Carphone Warehouse owns Talk Talk, the UK's third biggest
internet service provider (ISP). The company's chief executive
Charles Dunstone has said that Talk Talk will not participate in a
music industry-promoted scheme to monitor and ban customers who
violate copyright law through illegal file sharing.
Dunstone said last week that the scheme was an intrusion into
user privacy, that the problems facing the music industry were of
their own making, and that making ISPs catch copyright violators
was like asking a bus company to catch a thief because they had
ridden on the bus.
The British Phonographic Industry (BPI), which wants to run the
scheme, has hit back at Dunstone.
"You would think a socially responsible company would want to
put policies in place to ensure that its network is not used
illegally," said a BPI spokesman. "But so far – and despite
Government's calls on ISPs to come to the table – we've been
stonewalled by Talk Talk."
"We want to work with Carphone Warehouse, but given its
persistent and unreasonable refusal to take any action to address
illegal activity on its network – activity of which it is fully
aware – we have written to Mr. Dunstone, explaining our position
and also reminding him of the legal rights that we have," said the
spokesman.
In 2007, a Belgian ISP was ordered to filter customers' traffic
for unlawful file-sharing. A court in that country contrasted
Europe's main legal protection for ISPs, the E-commerce Directive,
with provisions of a subsequent law, the Copyright Directive.
The E-commerce Directive exempts intermediaries like ISPs from
any general obligation to monitor traffic where they act as 'mere
conduits'. But the Copyright Directive states that copyright owners
should be able to get court orders against intermediaries if their
services are used for piracy. The Belgian court ordered Scarlet to
filter its network. It suggested that filtering was not the same as
monitoring.
No British court has examined the potential for such a clash
between the E-commerce Directive and the Copyright Directive and
their respective implementations in the UK.
There is international pressure for ISPs to take a role in
policing their customers' activity and helping content industries
to catch users who violate copyright law. France will shortly trial
such a system and the UK Government has said that unless the ISP
and music industries can come to agreement a law forcing a similar
measure will be passed in autumn.
Talk Talk is the first of the UK's major ISPs to denounce the
scheme, and Dunstone last week strongly rejected the argument that
ISPs should monitor users' activity.
"Our position is very clear, we are the conduit that gives users
access to the internet, we do not control the Internet nor do we
control what our users do on the internet," he said. "I cannot
foresee any circumstances in which we would voluntarily disconnect
a customer's account on the basis of a third party alleging a wrong
doing."
"The music industry has consistently failed to adapt to changes
in technology and now seeks to foist their problems on someone
else. Rather than threatening us, the BPI's time would be better
spent facing up to the reality of our times and adapting its
business model accordingly," said Dunstsone.
The BPI has hit back, and the Daily Telegraph reported that its
chief executive Geoff Taylor sent a fax to Dunstone threatening
legal action.
"Unless we receive your agreement in writing that within 14 days
Carphone Warehouse will implement procedures set out above, we
reserve our right to apply to court for injunctions and other
relief without further notice to protect our members' rights," the
fax said, according to the newspaper. The BPI spokesman did not
confirm or deny the accuracy of those reports.
Disclaimer: We hope you find OUT-LAW’s content useful. It’s prepared by the lawyers at Pinsent Masons. Please remember, though, that it’s intended as general information only. It’s not legal advice. If that’s what you’re seeking, please
contact us. See also: our
full disclaimer
