Issues

ISPs: Graduated response

In response to copyright violations using peer to peer file sharing or BitTorrent the content industry has developed what is known as a graduated response, or three strikes system. Consumers who do not adhere to repeated complaints on copyright infringement, risks losing access to internet. The content industry has thought to gain the co-operation of internet service providers (ISPs), asking them to provide subscriber information for ISP addresses identified by the content industry as engaged in copyright violations. Consumer rights groups have argued that this approach denies consumers the right to due process and the right to privacy. The European Parliament passed a non-binding resolution in April 2008 admonishing laws that would require ISPs to disconnect their users and would prevent individuals from acquiring access to broadband.

In a number of European countries attempts to implement a graduated response have led to court cases to establish under which circumstances an ISP may provide subscriber data to the content industry. In order to pursue those that download copyrighted material the individual committing the infringing must be identified. Internet users are often only identifiable by their Internet Protocol address (IP address), which distinguishes the virtual location of a particular computer. Many ISPs allocate a pool of IP addresses as needed, rather than assigning each computer a never-changing static IP address. Using ISP subscriber information the content industry has thought to remedy copyright infringement, assuming that that the ISPs are legally responsible for end user activity, and that the end user is responsible for all illegal activity connected to his or hers IP address.

In 2005 a Dutch court ordered ISPs in the Netherlands to not divulge subscriber information because of the way the Dutch content industry group had collected the IP addresses (Foundation v. UPC Nederland). According to Dutch law ISPs can only be ordered to provide personal subscriber data if it is plausible that an unlawful act occurred, and if it is shown beyond a reasonable doubt that the subscriber information will identify the person who committed the infringing act. In Germany court specifically considered the right to privacy and in March 2008 the German Federal Constitutional Court ruled that ISPs could only give out IP address subscription information in case of a "serious criminal investigation". The court furthermore ruled that copyright infringement did not qualify as a serious enough offense. Subsequently, in April 2008, the Bundestag (German parliament) approved a new law requiring ISPs to divulge the identity of suspected infringers who infringe on a commercial scale. In Spain the Spanish Supreme Court recently ruled that personal data associated with an IP address could only be disclosed in the course of a criminal investigation or for public safety reasons (Productores de Música de España v. Telefónica de España SAU). In Italy courts established that criminally liability does not extend to file sharing copyrighted material, as long as it is not done for commercial gain. Ruling on a case involving a copyright holder employed a third party to collect IP addresses of suspected copyright infringers, the Italian Data Protection Authority ruled in February 2008 that the systematic monitoring peer-to-peer activities for the purpose of detecting copyright infringers and suing them.

In October 2008 a number of other European countries were considering the implementation of a graduated response to copyright infringement via the internet, including France and Britain. In France President Nicolas Sarkozy is backing a proposal to implement a graduated response law, while in Britain voluntary arrangement between ISPs and the content industry is considered towards this end. In January 2009 the British government announced its plans to legislate a graduated response system for peer to peer copyright infringement. In the report entitled Digital Britain the government includes plans for a mandatory "code" for ISPs to follow, as well as the creation of a government "Rights Agency" to help stakeholders deal with the issue of “civil copyright”. Under the proposed scheme the UK government would legislate a "Code on unlawful file-sharing" that’s ISPs would have to follow. The Code will also cover "appeals and standards of evidence". The planned Code does not appear to allow for disconnection without court order. The proposed "Rights Agency" is intended to allow ISPs, consumers and content owners to engage on copyright infringement and its solutions. The government states that it does not simply want to "support business models that will become increasingly obsolete" and noted that "there was a market polarisation of views between the rights holder community, consumers, and the ISPs over what action should be taken" with regards to copyright infringement.

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