British ISPs stand firm after file-sharing ruling

[Hairbautt]

A group representing Internet service providers in the U.K. has reasserted that ISPs should not be responsible for illegal file-sharing that takes place over their networks.

Speaking Wednesday in the wake of a recent ruling in a Belgian court, a representative of the Internet Service Providers' Association maintained that ISPs should not be "set up to play judge and jury" over alleged copyright infringement.

Last week, a Belgian court ruled that the ISP Scarlet--formerly Tiscali--had the technology available to it to block or filter copyright-infringing material being sent over its network via peer-to-peer traffic, and had six months to start doing so.

The judgment drew praise from John Kennedy, chief executive of the International Federation of the Phonographic Industry, who said it proved that "the Internet's gatekeepers, the ISPs, have a responsibility to help control copyright-infringing traffic on their networks."

The case sets a precedent in European law but seems likely to be challenged. However, a similar decision won't surface in the U.K. anytime soon, according to telecommunications lawyer Danny Preiskel of Preiskel & Co.

"I think we are a way away from reaching a similar decision in the U.K. in imposing such liability," he told ZDNet UK, adding that such a case in the U.K. would be "fiercely resisted" by ISPs.

But ISPs in the U.K. are opening themselves up to some degree of liability by moving away from being providers of "pure conduits." They may be responsible for anything defamatory contained within the value-added content that many ISPs are now trying to sell to their customers, added Preiskel.

An ISPA representative noted that "ISPs are recognized in the eCommerce Directive (of 2002) as mere conduits of information."

The representative also responded to U.K. Conservative Party leader David Cameron's recent claims that, if ISPs could remove child pornography from their servers, they should also be willing to shut down the transmission of copyright-infringing material.

"We are talking about different things here--child pornography is criminal and copyright infringement can be a civil case," the ISPA representative said.

"ISPs shouldn't be set up to play judge and jury," the representative continued. "What we wouldn't want is corporate censorship. Any kind of censorship of the Internet has to be at the government level. ISPs are not law enforcement. We understand that ISPs play a part in combating instances of illegal activity on the Internet, which is why we engage with rights holders and work with government authorities on that basis, but we wouldn't say we're the gatekeepers of the Internet. The people responsible for unlawful content going up on the Internet are the people who put it there."

Source: C|Net News.Com

[4play]

love this argument

if ISPs could remove child pornography from their servers, they should also be willing to shut down the transmission of copyright-infringing material.

isps do remove lots of copyrighted content off their servers. ever tried to host songs on that free bit of webspace that you get from your isp.

The thing is how can isps verify that something is copyrighted. or how can they block the transmission (as they seem to have put it) of copyrighted material of what would be hundreads of sources a day for your average p2p user.

lets say isps were forced to port scan every user on their network determine open ports and see if there is copyrighted material being shared. this is the only way i can see being able to doing it. In the u.k this is actually illegal so how else are they meant to stop the transmission as they put it.

do the isps just block all p2p traffic and while we are at it all encrypted traffic as well since this could potential carry copyrighted material.

[peat moss]

Here , here good man bout time the stuffed shirts and pencil necked geeks told them to take a flying hike .

[digmen1]

I think ISP's should stop all spammers !

Regards

Digby

[TheFoX]

Two points to note. Child pornography IS criminal, so an ISP can act just as we could act if we saw someone committing a crime on our streets (citizen arrest or summoning of the police to facilitate an arrest etc.). Copyright theft is mainly civil in nature, so is not under the jurisdiction of the police, unless it is verifiable that a crime is being committed from the civil infringement, such as someone selling bootleg copies of a movie at a car boot sale, which is fraud, and becomes criminal in nature.

The second point is more pertinent. To effect a takedown of copyright material needs the copyright holder to identify the material as their own and ask the ISP to take it down. If someone gets into my car on my driveway and proceeds to back it out of my driveway, my neighbour cannot apprehend them on the pretext that they are stealing my car, because the person may have my authority to drive my car. Only I, as the owner, can say of my car is being lent to someone, or whether someone has taken that car without permission.

This is quite a relevant point, because if I have a dvd of a motion picture, I may have that with the owners permission. Only the owner of the rights will know if I have permission or not. Child pornography is clearly illegal, so there is no issue, but hosting what may be copyright material is not so clear cut. A third party cannot deem whether that file on our hard drive is public domain, hosted with permission, or copyright theft.

This is where the law becomes cloudy. Recently, a BT tracker (probably TPB) actually responded to a take down notice by informing the issuer that they had no right to order the take down because they were not the copyright holder (nor were they even representing the holder as an agent). If the owner, or their agents, have no issue with a particular bit of content, then no one else should. An ISP, therefore, should not be required to judge on something that may, or may not, be an issue.

So far, the law is geared towards the asserting of rights, rather than assumption of rights. This means that unless the rights of a piece of work is asserted, and restrictions applied, then there are no rights assumed. Essentially, this means that something that could be considered copyright should only be taken down when the owner asserts their right to have the work taken down. The moment we move to an assumptive environment, where all works are considered copyright, and is taken down regardless, then serious issues arise. This could mean that your video of your wedding day could not be hosted because someone would assume that you don't have the right to host it.

Some serious points worth noting. I hope we don't move from an assertive to an assumptive environment. If we do, life will become very much harder.

[lynx]

Some very relevant point there.

I'd just like to know who advised the judge(s) that the technology was available to block this sort of material. Except in the case of specifically hosted content that assertion clearly isn't true.

I feel pretty certain that the phonographic and motion picture industries are well aware that it isn't generally possible. That being the case if they provided the information aren't they guilty of perjury, or at the very least contempt of court?

[TheFoX]

I feel pretty certain that the phonographic and motion picture industries are well aware that it isn't generally possible. That being the case if they provided the information aren't they guilty of perjury, or at the very least contempt of court?

Like anything in life, there is always SPIN. I remember the scandal surround David Kelly (http://en.wikipedia.org/wiki/David_Kelly) which culminated in Blair sending thousands of troops to Iraq. We now know that there are no weapons of mass destruction, and it looks like they also knew it then, but they still sent the troops regardless. If they can profit from lying, they will.

The film and music industry is no different. The men in charge are motivated by power, so they will do whatever it takes to ensure that their end is covered. If, at a later date, a judge questions them over misleading information, I am sure they can find a suitable fall guy who will face the wrath of the judicial system, without the men in power breaking a sweat.

[sleepyy]

My response is basic

Watch south park and whatever cartman says in every epiosde is the same thing i tell these people