P2P Copyright Infringement Update
It’s been an interesting few months in Europe if you’re in the piracy “business”. The persistent efforts of content owners in lobbying against online piracy now seem to be bearing meaningful fruit. There is even talk of pirate sites approaching labels for licences before receiving cease and desist demands.
Although there were signs of a shift in outlook in court decisions in Belgium and Finland in the last couple of years, the real movement has happened in 2009. On the legislative side, piracy has moved up the political agenda, with a drive towards legislative change in several European countries (particularly France, Sweden and the UK). Although there are some national nuances, the general approach seems to be that local governments want to make ISPs more responsible for the transmission of unauthorised content on their networks. This year also brought with it the long-awaited first decision in the Pirate Bay case. Despite politics and the noise surrounding the Pirate Bay, it’s a solid decision for rightholders. Although the founders are appealing the decision, and despite some apparently misguided attempts to legitimise the Pirate Bay service, it looks like the labels and studios have got their way against one of the most prolific and troublesome pirates of all time.
Now, the UK Government has made a surprise announcement of tough new measures against unlawful file sharing. This announcement goes much further than had been proposed in the Digital Britain Report issued in June this year. The Report indicated that persistent offenders would be subjected to a notification scheme via warning letters from ISPs threatening legal action or technological restrictions imposed by Ofcom, the national regulator. Such restrictions were to be put in place by 2012, and included blocking of URLs or reducing bandwith to prevent illegal filesharing. However, soon after the publication of its implementation plan for the proposals in the Report, BIS, now led by Lord Mandelson, announced more stringent proposals that include the acceleration of technical measures, such as the disconnection of Internet access. These measures will be subject to ministerial authority, as opposed to falling under the ambit of Ofcom.
The new proposals by BIS are viewed by some as being heavy-handed and controversial, particularly in terms of user privacy. For example, ISPs may be forced to disclose personal data of infringing users for legal action or disconnection to be effected. Also, in severing online access, it is difficult to ascertain how the Government will be able to reprimand an abuser without any action affecting the rest of the Internet users in a household. Whilst undoubtedly appeasing the content industry, these measures have the potential to stir up unrest. There is also the thorny question of due legislative process – it has been reported that Lord Mandelson, never one to shy away from a nice meal on a yacht, was corralled into intervention in the Digital Britain process by the personal lobbying efforts of wealthy entertainment ‘moguls’. This newfound Government expediency towards anti-piracy measures may yet be derailed by resistance to the means, if not the method, of bringing about change.
Still, all this is potentially great news for content owners, who have been having a very hard time of it recently. I would be genuinely excited to see services like MixCloud, Spotify, Psonar, Hulu, MySpace and many others who have invested heavily in digital distribution get the chance to play on a truly level playing field.
For further reading, see our Client Alert on What You Need To Know About Digital Britain.
