Tuesday 15 February 2011

The Year of the Intermediary

On the internet, intermediaries occupy – literally – a central position. They are playing increasingly prominent roles everywhere from political revolution in Egypt to the feverish exchanges of the twittering classes. At other times they are the vehicles for infringement of intellectual property rights.

The UK government, it seems, has a special relationship with Silicon Valley and its intermediaries. While David Cameron has set Google as the homepage of his copyright policy, Google is home for his chief spin doctor, Steve Hilton, married to Google vice-president Rachel Whetstone. And David couldn’t wait to be friends with Facebook, though it began to look like a one-way relationship when Facebook refused to take down the ‘Raoul Moat you Legend’ page.

However, one of the core principles of the Conservative party’s Big Society is social responsibility, and that includes the internet. How much longer can society continue to turn a blind eye to mindless disrespect on the internet for the rights of those who are making creative contributions?

The European Commission is interested in knowing if intermediaries could be doing more:

‘…the currently available legislative and non-legislative instruments are not powerful enough to combat online infringements of intellectual property rights effectively. Given intermediaries’ favourable position to contribute to the prevention and termination of online infringements, the Commission could explore how to involve them more closely.’
2011 promises a packed programme of intermediary legal events. They address various types of legal responsibility (liability, injunctions, three-strikes law) and the different implications each of these has for different types of intermediary (ISPs and websites).


A Communication on the E-Commerce Directive is due following last year’s consultation. This will revisit the legislation that exempts intermediaries from liability for third-party illegal content where they are hosting or ‘mere conduits’, and prevents them from being placed under a general obligation to monitor information they transmit or store.

The ECJ will be interpreting the Directive in L’Oréal v eBay (Case C‑324/09), deciding whether sites can be liable for any infringements for which they haven’t received a take-down notice. The advocate general has already given his opinion, saying that ‘if A has been discovered infringing trade mark X by listing an offer on the electronic marketplace in September, I would not exclude that the marketplace operator could be considered having actual knowledge of information, activity, facts or circumstance if A uploads a new offer of the same or similar goods under trade mark X in October.’


—against websites

‘As to the scope or contents of an injunction to be given against an intermediary,’ the AG continued, ‘I do not see that EU law would impose any specific requirements beyond efficacy, dissuasiveness and proportionality.’ In practice, for a site like eBay, he suggested injunctions have the same scope as liability (same user infringing same trade mark), which, curiously, seems to make injunctions superfluous. ‘Reasonable measures to reveal the true identity of a user hiding behind several user identifications may be required from the service provider: this would not constitute an obligation of general monitoring forbidden by Article 15(1) of Directive 2000/31 but an acceptable obligation of specific monitoring.’ It seems implicit that a site would have to do this ‘specific monitoring’ anyway to retain the Hosting Defence and avoid liability?

Where does specific monitoring end and general monitoring begin and what precisely are the objections to ‘general monitoring’ anyway? We are already used to our communications undergoing computerized monitoring in the form of anti-virus software – is privacy a genuine concern or just an excuse rehearsed by those who have something to hide?

—against ISPs

The ECJ may get to the bottom of such questions in relation to injunctions against ISPs in SABAM v Scarlet Extended (C-70/10). In this case the question is whether an injunction can require an ISP to filter all traffic to identify and block unauthorized copyright content. The hearing took place on 13 January, and the Content and Carrier blog expects the opinion of the advocate general by mid April, so a judgment might just be squeezed into 2011.

In the UK the Digital Economy Act’s s. 17 site-blocking injunction is under scrutiny – judicial review to see if it is legal; Ofcom to check it can be done.

Usenet-indexing site Newzbin, which was found liable for copyright infringement last year, went into administration, failing to pay damages, and popped up again as Newzbin2 hosted in Sweden. A court will be deciding whether the claimants can have an injunction under s. 97A CDPA requiring BT to block the site.

