Over on the IPKat, Jeremy reports (via guest blogger Magali Delhaye) that the European Commission has announced that it will be taking a look at ‘take down’ procedures within the different countries of the EU which variously operate under the The E-Commerce Directive, which sets up the liability regime of Intermediary Service Providers depending on the different types of activities provided - i.e. acting as a mere conduit, catching or hosting, and provides the basis for a “notice and action” procedure but does not establish one as such. Each country has therefore acted upon its own criteria in that matter. As a result, while the internet is ubiquitous, Europe is fragmented in terms of procedures and remedies to block or remove illegal content. The Commission will review the IP Enforcement Directive in parallel to this initiative.
The adoption process for this initiative will be keenly watched since it will surely trigger passionate debates between rightholders, ISPs and civil society who have differing and often opposing views, especially with regard to the following aspects of a notice and action procedure:
• requirements for the notice,
• the possibility to submit a counter-notice by the alleged infringer,
• the timeframe for blocking or taking down the unlawful content,
• liability for providing wrongful notices or for taking down or blocking legal content,
• the role of the intermediary as a “private judge” and
• the efficiency of a notice and take down procedure (see Commission Staff Working Paper “Online services, including e-commerce, in the Single Market” accompanying the Communication)".
It will be interesting to see what comes back, although I somewhat glibly predict it may well involve the advantages of ‘pan-European harmonisation’ as a dominant theme!
Elsewhere, and at the other end of the digital battleground, The Pirate Bay co-founder Peter Sunde has been pouring his heart out to Wired.com in a fairly predictable complaint against his criminal conviction by a Swedish court and sentence of 8 months imprisonment, and the fact that whilst the internet and consumers adapt to new and improved technology, the entertainment industries "refuse to evolve" saying “instead of looking at evolution as something inevitable, the industry has made it their business to refuse and/or sue change, by any necessary means". But more interestingly Sunde argues that the Supreme Court in Sweden has “squandered a golden opportunity to define how to interpret the European Union directives for digital information” adding (after a lengthy rant against the unfairness of his prosecution) that “the problem here is that we're allowing this dying industry to dictate the terms of our democracy. We allow them to dictate new laws (ACTA, SOPA, PIPA, IPRED, IPRED2, TPP, TRIPS, to name a few recent ones) that forbid evolution. If you don't give up before you're sued, they corrupt the legal system” and ending with this statement repeated from when Sunde was refused his appeal : "Today I urge everyone to make sure that the entertainment industry does not profit from them anymore. Stop seeing their movies. Stop listening to their music. Make sure that you find alternative ways to culture. Spread and participate in culture. Remix, reuse, use, abuse. Make sure no one controls your mind. Create new systems and technology that circumvent the corruption. Start a religion. Start your own nation, or buy one. Buy a bus. Crush it to pieces. The internet is being controlled by a corrupt industry. We need to stop it.”
Surely the e-commerce directive is sufficiently clear as to what must happen in Member State's laws, albeit frustratingly open-textured in practice.
In particular, there can be no role for a formal counter-notice to a hosting provider (the only one where it might be relevant) because the provider's liability depends on "actual knowledge" which must, surely, be an autonomous concept.
I will be interested to see what does come back.
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