(via Boing Boing) This open letter to Lily Allen, set to the tune if one of her own songs is rather endearing. I don't agree with this all-out anti all music IP stance, but I can imagine this being fun to kick start a debate with my students in a few weeks time, as it's surprisingly well argued..
ps I like Lily Allen's work too and own actual copies of both her CDs to date..
Showing posts with label p2p. Show all posts
Showing posts with label p2p. Show all posts
Sunday, September 27, 2009
Monday, January 26, 2009
Countdown to the Digital Britain report..
Latest from The Times:
"Internet service providers will not be forced to disconnect users who
repeatedly flout the law by illegally sharing music and video files, The
Times has learnt.
Andy Burnham, the Culture Secretary, said last year that the Government
had "serious legislative intent" to compel internet companies to cut off
customers who ignore warnings not to pirate material.
However, in an interview with The Times, David Lammy, the Intellectual
Property Minister, said that the Government had ruled out legislating to
force ISPs to disconnect such users. "
The official announcement's now been delayed again, and against all rumour was not trailed at last week's Oxford Media conference. Looks like BERR're finding this one a wee bit tricky. Could that have anything to do with the music industry forcing Virgin to abandon its legal P2P offering? Remember the deal the Memorandum of Understanding offered back in July was new sanctions against filesharers, but only in return for new business models and in particular new legal ways to access music online using P2P .. not much sign of that..
Monday, January 19, 2009
BERR, the music industry and file sharing: also stupid porn law ideas
Sorry for long silence. A bit of a catch up here of some recent very important stories..
Ray Corrigan helpfully reminds me that the Department for Business Enterprise & Regulatory Reform has published the responses to their P2P filesharing consultation.
Meanwhile documents leaked to the Financial Times apparently show that BERR is planning in the wake of this to introduce an "ISP tax scheme":
As others have commented, that last sentence is posibly accurate :-)
Until we get details it doesn't seem worth commenting much on this. First impression is that it is certainly preferable to either the compulsory filtering of allegedly copyright content out, or the "3 strikes and you're out" type scheme we have feared since March 2008. On the other hand the privacy implications of this scheme are still not good.
Why for heavens sake if we are going to start imposing taxes , can't we simply do the sane thing and install a tax/levy system on broadband use, which would pay for all music to be downloaded "free"? (A: because the music industry don't want it that way. Well, hello.)
According to Becky at ORG,
"The official government response to the consultation will be published as part of the interim Digital Britain report, which is expected at the end of this month."
In other news, DRM is dead. Well for music. I mean if iTunes has decided it isn't worth using, who the hell else is going to?
In still other news, turning from music IP to Net porn, Burnham talks Bollocks. Well, so no change there. I won't address this one in detail here either, because I just have in the (very heavily) revised version of my chapter on pornography, censorship and the Internet which will be appearing in the 3rd edition of Edwards and Waelde Law and the Internet, hopefully soon..
(This bit isn't so bad though. According to the Telegraph " Mr Burnham also wants new industry-wide “take down times”. This means that if websites such as YouTube or Facebook are alerted to offensive or harmful content they will have to remove it within a specified time once it is brought to their attention." The vague definition of "expedient" in the E Commerce Directive Art 14 has long been unhelpful to both hosts and ISPs, so Pangloss approves of this as long as it is practicable.)
Here's a taster of my views , in the new section on the global rise in compulsory top-down invisible Internet content filtering..
"Effectiveness. Web filtering can be easily avoided by those who really want to, and any government wishing to install it must consider the impact of this on effectiveness. Depending on how filtering is achieved, blocking can often be evaded by a proscribed site changing its URL, or merely its underlying IP address. Users in turn can simply use a foreign proxy server site to anonymise their surfing destinations[1]. Steps can be taken to inhibit avoidance, but they are likely to result in serious over-blocking – for example, the EFA paper on the Australian scheme notes that a serious web filtering system would also need to block the Google cache, the Way Back Machine[2], and numerous other Internet archive sites where content is mirrored. It can be argued that child porn web filtering systems merely inhibit the ignorant or lazy or those who stumble on illegal material by accident[3], and do not stop for a minute those who are ostensibly the real targets of the efforts involved – serious paedophiles who may go on to commit actual abuse.
Ray Corrigan helpfully reminds me that the Department for Business Enterprise & Regulatory Reform has published the responses to their P2P filesharing consultation.
"None of the options highlighted in the consultation won widespread support. Rather there was a marked polarisation of views between the rights holder community and consumers and the ISPs over what action should be taken.
A number of key issues were identified by respondents including copyright protection, protections afforded under eCommerce legislation and the impact on the wider economy. Consumers (individuals and consumer organisations) in particular highlighted concerns over data protection and privacy. The role of technology was addressed by most respondents, however there were conflicting views as to whether it could offer all or part of any solution. For almost all the options, questions were raised as to their legality under the existing legal frameworks and again, views varied.
There was a degree of consensus that any solution must involve the provision of new legal sources of attractive content and the need for education on the importance of copyright in the wider economy.
A number of replies suggested alternative models to those options proposed. Copies of all non-confidential responses received have been placed on the BERR website."
Meanwhile documents leaked to the Financial Times apparently show that BERR is planning in the wake of this to introduce an "ISP tax scheme":
"Ministers intend to pass regulations on internet piracy requiring service providers to tell customers they suspect of illegally downloading films and music that they are breaking the law, says the draft report by Lord Carter.It would also make them collect data on serious and repeated infringers of copyright law, which would then be made available to music companies or other rights-holders who can produce a court order for them to be handed over.
With the creation of a body called the Rights Agency to be paid for by a small levy from the internet service providers and rights-holding organisations, these measures would form the spine of a new code of conduct for the internet industry. The draft report says the code would be overseen by Ofcom, the broadcasting regulator, according to people who have read it.
The guiding philosophy of the report is that the internet and music industries have failed to sort out the problems of illegal downloading between them, and the government sees this as its preferred solution."
As others have commented, that last sentence is posibly accurate :-)
Until we get details it doesn't seem worth commenting much on this. First impression is that it is certainly preferable to either the compulsory filtering of allegedly copyright content out, or the "3 strikes and you're out" type scheme we have feared since March 2008. On the other hand the privacy implications of this scheme are still not good.
Why for heavens sake if we are going to start imposing taxes , can't we simply do the sane thing and install a tax/levy system on broadband use, which would pay for all music to be downloaded "free"? (A: because the music industry don't want it that way. Well, hello.)
According to Becky at ORG,
"The official government response to the consultation will be published as part of the interim Digital Britain report, which is expected at the end of this month."
