For years entertainment companies have put huge efforts into campaigns to inflict so-called three strikes campaigns on errant Internet users who download music and movies for free. The ultimate sanction of disconnection has always been touted as
necessary in order for people to take things seriously but over in France, a country that pioneered graduated response, it seems that the music biz now wants to ditch disconnections in favor of fines.
After more than five years of lobbying this
ultimate punishment was built into the French Hadopi scheme but despite the issuing of more than a million warnings, people just aren't being disconnected. Not only is the measure unpopular and open to challenge, just last summer Culture Minister
Aure'lie Filippetti described account suspension as a disproportionate sanction against the end goal.
So, with the disconnection option now pretty much dead in France, what could replace it as a deterrent? Getting hit in the pocket, it
UPFI, (Union of Independent Phonographic Producers), said that it agreed with the opinion of French music rights group SACEM that a disconnection regime should be replaced with warnings along with fines of 140 euros.
In fact the
French website Numerama have been told by sources familiar with the matter that it has already been 99% decided a new law will replace the internet suspension sanction with administrative fines (which means they would not be issued by a court after due
process, but issued automatically by an administrative body). Numerama editor Guillaume Champeau told TorrentFreak:
Discussions remain as to how to set the thing up in the law ; the automatic fine system could be
handled by a dedicated administrative authority, such as the current Hadopi's Rights Protection Committee; or by the Superior Audiovisual Concil, which is the current administrative body for television and radio.
The new law will
be debated in Parliament in early 2013.
The French government is counting the costs of taking over copyright enforcement from the private sector..
Hadopi, the body charged with hunting down copyright infringers under France's three-strikes law, has sent a million warning e-mails and
99,000 registered letters. This has only resulted in a scant 134 cases being examined for prosecution, and so far, zero cases have led to disconnection.
At a reported cost of 12 million Euros covering 60 employees, the whole exercise has been
described as unwieldy, uneconomic and ultimately ineffective and a failure by the French culture minister Aure'lie Filippetti. It would appear that the agency is now standing on the trap-door in the minister's office, waiting for someone to pull
Filippetti told Le Nouvel Observateur that Hadopi had also failed to foster legal content to replace illegal downloads.
The French government has now launched a consultation to re-examine Internet piracy.
In a few months millions of BitTorrent users in the United States will be actively monitored as part of an agreement between the MPAA, RIAA and all the major ISPs. Those caught sharing copyright works will receive several warning messages and will be
punished if they continue to infringe.
Starting this summer, the Center for Copyright Information (CCI) will start to track down pirates as part of an agreement with all major U.S. Internet providers.
Last year the parties agreed on
a system through which copyright infringers are warned that their behavior is unacceptable. After six warnings ISPs may then take a variety of repressive measures, which includes slowing down the offender's connection and temporary disconnections.
The new plan was announced under the name Copyright Alerts last year and will be implemented by all parties by July 12, 2012. As this deadline nears, the CCI today unveiled several key players who are going to lead the group. Unsurprisingly, the
Executive Board is exclusively made up of representatives from the RIAA, MPAA and the ISPs. There is no representation for internet users or consumer rights.
However, the no doubt powerless, Advisory Board does include public rights advocates
including Jerry Berman, the Chairman of the Internet Education Foundation and founder of the Center for Democracy and Technology, and Gigi Sohn, co-founder of Public Knowledge.
The record industry in July will start sending ISPs offending IP addresses for graduated responses in piracy cases.
Cary Sherman, CEO of the Recording Industry Association of America, said most of the participating ISPs are on track to begin
implementing the program by July 1. The ISPs that have joined up with the RIAA are Comcast, Time Warner, Verizon, AT&T, Cablevision and Comcast.
The program requires that ISPs send out one or two educational notices to those customers
who are accused of downloading copyrighted content illegally. If the customer doesn't put a halt to the practice, the ISP is then asked to send out confirmation notices asking that they confirm they have received notice.
Legal expert Doug
Lichtman, a UCLA law professor spoke to an adult industry seminar about these copyright alerts. Calling them warm 'nastygrams,' Lichtman told the adult industry that they should adopt the system, and that file sharers could be persuaded to
be come paying consumers.
Following last year's failed High Court bid to force an ISP to adopt a 3 strikes-style regime to deal with pirates, the Big Four record labels are set to get their way through a change in the law. If adopted, proposals published by the Irish government
would allow copyright holders to hold ISPs liable for infringements and take out injunctions against them.
The High Court said that laws to cut off file-sharers were not enforceable in Ireland.
It is not surprising that the legislative
response laid down in our country in the Copyright and Related Rights Act 2000, at a time when this problem was not perceived to be as threatening to the creative and retail economy as it has become in 2010, has made no proper provision for the blocking,
diverting or interrupting of internet communications intent on breaching copyright, the judge said in his judgment.
By not having this legislative mechanism in place, Justice Charleton said that Ireland is not in compliance with its
obligations under European law. The only thing the courts can force an Internet host to carry out, he said, is the removal of infringing material.
