ISPs and content industries close to voluntary three strike scheme in the UK

Four of the UK’s leading internet service providers are in talks with the content industries about establishing a “Voluntary Copyright Alert Programme”, which would introduce stage one of a three strikes (graduated response) system to combat online piracy. These schemes usually start with a warning – followed by second warning to stop infringing activities  - and then finally a sanction such as the suspension or ‘throttling’ of the alleged infringer's broadband connection.

The 2010 Digital Economy Act put in place a framework for a three strikes system in the UK but this has yet to be activated (and the ‘third strike’ was never defined) – in part because of resistance from ISPs and the technology sector, and a perceived reluctance of politicians to grasp this thorny 'consumer facing' issue. In the US, the ISPs have voluntarily introduced an voluntary ‘six strikes’ scheme called the Copyright Alert System.

What is now being discussed between the recorded music and and film industries in the UK and Virgin Media, BT, Sky and TalkTalk is seemingly more similar to the US system  - one or more warnings or ‘educational’ communication(s) – but no actual punitive sanctions will be applied. In a move the ISPs must hope will avoid the statutory system set out in the DEA being put in place.  Initial reports that VCAP was a done deal and ready to go had been denied by the record industry's trade body the BPI, though it confirmed that talks are ongoing, and industry insiders say they are hopeful the initiative could launch later this year. 

According to the BBC, the current draft framework would see the content industries provide 75% the funding to each of the four ISPs to run the scheme (capped at £750,000 each ISP) , and that there would be cap on how many individuals the labels and studios could file complaints about each year. A spokesperson for the BPI said: "Content creators and ISPs have, with the support of government, been working in partnership to develop a joint awareness programme that would support the growth of legal digital entertainment services, reduce illegal downloading and create the best possible customer experience online. Discussions are ongoing and no agreement has been reached - reports that an announcement is imminent are wide of the mark. We will comment further if and when any agreement is in place". 

The CopyKat - UK and Australian copyright reforms cause a stir

Breaking news from the IPKat,  prompted by an initial tweet from Iain Wright MP yesterday, who said "After two years in the making and committee sitting on Monday, Govt pulls copyright exceptions on private copying and parody. Farcical" with the IPKat explaining that  following the rather surprising news of the withdrawal by the Government of the exceptions on parody and private copying, the House of Lords Secondary Legislation Scrutiny Committee looking at the Statutory Instruments implementing the Hargreaves Review is now interested in just three provisions for the Statutory Instruments (the remaining copyright exceptions regarding regulation on access by individuals with a disability, on research, education, libraries and archives (here) and on public administration) and it is these and only these which will be going to Parliament for their implementation in June. While no mention was made of it during the Committee, the exception for quotation and parody has been pulled along with the private copying exception.  More here on the the reasons the latter was pulled. 

This from TechDirt: "We kind of expected this to happen, but after a long process in which the Australian Law Reform Commission (ALRC) carefully reviewed all sorts of proposals and evidence on copyright reform, and released some sensible proposals, Australia's Attorney General (who is also its Arts Minister apparently), George Brandis, has ignored all of it, preferring to only listen to a Hollywood front group, leading him to push for a three strikes plan and censorship in an attempt to "protect" Hollywood. He does this, even though some of the best research on how terribly ineffective three strikes programs have been comes from Australian scholar Rebecca Giblin." More here. 

I found a very interesting blog piece on copyright law in China - particularly focussed on the music industry. Beginning with a historical perspective - and it's a brief history - prior to the 1990 Copyright Act there there had been a decade of intense internal debate over the appropriateness of copyright in a socialist system - and as author Eric Priest says, the more recent 24 year development is nothing compared to three hundred odd years of development in western nations - and partially explains why copyright protection is "substandard" in China - this legal infrastructure is very new.  It's all on a blog called China Music Business which I was unaware of until this blog popped up; Professor Priest is also of the opinion that "The law also lagged notably behind international standards, but laid the formal groundwork for legal recognition of authors’ rights in their creations and made copyright infringement an actionable offense for which civil remedies were available. The law also signalled China’s desire to show the international community that it took copyright protection seriously." And if you want another perspective take a look at Dan Harris on the China Law Blog who updates Priest's piece with a more positive take on some recent successes by the music industry in getting Chinese websites to take down infringing material - and indeed securing injunctive relief in the courts.