In other news, DRM is dead. Well for music. I mean if iTunes has decided it isn't worth using, who the hell else is going to?
In still other news, turning from music IP to Net porn, Burnham talks Bollocks. Well, so no change there. I won't address this one in detail here either, because I just have in the (very heavily) revised version of my chapter on pornography, censorship and the Internet which will be appearing in the 3rd edition of Edwards and Waelde Law and the Internet, hopefully soon..
(This bit isn't so bad though. According to the Telegraph " Mr Burnham also wants new industry-wide “take down times”. This means that if websites such as YouTube or Facebook are alerted to offensive or harmful content they will have to remove it within a specified time once it is brought to their attention." The vague definition of "expedient" in the E Commerce Directive Art 14 has long been unhelpful to both hosts and ISPs, so Pangloss approves of this as long as it is practicable.)
Here's a taster of my views , in the new section on the global rise in compulsory top-down invisible Internet content filtering..
"Effectiveness. Web filtering can be easily avoided by those who really want to, and any government wishing to install it must consider the impact of this on effectiveness. Depending on how filtering is achieved, blocking can often be evaded by a proscribed site changing its URL, or merely its underlying IP address. Users in turn can simply use a foreign proxy server site to anonymise their surfing destinations[1]. Steps can be taken to inhibit avoidance, but they are likely to result in serious over-blocking – for example, the EFA paper on the Australian scheme notes that a serious web filtering system would also need to block the Google cache, the Way Back Machine[2], and numerous other Internet archive sites where content is mirrored. It can be argued that child porn web filtering systems merely inhibit the ignorant or lazy or those who stumble on illegal material by accident[3], and do not stop for a minute those who are ostensibly the real targets of the efforts involved – serious paedophiles who may go on to commit actual abuse.
A key anti-avoidance issue is whether filtering is only to be imposed on websites or on other types of digital content, such as Internet newsgroups[4], P2P filesharing systems, instant messaging (IM) and email, as well as mobile phone traffic. As we have discussed above, illegal content is now known to be more commonly swapped in encrypted P2P “darknets” than on the open Web, which begs the question, why bother to filter the Web at all? In response to such criticisms, the Australians have claimed they intend to extend their reach to cover material traded via the P2P protocol BitTorrent and the EC has instructed research into P2P content blocking[5]. Such research is still likely to prove useless in the face of modern evolving encrypted P2P systems. At present such systems (eg Tor and Freenet) are rarely used by the average EU or
A slightly easier target is mobile content. In Europe, many mobile operators already provide filtering software and filtered content for children, and UK operators since 2004 have voluntarily signed up to Ofcom-brokered codes of conduct requiring filtering of content to under 18s and labeling of over 18 content on their servers[6]. Reliably imposing these restrictions on children given cheap anonymous pay as you go phones, may however be a harder than foreseen task.
Resources. Even if we only look at filtering the Web, realistically, classifying the
ever-expanding billions of Internet pages manually as “illegal”, “inappropriate”
or whatever will cost billions of dollars and be an
ever moving target[7].This has not however stopped the Culture Minister Andy
Burnham recently suggesting exactly this for the
The IWF avoids this problem by being complaint-driven - which
means its list is,of course, very partial[9] and thus of questionable success. In reality,
blocklists in commercial filters are usually generated partly by automated and partly
by manual means, which as the ONI note, means they are inevitably prone to both
over- and under-blocking.
[2] Interestingly, the Register has also reported that the IWF had added images on the Wayback Machine to its block list, which had lead to some ISPs banning the entire 85 million web page archive. Details were not given as to what images had been banned and ISPs involved gave 404 “page not found errors”. See “IWF confirms Wayback machine porn blacklisting” ,The Register, 14 January 2009.
[3] Mike Galvin of BT, one of the creators of the IWF “cleanfeed” system, admitted in an interview with the Guardian on 26 May 2005, that Cleanfeed “won’t stop the hardened pedophile” and went on to say that its main aim was to stop accidental access by users following links such as those in spam emails.
[4] Internet newsgroups have largely fallen out of common use but are still extensively used for porn trafficking: see January 2009 report of
[7] The EFA pages (supra n XX) estimate that even if a 1000 people were employed full time for a year , they would fail to categorise more than 0.1% of all the pages on the Web , and at the end of that year the list would be hopelessly out of date.
[8] See BBC report, 27 December 2008 , at http://news.bbc.co.uk/1/hi/uk/7800846.stm .
[9] Testing of the IWF Cleanfeed system for use in New Zealand found that their list contains probably only only about 10-15% of offending websites (statistic cited in EFA pages, op cit supra n XX)
Thursday, July 24, 2008
3 Strikes and You're Um Crawling to a Halt??
Pangloss hates to seem so one track minded on this, but well, things just keep happening. In this case, potentially pretty bad things.
After months of rumours, behind the scene talks, stealth tactics at the European Parliament (maybe), and denials that the UK and indeed, Carphone Warehouse would ever ever have anything to do with nasty French stuff like 3 strikes and you're out, today we have two somewhat interesting developments: a voluntary, and so far, rather worryingly vague, Memorandum of Understanding between the music industry, BERR and the 6 leading UK ISPs which between them account for 90% of UK traffic : BT, Tiscali, Virgin ("absolutely no possibility of disconnection"), Orange, BSkyB and oh suprise, Carphone Warehouse :)
Plus a consultation on what primary legislation should be brought in by BERR as a "backstop": the idea being presumably that if the other 10% of ISPs don't fall into line with the MoU - or if some of the above 6 pull out depending on how bad the PR fall out is and what the MoU actually compells them to do - they can then all be compelled still to "do something" about file sharing.
So what does the MoU say? Well basically for 3 months, the industry aided by the 6 ISPs involved are going to send out letters to suspected filesharers. Lots and lots of letters. 80,000 or so over 12 weeks. But hang on. If 67% of the UK have admitted to filesharing - even only once - that's 35 million letters that need sending out. Quite a bit of scaling up there to be done after the pilot. Eco-wise let's hope they're all emails:)
But letters is only stage 1 (after all the BPI could have sent them themselves, tho this way they do aparently get ISPs to pay for half of them.) Stage 2 is what do you do next, when presumably they compare them all on a big spreadsheet, and find that eg Mr A of Aberystwyth got 220 letters from 5 ISPs? What gets done to persuade Mr A to abandon his bad ways if the shock of 220 letters isn't enough?
Here the MoU gets vaguer. There will be discussion of "technical measures", for "repeat" or "the worst" offenders. This seems to involves three possible sanctions:
Pangloss doesn't want to restate the (very tired and flat) wheel but this raises all the same problems I've gone though before plus more.