Now, through its Consultation on Amendment to Copyright and Related Rights Act, 2000, the Irish
government is taking steps to change legislation to close this apparent loophole.
It must be emphasised that this proposed amendment is not about the introduction of a statutory regulatory regime in relation to copyright infringement such
as the French 'Hadopi' system or the 'Three strikes' regime set out in the Digital Economy Act in the United Kingdom, notes the proposal.
Nevertheless, while they do not implement a statutory regime, adoption of the proposals could yield a
The proposals are open for public consultation with a closing date of July 1st, just over a week away.
The Special Rapporteur to the United Nations Human Rights Council has denounced three strikes laws that would cut off Internet users as a penalty for copyright infringement. The advice comes in a Report to the UN General Assembly on the Protection and
Promotion of Freedom of Opinion and Expression.
While blocking and filtering measures deny users access to specific content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur
considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the
International Covenant on Civil and Political Rights.
The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest. In particular, the Special Rapporteur urges
States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.
The Special Rapporteur also acknowledged the importance of protecting Internet
intermediaries from liability in order to protect human rights. Internet intermediaries should only act to limit the rights of their customers following a legitimate court order.
New Zealand's Parliament has voted into law new sanctions against those who share files over the Internet.
The new three strikes piracy law, which passed 111-11, allows copyright owners to send evidence of alleged infringements to ISPs, who
will then send up to three infringement notices to account holders.
If the warnings are ignored, the copyright owner can take a claim to New Zealand's Copyright Tribunal, where the panel can set judgments up to US$11,733 against each account
Another provision in the law allows copyright holders to eventually apply through a court to have alleged repeat offenders' connections suspended for six months, with or without a conviction or proof.
The bill, the National
Government's compromise solution to the controversial Section 92A illegal file sharing legislation in 2009is called the Government's Copyright (Infringing File Sharing) Amendment Bill.
The legislation was supported by all New Zealand political
parties except the Greens and independent members of Parliament Chris Carter and Hone Harawira.
Reaction against the law has been waged by various groups, including one called Opposing The Copyright (Infringing File Sharing)
argued the law means Internet surfers could be disconnected without sufficient proof of charges and that it might unfairly punish businesses or families when the downloading was done without their knowledge by an employee or family member or by someone
hacking into their connection.
Four of the world's largest record companies have failed in an attempt to get the three strikes rule enforced against illegal filesharers in Ireland.
Warner Music, Universal Music Group, Sony BMG and EMI brought the case against UPC, one of
Ireland's largest broadband providers, in order to establish a legal precedent that would force internet service providers to cut off illegal filesharers' internet connections.
But the Irish high court ruled that laws to identify and cut off
internet users were not enforceable in Ireland.
In a judgment published today, Justice Peter Charleton said that laws were not in place to block the internet connections of those accused of sharing copyrighted content. However, he acknowledged
that the creative industries are being blighted by internet piracy.
This not only undermines their [the creative industries] business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable
living . It is destructive of an important native industry.
Following pressure from the US Government, Canada is preparing to ram through a revamped copyright bill that will have disastrous consequences for consumers.
In 2008, Canadian lawmakers proposed a new anti-piracy bill dubbed C-61. The plans met
great opposition from the public and were eventually wiped from the table later that year prior to the federal elections. Last year, the Government decided to consult the public on what they would want from a new copyright bill.
consultation the public made it clear that stricter copyright laws are not welcome. However, it seems that this has had very little effect as Canada's Prime Minister is about to announce a new , even more draconian law. Michael Geist, prof.
E-commerce Law in Ottawa, described the bill as the most anti-consumer copyright bill in Canadian history.
The effects of a draconian copyright bill in Canada can be far reaching. Things Canadians take for granted, like copying your
music from your computer to your music player and vice versa, can be deemed illegal with this new bill, Gary Fung of IsoHunt told TorrentFreak.
ISPs can be forced to handover private information of users on a whim without due process. They
may be further encouraged to throttle P2P traffic, even for entirely legitimate uses like game files distribution. The new bill also is unlikely to provide fair exceptions for breaking DRM for purposes that doesn't violate copyright, which unfairly
prohibits one's tinkering with electronics he owns, Gary added.
Gary's warnings are justified. Although it is not completely clear what the details of the new bill will be, it is expected that it will be the Canadian equivalent of the US
Digital Millennium Copyright Act. This means that copyright takedown request become a censorship tool while consumers lose several fair use rights.
New Zealand's Copyright (Infringement File Sharing) Amendment Bill, which allows for large fines and six month Internet suspensions, has just received its first reading in Parliament, to unanimous support.
Back in 2008 the New Zealand Government
proposed the introduction of new law to combat illicit file-sharing. Section 92A was immediately the subject of protest from several corners which led the Government to go back to the drawing board.
Commerce Minister Simon Power later introduced
The Copyright (Infringing File Sharing) Amendment Bill which replaced the earlier proposals with a modified regime to deal with illegal file sharing.
