CyberLaw Blog

Commission urged to force transparency on network traffic shaping: “The European Commission has been told that it should force companies to define themselves either as neutral internet service providers or as ‘managed services’ that give priority to content providers that they are in a business relationship with.“

(Via OUT-LAW News.)

Digital Economy Act to be reviewed by courts and Parliament: “The Digital Economy Act is to be the subject of a judicial review and a Parliamentary Inquiry. The news is the latest blow to the controversial law, which opponents said was rushed through the dying days of the last Parliament without proper scrutiny.“

(Via OUT-LAW News.)

Record labels fail to get ‘three strikes’ rule enforced in Ireland | Technology | guardian.co.uk

Judge says illegal filesharing is damaging music industry, but Irish law does not allow ISPs to cut off offenders’ internet

* Josh Halliday
* guardian.co.uk, Monday 11 October 2010 14.57 BST

Four of the world’s largest record companies have failed in an attempt to get the ‘three strikes’ rule enforced against illegal filesharers in Ireland.

Warner Music, Universal Music Group, Sony BMG and EMI brought the case against UPC, one of Ireland’s largest broadband providers, in order to establish a legal precedent that would force internet service providers to cut off illegal filesharers’ internet connections.

Today the Irish high court ruled that laws to identify and cut off internet users were not enforceable in Ireland, meaning the country is not in line with European copyright law. The record companies were looking to force internet service providers to adopt the ‘three strikes rule’, forcing those accused three times of sharing copyrighted material to be disconnected from the internet.

The court noted that a ’substantial portion’ of UPC’s 150,000 customers were illegally sharing music.

In a judgment published today, Justice Peter Charleton said that laws were not in place to block the internet connections of those accused of sharing copyrighted content. However, he acknowledged that the creative industries are being blighted by internet piracy.

‘This not only undermines their [the creative industries] business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living,’ said Charleton. ‘It is destructive of an important native industry.’

The case was being closely watched by other internet service providers in the country as the music industry intensifies its push to penalise those sharing copyrighted work.

The Irish Recorded Music Association, which forced Ireland’s largest broaband provider, Eircom, to adopt the ‘three strikes’ policy on filesharing of its own accord after an out-of-court settlement in February 2009, said it was ‘extremely disappointed’ with the ruling, adding that it would look to the government to support the cause of rights holders.

Speaking after the judgment, the IRMA chairman, Willie Kavanagh, said: ‘We are extremely disappointed that the high court today has effectively determined that the Irish state has failed to protect the constitutional rights of copyright holders by failing to implement EU copyright directives correctly.’

IRMA had asked the internet service providers UPC and Vodafone to operate the three strikes ruling in the same way that Eircom had, but both declined, citing the rights of their respective broadband customers. A 48-hour scan of the two broadband networks found some 37,500 copyright infringements from UPC subscribers alone, IRMA said in June this year.

UPC, Ireland’s third largest broadband provider, said it would continue to work with rights holders, other internet service providers, the Data Protection Commission, the National Consumer Agency and government departments to address the issue of illegal filesharing.

‘UPC has repeatedly stressed that it does not condone piracy and has always taken a strong stance against illegal activity on its network,’ the company said in a statement. ‘It takes all steps required by the law to combat specific infringements which are brought to its attention and will continue to co-operate with rights holders where they have obtained the necessary court orders for alleged copyright infringements.

‘Our whole premise and defence [is] focused on the ‘mere conduit’ principle, which provides that an internet service provider cannot be held liable for content transmitted across its network,’ the company said. ‘Today’s decision supports the principle that ISPs are not liable for the actions of internet subscribers’.

BBC News – Irish court rules in favour of ISPs in piracy case

12 October, 2010

The decision is being hailed as a victory for internet service providers

The High Court in Ireland has ruled that laws cutting off internet users who have illegally downloaded content cannot be enforced in the country.

It is a victory for Irish internet service provider UPC which took the legal action against copyright owners, including EMI and Sony.

But it will be a blow to the music and film industry, which wants the strict rules as a deterrent against piracy.

It is likely to have a knock-on effect to similar policies in other countries.

Mr Justice Peter Charleton said in his judgement that illegal file-sharing was ‘destructive of an important native industry’.

But he added that there were no laws in Ireland to allow the disconnection of pirates from the net and that any attempts to do so could be in breach of European legislation.

UPC said in a statement that it ‘does not condone piracy and has always taken a strong stance against illegal activity on its network’.

‘Our whole premise and defense focused on the mere conduit principal which provides that an internet service provider cannot be held liable for content transmitted across its network,’ the statement added.

The Irish Recorded Music Association (Irma) is considering its next move.

‘The judge was very clear he wanted to rule in his favour but couldn’t because the legislation wasn’t in place,’ Lindsey Holmes, a spokeswoman for Irma told the BBC.

‘The committee is meeting today. There is a couple of options – to appeal to the Supreme Court or to lobby government to change the legislation,’ she added.

