[A2k] [Fwd: [Ecommerce] ISP liability at WIPO Meeting: it was hot]
Manon Ress
manon.ress@cptech.org
Wed Apr 20 16:50:15 2005
-------- Original Message --------
Subject: [Ecommerce] ISP liability at WIPO Meeting: it was hot
Date: Wed, 20 Apr 2005 16:21:56 -0400
From: Manon Ress <manon.ress@cptech.org>
To: Ecommerce@lists.essential.org
ISP liability discussed at WIPO. Maybe not ready for hamonization just yet?
Excellent report by EDRI-Gram
============================================================
EDRI-gram
biweekly newsletter about digital civil rights in Europe
Number 3.8, 20 April 2005
============================================================
Contents
============================================================
1. WIPO seminar on ISP liability
2. Policing rights for entertainment industry Finland
3. Council of Europe draft statement on human rights and Internet
4. Bulgarian Big Brother Awards
5. New wave of lawsuits against European P2P-users
6. Data retention news
7. French minister demands compulsory biometric ID card
8. CFP debate on developments in Europe
9. EDRI statement at WIPO Development Agenda meeting (IIM)
10. Agenda
11. About
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1. WIPO seminar on ISP liability
============================================================
On 18 April WIPO hosted a seminar in Geneva on copyright and ISP
liability. Dominated by representatives of the entertainment industry
and international government officials, the highly politicised seminar
ended with the conclusion that more legislation was indeed necessary.
The main issue however remained unsolved; whether this legislation
should provide stronger protection for the fundamental rights and
freedoms of all internet users, or whether this legislation should
further facilitate the entertainment industry in hunting down individual
internet users.
The opening keynote speeches by Lilian Edwards and Charlotte Waelde from
the AHRB Research Centre in Intellectual Property and Technology of the
University of Edinburgh provided the audience with an excellent overview
of all the issues related to provider liability for content provided or
shared by their customers. Edwards started with the problematic
definition of 'service provider', which now also includes online
auctions, search engines, RSS feeds, blogs, chat-rooms and price
comparison sites. In the period leading up to the year 2000 governments
were hesitant to regulate liability, fearing it would disturb the
nascent market. But after 2000 the market was mature enough and
governments and the entertainment industry were dissatisfied about the
lack of self-regulatory solutions. The EU E-commerce directive from 2000
then forced a compromise by distinguishing in possible liability for
hosting third party content and no liability for mere conduit and
temporary caching. Charlotte Waelde analysed the jurisprudence of the
different court cases against producers of P2P software, both in the US
and in the Netherlands. She concluded that it is crucial for the
liability question in P2P cases to determine whether the ISP is somehow
authorising the infringement, or whether an ISP is entitled
to presume that facilities will be used in accordance with the law.
Jule Sigall from the US Copyright Office showed himself very content
with the Digital Millennium Copyright Act of 1998 (DMCA) and stated that
the actual rise of P2P usage was directly caused by the success of
notice and takedown of websites. The possibility for a customer to file
a counter notice was very effective, according to him, to prevent abuse.
An entirely different view of the DMCA was given by Cory Doctorow, the
European Affairs director of EFF. He gave an overview of the wrongful
complaints collected by the Chilling Effects project and said many small
providers receive up to a 100 complaints a month, many of them not even
compliant with the minimum DMCA standards. Doctorow asked repeatedly
'What problem does notice and takedown solve?' since hotly contested
information will always reappear in hundreds of other places, the
procedure costs a lot and leads to the inefficient prosecution of John
Does, while seriously threatening free speech and undermining due
process rights.
In the afternoon the debate finally began to heat up, when attorney
Christiaan Alberdingk Thijm, Verizon Vice President Sarah Deutsch en
Universal Music Vice President Barney Wragg debated the pros and cons of
peer to peer usage. Wragg said his company embraced P2P usage but only
within systems that allow total control for artists, control the exact
usage of the materials and provide compensation at agreed rates.