In common with efforts by the entertainment industries to change the law around the globe, the
major feature of the Bill is a so-called 3 Strikes regime which will enable copyright owners to claim damages and make requests to the District Court for infringers to be disconnected from the Internet for up to six months.
The Bill will
extend the jurisdiction of the country's Copyright Tribunal, which will hear both sides – rightsholders and file-sharers – and will be empowered to rule on cases of alleged infringement.
The Bill has now been referred to the Commerce
Select Committee and will report back to Parliament in six months.
The High Court in Dublin has given the go ahead for the music industry and ISP Eircom to implement a 3 strikes-style regime for suspected file-sharers. The private arrangement between the industry and the ISP had been held up over a legal objection, but
that has now been waved aside by a judge.
In February 2009, IRMA – which controls 90% of Ireland's recorded music and represents the labels EMI, Sony, Universal and Warner – reached a private agreement with Ireland's largest ISP,
Eircom, which would see them implement a 3 strikes-style arrangement for dealing with alleged pirates.
A leaked documen provided background information on how the deal would operate: IRMA would supply IP addresses they believed to be connected
with infringements to Eircom (collected by anti-piracy company, DtecNet) and the ISP would send warning notices to its customers who were allocated those IP addresses at the time of the alleged illicit file-sharing. Any customer receiving a third warning
would be served with a termination notice and disconnected by Eircom.
However, the implementation of this groundbreaking agreement had been held up by a legal objection surrounding the legal standing of an IP address. But at the High Court in
Dublin, Mr. Justice Charleton gave his ruling on the case and decided that an IP address is not personal data and gave the green light for the Eircom/IRMA 3 strikes arrangement to go ahead.
This announcement now paves the way for IRMA to go after
other Irish ISPs to force them to implement the same type of arrangement.
New Zealand introduces 3 strikes law into parliament
A New Zealand anti-piracy measure that includes a three-strikes plan of attack against copyright infringers has been introduced to Parliament.
The Copyright (Infringing File Sharing) Amendment Bill proposes an amendment to the Copyright Act
of 1994 by repealing section 92A, which would have allowed the termination of infringer's ISP accounts with no court action.
The new legislation would require ISP's to provide three warnings to infringers before copyright holders are able to bring
the matter before a Copyright Tribunal, which would have the power fine an infringer up to $15,000. Copyright owners will also have the ability to request that a District Court terminate an infringer's ISP account for up to six months.
main backer, Commerce Minister Simon Power, said that the legislation … puts in place a fair and balanced process to deal with online copyright infringements occurring via file sharing. He added, It's important that account holders are given a
reasonable time to stop infringing before enforcement takes place.
Power hopes that the bill can be passed into law sometime this year.
France's controversial three-strikes law aimed at taking down illegal downloaders appears to have suffered a delay while the government seeks mandatory approval of the law from an independent authority.
France needs an opinion from the Commission Nationale de l'Informatique et des Libertés (CNIL) to enact the law writes Paid Content. So far, CNIL has chosen not to issue a decree, reports La Tribune, thus effectively blocking the implementation
of the law, which was scheduled to be put into motion this month.
This could mean a delay of three months until the law, also known as the Hadopi Law, is enacted.
Some of the biggest names on the web have written to Peter Mandelson to express grave concerns about elements of the Digital Economy Bill.
Facebook, Google, Yahoo and eBay object to a clause that they say could give government unprecedented and sweeping powers
to amend copyright laws.
We urge you to remove Clause 17 from the bill, the letter read.
However, the government has said it believes the clause will future-proof online copyright laws .n The law must keep pace with
technology, so that the Government can act if new ways of seriously infringing copyright develop in the future, a spokesperson for the Department for Business, Innovation and Skills.
The consortium believe that if Clause 17, as it is known, is
approved it will give any future Secretary of State the ability to amend copyright laws as they see fit. This power could be used, for example, to introduce additional technical measures or increase monitoring of user data even where no illegal
practice has taken place, the letter read. This would discourage innovation and impose unnecessary costs representatives of the firms wrote.
Others have suggested that the clause could be used to tweak laws so that search engines
could not publish summaries of news stories in their results. The consortium of companies say the clause is so broad ranging that it could risk legitimate consumer use of current technology as well as future developments .
While there is less will to penalize file-sharers in Spain, the same cannot be said about the sites that facilitate their downloading. New legislation is being mulled could allow them to be disconnected, without the need for a court order.
Sustainable Economy Law, sponsored by President José Luis Rodríguez Zapatero, includes draft amendments to legislation to protect intellectual property against piracy on the Internet .
It is proposed that new grounds for
disconnection will be added to safeguard intellectual property rights . This will hand competent bodies the authority to require Internet service providers to supply information on customers who are deemed to be breaching copyright.
El Pais reports that there will not be an emphasis on disconnecting individual Internet users, but instead the focus will be on sites providing links to copyright works, of which there are several hundred in Spain.
In a statement, Spain's Minister for Culture, Ángeles González-Sinde, said that sites offering links to copyright works could be taken offline without a judicial order, an announcement which has met with firm opposition from
The UK government will press ahead with plans to restrict internet access for illegal filesharers, it was confirmed in the Queen's Speech.
