[DMCA-Activists] ISP Liability at WIPO: Hot

[Seth Johnson]

-------- Original Message --------
Subject: [Ecommerce] ISP liability at WIPO Meeting: it was hot
Date: Wed, 20 Apr 2005 16:21:56 -0400
From: Manon Ress <address@hidden>
To: address@hidden

ISP liability discussed at WIPO.  Maybe not ready for
hamonization just yet?
Excellent report by EDRI-Gram

============================================================

               EDRI-gram

   biweekly newsletter about digital civil rights in Europe

           Number 3.8, 20 April 2005


============================================================
Contents
============================================================

1.  WIPO seminar on ISP liability
2.  Policing rights for entertainment industry Finland
3.  Council of Europe draft statement on human rights and
Internet
4.  Bulgarian Big Brother Awards
5.  New wave of lawsuits against European P2P-users
6.  Data retention news
7.  French minister demands compulsory biometric ID card
8.  CFP debate on developments in Europe
9.  EDRI statement at WIPO Development Agenda meeting (IIM)
10. Agenda
11. About

============================================================
1. WIPO seminar on ISP liability
============================================================

On 18 April WIPO hosted a seminar in Geneva on copyright and ISP
liability. Dominated by representatives of the entertainment
industry
and international government officials, the highly politicised
seminar
ended with the conclusion that more legislation was indeed
necessary.
The main issue however remained unsolved; whether this
legislation
should provide stronger protection for the fundamental rights and
freedoms of all internet users, or whether this legislation
should
further facilitate the entertainment industry in hunting down
individual
internet users.

The opening keynote speeches by Lilian Edwards and Charlotte
Waelde from
the AHRB Research Centre in Intellectual Property and Technology
of the
University of Edinburgh provided the audience with an excellent
overview
of all the issues related to provider liability for content
provided or
shared by their customers. Edwards started with the problematic
definition of 'service provider', which now also includes online
auctions, search engines, RSS feeds, blogs, chat-rooms and price
comparison sites. In the period leading up to the year 2000
governments
were hesitant to regulate liability, fearing it would disturb the
nascent market. But after 2000 the market was mature enough and
governments and the entertainment industry were dissatisfied
about the
lack of self-regulatory solutions. The EU E-commerce directive
from 2000
then forced a compromise by distinguishing in possible liability
for
hosting third party content and no liability for mere conduit and
temporary caching. Charlotte Waelde analysed the jurisprudence of
the
different court cases against producers of P2P software, both in
the US
and in the Netherlands. She concluded that it is crucial for the
liability question in P2P cases to determine whether the ISP is
somehow
authorising the infringement, or whether an ISP is entitled
to presume that facilities will be used in accordance with the
law.

Jule Sigall from the US Copyright Office showed himself very
content
with the Digital Millennium Copyright Act of 1998 (DMCA) and
stated that
the actual rise of P2P usage was directly caused by the success
of
notice and takedown of websites. The possibility for a customer
to file
a counter notice was very effective, according to him, to prevent
abuse.
An entirely different view of the DMCA was given by Cory
Doctorow, the
European Affairs director of EFF. He gave an overview of the
wrongful
complaints collected by the Chilling Effects project and said
many small
providers receive up to a 100 complaints a month, many of them
not even
compliant with the minimum DMCA standards. Doctorow asked
repeatedly
'What problem does notice and takedown solve?' since hotly
contested
information will always reappear in hundreds of other places, the
procedure costs a lot and leads to the inefficient prosecution of
John
Does, while seriously threatening free speech and undermining due
process rights.

In the afternoon the debate finally began to heat up, when
attorney
Christiaan Alberdingk Thijm, Verizon Vice President Sarah Deutsch
en
Universal Music Vice President Barney Wragg debated the pros and
cons of
peer to peer usage. Wragg said his company embraced P2P usage but
only
within systems that allow total control for artists, control the
exact
usage of the materials and provide compensation at agreed rates.
Universal Music is signing up 10 new online download services a
week,
and even though the revenues still account for less than 1% of
the total
business, online sales are rising exponentially. Alberdingk
Thijm, who
successfully defended KaZaA at the Dutch Supreme Court, replied
by
pointing out how difficult the WIPO copyright treaty of 1996 had
made
life for people that wanted to do legal business with online
music.
While the rise of Internet made it possible to skip the
intermediary
from the exploitation, the copyright treaty had made it much more
difficult to get international clearance from copyright owners.
KaZaa
for example tried very hard to get licenses, but was refused
everywhere.
This deadlock put consumers in an impossible position. The only
solution
Alberdingk Thijm saw is compulsory licensing or general levying.

