[Ecommerce] ISP liability in Europe

[Manon Ress]

  EDRI-gram
   biweekly newsletter about digital civil rights in Europe

           Number 3.7, 6 April 2005

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6. ISP self-regulation proposal entertainment industry
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The MPA (Motion Picture Association) and the IFPI (International
Federation of the Phonographic Industry) are pushing for a new
collaboration with internet service providers in Europe. The MPA has
drafted a 'possible ISP-Film Sector Voluntary Code of Conduct', while
the IFPI called for a similar code in relation to the music sector
during a conference of European telecom network operators (ETNO).

The industry demands that providers "remove references and links to
sites or services that do not respect the copyrights of rights holders".
Providers should also collectively adopt new terms and conditions, to
'require subscribers to consent in advance to the disclosure of their
identity in response to a reasonable complaint of intellectual property
infringement by an established right holder defence organisation or by
right holder(s) whose intellectual property is being infringed,' thus
overruling the essential privacy-protection of internet subscribers and
without mentioning any right of reply.

The copyright industry doesn't stop there. It also wants providers to
develop 'prototype instant messaging language directed at infringers'
and a termination of contract for 'recidivists'. Just in case the EU
doesn't introduce mandatory data retention, in spite of the repeated
lobby of MPAA and IFPI, the providers should voluntarily preserve
data/evidence necessary to enforce copyright. And if that isn't enough,
ISPs should implement filtering technology to block services and sites
that are 'substantially dedicated to illegal file sharing or download
services.'

But the most ludicrous demand is the following: "To enforce terms of
service that prohibit a subscriber from operating a server, or from
consuming excessive amounts of bandwidth where such consumption is a
good indicator of infringing activities."

The promoters of the document seem inspired by a French code of conduct
signed on 28 July 2004 by 3 French ministers, representatives of the
music industry and major ISPs and telecom operators. This code builds on
the French e-commerce legislation (providing for notice and take down
measures, see a.o. EDRI-gram 2.12) and the revised French privacy and
personal data protection legislation. Under the new data protection act,
collecting societies and similar representatives of intellectual
property rights have the right to create files with telecommunication
traffic data of supposed copyright infringers to 'mutualise the battle
against the piracy of works' (see EDRI-gram 2.15). The code has already
been used to terminate the contracts of subscribers. It also encourages
right-holders societies to sue P2P users. According to a recent article
by the French weekly magazine 'Le Point', these cases have led to 'a la
carte' penalties, corresponding to the commercial sales price of a song.

ETNO has already responded indirectly to these new demands, in a
response to the consultation from the Article 29 Working Party of EU
data protection authorities. "ETNO Members are also concerned by the
constant pressure to overturn the provisions of the E-Commerce Directive
(2000/31/EC) on ISP liability in order to create a situation where
intermediaries are liable for illegal content transmitted across their
networks.  The Directive states very clearly that no systematic
obligation of surveillance or monitoring should be imposed on ISPs.
Furthermore, Article 15 of this Directive establishes that ISPs should
be subject to no general obligation to actively seek facts or
circumstances indicating illegal activities." And: "In particular, ETNO
fully agrees with the Working Document=92s conclusion that personal data
can only be transferred in very defined cases provided by Law, only to
Public Law Enforcement Authorities, and not to right-holders directly."

The debate will continue during an open WIPO seminar on ISP liability in
Geneva, on 18 April 2005.


--
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