[Ecommerce] IFPI drafts "code of conduct" for ISPs

[Manon Ress]

Good timing?  WIPO Seminar on Copyright and Internet Intermediaries
(WIPO/IIS/05) will be next Monday April 18, 2005
Geneva, Switzerland.   The seminar will bring together international
experts and business leaders, academics, government delegates, civil
society and policy makers to discuss issues relating to copyright
liability of those who act as online intermediaries.
http://www.wipo.int/meetings/en/

IFPI drafts 'code of conduct' for ISPs
By Charles Arthur
Published Tuesday 12th April 2005 10:57 GMT
http://www.theregister.co.uk/2005/04/12/ifpi_drafts_code_of_conduct/

Not content with creating a continent-spanning lawsuit-sharing network
using special P2P (person to perpetrator) technology, the record
companies' consortium, the International Federation of Phonographic
Industries (IFPI) now wants your ISP to sign up to a new "code of
conduct" that it has helpfully drafted with the help of the Motion
Picture Association (MPA). A warning, though: you probably won't like it.

Here's a sampler. Under the new code, ISPs would put in place filtering
technology to block services and/or sites that "are substantially
dedicated to illegal file sharing or download services". They would
retain data beyond what law enforcement agencies require, with the aim
of helping track down copyright infringement. They'd hand that data,
plus your identity, over to the IFPI or MPA if there was even a
complaint - not a court order - against you for, you guessed it,
copyright infringement. (And you'd have signed or clicked something
agreeing to allow that.)

Want more? According to the draft, the duo want ISPs and network
operators 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." A
summary of the draft can be found at the Electronic Digital Rights
site's latest EDRIgram.

We wondered if it might be some clever hoax, and called the IFPI. "Oh
yes, the draft" they said breezily and knowledgeably. The draft is for real=
.

And to back up their modest proposal, the MPA and IFPI aren't afraid to
wave their big stick at the ISPs and network operators. Speaking last
month at the invitation of the European Telecommunications Network
Operators' Association (ETNO) , the head of the IFPI, John Kennedy,
said: "Quality digital content is a key driver that makes consumers
embrace new services. You invest billions in your pipes and cables and
satellites but without content you have empty pipes and boxes. At this
stage I am not even asking for much if anything by way of a financial
commitment. I am asking for your time your energy your commitment and
some social responsibility."

Tony Soprano couldn't have put it better. "Nice content-carrying pipes
you've got here. What a shame if anything were to happen to them... now,
we've got this little agreement for you to look at..."

Expect an interesting discussion next Monday, when this issue, and the
draft code of conduct, will be discussed at a meeting in Geneva of WIPO,
the World Intellectual Property Organisation. Which as you know has a
stellar record defending the little guys against claims of copyright
infringement.

If all that has you fizzing, then you're in good company, along with the
UK's Internet Services Providers Association (ISPA). There will be an
ISPA representative at next week's meeting, and if they're anything like
as annoyed as the spokesman we talked about this with, they're so close
to nuclear they already glow in the dark.

"This is obviously something they [IFPI and MPA] have worked on
together," ISPA's spokesman almost spat. "They have made proposals like
this in the past but that doesn't necessarily mean they have gone
anywhere. They should really be going through the established takedown
procedure. Some of these proposals contravene current laws and go beyond
others. If you take the example of requiring subscribers to allow their
identities to be given out - that's something that ISPs take very
seriously, and only when required to by law enforcement. And they aren't
a law enforcement authority."

But sometimes it seems like the MPA and IFPI feel this latter point is
only a minor detail, which could be fixed in time.

France's ISPs seemed to have rolled over already. A version of this code
was signed last July by three French ministers, representatives of the
music industry, major ISPs and telecoms operators there. It allows
collection societies and the like to create files from telecoms traffic
data of supposed copyright infringers to "mutualise the battle against
the piracy of works". Some subscribers have been cut off; others have
been sued for file-sharing.

In the UK, ISPA's not happy about the growing pressure. "ISPs have
obligations to protect the privacy of their subscribers," said ISPA's
man. "This could be seen as the thin end of the wedge to get access to
everyone's organisation. But these suggestions are impossible and
impractical." The idea of blocking access where someone is using a lot
of bandwidth just doesn't work. What if they're using a webcam? Or voice
over internet? They all use similar ports as some of the file-sharing
systems. There's no real way of determining whether just because
someone's using a lot of bandwidth that they're contravening copyright."

As for banning access to P2P services, ISPA's position - and remember,
they'll make this next Monday - is that "it's important not to
criminalise the technology. There are people who misuse the internet;
that doesn't mean that you shut down the Net."

More interesting though is the question of why the ETNO invited Mr
Kennedy to address its conference. Why would it want to hear from a
content person, when its members have stolidly insisted, as do ISPs,
that they just carry content, they don't censor or control it?

"We felt it was important," said an ETNO spokesman. "It's the beginning
of a long process." Does it mean that ETNO, previously agnostic about
content, is moving towards the MPA/IFPI position, where members will
police content on behalf of third parties? The spokesman repeated that
this was the beginning of a long process.

However, ETNO's members have reacted by telling the European Union's
working party on data protection that they don't like the "constant
pressure to ... create a situation where intermediaries [ETNO members]
are liable for illegal content transmitted across their networks." The
EU's E-Commerce Directive of 2000 is clear: there should be no
"systematic obligation of surveillance or monitoring .. imposed on ISPs."

And then ETNO's man wondered where we'd heard about it, in particular Mr
Kennedy's speech. "This was a closed conference, it was only the
business people," he said, puzzled.

Well, perhaps those irrepressible types at the IFPI should be told. We
had wanted to talk to them about it further. But regrettably they
couldn't talk to us, being tied up having meetings about how they would
announce the latest round of file-sharing lawsuits. =AE

--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

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