What will happen if the repeat offender is a child and the whole household loses access or has it slowed to unacceptable levels? "Traffic slowing" to an accountholder sounds better than disconnection, but I cannot see, having asked some tech experts, how it is substantially less damaging.
This is about music remember, not, so far, films. Supposed Little Johnny downloads several hundred tracks, and as a result the account to their home is restricted to a crawl. (It's likely to happen automatically after the account's bandwidth limit is reached.) If you can't manage to get a fast enough connection to download an MP3, or even 12 constituting an album, can Johnny still manage to download his course reading materials from the uni or school website?? can Mum run her small business? can Dad tele commute? can Sis run her small business on eBay? can ma and pa even manage to download programmes from iViewer, their legal right as a BBC license payer! It seems unlikely.
What if the infringer is really someone using your wi fi , or visiting your house, or a crook who's zombified your machine unbeknownst to you?
What if the music people have just got the IP address or look up to real life ID wrong? (well we should at least get to see the correct target hit rate - or the failure`rate - over the next three months.
What if you're making fair use of coyright materials eg review, journalism, education?
All these crucial points of evidence and standard of proof and exceptions remain right now (a) vague and (b) aparently to be determined and adjudicated by industry and ISPs - not courts, judges or even policemen.
The good news here is that the regulator Ofcom is to be involved in drafting codes with industry relating to "evidence .. repeat offenders..incorrect allegations... routes of appeal" (p 48).
Good. Very good even. But it will still be the music industry as prosecutor and judge and the ISP as cop and enforcer, with the onus on the consumer to challenge after the sanction has already been ordered: Pangloss still feels deeply unhappy about all this.
There is a better alternative though, and it's option A3 in the BERR consulation. (p 35).
"Rights holders would identify infringing IP addresses and pass evidence and
details to a 3rd party body, which would take responsibility for assessing the evidence that file-sharing of copyright material had taken place. If the evidence was judged sufficiently robust, the body would then direct the ISP to take appropriate action or do so itself. Such a body would also be able to hear appeals and complaints from
consumers and may also be responsible for developing and administering or overseeing
any required code of practice for ISPs and rights holders."
This is a win win solution. It could meet ECHR and UK standards of fairness, due process and transparency, while still cutting down on actual piracy (as is right and proper, we should not forget this).
It might also be seen as slow and expensive and the industry will not like it. But it doesn't have to be.
We already have a model , in the IP world, of a speedy cheap and effective, yet legally rigorous tribunal for on line wrong doing. It's the ICANN UDR dispute resolution procedure for dealing with cybersquatters - people who register domain names in apparent disregard of the rights of trademark holders. It works, it's seen 1000s of cases over a number of years and broadly industry - and the IP industry - has found it effective and satisfactory. In previous work for the EU, myself and my colleague Caroline Wilson held up the UDRP as a possible model for resolution of online consumer-related disputes. It can involve lawyers or technologists or even musicians so long as they are trained as arbiters who actually understand the relevant law, technology and business. It need not have the kind of time and cost constraints of the courts. Cases could mainly be conducted online, with electronic written pleadings, again already a tried and tested standard approach in the UDRP.
It could make the UK look like a world leader in dealing with the consumer piracy problem, as opposed to the freakshow of Europe.
What other alternatives does BERR suggest?
A1 suggests that ISPs be required to automatically reveal the personal identity of an alleged filesharer identified by IP address to music industry, on demand, with no need to go to court.
Currently ISPs refuse to do this because it would be breach of data protection law and also a breach of confidentiality to custoner without court order. It would, one imagines, be disastrous for ISP customer relations, but as US already has it in DMCA, it is likely to appeal to BERR as already working.
The problem is really how far this can be used to invade personal provacy and make groundless threats (as in so-called cyber-slapp libel litigation.) People are however extremely touchy about personal data revelation without consent right now, post HMRC. so Panlgoss suspects this one is likely to go down like a lead balloon.
A4, finally, (no there is no A2 - well not really) suggests that if we are all very very bad boys indeed, then ISps will be asked _ sorry ordered - to install filtering. THis would probably mean that the rightsholder would say "here is the list of tracks we hold cooyright in" and if Mr A in Aberystwth was detected downloading or uploading one of them, it would be filtered out (and he would no doubt get a letter too).
Secueity and technical experts say this is so unlikely to work correctly across all traffic, all users and all ISps, that it's like believing in fairies. How do you tell a Lily Allen track that's been illegally copied from a P2P site from one that's been legally downloaded as part of a BBC TV show from iViewer or one that's freely available on MySpaced as apromo? It's the same track.
It is also a blank ticket for unrestricted censorship with no public accountability or transparency. It's the kind of tactic which has been declared an unconstututional interference with the free expression rights of adults repeatedly in the US courts. Filtering might - just - be aceptable to stamp out child porn downloading - but not in the context of music where many people have quite legitimate rights to listen to much oif the material.
This is more than a hammer to crack a nut - it's an imaginary hammer cracking all the fruit in the world as well as the nut. (Yeh maybe the metaphors are getting out of hand.)
Think about it. If you like A3, do write to BERR (or do anyway) - the consultation closes on October 30.
Write to Michael Klym / Adrian Brazier
Communications & Content Industries
Department for Business, Enterprise & Regulatory Reform
UG28-30
1 Victoria Street
London SW1H 0ET
Tel: 020 7215 4165 / 1295 Fax: 020 7215 5442
Email: mike.klym@berr.gsi.gov.uk / adrian.brazier@berr.gsi.gov.uk
After months of rumours, behind the scene talks, stealth tactics at the European Parliament (maybe), and denials that the UK and indeed, Carphone Warehouse would ever ever have anything to do with nasty French stuff like 3 strikes and you're out, today we have two somewhat interesting developments: a voluntary, and so far, rather worryingly vague, Memorandum of Understanding between the music industry, BERR and the 6 leading UK ISPs which between them account for 90% of UK traffic : BT, Tiscali, Virgin ("absolutely no possibility of disconnection"), Orange, BSkyB and oh suprise, Carphone Warehouse :)
Plus a consultation on what primary legislation should be brought in by BERR as a "backstop": the idea being presumably that if the other 10% of ISPs don't fall into line with the MoU - or if some of the above 6 pull out depending on how bad the PR fall out is and what the MoU actually compells them to do - they can then all be compelled still to "do something" about file sharing.