And finally: some call them trolls - some rely on their services - and they send out a lot of press releases - and now it seems "US copyright enforcement agency" RightsCorp is set on bringing its services – and controversial methods – to Europe and the UK: “We are expanding in Canada first, but we are investigating a launch in Europe. I can’t give any specific dates, but we are getting a great reception from everyone we have spoken to [in the UK],” RightsCorp co-founder and CEO Robert Steele told TechWeekEurope. The company's mission statement is this: "Rightscorp, Inc. is dedicated to the vision that digital creative works should be protected economically so that the next generation of great music, movies, video games and software can be made and their creators can prosper." 

Never mind the moral squalor .... its the CopyKat

AT&T has started sending letters to some of its customers, threatening to disconnect them because they've been accused ("without trial or a chance to rebut the evidence") of copyright infringement. AT&T is doing this voluntarily as part of the controversial Copyright Alert System, whose overseeing body is The Center for Copyright Information. You can see the letter here.

Former US presidential hopeful, 'hockey mum' and former Governor of Alaska Sarah Palin is facing a copyright claim: the North Jersey Media Group have filed a law suit against Palin and her political action committee (PAC), alleging copyright infringement over the use of an iconic photograph of a flag at Ground Zero taken by one of their newspaper photographers on the politician's website and Facebook pages. In the photo, three fireman raise an American flag over the debris of the World Trade Center towers - and appeared on Palin's PAC’s website and Facebook page under the words “We Will Never Forget” though  it seems the image is no longer on either site

Mike Weatherley MP

In the UK, Mike Weatherley, the MP for Hove, and organiser of the annual 'Rock The House' talent competition, has been appointed as the Prime Minister's Adviser on Intellectual Property, with a particular focus on "enforcement issues relating to the creative industries".  Mike comes from a strong professional background in Intellectual Property for both music and film. Before his election to Parliament in 2010, Mike was the Vice President (Europe) for the Motion Picture Licensing Company and previously worked for music industry giant Pete Waterman. And this blogger can confirm from personal experience that Mike is a big music fan - cares about the creative industries - is a very approachable MP - actually knows something about IP - and is happy to help when he thinks he can make a difference.

It seems that Liberation Music has belatedly realized it chose the wrong adversary in Lawrence Lessig for a copyright dispute. Citing the need to protect a copyrighted song, the company had sought to block the work of Harvard law professor Lessig, after he posted a lecture that included amateur videos using the song  “Lisztomania,” by the band Phoenix on YouTube, to demonstrate how individuals can create new content by blending homemade videos with popular music.  

After a YouTube take down, reinstatement and now the claim being withdrawn, one wonders why this was ever even started: I have to say "Fair use" springs to mind - as does "Egg on faces" at the record label. And what of the recording artist - the now very successful French band Phoenix comprising of Thomas Mars, Deck d'Arcy, Christian Mazzalai and Laurent Brancowitz? It would be interesting to get their take on what their record label have been up to, not least as despite Liberation dropping it's claim, Lessig, aided by the Electronic Freedom Foundation, still plans to fight the takedown in US District Court in Boston, where Liberation Music had filed the complaint.

Philip Pullman

His Dark Materials author Philip Pullman has said that illegal downloading is a kind of "moral squalor" and copyright theft is much as reaching in to someone's pocket and stealing their wallet is theft, saying that authors and musicians work in poverty and obscurity for years to bring their work to the level "that gives delight to their audiences, and as soon as they achieve that, the possibility of making a living from it is taken away from them". In an article in the Index on Censorship he says that it is outrageous that anyone can steal an artist's work and get away with it" and adds "The principle is simple, and unaltered by technology, science, or magic: if we want to enjoy the work that someone does, we should pay for it"
Pullman is president of the Society of Authors and in the article Cathy Casserly, chief executive of Creative Commons, responds on the place of copyright in the digital age.

The US film industry has welcomed a paper published by the Phoenix Center for Advanced Legal & Economic Public Policy Studies which questions earlier research that claimed that the shutdown of MegaUpload had had a detrimental effect on smaller independent film releases.
That research, from the University Of Munich and the Copenhagen Business School claimed that while the closure of MegaUpload had contributed to a slight increase in revenues for blockbuster movies, mid-sized films had probably lost out, because file-transfer sites enabled peer-to-peer promotion of films that couldn't afford massive advertising campaigns, and that could result in more tickets sold at the cinema. Now Dr George Ford of the Phoenix Center has suggested that the Munich and Copenhagen academics reached that conclusion because of "a poorly-designed statistical model" and a misunderstanding of the economics of the film industry. The study, therefore, Ford reckons, "adds nothing constructive to the debate - save a little excitement". Motion Picture Association of America comment here.