Meanwhile, injunctions against intermediaries of all kinds are also the subject of legislative review in the ongoing consultation on the Enforcement Directive. Although the Directive does not cover injunctions relating to copyright infringement, which are covered by Article 8(3) of the Copyright Directive, the Commission’s Staff Working Document takes the opportunity to consider them anyway and raises a number of issues:

—Some Member States have failed to grasp that injunctions may be granted against intermediaries without liability being implied.
—There is no established jurisprudence on cross-border injunctions.
—There is confusion over whether injunctions can apply to future, unspecified infringements (which has given rise to the questions in L’Oréal and SABAM).


The judicial review of the Digital Economy Act will consider whether ISPs can be placed under obligations to notify subscribers about their alleged infringements and perhaps suspend their accounts. The court will be measuring the Act against EU laws – which are moving goalposts given the consultations.

There is substantial overlap in the scope of these judgments and consultations and it will be interesting to see how they influence one another. It looks like the intermediaries for our communications will continue to be one of the subjects of our communications for some time to come.


Lila said...

"However, one of the core principles of the Conservative party’s Big Society is social responsibility, and that includes the internet. How much longer can society continue to turn a blind eye to mindless disrespect on the internet for the rights of those who are making creative contributions?"

What... ???
CSR is mostly about voluntary regulation, not about compliance with the law.

ISPs are not broadcasters, they are more like the Royal Mail. You appear to be arguing that if civil copyright infringement is committed, ISPs should be liable and the violation of data protection and retention law to undertake surveillance and filtering is justified... (not sure who should pay for all this)

John R walker said...

Pragmatically the costs of policing the sort of policies/ laws you are talking about would be very high, both in the literal costs of monitoring , policing and enforcement, and in the likely costs of slower web traffic and so on.

The ease of evasion for the people actually doing this for money is real- they are small mobile and quick targets , move the server to the back of Timbuktu, and keep moving it . What are the chances of scoring a hit?

And as for the amateur 'pirates'- Prosecuting 'housewives' ,fining them tens of thousands of dollars for nicking 20 dollars worth of songs , is not a good look(and exporting them to Botany bay is no longer an option)

it is not a viable strategy.

The eventual answers to the very similar regency lawlessness crisis( the one that accidentally gave birth to my nation ) might be worth a look?

Anonymous said...

Feel that the privacy issues are real. as best as I understand it; it is not the publicly accountable (and publicly funded) police who would be carrying out the 'monitoring' rather it would be numerous commercial third parties that would be gathering the data.

Anonymous said...

@ Lila - I don't think that society (including ISPs) taking responsibility for copyright infringement on the internet is only about legislative measures. There needs to be proactive education and communication.

Huťko said...

Sabam C-70/10 is expected on 14th of April

John R walker said...


The wider situation of copyright is in military/political terms an insurgency problem ; how do you hit the badies without alienating lots of ordinary bystanders .

Your reference to "education" reminded of me of "hearts and minds". Whilst it is it is tempting to think of Vietnam , a more apt analogy is with the American Colonies and their Revolution. These communities were law abiding and initially had little interest in fighting a war, their key demand was fair representation . The reason for UK rejection of this reasonable demand was grounded in fear of the knock on effects at home . For example at the time the whole of London had about 7 parliamentary representatives , Kent had about 50 parliamentarians( most of whom were openly for sale).
Over time the colonists came to see the UK as a lawless and arbitrary occupier. And until the wig reformers of the first half of the 19C succeeded in reigning in the utterly lawless Regency upper classes, this American perception was well founded.
The leaders of the American revolution such as Washington and Adams were conservative and lawful men ,their revolution was admired by Edmund Burke because it was more lawful than the UK .

I am a sole trader , a liberal conservative, and a mainstream church goer , hardly a pirate. My 7 year experience of the "copyright industry" has lead me to assume, until proven otherwise, that anything coming out of it is based in pure merde.
Education of the public faces a very uphill fight.
The copyright 'industry' , every day, is more and more seen as lawless , dishonest, self-serving and hypocritical . No amount of 'education' of the public will change that perception, it is, too often, simply true.

It is the industry that needs education.