So what does the MoU say? Well basically for 3 months, the industry aided by the 6 ISPs involved are going to send out letters to suspected filesharers. Lots and lots of letters. 80,000 or so over 12 weeks. But hang on. If 67% of the UK have admitted to filesharing - even only once - that's 35 million letters that need sending out. Quite a bit of scaling up there to be done after the pilot. Eco-wise let's hope they're all emails:)
But letters is only stage 1 (after all the BPI could have sent them themselves, tho this way they do aparently get ISPs to pay for half of them.) Stage 2 is what do you do next, when presumably they compare them all on a big spreadsheet, and find that eg Mr A of Aberystwyth got 220 letters from 5 ISPs? What gets done to persuade Mr A to abandon his bad ways if the shock of 220 letters isn't enough?
Here the MoU gets vaguer. There will be discussion of "technical measures", for "repeat" or "the worst" offenders. This seems to involves three possible sanctions:
- traffic management (slowing the offender's email til it's too slow to downlaod an MP3);
- filtering out tagged-as-copyright traffic to that offender's IP address;
- and possibly, maybe, not quite stated-as-such, disconnection??
Pangloss doesn't want to restate the (very tired and flat) wheel but this raises all the same problems I've gone though before plus more.
What will happen if the repeat offender is a child and the whole household loses access or has it slowed to unacceptable levels? "Traffic slowing" to an accountholder sounds better than disconnection, but I cannot see, having asked some tech experts, how it is substantially less damaging.
This is about music remember, not, so far, films. Supposed Little Johnny downloads several hundred tracks, and as a result the account to their home is restricted to a crawl. (It's likely to happen automatically after the account's bandwidth limit is reached.) If you can't manage to get a fast enough connection to download an MP3, or even 12 constituting an album, can Johnny still manage to download his course reading materials from the uni or school website?? can Mum run her small business? can Dad tele commute? can Sis run her small business on eBay? can ma and pa even manage to download programmes from iViewer, their legal right as a BBC license payer! It seems unlikely.
What if the infringer is really someone using your wi fi , or visiting your house, or a crook who's zombified your machine unbeknownst to you?
What if the music people have just got the IP address or look up to real life ID wrong? (well we should at least get to see the correct target hit rate - or the failure`rate - over the next three months.
What if you're making fair use of coyright materials eg review, journalism, education?
All these crucial points of evidence and standard of proof and exceptions remain right now (a) vague and (b) aparently to be determined and adjudicated by industry and ISPs - not courts, judges or even policemen.
The good news here is that the regulator Ofcom is to be involved in drafting codes with industry relating to "evidence .. repeat offenders..incorrect allegations... routes of appeal" (p 48).
Good. Very good even. But it will still be the music industry as prosecutor and judge and the ISP as cop and enforcer, with the onus on the consumer to challenge after the sanction has already been ordered: Pangloss still feels deeply unhappy about all this.
There is a better alternative though, and it's option A3 in the BERR consulation. (p 35).
"Rights holders would identify infringing IP addresses and pass evidence and
details to a 3rd party body, which would take responsibility for assessing the evidence that file-sharing of copyright material had taken place. If the evidence was judged sufficiently robust, the body would then direct the ISP to take appropriate action or do so itself. Such a body would also be able to hear appeals and complaints from
consumers and may also be responsible for developing and administering or overseeing
any required code of practice for ISPs and rights holders."
This is a win win solution. It could meet ECHR and UK standards of fairness, due process and transparency, while still cutting down on actual piracy (as is right and proper, we should not forget this).
It might also be seen as slow and expensive and the industry will not like it. But it doesn't have to be.
We already have a model , in the IP world, of a speedy cheap and effective, yet legally rigorous tribunal for on line wrong doing. It's the ICANN UDR dispute resolution procedure for dealing with cybersquatters - people who register domain names in apparent disregard of the rights of trademark holders. It works, it's seen 1000s of cases over a number of years and broadly industry - and the IP industry - has found it effective and satisfactory. In previous work for the EU, myself and my colleague Caroline Wilson held up the UDRP as a possible model for resolution of online consumer-related disputes. It can involve lawyers or technologists or even musicians so long as they are trained as arbiters who actually understand the relevant law, technology and business. It need not have the kind of time and cost constraints of the courts. Cases could mainly be conducted online, with electronic written pleadings, again already a tried and tested standard approach in the UDRP.
It could make the UK look like a world leader in dealing with the consumer piracy problem, as opposed to the freakshow of Europe.
What other alternatives does BERR suggest?
A1 suggests that ISPs be required to automatically reveal the personal identity of an alleged filesharer identified by IP address to music industry, on demand, with no need to go to court.
Currently ISPs refuse to do this because it would be breach of data protection law and also a breach of confidentiality to custoner without court order. It would, one imagines, be disastrous for ISP customer relations, but as US already has it in DMCA, it is likely to appeal to BERR as already working.
The problem is really how far this can be used to invade personal provacy and make groundless threats (as in so-called cyber-slapp libel litigation.) People are however extremely touchy about personal data revelation without consent right now, post HMRC. so Panlgoss suspects this one is likely to go down like a lead balloon.
A4, finally, (no there is no A2 - well not really) suggests that if we are all very very bad boys indeed, then ISps will be asked _ sorry ordered - to install filtering. THis would probably mean that the rightsholder would say "here is the list of tracks we hold cooyright in" and if Mr A in Aberystwth was detected downloading or uploading one of them, it would be filtered out (and he would no doubt get a letter too).
Secueity and technical experts say this is so unlikely to work correctly across all traffic, all users and all ISps, that it's like believing in fairies. How do you tell a Lily Allen track that's been illegally copied from a P2P site from one that's been legally downloaded as part of a BBC TV show from iViewer or one that's freely available on MySpaced as apromo? It's the same track.
It is also a blank ticket for unrestricted censorship with no public accountability or transparency. It's the kind of tactic which has been declared an unconstututional interference with the free expression rights of adults repeatedly in the US courts. Filtering might - just - be aceptable to stamp out child porn downloading - but not in the context of music where many people have quite legitimate rights to listen to much oif the material.
This is more than a hammer to crack a nut - it's an imaginary hammer cracking all the fruit in the world as well as the nut. (Yeh maybe the metaphors are getting out of hand.)
Think about it. If you like A3, do write to BERR (or do anyway) - the consultation closes on October 30.
Write to Michael Klym / Adrian Brazier
Communications & Content Industries
Department for Business, Enterprise & Regulatory Reform
UG28-30
1 Victoria Street
London SW1H 0ET
Tel: 020 7215 4165 / 1295 Fax: 020 7215 5442
Email: mike.klym@berr.gsi.gov.uk / adrian.brazier@berr.gsi.gov.uk
Friday, July 04, 2008
Three strikes and you're, er, confused..?
