Business piracy Regs

Scarlet, SABAM and the proportionality or otherwise of website blocking #DEAPPG

Some of you will have been following the progress of the Scarlet/Sabam case that is currently being dealt with by the European Court of Justice (ECJ). Scarlet, a Belgian ISP (now owned by Belgacom but a small independent at the time the case was started in 2007) was ordered by a national court to implement technical measures to block all P2P traffic that infringes rights held by the Belgian Society of Authors, Composers and Publishers (SABAM).

The court’s decision was subsequently referred to the ECJ who has to clarify whether the requirement to implement traffic-filtering mechanisms is consistent with EU legislation and whether a proportionality test has to be applied if this is the case.

Following upon the submission of written evidence to the court, the ECJ held a hearing on Thursday 13 January that included representations from the European Commission and Member States. The judge will deliver his opinion on 14th April

The outcome of this case will potentially have great bearing on a number of regulatory themes currently trending in the UK – not least being the Digital Economy Act and the recent discussions on porn blocking.

We do need to note that the report was produced by EuroISPA and should therefore be careful in reading into it any assessment as to the likely outcome of the hearing. It looks ok to me 🙂 .

In a nutshell ISPs and a number of EU states considered the technical blocking order to be disproportionate. The report also suggests that in the light of strong arguments to the contrary the judge did not appear to be convinced in respect of filtering measures believed by SABAM to be technically possible.

The report:

Business piracy Regs

Irish Judge denies Rights Holders 3 strikes injunction against ISP UPC

[2009 No. 5472 P]
JUDGMENT of Mr. Justice Charleton delivered on the 11th day of October, 2010

I’ve never read a High Court Judgement in detail before, be it British or Irish. This one is about an injunction sought by the above referenced rights holders requiring Irish ISP UPC to implement a three strikes policy against alleged file sharers.

The judge goes into 78 pages of detailed analysis of the problem, technical measures that may be available and the law in respect of this issue.

This is a guy firmly in the camp of the Rights Holder industry. I’m not going to comment on the individual arguments he makes and whether they are in my judgement right or wrong. He has probably spent weeks researching it all and summing up. In fact as I’ve mentioned before to some extent I sympathise with the RHs plight.

The problem again comes down to the old innocent until proven guilty human right that we have all been brought up to respect. I could find no discussion in the document regarding the issue of proof of guilt of the broadband subscriber.  He just assumes that the probability is that a family home PC has been used for the infringement.

Instead the judge concentrates on the proof that the ISPs network was being used. Moreover on page 38 he dismisses a UPC response that the individuals alleged to be file sharing “may or may not be our customers” as “not an honest answer”. Saying this he clearly does not understand the proof issue.

Fortunately Mr. Justice Charleton was unable to offer injunctive relief to the plaintiffs on this occasion because the law did not allow for it. The only thing he could offer under the law was to order a take down of any copyrighted material hosted by the ISP. This of course is not how the file sharing system works.

The judgement is worth a read if you have the time. My copy was provided via EuroISPA. I couldn’t find a link to it online so here it is. I will take it down if required.

Business online safety

EUROISPA paper on Online Child Exploitation

EUROISPA has published a position paper on online child exploitation. The paper contains three key arguments:
1. Full support for professionally operated hotline:

  • Governments should concentrate on developing a clear legal and judicial framework.
  • The public must play an essential role in the reporting to the police or local hotlines of suspected child sexual abuse material as ISPs cannot in any way monitor the Internet.
  • Hotlines’ network should be further developed within the European Union and promoted abroad.