Copyright battle and ISPs
OUT-LAW Radio, 07/02/2008
We investigate the shifting of the main front in the music
industry's battle against piracy: they now want ISPs to police
networks for them, and look to have government backing.
A text transcription follows.
This transcript is for anyone with a hearing impairment or who
for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew
Magee.
Hello and welcome to OUT-LAW Radio, the weekly Podcast that
keeps you up to date on all the twists and turns in the world of
Technology Law.
Every week we bring you the latest news and in-depth features
that help you to make sense of the ever changing laws that govern
technology today.
My name is Matthew Magee, and this week we identify a
fundamental shift in the way that the music industry targets
pirates and ask if ISPs are really prepared to be the record
industry's police;
But first, the news:-
Twenty billion pounds' worth of new radio spectrum to go on the
market
and
Agency workers loose employment rights case.
Up to £20 billion worth of radio spectrum will be released onto
the open markets because of a decision by Ofcom to allow public
sector bodies including the Ministry of Defense (MoD) to trade or
sell their allocated spectrum.
The MoD alone owns about a third of the most valuable and
congested sub 15GHz spectrum, Ofcom said. The Regulator said that
the spectrum owned by public bodies is worth between £3 billion and
£20 billion. It said that there is significant pent up demand for
extra spectrum, from mobile phone networks in particular. Mobile
network demand is being fuelled by increasing use of multimedia
services on phones such as music, video, web surfing and picture
messaging.
Ofcom said that it will publish new regulations governing
selling, trading and sharing spectrum, and that it will consult on
these in the summer.
In employment news agency workers do not have the same rights as
employees, the Court of Appeal has ruled, handing businesses a
victory in ongoing struggles about workers' rights.
A number of employment tribunal cases have been put on hold
awaiting the judgment of an issue that has often been
contentious.
Louise Donaldson, an employment law specialist at Pinsent
Masons, the law firm behind OUT-LAW, said that this was a good
ruling for employers.
Donaldson: It means that they can carry on using agency workers
to fill gaps in their staff and not be at risk of being found to be
an employer and liable for unfair dismissal claims when they don't
need them any more.
Merena James took an employment tribunal case for unfair dismissal
against the London Borough of Greenwich, where she worked for three
years.
Some employment legislation, such as anti discrimination law
does include agency workers, but unfair dismissal protection is
only available to employees.
The employment tribunal and the Employment Appeals Tribunal
(EAT) which heard the case ruled that there was no contract of
employment between James and the Local Authority, and that the mere
passage of a length of time was not enough to create one. The Court
of Appeal agreed.
That was this week's OUT-LAW News.
From China to France, Belgium to Britain there is a sweeping
change in the way that copyright holders are attacking piracy.
After years of chasing individual file sharers and barrage after
barrage of negative publicity about suing their own customers, the
music industry is retraining its sights, this time on internet
service providers.
ISPs long protected as mere conduits of information – just like
the Post Office – are now the target of arguments from music
lobbyists that they should take responsibility for the piracy that
happens on their networks.
The International Federation of the Phonographic Industry is one
of the major music industry lobby groups, and it has now said that
it wants ISPs to monitor traffic and take action against
infringers. Jo Oliver is the body's International Head of
Litigation. She explains its view.
Oliver: ISPs are in a sort of unique position
with respect to the traffic that goes over their networks. They are
in the unique position to take steps to stop or prevent piracy. The
couple of things that we focussed on are a disconnection regime or
what some people call graduated response a system of picking the
biggest badest infringers on peer to peer so that people uploading
the most copyright material and having a system in place of warning
those people that they are infringing and then if they chose to
continue eventually disconnecting their internet connection. In
some scenarios it we think it makes sense for ISPs to use
technology to manage the piracy on their networks. In particular
with respect to peer to peer there are a number of technologies
that ISPs are in a position to implement that we would like to see
them implement that can manage the problems of infringement on peer
to peer networks.
What the IFPI wants is a wholesale shifting of responsibility
for protecting its members' copyrights onto the ISPs. ISPs are far
from keen on this. We asked the ISP Association for a view, but
they declined go give one.
We did talk though to a spokesman for Britain's biggest ISP BT. He
told us that In terms of copyrighted material, it's a civil offence
and the traditional route is for rights holders to pursue the
individuals that they believe are infringing copyright for damages
in mitigation of that infringement. He said it is an entirely
different matter to pass the responsibility, cost, customer and PR
issues around sharing of copyrighted material from the rights
holders to the ISPs.
ISPs are protected by laws that say that as long as long as they
merely act as a network and don't control the content, they
generally can't be liable for it.