And finally, music creators and performers - and others - might find this article by  Kristelia Garcia of interest - How Private Copyright Deals Are Cutting Artists Out...: Ms Garcia is a Visiting Fellow at Yale Law School, and a Visiting Associate Professor at George Washington Law School, and is also a former executive at both MySpace Music and Universal Music Group: the article reflects on the recent flurry of direct deals between record labels and/or music publishers with broadcasters in the USA - and the potential problems being faced by both the music collection societies - and composers, writers, performers and recording artists when labels and publishers 'deal direct'.

No UK 'three strikes' until 2017? Perhaps never?

I'm going to give you a damn good thrashing!

James Firth, writing on the Slightly Right of Centre (SRoC) blog, has said that its unlikely that a UK ‘graduated response’ – or ‘three strikes’ scheme, set out in the Digital Economy Act 2010 to limit internet access to persistent online copyright infringers, will be in place before 2016 at the earliest.

Noting that two Statutory Instruments will be needed to flesh-out how the copyright infringement warning letters will be dispatched, paid for and appealed, the a so-called Initial Obligations Code, and a shorter Cost Sharing Order defining how the cost of scheme will be split between copyright owners and internet service providers, are nowhere near reaching the statute books, Firth also notes that both of these relatively ‘simple’ pieces of legislation have so far only got to the ‘notification’ stage. Citing contacts at Westminster, adds that “Two separate sources told me not to expect the remaining secondary legislation this side of the general election” with one source described the copyright provisions in the Digital Economy Act as "unimplementable".

Firth cites three different causes for the possible delay: firstly a spat between the Treasury and the Department of Culture, Media and Sport; secondly disagreements between Internet Service Providers and content owners over who pays for the cost of the scheme; and thirdly ‘politics – not least the recent growth in digital revenues for music, TV and film (which might be seen to negate the need for a three strikes approach) and concerns raised by ISPs and civil rights groups over issues such as privacy and liability with shared internet access.

Firth also adds “Additionally the Communications Bill, originally planned for 2014, is rumoured to have been postponed until after the general election.  This Bill would be a natural place to overhaul the primary legislation if amendments are require to the Digital Economy Act in order for it to be implemented.  But this would likely push warning letters out to 2017 or beyond.”

http://www.sroc.eu/2013/05/sources-no-digital-economy-act.html

Image: From an episode of  'Fawlty Towers' entitled 'Gourmet Night' (BBC) when Basil's car breaks down just once too often - and this time at a critical moment.in his disastrous 'Gourmet' evening at the hotel. He warns the car to start, calls it a 'vicious bastard', gives it a count of three to start, and then launches into a full on assault.

But what of British Three Strikes?

Following on from Iona's last post, more on the same topic: Unlike New Zealand, the 'three strikes' provisions in the UK's Digital Economy Act are still some way off implementation (if ever?), which seems to have prompted a group of celebrities including Andrew Lloyd-Webber, Sir Elton John, Simon Cowell, The Who's Roger Daltrey and Pete Townshend, Queen's Brian May and Roger Taylor along with Robert Plant, Professor Green and Tinie Tempah to write an open letter calling on the UK government to bring the relevant DEA provisions into force and also to put more pressure on search engines and others to block unlicensed music sites getting traffic and earning advertising revenue. 


On the latter point, I noted yesterday that a number of big UK ISPs including Virgin, Talk Talk and Sky have agreed to do more to block the rather notorious The Pirate Bay site, widening the scope of URLs and links they will block, notably to include newer IP addresses TPB has migrated too. 