As expected, a Digital Economy Bill will aim to compel ISPs to penalise those persistently observed
infringing copyright via peer-to-peer networks.
If the overall level of illegal filesharing, as assessed by Ofcom, does not fall by 70 per cent by April 2011 in response to a system of repeated warning letters, provisions in the Bill will be
triggered that enforce technical measures . The most persistent infringers will have their access suspended.
The UK government has offered up its Digital Economy Bill, which includes massive changes to copyright law, including the power of the government to effectively
change the law at will with little to no oversight. Basically, it would let the Business Secretary, Lord Mandelson, change copyright law through secondary legislation, which requires no Parliamentary approval. As people are noting, Mandelson has had to
resign from elected positions twice in the past in disgrace, and is now in an unelected position. And he's the guy who gets to change copyright law at will? That does not seem right. On top of that, the bill doesn't even specify three strikes for
users. Instead, it requires ISPs to notify users with warnings -- and to notify copyright holders that they did notify users -- and if file sharing is not reduced by 70% in a year (with no indication of how this is measured), then the government will
tell ISPs to start kicking people off the internet.
Furthermore, Minister for Digital Britain Stephen Timms, who introduced the new bill, claimed that 99% of ISPs are broadly supportive of the bill. That's funny because BT and TalkTalk --
two of the largest ISPs in the UK -- have loudly complained about the plans (with TalkTalk threatening to sue, and BT saying that this solution is not the way forward ) and the ISP Association, which represents ISPs in the UK has loudly slammed
the bill as unworkable and backwards looking.
While many have been quick to criticise and deride the lack of specific information and targets in the recently announced Digital Economy Bill, it seems that the UK's games publishing community is amongst the first to wholeheartedly applaud the
government's latest moves.
While there are still doubts about whether the bill will survive a change in government, ELSPA (the Entertainment and Leisure Software Publishers Association) has voiced its approval of the Digital Economy Bill, as
outlined in this week's Queen's Speech, which it clearly sees to be a step in the right direction for gaming in the UK.
We are delighted with the commitment made today by the UK Government to tackle the widespread problem of online copyright
infringement and intellectual property theft, through more effective legal action and consumer education, said Mike Rawlinson, Director General of ELSPA.
Europe is set to get a major facelift of its telecommunications regulation after negotiators reached an agreement to pass a raft of new laws, addressing an array of topics from net neutrality to online piracy.
The negotiators, representing the
European Parliament, the European Commission and the Council of Ministers compromised on aspects of the Telecoms Reform Package, which will now become part of national legislation in every EU country, with a deadline of May 2011.
Reform Package had dragged on for six months because of the debate over a provision relative to the three strikes laws targeting Internet users suspected of unlawful file-sharing of copyrighted material. Under the newly minted compromise, any
decision to sever Internet access to clamp down on digital copying of music and movies must be subject to a legal review.
The promotion of legal offers, including across borders, should become a priority for policy-makers, said Viviane
Reding, the EU Telecoms Commissioner: Three-strikes -laws, which could cut off Internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law.
With the piracy sanctions issue resolved, the European Parliament and Council of Ministers are expected this month to adopt the telecommunications package, which among other provisions will create a new EU telecommunications regulator, the Body of European Regulators for Electronic Communications.
A vote is on the reforms is due by the end of the year.
The European Parliament has given the green light for member states to cut persistent file-sharers off from the net.
It has dropped an amendment to its Telcoms Package which would have made it hard for countries to cut off pirates without court
It follows pressure from countries keen to adopt tough anti-piracy laws. The French government has just approved plans which could see pirates removed from the net for up to a year.
An amendment to the European Parliament's
forthcoming telecoms legislation was designed to protect citizens against being automatically cut off from the net.
Amendment 138 read: Any such measures liable to restrict those fundamental rights or freedoms may only be taken in exceptional
circumstances...and shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights.. including effective judicial protection and due process.
Dropping it effectively means that
individual countries would be able to ask internet service providers to remove users deemed to be persistent pirates without needing a prior court order.
France's top constitutional court has approved a revised plan to penalize those accused multiple times of infringing intellectual property.
Dan Glickman, chairman and CEO of the Motion Picture Association of America, applauded the French court's
decision. Today's decision is an enormous victory for creators everywhere, Glickman said. It is our hope that ISPs will fully honor their promise to cooperate and that the French government will take the necessary measures to dedicate resources
to handle the enormous task ahead.
Under the law, a new agency will be created that will issue termination notices to Internet service providers, and they will in turn cut off access to customers accused of piracy. But first, in cases where
the agency wants to terminate service, it must first go through some kind of judicial review.
One of the ways the law was revised to gain acceptance by the French court is to require a judge to review each case before anyone's Internet access is
Culture secretary Ben Bradshaw has revealed that controversial measures to tackle illegal file-sharing will be watered down following fierce opposition.