The IFPI, though, says that these are laws that belong to
another age and must be overhauled.
Oliver: When the European laws were put in
place broadband was not nearly as prevalent as it is now and since
that law has been put in place, you know, the growth of broadband
has been huge and that has been facilitated by these safe harbours
that are in e commerce directive. Certainly we do think that
technology, technology has moved on, you know, times have changed,
we are looking to ISPs to take some responsibility to take these
steps in today's environment.
So how would the IFPI's proposed system work? They want two
things: firstly, they want software to be used to monitor our
internet traffic and block files that are thought to be unlicensed
copyrighted material. Oliver says the technology is good enough to
do this, but not everybody agrees. Kim Walker is an intellectual
property specialist at Pinsent Masons, the law firm behind
OUT-LAW.
Walker: In practice the technology so far has
not so far as I am aware proved terribly effective. I mean the
practical problem is that it is going to be very hard to
distinguish between infringing and non infringing material. You
know technology is like a big current [it is] actually a very
efficient and an effective way of distributing files and to the
extent that has to be done or can be done or should be done
legitimately. You don't want your filtering software to mess that
up.
The other IFPI proposal is that ISPs use technology to identify
individual file sharers and then the ISP itself takes action
against them. Walker says that this causes ISPs a number of
problems.
Walker: There is two potential risks for the
ISP, the risk of the ISP of being sued, you know if it has got
decent terms and conditions, that ought to be fairly minimal. Terms
that you sign up to when you become a subscriber to an ISP is
usually fairly, you know give the ISP some fairly broad grounds for
cutting you off. The main risk, I guess, is that if the ISP
implements lots of technological measures to filter and identify
infringing material then it loses its safe harbour defense because
it is immediately giving itself actual knowledge that there is
infringing material out there and I think the ISPs feel that they
are therefore opening themselves up to legal liability as
infringers.
Walker also said that we might be surprised to learn how often
this already happens on an ad hoc basis.
Walker: The again, the Copyrights Act does give
the High Court power to issue injunctions if an ISP has actual
knowledge that someone is using their network for infringing
purposes that is copyright infringing purposes. The risk from the
ISPs point of view is that they, if they block the user's account
they are in breach of the contract they have with that user and
they don't want to run that risk and our experience actually is
that if you go to an ISP and say "we are acting for a IPR owner, a
content owner and there is infringing material on you site, on your
service provided you give the ISP an indemnity then on the whole
many of them are very co operative and will take the material
down.
There is a bigger trend, though. Governments are beginning to
get involved, as are Courts. There is an undeniable move towards
forcing ISPs to be more active.
A Belgian Court recently ordered ISP Scarlet to screen traffic
for copyright infringing material. France has announced that this
summer will see legislation forcing ISPs to monitor and police
networks for file sharing and cut off infringing subscribers after
a warning.
In the UK the Gowers Review of intellectual property recommended
legislating to force better co-operation between rights holders and
ISPs. Last month the then IP Minister Lord Treason said that new
laws would be created later this year if agreement couldn't be
reached.
But can the systems really work? Many people have pointed out
that most file sharing networks now use encryption, meaning that
filtering software can't even read the files never mind block the
correct ones. Oliver admitted that beyond actually going into file
sharing systems where the encryption is decoded, there is not
really yet a solution to that problem.
A bigger issue, though, is that technology does not recognise
that copyright is not absolute, that we are allowed to use material
without a license in a number of circumstances.
Oliver said that the number of situations in which she thinks
this is relevant is small.
Oliver: In if, you know, a full copy of a
copyright file has not been licensed for distribution on peer to
peer it is hard to see that there is any exception that would apply
in that situation.
Walker disagrees.
Walker: For a song I think I can see where they
are coming from but what about fair dealing with a work for the
purpose of reporting current events and you know with perhaps
reporting distributing over the internet highlights from a football
match. If you take the highlights from a football match from a
broadcast and re broadcast the highlights on the news that is
pretty clearly can be fair dealing. There will be cases where the
technology will prevent people exercising the rates that Parliament
gave them when they, when they enacted the copyright legislation to
report current events without fear of copyright infringement.
The problems are moral, technical and logistical, and the debate
is far from concluded on what should be done, never mind how. The
only thing that is clear is that the battle has shifted from
individuals to networks.
That's all we have time for this week, thanks for listening.
Why not get in touch with OUT-LAW Radio? Do you know of a
technology law story? We'd love to hear from you on radio@out-law.com. Make sure you
tune in next week; for now, goodbye.
OUT-LAW Radio was produced and presented by Matthew Magee for
international law firm Pinsent Masons