This is long. Get a cup of tea. Sit down and put some chill out music on. But there's a surprise at the end, I promise :)
The story so far: long ago in a galaxy far away in , ooh, March 08, a rumour swept the land that UK ISPs were going to be co-opted by the content/music/movies industry rightsholder groups to apply a doctrine originating from France, and known as "graduated response" or colloquially, "3 strikes and you're out", as part of the continuing battle against the Forces of Evil, namely illegal downloaders/fileswappers.
Under a "3 strikes law", ISPs must warn a detected uploader (or possibly downloader) if they appear to be breaking copyright law. On the third such warning, access to the ISP is disconnected. If such a doctrine is applied by law (or as a voluntary agreement by all ISPs, as "soft law" to fend off "hard law" regulation, then effectively the price of filesharing becomes banishment from access to the Internet.
Pangloss gave a talk on this at the LSE which was reasonably well received in which I asserted that such a step would be illegal under EC law, both because of the hosting and mere conduit exemption from liability for third parties applicable to ISPs under Art 13-15 of the ECD; and because the "penalty" would be disproportionate to the "offence", and thus fall foul of various human rights guarantees in both the ECHR and the EC Charter of Rights.
In particular, access to the Internet for all members of a household might be suspended even if only one person the household had file-shared - or perhaps even a mere friend , guest or user of an unsecured wi fi network. This is because filesharing can only be detected as connected to a particular IP address; and IP addresses identify only a particular computer, not the person using it. A final problem might also be that home machines are often compromised by malware nowadays: how would some one prove it was not them but a remote zombie master who was using their machine to upload or download?
Adjudication and fairness problems also exist: how does the ISP know that an IP address passed to them by the content industry is truely of an illegal file sharer? Difficult grey areas exist of fair dealing and private use, and it can by no means in this our day of the iViewer be assumed that all P2P use is likely to be copyright-infringing.
So far, so bad. After that things went quiet. BERR, the former DTI, said they were bringing foward a consultation paper about "3 strikes and you're out" in the spring but seemed rather unenthusiastic about it with the latest word in June being that the consultation would be delayed till next year (Now why would that be? read on..).
MEPs in the European Parliament voted against it. Even the major ISP, Talk Talk/Carphone Warehouse came out publicly against notice and disconnection despite near-threats from the BPI. A reported attempt by the ISPA, the ISP's own trade asociation to broker a 3 strikes and you're out equivalent prgramme for video/movies, also appeared to die the death. In France, opposition also mounted against the proposed law, but the bill was proposed anyway. Was this the end for 3 strikes or not?
In the UK, developments seemed to take a different turn. First Virgin, one of the "big 3" ISPs , agreed to go in with the BPI on 9 June on a so-called campaign to "educate" users. Users would be warned that they had been detected swapping infringing tracks and to stop, but apparently no actual proposed sanction was included in the letter.
When the first letters arrived c 3 July to 800 Virgin users, all hell broke loose. Students and others (alerted like Pangloss, by that fine news organ , Radio 1 Newsbeat) complained that file sharing was their god given right and anyway, they'd been accused of downloading Amy Winehouse whom they didn't even like (what poor taste, says Pangloss. ) It couldn't have been them; must have been someone using their wi fi network, or a slumber party guest, or a big boy who ran away.
Virgin, stung by information in the latest polls that 63% of their potential subscriber audience had admitted to filesharing, backpeddled and plead that there was "absolutely no possibility" of Virgin taking legal action or banning internet users as part of a campaign against illegal file-sharing on its broadband network. This despite the fact that , embarassingly, "the letters came in an envelope marked: "Important. If you don't read this, your broadband could be disconnected." ." (Bit of a giveaway.)
Interestingly the music industry itself - before the storm broke - presented this not as a one off but as a first stage in attempts to "reach a voluntary agreement with [implicitly, all] ISPs over illegal file-sharing".
Meanwhile, BT the other of the big 3 UK ISPs which unlike TalkTalk had not already publicly rejected "3 strikes", was found in a rather good Register scoop, to have been sending individual letters to suspected filesharers, this time overtly threatening disconnection on further "strike". "If further evidence is obtained of infringement via your internet connection," it writes, "then further action is likely to be taken against you. That action may include litigation against you, as well as the suspension by BT of your internet connection." (This time perhaps deserved as the victim - er infringer - had been caught listening to Girls Aloud. Mon dieu.)
What was an impoverished student in need of a JayZ fix to do? The answer was obvious: leave Virgin and BT and join Talk Talk (or one of the 100s of other ISPs who wanted well out of all this politics and legal risk.) One conspiracy theory Pangloss rather likes, may have been that Virgin were in fact quite keen to lose major downloaders and uploaders: as the current charging model for broadband simply does not reflect the market costs of high usage: it has been said that for some users the real cost of Mbs used would be c £200 a month, not the more normal £10-£20.
But did even Virgin and BT want to lose 63% of their clientele? Probably not. And could all the other ISPs, including TalkTalk be argued into forming a cartel all offering the same policy? Again, probably not. But look!... like the cavalry coming over the virtual hill to the rescue, or the carrot coming to join forces with the stick, the music industry then revealed their ace in the hole on 26 June : stop filesharing illegally and we'll let you go on using P2P but as a legal service, administered via ISPs, with users paying a flat monthly fee added on to their broadband charges, which would then be divvied up back to the rights holders. And aha! this was why the government had been dragging their feet on the 3 strikes consultation, right, because they were brokering this deal? Surely so!
Wonderful, said Pangloss. The answer to all this insane cat and mouse luddism-vs-technological innovation lose:lose scenario we've been dealing with now for, what, nearly a decade? Pangloss has long been a supporter of flatrate levy schemes to finance the correct royalty payments to record companies and artists - ever since she first came across such as scheme back in as promoted by the very clever William Fisher of the Berkman Institute, Harvard, in his book Promises to Keep.
But the music industry has generally not been keen on them, since in theory more profit can be made by a market-driven digitised distribution system such as iTunes, where the industry can still decide how high a price it thinks it can get pers ong or per video, not just what the levy gives it. But hey, any profits are better than no profits right? Or better than 37% of profits anyway. For the average user it would be marvellous: all you can eat Napster, not for nothing but for a reasonable monthly fee. 80% of punters said they'd be happy with that, in the music industry's own poll. It seemed that sanity was at last beginning to prevail.
OK. Deep breath. With me so far?