In May, Ireland’s biggest net firm Eircom began the process of implementing a ‘three strikes and you’re out’ policy, sending warning letters to those identified as illegal file-sharers.

Although it has threatened to cut off internet access for persistent pirates it has not yet done so and it is not clear how this latest ruling will affect its campaign.

France is pursuing a similar ‘three strikes and you are out’ policy.

In the UK, the Digital Economy Act makes provision for similar policies although there are no current plans to cut people off.

Mark Mulligan, an analyst with research firm Forrester, thinks it is unlikely to happen in the UK.

‘I don’t think we will see three strikes imposed from the state,’ he said.

‘Although the legislation is framed, there is still so much of it that is vague. The implementation will be down to ISPs, content providers and Ofcom and is likely to be watered down,’ he said.

In private agreements with copyright holders, several law firms have begun writing to thousands of people identified as illegal file-sharers asking them to pay a fine or face court.

In September it emerged that activisits had targeted some of these firms and posted lists of those accused on the web

ACS:Law had the names and addresses of more than 5,000 people, alongside the pornographic films they were accused of downloading, published on the web.

It faces fines of up to £500,000 for the data breach.

ISPs will pay quarter of copyright notification costs, says Government: “Internet service providers (ISPs) will have to bear a quarter of the costs of the copyright protection systems to be set up under the Digital Economy Act (DEA), the Government has said. ISPs have objected to the decision.“

(Via OUT-LAW News.)

ISPs take Digital Economy Act to the courts | Pinsent Masons LLP

OUT-LAW News, 08/07/2010

Two of the UK’s biggest ISPs will ask the UK courts to scrutinise the controversial Digital Economy Act to determine whether or not it conflicts with existing laws on privacy and electronic communications.

BT and TalkTalk have asked the High Court to conduct a judicial review of the law, which was passed amidst the horse-trading and rushed compromise of the controversial ‘wash up’ process that took place just before this year’s general election.

That process allows the passing of potentially large numbers of laws as long as the opposition does not seek to block them. This gives the opposition significant power and deals are made between Government and opposition without the usual Parliamentary or public scrutiny.

The progress of the Digital Economy Act was already seen as rushed before it entered the wash-up period and it has been criticised for imposing significant obligations on ISPs without proper consideration of the effects of its measures.

The law allows for the passing of regulations that would, for the first time, force ISPs to disconnect their customers if intellectual property rights holders believed that an account was used for the unauthorised sharing of copyrighted material.

BT and TalkTalk said in a statement that they are ’seeking clarity’ from the High Court on the legality of the law’s provisions before spending significant sums on systems to implement them.

‘The companies share a concern that obligations imposed by the Act may not be compatible with important European rules that are designed to ensure that national laws are proportionate, protect users’ privacy, restrict the role of ISPs in policing the Internet and maintain a single market,’ said the statement.

The UK has laws that implement EU directives on data protection and electronic privacy that control how organisations gather, process and use information online. They also govern what information can be gathered from electronic communications and say that ISPs should not be responsible for material sent over their network unless informed about infringements of the law.

The ISPs want the High Court to rule on whether the Digital Economy Act conflicts with existing laws based on these directives.

‘If clarity is not gained at this stage then BT, TalkTalk and other industry players may end up investing tens of millions of pounds in new systems and processes only to find later that the Act is unenforceable and the money wasted,’ the companies said in a statement.

‘The Digital Economy Act’s measures will cost the UK hundreds of millions [of pounds] and many people believe they are unfair, unwarranted and won’t work,’ said TalkTalk chairman Charles Dunstone. ‘It’s no surprise that in Nick Clegg’s call for laws to repeal, this Act is top of the public’s ‘wish list’.’

‘Innocent broadband customers will suffer and citizens will have their privacy invaded. We think the previous Government’s rushed approach resulted in flawed legislation,’ he said. ‘That’s why we need a judicial review by the High Court as quickly as possible before lots of money is spent on implementation.’

Technology lawyer Struan Robertson of Pinsent Masons, the law firm behind OUT-LAW.COM, said that once a law has been passed by the country’s elected representatives in Parliament there is little that unelected judges can do to change it.

‘It is not in the power of the courts to throw out a primary Act of Parliament,’ said Robertson. ‘All the court can do is make a declaration that a law is in breach of other obligations. That declaration would put pressure on Parliament to revisit the Act.’

‘This law was rushed through Parliament and didn’t get the scrutiny it deserved. It’s a bad law, in my view. Unfortunately, it won’t be easy to change it unless and until there is political will to do so,’ he said. ‘The courts can’t just strike it down.’

‘It’s disappointing that we feel the need to take action but we feel we have no choice,’ said BT Retail chief executive Gavin Patterson. ‘We have to do this for our customers who otherwise run the risk of being treated unfairly. Our dispute is not with the current Government but with the previous administration which pushed this through without due process. We need clarity about whether this legislation is compatible with important EU laws.’