He told the House of Commons culture, media and sport committee that rights holders will have
to obtain a court order before punishing persistent offenders by reducing or cutting off their internet connections.
Earlier this year, business secretary Lord Mandelson said that internet service providers would be forced to hand over information
on customers who used illegal sites heavily to music companies and film studios so that they could take action.
Giving evidence to MPs, Bradshaw also said that those targeted would also have the right to appeal against the decision. Those
concessions will be seen as an attempt to assuage the concerns of those who believe the proposed remedy is heavy-handed.
The results of a new poll reveal the extent of opposition to Peter Mandelson's proposals for tough sanctions against alleged file-sharers. The survey, commissioned by the Open Rights Group, shows that not only is the public in favor of due process, but a
third would be much less likely to vote for political parties supporting these proposals.
Driven largely by the big-label international music business, proposals for disconnecting alleged file-sharers are now common in many countries. Having
achieved some kind of momentum in France, the lobbying shifted focus to the UK, with Mandelson advocating harsh punishment for persistent infringers, or more accurately, those that are persistently accused.
Opposition to such plans are widespread,
but until recently, public opinion hadn't been tested in a measurable way. Today we have a much clearer idea, as results from a YouGov poll commissioned by the Open Rights Group have been released.
A significant 68% of those surveyed felt that
individuals accused of illicit file-sharing should have the right to a fair trial before their accounts were disconnected or otherwise interfered with as punishment. Just 16% of respondents said they would be happy for Internet users to have their
accounts automatically suspended once their ISP had received a number of accusations.
While 44% said the proposals would not influence their vote, just under a third of respondents (31%) said they would be much less likely to vote
for a political party that endorsed disconnection from the Internet without a trial. Just 7% said they were more likely to support a party bringing in such sanctions.
Jim Killock, executive director at the Open Rights Group, feels that the
government is out of step. Our conclusion must be that this is a politically unwise move, that will be unpopular and a vote loser for its architects, he said, noting that such measures will fail to meet their objectives. [They] won't make a
single penny for artists, or help online music businesses get off the ground, he added.
A bill has passed France's lower house of parliament that would cut off Internet access to surfers who download illegally.
About 1,000 French Internet users a day could be taken offline under the bill. Surfers who ignore email warnings and a
registered letter could see their online connections suspended for up to a year, and they could also face up to $435,000 in fines or jail time.
The Senate approved the bill in July, and the National Assembly followed suit with a 285-225 vote. The
bill must clear at least one more vote to become law.
With the legislation, French Internet subscribers would be asked to install special software to enable authorities to track down and identify those suspected of illegal downloads.
law is expected to come into force by the end of the year.
Seven million people could be criminalised under government plans to crack down on internet piracy, to be included in this autumn's Queen's Speech.
The illicit downloading of music and films on the internet, a practice engaged in by one in 12
of the population, could lead to severe restrictions on internet access and a fine of up to £50,000.
Lord Mandelson, the Business Secretary, is said to be persuaded by the argument for tough laws to curb illegal file-sharing after an
intensive lobbying campaign by influential people in the music and film industry.
But Tom Watson, the former minister for digital engagement, today criticises the proposed crackdown as extreme and calls for a more measured approach that would
target those who uploaded illegal content, rather than the millions who downloaded the files.
His intervention comes in the week after the Pirate Party, announced it would fight the next general election in Britain. The new Pirate Party UK was
reported to be recruiting as many as 100 people every hour since its launch last week. Among its supporters was Stephen Fry, who applauded the new party on Twitter. The organisers said they now had 259 fully paid-up members, although hundreds more
had shown an interest in joining.
When the Digital Britain report was published in June, the Government appeared to row back from a hardline stance on illegal downloading. But a consultation document on the latest plans, which could be tagged on
to a Bill in the next Queen's Speech, makes it clear that ministers favour tough sanctions.
Under the proposed laws, Ofcom, the industry regulator, would be given powers to require internet service providers to collect information on those who
downloaded pirate material. The data would be anonymous, but serious repeat infringers would be tracked down through their computer ID numbers. Individuals would be hit by restricted internet access – from slowing down broadband to blocking access
altogether – and could face fines of up to £50,000.
Andrew Robinson, the leader of the Pirate Party UK, said that the new laws would be a gross intrusion into civil liberties, and would penalise people in the same household as those who had
broken the law.
Robinson, a graphic designer and part-time musician, is planning to stand in his home constituency of Worcester, where the Labour MP Michael Foster is defending a majority of 3,144. He said: This is about proving to the major
parties that there are so many votes to be had in adopting policies like ours. The pro-copyright lobby is very powerful.
There's a disturbing new development in Australia. A law proposal was disclosed to the public that would get ISPs to spy on the contents of all communications to monitor for compliance. Presumably, the amendments would get Australian ISPs to monitor
their networks for p2p activity and hand all their information to copyright holders.