Menawhile in a galaxy far away.. oh yeh done that bit .. at the European Union we find the reform of the Telecoms law framework underway - known as la Quadrature because it involves reform of (at least) 4 Directives.
Pardon you say. What does telecoms have to do with copyright and P2P?
Well not much, except that both involve Internet access and regulation, yes? The Telecoms reform work is massive, complex, detailed and inpenetrable even to most EC law anoraks. And taking place in the dog days of summer, just before the MEPs go home, and when the academics are already mostly on holiday and the IT journalists want to watch Wimbledon and the Dr Who finale. And over the US Fourth July weekend. The perfect time to bury a copyright bomb.
I have been helpfully given a briefing document by Monica Horten, PhD researcher at the University of Westminster and part of La Quadrature du Net, anti 3-strikes civil society body, which is difficult but alarming reading. Monica has made a close study of someof the proposed amendments to the Telecoms reform package, which have in the main been pushed through committees by industry lobbying and are scheduled to come up for voting on July 7. Yes - in 3 days time. There are 800 amendments and only a handful concern copyright. This is a legislative needle in a haystack. I have seen no publicity for these very important amendments except one report in EDRI-gram: the general press seems unaware. I have checked the amendments myself , but it has to be said however, that interpretation of what exactly they mean is in many cases difficult. Full details can be found in Monica's brief and at the Quadrature de Net page.
Monica suggests that the amendments promoted by copyright interests will, if passed on July 7:
1. Impose an obligation on ISPs to "co-operate" with the content industry in removing filesharers from the Web. In EC speak , this is almost certainly a euphemism for being required to put in place a system akin to a 3-strikes regime and is certainly capable of being interpreted that widely in implementing legislation.
The Internal Market committee report (IMCO) amendment, promoted by UK Conservative MEP Malcolm Harbour, specifies that
Interestingly also, proposed recital 12c provides that "Such public interest information should be produced either as a preventative measure or in response to particular problems". This is I would argue clearly wide enough to cover the "strike" interpretation as well as the "general info" interpretation.
This , as French commentators have recognised, thus potentially puts in place all the groundwork of warnings, and legal requirements, for 3 strikes to become law throughout Europe, or at least in whichever of the national legislatures chooses to adopt the wider interpretation (s).
In conclusion, I am worried . Worried at the lack of consideration for what the public wants; the lack of balance between legitimate protection of IPRs, and vital interests such as the access of students and workers to the Net, as well as of the families of alleged filesharers; the apparent disregard for privacy and the personal data safeguards of the data protection laws; the apparent washing away of the E-Commerce Directive immunities; but more than that, aghast at this blatant attempt to sneak through vital changes to the law without proper notice or debate, across Europe, in the Trojan horse of a giant and extraordinarily hard to understand reform exercise.
Hence this rather long post :(
NOTE: this post was edited on 6 July 2008 to make clearer and explicit reference to the exact text of the amendments proposed.
The story so far: long ago in a galaxy far away in , ooh, March 08, a rumour swept the land that UK ISPs were going to be co-opted by the content/music/movies industry rightsholder groups to apply a doctrine originating from France, and known as "graduated response" or colloquially, "3 strikes and you're out", as part of the continuing battle against the Forces of Evil, namely illegal downloaders/fileswappers.
Under a "3 strikes law", ISPs must warn a detected uploader (or possibly downloader) if they appear to be breaking copyright law. On the third such warning, access to the ISP is disconnected. If such a doctrine is applied by law (or as a voluntary agreement by all ISPs, as "soft law" to fend off "hard law" regulation, then effectively the price of filesharing becomes banishment from access to the Internet.
Pangloss gave a talk on this at the LSE which was reasonably well received in which I asserted that such a step would be illegal under EC law, both because of the hosting and mere conduit exemption from liability for third parties applicable to ISPs under Art 13-15 of the ECD; and because the "penalty" would be disproportionate to the "offence", and thus fall foul of various human rights guarantees in both the ECHR and the EC Charter of Rights.
In particular, access to the Internet for all members of a household might be suspended even if only one person the household had file-shared - or perhaps even a mere friend , guest or user of an unsecured wi fi network. This is because filesharing can only be detected as connected to a particular IP address; and IP addresses identify only a particular computer, not the person using it. A final problem might also be that home machines are often compromised by malware nowadays: how would some one prove it was not them but a remote zombie master who was using their machine to upload or download?
Adjudication and fairness problems also exist: how does the ISP know that an IP address passed to them by the content industry is truely of an illegal file sharer? Difficult grey areas exist of fair dealing and private use, and it can by no means in this our day of the iViewer be assumed that all P2P use is likely to be copyright-infringing.
So far, so bad. After that things went quiet. BERR, the former DTI, said they were bringing foward a consultation paper about "3 strikes and you're out" in the spring but seemed rather unenthusiastic about it with the latest word in June being that the consultation would be delayed till next year (Now why would that be? read on..).
MEPs in the European Parliament voted against it. Even the major ISP, Talk Talk/Carphone Warehouse came out publicly against notice and disconnection despite near-threats from the BPI. A reported attempt by the ISPA, the ISP's own trade asociation to broker a 3 strikes and you're out equivalent prgramme for video/movies, also appeared to die the death. In France, opposition also mounted against the proposed law, but the bill was proposed anyway. Was this the end for 3 strikes or not?
In the UK, developments seemed to take a different turn. First Virgin, one of the "big 3" ISPs , agreed to go in with the BPI on 9 June on a so-called campaign to "educate" users. Users would be warned that they had been detected swapping infringing tracks and to stop, but apparently no actual proposed sanction was included in the letter.
When the first letters arrived c 3 July to 800 Virgin users, all hell broke loose. Students and others (alerted like Pangloss, by that fine news organ , Radio 1 Newsbeat) complained that file sharing was their god given right and anyway, they'd been accused of downloading Amy Winehouse whom they didn't even like (what poor taste, says Pangloss. ) It couldn't have been them; must have been someone using their wi fi network, or a slumber party guest, or a big boy who ran away.
Virgin, stung by information in the latest polls that 63% of their potential subscriber audience had admitted to filesharing, backpeddled and plead that there was "absolutely no possibility" of Virgin taking legal action or banning internet users as part of a campaign against illegal file-sharing on its broadband network. This despite the fact that , embarassingly, "the letters came in an envelope marked: "Important. If you don't read this, your broadband could be disconnected." ." (Bit of a giveaway.)
Interestingly the music industry itself - before the storm broke - presented this not as a one off but as a first stage in attempts to "reach a voluntary agreement with [implicitly, all] ISPs over illegal file-sharing".
