The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Parvis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Thursday, 24 April 2008

BPI threatens action against ISPs

As reported in today's Guardian, the British Phonographic Institute has been making threatening noises against British internet service providers over the past couple of weeks. The BPI have given them until around now to "take action" to prevent their networks being used to facilitate copyright infringement. So far, only Carphone Warehouse has responded to the threat.

The Guardian makes a guess at what action could be coming, and even speculates at the potential for future law-making, but completely fails to see that copyright holders already have a powerful tool against ISPs that they could use right now, in the form of section 97A of the CDPA. This allows the High Court to grant an injunction against an ISP "where that service provider has actual knowledge of another person using their service to infringe copyright". To the IPKat's eyes, this seems to be pretty broad, and gives the BPI potentially pretty strong grounds to go after ISPs, provided they have good evidence that their service is being used for infringement (which everybody knows is widespread). They would presumably only need to show that infringement is taking place, for example by users making available copyright works contrary to section 20(2)(b).

The IPKat now wonders: what will happen next? Could ISPs have their services shut down, or (if they choose instead to cooperate) will this be the beginning of an escalating battle between filters and infringers?


Anonymous said...

But aren't those sections of the CDPA trumped by the e-commerce regs? Unless the BPI puts the ISPs on notice, why can't the ISPs rely on the mere-conduit defence in the regs?

Anonymous said...

I guesss it depends on what relief the BPI are seeking. If they want an obligation on ISPs to actively monitor traffic on their networks to detect infringing material then its very hard to square that with Art. 15 of the E-Commerce Directive and may also be problematic under the interception provisions in the Regulation of Investigatory Powers Act 2000.
If the want the ISPs to cut off the connection to known infringers then that is a different mattter....

David said...

The limitations under the ecommerce regs only state that ISPs will "not be liable for damages or for any other pecuniary remedy or for any criminal sanction" (reg 17). No mention is made of injunctions, which is what section 97A is all about. It seems therefore that ISPs could be shut down if they persist in knowingly being a conduit for copyright infringement (which they undoubtedly are).

Anonymous said...

Doesn't "actual knowledge" require knowledge of the specific infringing/unlawful act, rather than "knowingly being a conduit [for that sort of thing]"? So, for example, knowing your internet service regularly gets used for the sale of counterfeit handbags, infringing Brand X's trade mark, surely isn't enough to enable the court to grant an injunction shutting the ISP down? But ignoring notification of a specific act (with the relevant URL etc) would warrant an injunction prohibiting that specific sale.

Anonymous said...

I think the idea that an ISP could be shut down for knowingly being a conduit for copyright infringement is faintly ludicrous.
Firstly, the ISP could only prevent the infringement by actively monitoring the content on its network. An injunction forcing the ISPs to conduct this monitoring would not be compatible with Art. 15 of the E-Commerce Directive, RIPA and the DPA. I realise the Belgium court took a different view on the E-Commerce issue in the SABAM case but there you go....
Secondly, the monitoring would be very difficult from a technical perspective. You cannot ban all peer to peer traffic as it has a number of legitimate uses (e.g. the BBC iPlayer, though I'm sure the ISPs would block this if they could) so you would need to conduct some sort of packet inspection to determine what should and should not be let through. This is difficult at the best of times but will be much harder when the next generation of encrypted peer to peer systems come on line (e.g. RShare or ANts).
Thirdly, the courts are going to be deeply unhappy with such a claim. If you read Bunt v Tilley [2006] you see active distain for the proposal that ISP's be gate keepers for the content on their network "I would not, in the absence of any binding authority, attribute liability at common law to a telephone company or other passive medium of communication, such as an ISP." (para. 37).

Again, the idea that an ISP may have to cease providing services to a known infringer is another matter, though clearly the court would have to consider the fact the subscriber could mere obtain services from another ISP.

Charles said...

You say "but completely fails to see that copyright holders already have a powerful tool against ISPs that they could use right now,"

You mean "completely points out that the BPI could take action under s97", surely - from the story itself: "The answer - provided by a friendly ISP - is that it could take the ISPs to court under section 97 of the 1988 Copyright, Designs and Patents Act, on the grounds that the ISP has not "taken action" to prevent the breach of the BPI members' copyright"

Just explain where the "fails to see" is there, please?

Charles Arthur, editor, Technology

David said...

Here is section 97:

"97.—(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2) The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to—
(a) the flagrancy of the infringement, and
(b) any benefit accruing to the defendant by reason of the infringement, award such additional damages as the justice of the case may require."

Section 97 is no help. Section 97A, however, is what would appear to matter in this case, as the IPKat has already pointed out. A miss is as good as a mile, as they say. Nice to see the Guardian paying attention to the IPKat though, even when he is being deliberately provocative.

Anonymous said...

I think perhaps the IPKat is not so much being "deliberatively provactive" as "pedantic in the extreme" given that the Guardian article was right in substance, but erred in stating the basis for the BPI power to act as being under S97 instead of S97A.

Such point scoring is a bit immature, do you not think?

David said...

Pedantry goes with the territory, I'm afraid. Are anonymous sniping comments also immature? I'm not sure.

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