on piracy plans”

Page last updated at 11:10 GMT, Friday, 23 October 2009 12:10 UK

The European Parliament has given the green light for member states to cut persistent file-sharers off from the net.

It has dropped an amendment to its Telcoms Package which would have made it hard for countries to cut off pirates without court authority.

It follows pressure from countries keen to adopt tough anti-piracy laws.

The French government has just approved plans which could see pirates removed from the net for up to a year.

The UK’s file-sharing policy is also likely to include a clause about disconnecting persistent offenders.

An amendment to the European Parliament’s forthcoming telecoms legislation was designed to protect citizens against being automatically cut off from the net.

Amendment 138 read: “Any such measures liable to restrict those fundamental rights or freedoms may only be taken in exceptional circumstances…and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights.. including effective judicial protection and due process.”

Dropping it effectively means that individual countries would be able to ask internet service providers to remove users deemed to be persistent pirates without needing a prior court order.

Persistent problem

“ Without compelling services piracy will not be beaten ”
Mark Mulligan, Forrester Research

There has been much debate around Europe as to whether internet access is a fundamental right.

The European Parliament has already adopted a provision stating that internet access is “critical for the practical exercise of a wide array of fundamental rights”.

UK prime minister Gordon Brown has said that people are as entitled to internet access as to gas, water and electricity.

At the same time Business Secretary Peter Mandelson has moved to toughen up anti-piracy legislation to include the ability to remove persistent file-sharers from the net.

According to figures from analyst firm Forrester, 14% of European internet users engage in illegal file-sharing.

Legislation may not be the answer, thinks Forrester analyst Mark Mulligan.

“Piracy will not be solved by legislation alone. Without compelling services piracy will not be beaten,” he said.

There have been a flurry of announcements about legitimate services in recent months, including Sky’s SkyTunes service and tie-ups between the likes of internet service provider CarphoneWarehouse and music service Napster.

New methods

Peer-to-peer networks are likely to be the main targets of any anti-piracy legislation.

At network level, internet service providers are able, if asked, to identify the particular machines from which music or other content is being illegally downloaded.

But non-network piracy methods, including using instant messaging, e-mail, music blogs, bluetooth and iPod ripping, are on the rise.

It is likely that legislation will be too slow to catch pirates, thinks Mr Mulligan.

“Technology just moves quicker. Already we are seeing around 20 different alternatives to peer-to-peer piracy,” he said.

This week France’s constitutional court approved its revised anti-piracy plans.

The proposed legislation operates under a “three strikes” system. A new state agency would first send illegal file-sharers a warning e-mail, then a letter and finally cut off their connection if they were caught a third time.

Under the revised law, a judge must rule on the issue of whether to disconnect users.

The UK’s policy on file-sharing is due to be revealed next month.

Story from BBC NEWS:

http://news.bbc.co.uk/go/pr/fr/-/2/hi/technology/8322308.stm

EU Parliament drew back from file-sharer demands over legal uncertainty: “The European Parliament has had to withdraw demands for court oversight of the cutting off of file sharers’ internet access after it received legal advice that it had been over-stepping its powers.”

The Parliament is locked in a power struggle with the Council of Ministers and the European Commission over its demands that a telecoms reform package safeguard the rights of internet users to a hearing before disconnection.

The Commission and Council want their Telecoms Packaged passed but by rejecting Parliament’s amendment have had to block the whole scheme. The parties will enter formal conciliation on 4th November and must have a compromise deal to put to their members by 30th December.

The Parliament has dropped the controversial Amendment 138, though, and has adopted a new preferred text because of legal problems with the original, according to a Parliament source.

“The Parliament has had legal advice from its own legal service that Amendment 138 was not legally admissible,” said the source. “It was told that it went beyond Community competency.”

Rights owners and some countries, such as France and the UK, want to be able to disconnect the internet connections used by alleged file sharers. The Parliament’s Amendment said that users could not be disconnected “without a prior ruling by the judicial authorities”.

“This is internal market legislation and you can’t tell member states how to organise their judicial systems, it is beyond Community competence,” said the source. “So the MEPs are trying to find a way to keep the content in a way that is legally feasible.”

The Parliament will approach the conciliation process with a new proposed clause that it hopes will achieve the same ends and stay on the right side of EU Community law.

“Any such measures liable to restrict those fundamental rights or freedoms may only be taken in exceptional circumstances … and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights … including effective judicial protection and due process,” it says in part.

“The result should be that anyone who whose access might be cut off should have access to due process, whether that is a court or a tribunal or an administration,” said the source. “It does not have to be a judge but it should respect the rights guaranteed under the European Convention on Human Rights.”

Conciliation will involve the Council, Parliament and Commission. If they reach agreement by 30th December they will have to take the compromise text for approval by their respective memberships by February. If agreement is not reached between the three bodies the entire Telecoms Package will be scrapped and the Commission will have to start the legislative process again, the Parliament source said.

(Via OUT-LAW News.)

Internet Blocking study Aconite)
Government attempts to block access to the Internet are mounting throughout Europe – but look set to backfire, according to new study. The Open Society Institute funded the report which is titled ‘Internet Blocking: Balancing Cybercrime Responses in Democratic Societies.’ The study shows how efforts to block Internet content are spreading throughout democratic Europe. In Germany, Britain, Italy and Scandinavia, the measures are intended to block pages containing child pornography. The new study concludes that the measures are ineffective. Many technical ways exist to get around blocking technologies. More importantly, the blocking measures are intrusive and often abuse fundamental freedoms. These systems either over-block or under-block content and do not prevent the serious offender from gaining access.

(Via QuickLinks Update.)

AU – ACS gives conditional thumbs up to internet filtering: (SC Magazine)
The Australian Computer Society has released a report that flags conditional support to ISP-based internet filtering from a technical standpoint, based on a series of boxes that need to be checked before giving the scheme the green light. Six experts from the ACS said that filtering of the internet is plausible, but suggested a number of steps that the Federal Government needs to first address. The computer society pushed for the blacklist to be ‘transparent.’ ‘Transparency and credibility should include an independent oversight, a system of checks and balances that incorporates a system of appeals and an independent auditing process,’ the report said. Blocking websites was not enough to stop illegal websites from appearing, the report said. The ACS suggested the Federal Government work with the internet corporation for assigned names and numbers (ICANN) and encourage it to reject domain name applications that were likely to contain illegal material.

(Via QuickLinks Update.)