Meanwhile, BT the other of the big 3 UK ISPs which unlike TalkTalk had not already publicly rejected "3 strikes", was found in a rather good Register scoop, to have been sending individual letters to suspected filesharers, this time overtly threatening disconnection on further "strike". "If further evidence is obtained of infringement via your internet connection," it writes, "then further action is likely to be taken against you. That action may include litigation against you, as well as the suspension by BT of your internet connection." (This time perhaps deserved as the victim - er infringer - had been caught listening to Girls Aloud. Mon dieu.)
What was an impoverished student in need of a JayZ fix to do? The answer was obvious: leave Virgin and BT and join Talk Talk (or one of the 100s of other ISPs who wanted well out of all this politics and legal risk.) One conspiracy theory Pangloss rather likes, may have been that Virgin were in fact quite keen to lose major downloaders and uploaders: as the current charging model for broadband simply does not reflect the market costs of high usage: it has been said that for some users the real cost of Mbs used would be c £200 a month, not the more normal £10-£20.
But did even Virgin and BT want to lose 63% of their clientele? Probably not. And could all the other ISPs, including TalkTalk be argued into forming a cartel all offering the same policy? Again, probably not. But look!... like the cavalry coming over the virtual hill to the rescue, or the carrot coming to join forces with the stick, the music industry then revealed their ace in the hole on 26 June : stop filesharing illegally and we'll let you go on using P2P but as a legal service, administered via ISPs, with users paying a flat monthly fee added on to their broadband charges, which would then be divvied up back to the rights holders. And aha! this was why the government had been dragging their feet on the 3 strikes consultation, right, because they were brokering this deal? Surely so!
Wonderful, said Pangloss. The answer to all this insane cat and mouse luddism-vs-technological innovation lose:lose scenario we've been dealing with now for, what, nearly a decade? Pangloss has long been a supporter of flatrate levy schemes to finance the correct royalty payments to record companies and artists - ever since she first came across such as scheme back in as promoted by the very clever William Fisher of the Berkman Institute, Harvard, in his book Promises to Keep.
But the music industry has generally not been keen on them, since in theory more profit can be made by a market-driven digitised distribution system such as iTunes, where the industry can still decide how high a price it thinks it can get pers ong or per video, not just what the levy gives it. But hey, any profits are better than no profits right? Or better than 37% of profits anyway. For the average user it would be marvellous: all you can eat Napster, not for nothing but for a reasonable monthly fee. 80% of punters said they'd be happy with that, in the music industry's own poll. It seemed that sanity was at last beginning to prevail.
OK. Deep breath. With me so far?
Menawhile in a galaxy far away.. oh yeh done that bit .. at the European Union we find the reform of the Telecoms law framework underway - known as la Quadrature because it involves reform of (at least) 4 Directives.
Pardon you say. What does telecoms have to do with copyright and P2P?
Well not much, except that both involve Internet access and regulation, yes? The Telecoms reform work is massive, complex, detailed and inpenetrable even to most EC law anoraks. And taking place in the dog days of summer, just before the MEPs go home, and when the academics are already mostly on holiday and the IT journalists want to watch Wimbledon and the Dr Who finale. And over the US Fourth July weekend. The perfect time to bury a copyright bomb.
I have been helpfully given a briefing document by Monica Horten, PhD researcher at the University of Westminster and part of La Quadrature du Net, anti 3-strikes civil society body, which is difficult but alarming reading. Monica has made a close study of someof the proposed amendments to the Telecoms reform package, which have in the main been pushed through committees by industry lobbying and are scheduled to come up for voting on July 7. Yes - in 3 days time. There are 800 amendments and only a handful concern copyright. This is a legislative needle in a haystack. I have seen no publicity for these very important amendments except one report in EDRI-gram: the general press seems unaware. I have checked the amendments myself , but it has to be said however, that interpretation of what exactly they mean is in many cases difficult. Full details can be found in Monica's brief and at the Quadrature de Net page.
Monica suggests that the amendments promoted by copyright interests will, if passed on July 7:
1. Impose an obligation on ISPs to "co-operate" with the content industry in removing filesharers from the Web. In EC speak , this is almost certainly a euphemism for being required to put in place a system akin to a 3-strikes regime and is certainly capable of being interpreted that widely in implementing legislation.
The Internal Market committee report (IMCO) amendment, promoted by UK Conservative MEP Malcolm Harbour, specifies that
"national regulatory authorities and other relevant authorities shall also as far as appropriate promote cooperation between undertakings providing electronic communications networks and/or services and the sectors interested in the protection and promotion of lawful content in electronic communication networks and services. These co-operation mechanisms may also include coordination of the public interest information to be made available as set out in Article 21(4a) and Article 20(2).
The reference here is to another amendment to the same Directive, which would require ISPs to regularly distribute "public interest information" to all users including "the most common uses of electronic communications services to carry out unlawful activities or to disseminate harmful content ". This could be interpreted as narrowly as basic information on copyright (arguably, fine); or it could be clear information from the ISP that a user had been accused of illegal filesharing by a rights holder (a "strike"). The use of the word "also" (enlarged by Pangloss) suggest that the co-operation envisaged is certainly more than just the mere provision of information/warnings.Interestingly also, proposed recital 12c provides that "Such public interest information should be produced either as a preventative measure or in response to particular problems". This is I would argue clearly wide enough to cover the "strike" interpretation as well as the "general info" interpretation.
This , as French commentators have recognised, thus potentially puts in place all the groundwork of warnings, and legal requirements, for 3 strikes to become law throughout Europe, or at least in whichever of the national legislatures chooses to adopt the wider interpretation (s).
In conclusion, I am worried . Worried at the lack of consideration for what the public wants; the lack of balance between legitimate protection of IPRs, and vital interests such as the access of students and workers to the Net, as well as of the families of alleged filesharers; the apparent disregard for privacy and the personal data safeguards of the data protection laws; the apparent washing away of the E-Commerce Directive immunities; but more than that, aghast at this blatant attempt to sneak through vital changes to the law without proper notice or debate, across Europe, in the Trojan horse of a giant and extraordinarily hard to understand reform exercise.
Hence this rather long post :(
NOTE: this post was edited on 6 July 2008 to make clearer and explicit reference to the exact text of the amendments proposed.