The Electronic Frontier Australia commented in a consultation response:
EFA's submission addresses our key concern that the
proposed legislation provides a very broad exception to the prohibition on interception of network communications for the purposes of ensuring that a network is ‘appropriately used'. This is a very broad category that means that all network operators in
Australia will be able to monitor the substance of communications that pass over their network for compliance with their Acceptable Use Policies – the terms of which could include nearly anything.
This proposed changed threatens to radically
alter the ability of network operators to intercept, store, and disclose information passing over their networks. There are no safeguards to prevent disclosure to law enforcement agencies or third parties. It is entirely possible for these new provisions
to be used to examine P2P filesharing data for copyright violations, for example, and to disclose any captured information to copyright owners.
In other words, these amendments could be used to get ISPs to do all the dirty work for the copyright
Section 5(1) effectively provides that network protection duties includes monitoring the content of communications in order to ascertain whether the network is being appropriately used. Because
of the broad undefined nature of the term appropriately used and the fact that many AUPs may contain restrictions not on protocols or services that internet uses may use but upon the purpose for which those communications are being made, this
provision opens the bulk of network communications to potential interception and continuing surveillance.
At best, this law should be a frightening prospect to all internet users, not just file-sharers as this is a
huge infringement of personal privacy. While Canada is currently in the midst of mulling lawful access once again, at least the scope was far narrower than this. Even the US, home of the much despised DMCA didn't go this far. Even the French three
strikes law required some action from rights holders. To date, this appears to be the worst ISP law proposal we've ever seen followed closely by Austrian newspapers wanting to use data retention to enforce copyright.
The law proposal will
be debated in the Australian parliament in December.
The details of the revised 3 Strikes proposal have been released by the New Zealand government, and despite public demands that Internet disconnection be taken off the table, it still remains. The only change of substance addresses guilt upon
accusation concerns, where ISPs and copyright holders previously determined copyright infringement, so that now the govt's own Copyright Tribunal makes the decision and metes out punishment.
The latest revision to Section 92a of the Copyright
Phase 1- First Infringement and Cease and Desist Notice Procedure
Where a Rights Holder (RH) considers on reasonable grounds that there has been online copyright infringement of one or more of its
works, RHs may invoke the section s92A procedure by sending a first infringement notice to an ISP. The notice will contain sufficient details to allow the ISP to identify the subscriber. This notice must then be forwarded by the ISP to the subscriber.
If there is further copyright infringement by that subscriber, a RH may send, via the ISP, a cease and desist notice. The subscriber will have an opportunity (30 days) to reply to either notice by way of a response notice directly to the RH with
their name and contact details attached. Upon receiving a response notice, a RH will be required to accept or reject it and inform the subscriber accordingly.
Phase 2- Obtain Copyright Tribunal Order
Where a RH considers on reasonable grounds that there has been further (repeat) copyright infringement by a particular subscriber after a cease and desist notice has been sent, and the subscriber concerned has been provided with an opportunity to respond by way of a response notice, a RH may apply to the Copyright Tribunal to obtain an order requiring the ISP to provide the name and contact details of the alleged copyright infringer (the subscriber).
Phase 3- Copyright Tribunal
A RH may then register an infringement complaint with the Copyright Tribunal which will ensure that the infringement complaint complies with requirements in
statute/regulation. A RH may then notify the subscriber that an allegation of repeat copyright infringement has been lodged against them. The subscriber will have an opportunity to respond to the allegation and to elect to proceed to mediation. The
Copyright Tribunal will be convened unless agreed otherwise. The Copyright Tribunal, in addition to available relief by way of damages, injunctions, account of profits or otherwise, may consider ordering a subscriber to pay a fine or an ISP to terminate
the subscriber's internet account.
The Internet Society of New Zealand (InternetNZ), a non-profit organization dedicated to unfettered access for all, says the latest proposal is a mixed bag that tries to combine the benefits of a
notice and notice approach with the toxic remains of a termination regime. Also, issues of ISP definition and safe harbor do not appear to have been addressed.
France's highest constitutional authority ruled in June that Internet access is a fundamental human right, killing the three-strikes provision in the so-called Hadopi anti-piracy legislation. Today the infamous anti-piracy bill is back and in its
revamped form has just been adopted by the Senate. 3 Strikes is back on the table. Again.
The Constitutional Council had taken a similar stance to that of the European Parliament, deeming the proposed “3 strikes” regime for dealing with
illicit file-sharers unconstitutional. They said that individuals must have a fair trial and striking an individual from the Internet is something only a judge can do after a hearing.
So now in modified form the bill is back. Moving the decision
to disconnect file-sharers away from the Hadopi agency to the courts, the new version of the law addresses the objections of the Constitutional Council by presenting 3 strikes cases to a judge, who will fast-track decisions in around 5 minutes per
The new structure is as follows. When an individual is warned about an infringement for a third time, the Hadopi agency will report the offender to a judge. After a hearing the judge will have the power to cut the individual off from the
Internet, issue a fine of up to 300,000 euros, or even hand out a 2 year jail sentence.
ISP account holders who find themselves accused over the infringements of a 3rd party could be found guilty of negligence , risking a maximum 1,500
euro fine and a 4 week disconnection.
