European states act to counter illegal downloads

Two members states within the European Union have now taken steps to try to curb the flow of illegally downloaded date - including peer to peer sharing of music, film, audio books, software etc. Whether or not the actions will be effective remains to be seen.

At the beginning of April, Sweden introduced new law based on the transposition of the Intellectual Property Rights Enforcement Directive (IPRED). The new law allows rights owners to apply to the civil courts in Sweden for an order to require ISPs to provide details of the users of identified IP addresses. The immediate effect was a substantial drop in Internet traffic as users cut back usage in the face of potential actions and identification. Before the new law came into effect, rights owners were forced to refer matters to the police who were somewhat reluctant to take actions. Now, the rights owners can go directly to the courts to force release of information identifying end users who may then face civil actions.

The likelihood is that usage will start to creep up again after a few weeks, perhaps as users work out how to use anonymous proxy services, shared wireless networks or other means to hide identity.

In the UK there has long been provision for a rights owner to go to the courts to obtain an order to require an ISP to release user data. If the ISP does release in response to an order then they are not breaking any obligations to data subjects under the Data Protection Act - but ‘The Crusher’ would always advise ISPs to ensure that their data protection statements are worded to allow them to release information to authorised parties - and, of course, to law enforcement, national security agencies and the like.

Practicallity suggests that action is only really likely to take place when an owner identifies a user with a number of files avalable for download. In Sweden, publishers took action on the first day of the new legislation to require release of details about a user with several thousand audio-book files available for download. The chances of actions being taken over individual file sharers remains pretty low - it just is not cost-effective!

Meanwhile, in France, members of the National Assembly have voted to adopt a ‘Three Strikes and You’re Out’ approach. The final vote seems to have taken place in an almost depleted assembly with very few members actually present. As it stands, a user identified as downloading illegal content will be issued with a note advising them to protect their circuit and to ensure correct usage. This is clearly intended to protect against the defence that ’someone else used my wireless connection’ - although it remains to be tested whether it is to be an offence to operate an unsecured wireless connection. If a further infringement is detected then a second letter will be sent to the registered address of the user. If there is then a further infringement within 12 months the ISP may be required to suspend or to cease service.

Of course, such actions will always cause problems. The Crusher is well aware that a number of business lines have been used by employees to download illegal content - are business to be deprived of their Internet connectivity because of the rogue actions of an employee? Maybe not as the French law provides for a ‘Haut Autorité’ which can review suspensions.

Very French is the addition of what seems to be referred to as the ‘Hallyday’ clause. Now, Johnny Hallyday is a French entertainer who lives in Switzerland for tax purposes (hear this Lewis Hamilton?). Hallyday is a popular singer with substantial revenues from sales in France - but very limited tax liability. The ‘Hallyday’ clause proposes that actions against downloads of materials issued by tax exiles should be treated differently from other artistes. That would be interesting in the UK!

But will the 3-strikes action be legal? With Europe looking towards introducing a universal service obligation for broadband service and with human rights legislation, it may well be that any action to suspend or terminate accounts is held to be in contravention of statutory provision. There really are no easy solutions.

The Crusher has some other reservations over the French law. It seems that notices are to be served on downloaders. How are these to be detected? Most notifications from rights owners are in relation to persons uploading. Uploaders are effectively advertising their files for others to download. It is the advertising that leads to detection. Most peer2peer systems automatically offer upload when a user downloads a file - that is part of the p2p concept. But, if a user elects to block uploads and only downloads then they are unlikely to be caught. Unless, of course, ISPs engage in traffic analysis and deep packet inspection to identify traffic types and services. But then, analysis at that level may also be held to be illegal!

Ireland too seems to be in the throes of actions. Rights owners there are looking for agreements with ISPs for a three strikes approach - and also seem to be wanting to look towards filtering. See discussion at Digital Rights Ireland.

Meanwhile, in the UK we await the publication of the final version of the Digital Britain report. Current approaches seem to be favouring the self-regulatory approach long adopted here - but will these actions elsewhere in Europe prompt rights owners to lobby hard for changes in the UK?