Universal Music is signing up 10 new online download services a week,
and even though the revenues still account for less than 1% of the total
business, online sales are rising exponentially. Alberdingk Thijm, who
successfully defended KaZaA at the Dutch Supreme Court, replied by
pointing out how difficult the WIPO copyright treaty of 1996 had made
life for people that wanted to do legal business with online music.
While the rise of Internet made it possible to skip the intermediary
from the exploitation, the copyright treaty had made it much more
difficult to get international clearance from copyright owners. KaZaa
for example tried very hard to get licenses, but was refused everywhere.
This deadlock put consumers in an impossible position. The only solution
Alberdingk Thijm saw is compulsory licensing or general levying.
Sarah Deutsch started from a moderate position, saying most service
providers have evolved into content producers, with a joint interest in
combating piracy. But after those reassuring words, she opened a frontal
attack on the Motion Picture Association, specifically the wish-list
circulated in advance of the conference, demanding a.o. that providers
should immediately hand-over identifying details about their customers
to right holders and terminate contracts with 'repeat' (alleged) infringers.
This proposed 'ISP code of conduct' conflicts with all existing law in
the US and Europe, and doesn't contain a single reciprocal obligation
for right holders. She said Verizon received hundreds of thousands of
invalid notices per year, based on automated search bots operated by
commercial bounty hunters, leading to a barrage of complaints sent from
invalid e-mail addresses. An ISP is not a policing service and
privacy-rights of users should be respected. She also disqualified the
demands from the industry to use 'available filtering or blocking
technology' to stop users from file-sharing as 'a slippery slope that
can easily lead to situation we know from China, where all traffic is
filtered on the backbone.'
A spokeswoman from the IFPI (International Federation of the
Phonographic Industry) stood up from the audience and explicitly denied
any involvement with the MPA wish-list (See also EDRI-gram 3.7). Later
on, panellist Ted Shapiro from the MPA said the wish-list was based on
the success of general agreements with service providers in France,
Spain and Italy and that the MPA had exchanged information with the
IFPI. The denial of any IFPI interest is even stranger in the light of
the speech by IFPI CEO John Kennedy to the European network operators on
3 March 2005, published on the IFPI website, with remarkably similar
demands on the ISP industry.
In the closing debate the audience didn't get much chance to speak up;
the 7 panellists used almost an hour of the dedicated 1,25 hour
interaction time. In the few possible interventions the complete lack of
consensus became extremely clear, with ISPs being bluntly accused of
promoting thievery, while the entertainment industry was accused of only
using a stick to change the behaviour of customers, in stead of also
holding out carrots. When Ted Shapiro said it was impossible to compete
with free, Lilian Edwards immediately pointed to the success of
expensive mineral water, in spite of the abundant availability of free
tapwater.
WIPO program with presentations of most speakers (18.04.2005)
http://www.wipo.int/meetings/2005/wipo_iis/en/program.html
Speech John Kennedy, CEO IFPI at ETNO conference (03.03.2005)
http://www.ifpi.org/site-content/press/inthemedia14.html
--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org
Consumer Project on Technology in Washington, DC PO Box 19367,
Washington, DC 20036, USA Tel.: +1.202.387.8030, fax: +1.202.234.5176
Consumer Project on Technology in Geneva, 1 Route des Morillons, CP
2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727
Consumer Project on Technology in London, 24 Highbury Crescent, London,
N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax:
+44(0)207 354 0607
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--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org
Consumer Project on Technology in Washington, DC PO Box 19367,
Washington, DC 20036, USA Tel.: +1.202.387.8030, fax: +1.202.234.5176
Consumer Project on Technology in Geneva, 1 Route des Morillons, CP
2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727
Consumer Project on Technology in London, 24 Highbury Crescent, London,
N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386 4642. Fax:
+44(0)207 354 0607