The revamped bill was adopted today by the French Senate and in the next few weeks will head to the National Assembly for its adoption.
Three strikes is out in France. And probably dead, too. After being passed last month by French lawmakers, the graduated-response HADOPI law has been ruled unconstitutional by the nation's Constitutional Council.
HADOPI, named for the high
authority organization that would administer the law, would force Internet service providers to cut-off access for accused copyright infringers after the third warning was issued.
The Register reports the court said the law conflicted with
France's 220-year-old 1789 Declaration of the Rights of Man and Citizen, articles 5, 9 and 11.
Freedom of expression and communication is all the more valuable that its exercise is a prerequisite for democracy and one of the guarantees of
respect for other rights and freedoms and that attacks on the exercise of this freedom must be necessary, appropriate and proportionate to the aim pursued, the council wrote.
So now, the law exists, but is toothless; entertainment rights
organizations may still send out letters, as they have in the past to alleged copyright violators, but cannot threaten an ISP service cut-off and will have to pursue other legal means.
TorrentFreak notes that France's HADOPI also ran counter to
the European Parliament, which found that that disconnection of accused infringers violates fundamental rights and freedoms of Internet users. The Constitutional Council did state that an Internet connection may be severed if a court rules that the
accused actually conducted illegal file-sharing.
But the battle for Internet control in France isn't over yet. The government is also seeking to pass LOPPSI, a bill designed to filter Web content.
The European Parliament has cast its final vote in favor of an amendment that will prevent member states from implementing three-strikes laws. Disconnecting alleged file-sharers based on evidence from anti-piracy lobby groups restricts the rights and
freedoms of Internet users, according to the amendment.
In a vote, 407 Members of Parliament voted in favor of the amendment while only 57 were opposed. The amendment of the Telecoms package is now likely to be signed into law.
is a step in the right direction, and it clearly goes against Sweden’s IPRED and France’s HADOPI laws. Let’s hope this will at least prevent other member states of the EU following the lead of these two countries.
France's anti-file sharing legislation is back on the table in France as debates began again Wednesday in the nation's parliament.
The provisions of the latest submission would create a state-run agency to first warn users by e-mail if found
guilty of engaging in Web copyright violations, followed by a certified postal letter if violations continue and then, suspension of Internet service. The previous bill would've made users continue to pay for service, but has now been removed from the
Opponents argue the new Internet Piracy Bill is intrusive, violates citizen privacy, would be difficult to put in place, is easy to get around by savvy Web users and sharing sites, and also would generate no new revenue for the
artists, producers or telcom companies saddled with overseeing Internet suspensions. There are also concerns regarding those accused of piracy who may well be innocent, hackers using their service, yet still find their Internet service cut off.
Taiwan has just approved new legislation which effectively bans the use of P2P technology to facilitate the distribution of copyrighted works online. The legislation also requires ISPs to start a ‘3 strikes’ regime for file-sharers.
revisions to its copyright laws which hit file-sharing pretty hard. The amendment makes it a crime to use P2P technology to facilitate the distribution of copyrighted works online, which sounds like pretty bad news for Taiwanese torrent sites who
previously operated in a legal gray area.
For ISPs, the legislation provides a double-edged sword. The plus side is that in future ISPs will be exempt from taking responsibility for the copyright infringing actions of their customers, under a
DMCA-style ’safe harbor’ provision, coupled with a ‘takedown’ system for alleged infringing content.
The downside is ISPs will have to introduce a ‘3 strikes’ regime for subscribers accused of infringement by copyright holders. After the third
’strike’, the ISP can take a range of measures against the user including throttling or disconnection.
The French National Assembly has rejected a law that threatened to suspend the Internet access of those caught downloading copyright works without permission.
Deputies in the National Assembly rejected a compromise text proposed by a joint
commission of lawmakers from the Assembly and the Senate, just hours after the Senate had approved it.
In the mostly empty chamber of the National Assembly, 15 deputies voted in favor and 21 voted against, according to local news reports.
Conflicting versions of the law were voted by the French National Assembly last week and the French Senate last year, forcing the government to appoint a joint commission composed of members of the two houses of the French parliament to reconcile the
differences in a final text.
Now that the Assembly has rejected the compromise text, it must once again be debated, and perhaps amended, by both chambers of the French parliament.
The French government have now passed a "three strikes" law against Internet violators who file-share and download or upload copyrighted material.
According to the bill, known as Hadopi -- as it proposes a High Authority for
the Diffusion of Oeuvres and the Protection of Rights on the Internet -- a new government agency, Haute Autorité (High Authority), will be established to monitor and investigate file-sharing complaints made by copyright holders.
agency rules that infringement occurred, it will send out a warning letter to the Internet service account holder, also suggesting they check if their connection -- especially via WiFi -- is secure as hijacked service will not be a defence. A second
letter will follow if there's another offence within a year. And if there's a third, the government body can order the Internet Service Provider to cut off access.