Back to the letter which says: "As the world's focus turns to the UK this summer, there is an opportunity to stimulate growth in sectors where the UK has a competitive edge. Our creative industries represent one such sector, which creates jobs at twice the speed of the rest of the economy. Britain's share of the global music market is higher than ever with UK artists, led by Adele, breaking through to global stardom" adding "As a digitally advanced nation whose language is spoken around the world, the UK is well positioned to increase its exports in the digital age. Competition in the creative sector is in talent and innovation, not labour costs or raw materials. We can realise this potential only if we have a strong domestic copyright framework, so that UK creative industries can earn a fair return on their huge investments creating original content. Illegal activity online must be pushed to the margins. This will benefit consumers, giving confidence they are buying safely online from legal websites" and "The simplest way to ensure this would be to implement the long-overdue measures in the Digital Economy Act 2010; and to ensure broadband providers, search engines and online advertisers play their part in protecting consumers and creators from illegal sites" (emphasis added).


http://www.telegraph.co.uk/comment/letters/9421416/Musicians-need-strong-copyright-laws-to-excel-globally.html#

Three pints and you're out? Not quite ...

From Jim Killock (Executive Director, Open Rights Group) comes news of a pub meeting which is coming up very soon -- next Monday, in fact.  Whether you are in favour of "three strikes" or against it, and support the objectives of the Open Rights Group or oppose them, you should make an effort to attend if this subject is of interest to you.  The speaker, Francis Davey, has made many thoughtful contributions to the various ongoing copyright debates by virtue of the carefully expressed and courteously phrased comments which he has posted in response to the words of others on the blogosphere.

Details of who is attending the meeting can be found here.

***************************************************

July Pub Meet: Digital Economy Act: "Three Strikes" isn't Cricket

Monday, July 16, 2012

6:45 PM To 9:00 PM

SELECTED BY: ALEC MUFFETT

Rose and Crown

47 Colombo Street, Southwark, London, SE1 8DP, London (map)

SELECTED BY: ALEC MUFFETT

Francis Davey - probably ORG's favourite lawyer - on the Digital Economy Act's "Initial Obligations Code" and what amusement, anger and frustration we may draw from it.

Timing: 6:45pm for a 7pm start - approximately; we'll shoot for this but as this is a pub there may be a certain amount of round-fetching going on first...

We'll be *UPSTAIRS* - staircase is on the far right of the bar.

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Irish three strikes deal works 'incredibly well' -- but will it spread?

The battle for the heart and soul of copyright in recorded music continues in Ireland, where The Irish Times ("EMI Records launches action against State over anti-piracy order", by Carol Madden, here) reports on further legal action to prevent unauthorised music downloads.  According to this article:

"The Irish arm of multinational music group EMI has launched a High Court action against the State as part of its bid to stop the illegal downloading of music. The Government recently pledged to issue an order to allow copyright holders to compel internet service providers (ISPs) to block access to websites that they consider are engaged in piracy. However, EMI Records (Ireland) remains unhappy with what it perceives to be foot-dragging on the part of the Government in tackling this issue. It is concerned that the matter could be delayed again, and that even if a statutory instrument is issued, its contents may not be satisfactory.

Chief executive Willie Kavanagh ... said yesterday that EMI asked the Government to show them the forthcoming instrument, but it has not yet received it, “leading me to believe it’s unlikely to satisfy the music industry’s requirement for injunctive relief”.

... [In] 2010, ... EMI and a number of its peers took a High Court case in an attempt to force UPC to impose certain anti-piracy measures. The High Court noted a provision stopping ISPs from allowing access to pirate sites was needed to align Irish law with EU requirements. The Government has promised to publish details of an order that will do this later this month.

Currently the music industry body Irma has an agreement with Eircom whereby it notifies the company if it detects its customers are sharing copyrighted music on peer-to-peer services. Eircom then disconnects the broadband connection of customers found to be repeatedly engaging in this activity. Mr Kavanagh said Eircom’s “three strikes” rule is “working incredibly well”, and ideally EMI would like to see a similar regime in place for other ISPs ....".

While the Court of Justice of the European Union, in Case C-70/10 Scarlet v SABAM, limited the burden that a court could place on an ISP in terms of monitoring and eliminating fire-sharing activity, the same ruling also provided a good deal of guidance as to how copyright owners might wish to proceed in obtaining relief. We await the proposals of the Irish government safe in the knowledge that there will be plenty of copyright enthusiasts at hand to scrutinise them for Scarlet-compliance.

Thanks are due to William Earley (McCann FitzGerald Solicitors, Dublin) for drawing our attention to this item.

Did the USA write New Zealand's new law?

