International 3 Strikes Laws

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 the lever.

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 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.

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.

In that 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.

The first effects of France's new law against internet piracy will begin to be felt as the new year begins.

Illegal downloaders will be sent a warning e-mail, then a letter if they continue, and finally must appear before a judge if they offend again.

The judge can impose a fine, or suspend their access to the internet.

The Creation and Internet Bill set up a new state agency - the Higher Authority for the Distribution of Works and the Protection of Copyright on the Internet (Hadopi).

The law was backed by President Nicolas Sarkozy and the entertainment industry.

Update: Constitutional Delay

6th January 2010. Based on article from gamepolitics.com

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.

The new 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 activists.

The UK Government initiated a consultation about issues raised in the  Digital Britain Report:

Consultation on the proposed new duties for Ofcom; to promote efficient investment in infrastructure and to provide a full assessment of UK communications infrastructure every two years [pdf]

The consultation started on 13-08-09 and closed on 25-09-09

The Consultation Responses have now been published:

Collection of responses relating to the BIS consultation on the proposed new duties for Ofcom; to promote efficient investment in infrastructure and to provide a full assessment of UK communications infrastructure every two years [zip]

The Government have also published their response to the comments:

Government response to the consultation on the proposed new duties for Ofcom; to promote efficient investment in infrastructure, to provide a full assessment of UK communications infrastructure every two years

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.

Based on article from techdirt.com

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.

Based on article from techradar.com

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.

The Telecoms 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 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.

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 case.

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.

This 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 law's language.

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.

Taiwan passed 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 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.

If the 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.

TechDirt notes 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 the policy.

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 being applied.

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.

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.