The new agency will also have wide berth with regard to who gets cut off and for
how long. However, businesses will get a pass if the offender is an employee, a move that may not pass muster with the French constitution, just as the EU Parliament ruled that approach violates established civil and privacy laws.
that perhaps the oddest part of the law is the Hallyday Clause , named for senior citizen French rocker Johnny Hallyday, a tax-dodging expatriate in Switzerland since 2006. The portion of the bill that uses his name says that downloading
copyrighted material of those sheltered from taxes by living outside France or not properly paying taxes will bring a lesser punishment than downloading artists who fulfill tax obligations.
The shutdown of Napster forced the development of decentralized networking. When targeting centralized networks no longer bore fruit, the entertainment industry tried flooding networks with corrupt files. When the file-sharing community responded with
verified files, lawsuits became the norm. When lawsuits failed to make a dent in the P2P population, the next great vision of copyright enforcement came forth: 3 strikes and you're outta here!
France was the first country to drive this policy
forward. While the 3 strikes policy has yet to become law in France, New Zealand was the first to sign it into law. The domino effect extended to Italy, which has indicated a willingness to follow the French model.
Ireland's largest ISP Eircom
was forced into a similar agreement, when it finally relented to the IFPI. It appears the ISP was attempting to put up a legal fight, but settled 8 days into litigation. It was the first time an ISP was sued for copyright infringement and forced to adopt
In Germany, the tide appears to be turning decidedly against the entertainment industry. As reported by P2P Blog.com and the German blog Spreeblick, German ISPs are breathing a sigh of relief after an statement from Secretary of
Justice Brigitte Zypries sided with their cause.
I don't think that (Three Strikes) is a fitting model for Germany or even Europe. Preventing someone from accessing the Internet seems like a completely unreasonable punishment to me. It would
be highly problematic due to both constitutional and political aspects. I'm sure that once the first disconnects are going to happen in France, we will be hearing the outcry all the way to Berlin.
In a few weeks time, members of the European Parliament will vote on the Medina report, which proposes a wide range of anti-piracy measures and regulations. The report specifically mentions The Pirate Bay , and it approves actions by national
courts against the popular BitTorrent tracker.
The proposals in the report, drafted by the Spanish socialist Manuel Medina Ortega, show many similarities to the wish lists of the RIAA, IFPI and MPAA. The report calls for more responsibility and
liability for ISPs, while copyright infringing content has to be filtered from the Internet.
Even though the European Parliament has voted against so called three-strikes proposals twice before, this is also suggested as a viable measure
against piracy. It's proposed that ISPs should disconnect subscribers who share copyrighted content, based on information provided by the entertainment industry.
In addition, national courts are encouraged to take action against BitTorrent sites
such as The Pirate Bay . Apparently, the report deems BitTorrent sites to be illegal - which is a bold statement without any legal backup. Last year, Italy imposed a nation wide block on The Pirate Bay, but this was reversed in court due to a lack
of jurisdiction; this might change if the new proposals are adopted.
In a draft of the report we read The activities of websites that are part of the peer-to-peer phenomenon and which allow downloading of protected works or services without
the necessary authorisation are illegal, and no exception can be applied to them. So the activity of internet users who send files to their peers must be regarded as an illegal act of communication to the public without the possibility of exceptions
Of course, we encourage all of our European readers to write to their representatives in the European Parliament, as this is clearly not the right path to take.
After high-level discussions on the piracy situation in 2008, the Italian government has announced the signing of an agreement which will see it collaborate with the French on the issue. Of concern to those sharing files online, Minister of Culture
Sandro Bondi says Italy will follow the French model.
In 2003, Silvio Berlusconi’s government passed some of the most aggressive copyright laws in Europe, but ultimately the authorities didn’t give them the support demanded by
the entertainment industries.
Then in January 2007, Rome’s top criminal court announced that downloading films, music or software from the Internet should not be considered a crime if done for no profit, backing the likes of the IFPI and
MPAA into a corner with fewer options.
In October 2008 a technical roundtable got underway in Italy which promoted collaboration between the music, movie and ISPs. In basic terms, in part it was a discussion about the mechanics of implementing a
3 strikes response’ to deal with piracy on P2P networks.
An amendment designed to protect Internet users from the anti-piracy lobby has been rejected by President Sarkozy of the European Council.
The rejection goes against the will of the European Parliament, where 88% of the members already voted in
favor of the amendment, which was originally destined to protect file-sharers from Internet disconnection under the ‘3 strikes' framework. This was much needed, as in recent years, anti-piracy lobby groups have called for tougher monitoring of Internet
users and are actively working to erode their rights further.
The amendment, drafted by Guy Bono and other members of the European Parliament, was supposed to put a halt to the march of the anti-piracy lobby. However, despite the fact that is was
adopted by an overwhelming majority, with 573 parliament members voting in favor with just 74 rejections, the European Council went against this democratic vote.
In September, Bono stated in a response to the vote: You do not play with
individual freedoms like that, going on to say that the French government should review its three-strikes law. Sarkozy had other plans though, and in his position of President of the European Council, he convinced his friends to reject the proposal.