More on New Zealand - and both Techdirt and Zeropaid report that the Green party in New Zealand is demanding clarification of possible US government and US rights industry intervention in helping to shape and pass the country’s somewhat controversial Copyright (Infringing File Sharing) Amendment Act, including the US music industry’s offer to fund an intellectual property enforcement unit to combat what US officials call “key gaps in intellectual property rights enforcement”. The information that comes from Wikileaks cables from 2005 and the Green Party’s Information and Communications Technology spokesperson, Gareth Hughes reportedly said “The latest Wikileaks cables show how vulnerable our Government is to pressure from big businesses in the USA,” adding “We’ve got to keep politics honest, so it’s important to find out exactly what influence US interests had in securing the rushed passage of controversial copyright legislation through Parliament”. Hughes went on to say “This kind of blatant intervention in local law enforcement is undermining our democracy … the New Zealand Government has been subject to intense international corporate lobbying. As the Government consults further on the current online copyright regime, it must make decisions that work for the New Zealanders that elected them, not US interests” adding “Hollywood moguls shouldn’t be writing our law!” Similar allegations about undue US influence were raised about draft copyright legislation recently introduced in Spain.

Separately, it also seems that the US warned New Zealand that exceptions in copyright law for format and time-shifting for personal use should not be allowed in New Zealand because “these exceptions to copyright protection would send the wrong message to consumers and undermine efforts to curb unauthorized copying of CDs in New Zealand. They would cost the industry in revenue and profits and discourage innovation".

http://www.techdirt.com/articles/20110501/00364014101/us-offered-to-write-new-zealands-three-strikes-laws.shtml

http://www.zeropaid.com/news/93336/new-zealand-green-party-why-is-hollywood-writing-our-copyright-law/

Kiwi three strikes prompts cyber attack

The New Zealand government's new 'three strikes' anti-piracy proposals, which have finally moved into law and are due to come into effect in September (2011) have prompted a fresh wave of protests and the threat of cyber attacks on the Government’s websites.

The Copyright (Infringing File Sharing) Amendment Bill has caused immense controversy in New Zealand, particularly in the blogsphere, with many online commentators calling the bill ‘draconian’ and questioning why the bill was rushed through the New Zealand Parliament reportedly using emergency procedures invoked to help victims of the Christchurch earthquake for cover. In particular Section 92A which initially placed the onus on ISPs to disconnect repeat infringers met with fierce opposition when it was mooted two years ago and whilst it has been amended as it currently stands it does provide for a ‘three strikes’ system which ultimately allows for the disconnection of internet users for repeat infringements. However, whilst the ability of copyright owners to apply to have repeat offenders disconnected remains in the legislation, it will not come into effect unless after two years it is shown that other less severe sanctions are ineffective.” However what does remain is the requirement for ISPs to send warning letters to those suspected of infringement and the threat of disconnection for up to six months.

When the laws were passed, numerous NZ websites blacked out their home pages and in protest but now things look a tad more serious - internet activist group Anonymous is threatening to shut down the New Zealand Parliament’s website as a protest against the new copyright law. Anonymous previously threatened to take down internal affairs website and, in March, that site was indeed down for a few days. NZ Parliamentary Services says it is taking this new threat seriously and is now working to try to pre-empt any attack.

New Zealand joins France, South Korea, The UK and Taiwan who have all implemented various configirations of 'graduated response' or three strikes legislation to fight online piracy. France's law HADOPI allows for a graduated response to online infringement. rhe state funded scheme (under which ISPs must provide data) allows for fines and internet suspension for repeat infringers up to one year. Injunctive relief is available to those who could contribute to prevent / terminate infringement. Taiwan has a simlar scheme with judicial proceedings available to rights holders to take action against those who post or host infringing material alongside a "notice and takedown" procedure to have infringing material removed. This is coupled with a three strikes system against internet users who ignore warnings and download material illegally more than twice. A January 23rd poll in France indicated that 49% of French Internet users continue to illegally download music and videos.


http://www.zeropaid.com/news/93080/new-zealand-passes-three-strikes-law/

http://www.billboard.biz/bbbiz/content_display/industry/news/e3ib20649ac4d6059c216967baf5dfee28b

Oh the luck - Irish get three strikes back - and a new music service too!