Sarah Deutsch started from a moderate position, saying most
service
providers have evolved into content producers, with a joint
interest in
combating piracy. But after those reassuring words, she opened a
frontal
attack on the Motion Picture Association, specifically the
wish-list
circulated in advance of the conference, demanding a.o. that
providers
should immediately hand-over identifying details about their
customers
to right holders and terminate contracts with 'repeat' (alleged)
infringers.
This proposed 'ISP code of conduct' conflicts with all existing
law in
the US and Europe, and doesn't contain a single reciprocal
obligation
for right holders. She said Verizon received hundreds of
thousands of
invalid notices per year, based on automated search bots operated
by
commercial bounty hunters, leading to a barrage of complaints
sent from
invalid e-mail addresses. An ISP is not a policing service and
privacy-rights of users should be respected. She also
disqualified the
demands from the industry to use 'available filtering or blocking
technology' to stop users from file-sharing as 'a slippery slope
that
can easily lead to situation we know from China, where all
traffic is
filtered on the backbone.'

A spokeswoman from the IFPI (International Federation of the
Phonographic Industry) stood up from the audience and explicitly
denied
any involvement with the MPA wish-list (See also EDRI-gram 3.7).
Later
on, panellist Ted Shapiro from the MPA said the wish-list was
based on
the success of general agreements with service providers in
France,
Spain and Italy and that the MPA had exchanged information with
the
IFPI. The denial of any IFPI interest is even stranger in the
light of
the speech by IFPI CEO John Kennedy to the European network
operators on
3 March 2005, published on the IFPI website, with remarkably
similar
demands on the ISP industry.

In the closing debate the audience didn't get much chance to
speak up;
the 7 panellists used almost an hour of the dedicated 1,25 hour
interaction time. In the few possible interventions the complete
lack of
consensus became extremely clear, with ISPs being bluntly accused
of
promoting thievery, while the entertainment industry was accused
of only
using a stick to change the behaviour of customers, in stead of
also
holding out carrots. When Ted Shapiro said it was impossible to
compete
with free, Lilian Edwards immediately pointed to the success of
expensive mineral water, in spite of the abundant availability of
free
tapwater.

WIPO program with presentations of most speakers (18.04.2005)
http://www.wipo.int/meetings/2005/wipo_iis/en/program.html

Speech John Kennedy, CEO IFPI at ETNO conference (03.03.2005)
http://www.ifpi.org/site-content/press/inthemedia14.html


--
Manon Anne Ress
address@hidden,
www.cptech.org

Consumer Project on Technology in Washington, DC PO Box 19367,
Washington, DC 20036, USA Tel.:  +1.202.387.8030, fax:
+1.202.234.5176

Consumer Project on Technology in Geneva, 1 Route des  Morillons,
CP
2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727

Consumer Project on Technology in London, 24 Highbury Crescent,
London,
N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386
4642. Fax:
+44(0)207 354 0607


_______________________________________________
Ecommerce mailing list
address@hidden
http://lists.essential.org/mailman/listinfo/ecommerce


--
Manon Anne Ress
address@hidden,
www.cptech.org

Consumer Project on Technology in Washington, DC PO Box 19367,
Washington, DC 20036, USA Tel.:  +1.202.387.8030, fax:
+1.202.234.5176

Consumer Project on Technology in Geneva, 1 Route des  Morillons,
CP
2100, 1211 Geneva 2, Switzerland. Tel: +41 22 791 6727

Consumer Project on Technology in London, 24 Highbury Crescent,
London,
N5 1RX, UK. Tel:+44(0)207 226 6663 ex 252. Mob:+44(0)790 386
4642. Fax:
+44(0)207 354 0607


_______________________________________________
A2k mailing list
address@hidden
http://lists.essential.org/mailman/listinfo/a2k