Thursday, April 10, 2008
MEPs condemn 3 strikes and you're out
Via Ray Corrigan and Cory Doctorow:
" Danny sez, "Last year, Euro Boing Boing readers wrote and called their MEPs to complain about European Union proposals advocating Internet filtering and blocking on behalf of the music industry. Not only were the amendments voted down, but now ninety MEPs from across the political spectrum have tabled a new text which condemns IFPI's plans to exile from the Net anyone they accuse three times of file-sharing:"
" Danny sez, "Last year, Euro Boing Boing readers wrote and called their MEPs to complain about European Union proposals advocating Internet filtering and blocking on behalf of the music industry. Not only were the amendments voted down, but now ninety MEPs from across the political spectrum have tabled a new text which condemns IFPI's plans to exile from the Net anyone they accuse three times of file-sharing:"
Calls on the Commission and the Member States to recognise that the Internet is a vast platform for cultural expression, access to knowledge, and democratic participation in European creativity, bringing generations together through the information society; calls on the Commission and the Member States, therefore, to avoid adopting measures conflicting with civil liberties and human rights and with the principles of proportionality, effectiveness and dissuasiveness, such as the interruption of Internet access."Among the advocates of the new language is Michel Rochard, the former Prime Minister of France. That's significant because present French PM Sarkozy is the only Euro leader currently seriously considering implementing IFPI's three strikes plan. With this kind of opposition, it looks like France might remain an anomaly, if it doesn't abandon the plans entirely.""
Tuesday, February 05, 2008
Promusicae in the ECJ
Pangloss has just grabbed a few minutes to consider this rather important new decision from the ECJ. Basically, the European court was asked to consider if it was legal for Spanish law to require telecoms providers, ISPs etc to retain traffic data relating to users for security or crime related purposes, but not to allow the use of that law for retrieval of evidence for OTHER (civil law) purposes, most obviously their use by IP rightsholders to uncover the identities of P2P filesharers.
The key provision here is Article 5(1) of Directive 2002/58 (the Privacy and Electronic Communications Directive, amending the Data Protection Directive 1995), which requires states to pass laws to ensure the confidentiality of traffic data. There can be exceptions to this obligation under Art 15(1) , but only where necessary to safeguard national security , defence, public security, or for the prevention, investigation, detection and prosecution of criminal offences - and to prevent "unauthorised use" of the electronic communications system, as referred to in Article 13(1) of Directive 95/46.
There was some dubiety in the ECJ that this last exception covered traffic data collection to get evidence for *civil* litigation - but the court were willing to more or less go along with that one. What they weren't willing to say was that this implied laws MUST be passed requiring disclosure of personal data to safeguard the rights of litigants in civil proceedings - ie, the PECD did NOT require automatic disclosure of P2P traffic data to help out the music industry, though such laws would not violate EC law.(para 56).
Several other IP-related Directives cited generally required states to provide for procedures for disclosure of information relating to pirate goods, after "justified and proportionate" applications by aggrieved rightsholders; however these did not take precedence over the specific obligation in the DPD and PECD to protect personal data.
And most importantly, as Cedric Manara has already mentioned elsewhere, the Court finally held that, turning to fundamental rights in the EC Charter, if the fundamental rights to property, and to privacy (which appear therein, as well as in the ECHR) appear to come into conflict when EC Directived are implemented in national laws , well, then , IP does not take precedence over privacy (or vice versa): instead, national courts must "make sure that they do not rely on an interpretation of [national laws] which which would be in conflict with these rights." (para 68) Put it plainly: IP rights do not trump DP rights, says the ECJ.
In other words also - my interpretation purely, now - although the ECJ have not said that laws requiring automatic disclosure of personal data to rights holders to protect IP rights would be illegal under the PECD, a serious warning has been issued to national legislatures not to be pushed into passing such laws, without considering first if rights of protection of personal data are being taken properly into account.
In the UK, this is serious stuff. The government is currently basically trying to shove through (as per Gower recommendation no 39) a model borrowed from France under which ISPs will disconnect and bar repeat P2P infringers via BCP codes, without ever going near a court. But this is probably only the tip of the iceberg. It is no surprise that the industry would far rather have automatic disclosure via industry codes of practice than, as currently, have to go for Norwich Pharmacal disclosure. This will be a very useful opinion for lobby groups fighting such a legal or "soft law" progression.
I'll be saying more about this at a conference in March :)More details when I have them.
The key provision here is Article 5(1) of Directive 2002/58 (the Privacy and Electronic Communications Directive, amending the Data Protection Directive 1995), which requires states to pass laws to ensure the confidentiality of traffic data. There can be exceptions to this obligation under Art 15(1) , but only where necessary to safeguard national security , defence, public security, or for the prevention, investigation, detection and prosecution of criminal offences - and to prevent "unauthorised use" of the electronic communications system, as referred to in Article 13(1) of Directive 95/46.
There was some dubiety in the ECJ that this last exception covered traffic data collection to get evidence for *civil* litigation - but the court were willing to more or less go along with that one. What they weren't willing to say was that this implied laws MUST be passed requiring disclosure of personal data to safeguard the rights of litigants in civil proceedings - ie, the PECD did NOT require automatic disclosure of P2P traffic data to help out the music industry, though such laws would not violate EC law.(para 56).
Several other IP-related Directives cited generally required states to provide for procedures for disclosure of information relating to pirate goods, after "justified and proportionate" applications by aggrieved rightsholders; however these did not take precedence over the specific obligation in the DPD and PECD to protect personal data.
And most importantly, as Cedric Manara has already mentioned elsewhere, the Court finally held that, turning to fundamental rights in the EC Charter, if the fundamental rights to property, and to privacy (which appear therein, as well as in the ECHR) appear to come into conflict when EC Directived are implemented in national laws , well, then , IP does not take precedence over privacy (or vice versa): instead, national courts must "make sure that they do not rely on an interpretation of [national laws] which which would be in conflict with these rights." (para 68) Put it plainly: IP rights do not trump DP rights, says the ECJ.
In other words also - my interpretation purely, now - although the ECJ have not said that laws requiring automatic disclosure of personal data to rights holders to protect IP rights would be illegal under the PECD, a serious warning has been issued to national legislatures not to be pushed into passing such laws, without considering first if rights of protection of personal data are being taken properly into account.
In the UK, this is serious stuff. The government is currently basically trying to shove through (as per Gower recommendation no 39) a model borrowed from France under which ISPs will disconnect and bar repeat P2P infringers via BCP codes, without ever going near a court. But this is probably only the tip of the iceberg. It is no surprise that the industry would far rather have automatic disclosure via industry codes of practice than, as currently, have to go for Norwich Pharmacal disclosure. This will be a very useful opinion for lobby groups fighting such a legal or "soft law" progression.
I'll be saying more about this at a conference in March :)More details when I have them.
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