Eircom, the Irish internet service provider, has resumed its policy of cutting off the internet connection of customers who illegally share music online. The company had suspended its policy earlier this year but before this the company sent out about 1,000 warning notifications each week to people who were allegedly infringing copyright by illegally downloading music. Its “three strikes” policy allows customers three official warnings before their internet connection is suspended.

The move is especially interesting given that the Mr Justice Charleton, in Irish High Court, had (somewhat reluctantly) agreed with rival broadband supplier UPC in a battle against several record companies, ruling that internet service providers were not liable for a customer’s illegal downloading nor did Irish law provide any basis for a ‘three strikes’ approach. In an very impressive presentation on recent case law in this area at the Music and IP conference in London yesterday (8th December) 5RB barrister Christina Michalos explained that Mr Justice Charleton said that there was no injunctive relief available in Ireland in the matter and that Irish copyright legislation made ”no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright” - and that the powers of Irish courts did not extend to obligating an ISP to block access to file sharing sites. Despite this, Eircom has decided to resume the strategy it implemented a year earlier following an out-of-court settlement with the same companies. Stephen Brennan, Eircom’s managing director for consumers and small businesses said that as the country’s largest broadband provider, Eircom felt its method of warning internet users about their activities was the best compromise between music companies and internet providers. Before the suspension Eircom had not actually yet disconnected any customers’ broadband but it did have some on three strikes at the time of the High Court case.

Simultaneously Eircom has launched a new online legal service, MusicHub, which offers free and unlimited streaming to Eircom broadband customers along with deals for legally downloading music to personal computers offering a range of bundled download packages where the unit price for each track downloaded could be as low as 32 cents. Launching the new service yesterday, Eircom's Stephen Beynon said "MusicHub is a major development for Eircom in the online content space. We are the first and only internet provider in Ireland to offer online streaming as part of a music service. Customers will not find a greater selection of music across all genres anywhere else in Ireland from their broadband provider". Mr Brennan described it as the “carrot” part of the company’s carrot-and-stick approach to counteracting copyright infringement, with the three strike process agreed with record labels being the “stick”. An Eircom's statement stressed net suspensions was a "measure of last resort".

http://www.irishtimes.com/newspaper/ireland/2010/1209/1224285100549.html

EMI Records & Others v UPC Communications Ireland Ltd (2010) IEHC 377

BT and TalkTalk take on the DEA

British ISPs Talk Talk and BT have asked the High Court for a Judicial Review to clarify the legality of the country's recently passed Digital Economy Act, which includes provisions requiring ISPs to police file-sharing and which introduces the much debated ‘Three Strikes’ procedure which ultimately may result in subscribers who indulge in illegal file sharing or other infringing activities having their bandwidth reduced or even their internet connection terminated.

The ISPs say the law was "rushed through" with "insufficient scrutiny” and they are asking the Court to clarify whether the U.K. law conflicts with Europe's e-commerce directive, which limits liability of offences committed by ISP subscribers, giving protection similar to the "safe harbour" provisions of the U.S. Digital Millennium Copyright Act. TalkTalk boss Charlie Dunstone told reporters: "We think the previous government's rushed approach resulted in flawed legislation. That's why we need a judicial review

The two ISPs also believe the provisions of the Act that require ISPs to disconnect repeat file-swappers unfairly target larger ISPs, as they only apply to firms with more than 400,000 subscribers with Andrew Heaney from TalkTalk saying “It means we could have huge swathes of customers moving to smaller ISPs to avoid detection.”

It will be interesting to see if this all ends up with a reference to the European Court of Justice on one more more of the points of law raised. In the 2008 case of Promusicae v Telefonica, the ECJ said that it was up to national courts to perform the balancing act of protecting both copyrights and in this case privacy rights. And here the ECJ was ruling on whether, under European law, there was any obligation on ISPs to reveal the identities of suspected file-sharers.

TalkTalk have been vocal in their opposition to three strikes but BT are newer to the fray: BT's Industry Policy Director Simon Milner said yesterday that "every film downloaded from The Pirate Bay or the dozens of other sites offering unlicensed content is a lost sale for BT Vision", but added that when it came to the wider issue of online copyright protection "this is their [the copyright owners'] business: it's up to them to find a solution to their business problems, it's not principally our problem".

UK Media regulator OfCom is currently consulting key interest groups on how a three-strikes might work under the provisions of the DEA.

