Conscripting ISPs into the piracy fight going global

Update: This post has been edited to correct errors in the original regarding the French HADOPI procedures.

Copyright Lots of action around file-sharing on both sides of the Atlantic this week, all of it adding to the copyright policing burden of ISPs.

In France, birth place of three-strikes legislation, the first batch of IP addresses has been sent to the new HADOPI agency by copyright owners, the first step in sending out warning letters to the individuals behind those addresses that they’re in the legal cross-hairs over their file-swapping.

According to French media reports, HADOPI has so far sent 800-1,000 requests to ISPs to identify the individuals behind those addresses. ISPs must respond within eight days or face potential fines up to €1,500 (US $1,997) per unidentified address. A third offense could lead to those individuals being referred to a judge for possible sanction, including having their Internet access cut off, under the three-strikes law passed by the Sarkozy government last year.

In England, leading ISP Talk Talk went to court Tuesday seeking to have the Digital Economy Act overturned on grounds of insufficient Parliamentary review. The law, which creates a regime of monitoring, warnings and possible sanctions similar to the HADOPI system in France, was passed in haste prior to the last Parliamentary elections, in what the Brits call a “mop-up” session, with only 39 of 646 MPs actually casting votes. The government is currently preparing final regs for implementing the law, which are expected to be issued in the spring.

Though the laws have aroused significant public and (perhaps belated) political ire in both countries, the European Parliament voted on Wednesday to adopt a non-legislative resolution urging tougher and more consistent enforcement policies against online copyright infringement throughout the EU, along with greater cooperation in the efforts by ISPs. Although the resolution stopped short of recommending criminal sanctions against infringers such as in France, it goes further than the current policy of the European Commission, the EU’s executive arm, which has rejected tougher EU-wide measures.

In a press release issued after the vote the Parliament pointedly stressed it “does not share the Commission’s view that the current civil enforcement framework in the EU is sufficiently effective and harmonised. Dialogue on possible solutions must involve all stakeholders, including Internet service providers.”

Instead, the resolution:

25. Stresses that the enormous growth of unauthorised file sharing of copyrighted works and recorded performances is an increasing problem for the European economy in terms of job opportunities and revenues for the industry as well as for government;

26. Stresses that a number of factors have allowed this phenomenon to develop, particularly technological advances and the lack of legal offers; recalls however that this phenomenon constitutes a violation of IPRs to which appropriate, urgent solutions need to be found, geared to the sector concerned and in compliance with fundamental rights;

27. Stresses that support for and development of the provision of a diversified, attractive, high-profile, legal range of goods and services for consumers may help to tackle the phenomenon of online infringement, and recognises in this respect that the lack of a functioning internal European digital market constitutes an important obstacle to the development of legal online offers and that the EU runs the risk of condemning to failure efforts to develop the legitimate online market if it does not recognise that fact and make urgent proposals to address it;

[snip]

30. Stresses that all parties concerned, including Internet service providers, must join in the dialogue with stakeholders in order to find appropriate solutions; calls on the Commission, failing this, to submit a legislative proposal or to amend existing legislation, particularly Directive 2004/48/EC, so as to upgrade the Community legal framework in this field on the basis of national experiences;

In the U.S., the push to dragoon ISPs into the fight is complicated by the DMCA’s Section 512 safe harbors, which shield service providers from most copyright liability. Newly introduced legislation, however, could open a back-door route to putting more pressure on ISPs to police their networks.

The Combating Online Infringement and Counterfeits Act, introduced Monday by a bipartisan group of Senators on the Judiciary Committee, would give the U.S. Justice Department authority to bring civil actions to shut down domain names found to be “devoted” to providing access to unauthorized downloads, streaming or sale of copyrighted content.

Critically, if the domain name is not registered in the U.S., the proposed law would give the Attorney General the authority to serve the order on “other specified third parties at its discretion, including Internet service providers, payment processors, and online ad network providers,” according a press release on the bill by Senate Judiciary chairman Patrick Leahy (D-VT). “These third parties, which are critical to the financial viability of the infringing website’s business, would then be required to stop doing business with that website by, for example, blocking online access to the rogue site or not processing the website’s purchases.”

In other words, ISPs could be required to maintain and enforce a black list of web sites compiled by the U.S. government. While that might manage to skirt the DMCA safe harbors it could end up imposing a kind of de facto liability on ISPs.

Further reading:

MEPs Urge Europe-wide Copyright Crackdown

Text of European Parliament resolution

Text of proposed Combating Online Infringement and Counterfeits Act

Hey, Hollywood, Meet Your New Intellectual-Property Czar