Young Guns Go For It

On Thursday Night (8th July) Berwin Leighton Paisner kindly hosted one of the regular bi-monthly BLACA meetings (British Literary and Artistic Copyright Association) and this one had a particular twist – the topic was copyright but seen through the eyes of two young copyright professionals, the joint winners of BLACA’s 2010 competition, the prize being the chance to make this presentation!

Chaired by Professor Alison Firth (University of Surrey), the first presentation was from Mark Smith, a newly qualified solicitor at Osborne Clark, and was simply titled “Copyright in the Digital Age”. I won’t dwell on the detail as this and the following presentation will both be available soon on BLACA’s website at http://www.blaca.org/ . Suffice to say, they are both well worth a read and Mark gave a professional speech in a wide ranging presentation. The second presentation was by Ed Cameron , who comes from a science background and has just completed a MSc in the Management of Intellectual Property at Queen Mary College, University of London. Ed focussed on the Digital Economy Act in a presentation titled “The Digital Economy Act - are ISPs under Attack?”. This Blogger has to admit he has not really looked at the finer details of the enforcement provisions of the DEA (particularly those referred to as the ‘three strikes’ system), and Ed did, where there was clarity in the Act, makes some sense of what look like rather complicated enforcement provisions. As with Mark’s presentation, read the detail online.

The sometimes challenging question and answer session was deftly handled by Prof. Firth and a recurring theme was the role of the collection societies in new business models, along with the need to educate the consumer and some comment on the failure of domestic and even the pan-European copyright regimes to provide effective enforcement tools for content owners in the global digital age. I have to say I thought both of the speakers did really well – a brave challenge for two young men who were students this time last year – faced with a room that included some well seasoned copyright lawyers ..... and a few less seasoned ones as well!

Details on this year's BLACA prize can be found at http://www.blaca.org/prize.htm

Eircom users to face Dtecnet scrutiny

The Irish Times has reported ("Eircom to cut broadband over illegal downloads") that

"EIRCOM WILL from today [24 May 2010] begin a process that will lead to cutting off the broadband service of customers found to be repeatedly sharing music online illegally.

Ireland is the first country in the world where a system of “graduated response” is being put in place. Under the pilot scheme, Eircom customers who illegally share copyrighted music will get three warnings before having their broadband service cut off for a year.

The Irish Recorded Music Association (Irma), whose members include EMI, Sony, Universal and Warner, reached an out-of-court settlement with Eircom in February 2009 under which the telecoms company agreed to introduce such a system for its 750,000 broadband users.

The mechanism by which it operates was challenged in the courts by the Data Protection Commissioner. Mr Justice Peter Charleton ruled in the High Court [see IPKat note here] that a broadband subscribers internet protocol (IP) address, which Eircom will use to identify infringing customers, did not constitute personal information.

It is understood that, during the pilot phase, Eircom has agreed to process about 50 IP addresses a week. Irma is using a third-party firm, Dtecnet, to identify Eircom customers who are sharing, and not simply downloading, a specific list of its members’ copyrighted works on peer-to-peer networks. The operation of the scheme will be reviewed after three months.

Dick Doyle, director general of Irma, said his organisation could potentially supply Eircom with thousands of IP addresses a week but it was a matter of seeing what the internet service provider (ISP) was able to process.

Infringing customers will be initially telephoned by Eircom to see if they are aware of the activity on their broadband network. If the customer is identified a third time, they will have their service withdrawn for seven days. If they are caught a fourth time their broadband connection will be cut off for a year. Mr Doyle said international research suggested 80 per cent of people will stop illegal file-sharing if they get a letter from their ISP warning them of the consequences [Is this research published? What's its methodology? Is it reliable?]. ...

... Cable operator UPC has resisted requests from Irma to implement a “three strikes” system and the case is in the courts next month. Last night, a spokeswoman for UPC said it does not see any legal basis for monitoring or blocking its subscribers’ activities".

The 1709 Blog, which hasn't yet heard reports of anyone receiving a call from Eircom, is fascinated to see how effective this procedure will be and hopes its readers will keep it informed of developments as they unfold. Other than a migration of illegal file-sharers to other ISPs and/or fresh identities online, this blogger suspects that the net result of this exercise will be reflected in the increased cost of monitoring and enforcing copyright but without a corresponding increase in sales of legitimate product.