CoCo: EC: Illegal P2P Strains Internet's Backbone, ISPs to Doctor

The push of the European Commission to create an online environment for (European) movie distribution is crystallizing. Earlier reports on a preliminary discussion of this subject in April were a bit shady. Yesterday, at an informal meeting of Ministers of the Audiovisual, the highlights of this discussion were incorporated in a speech by Viviane Reding, European Commissioner responsible for Information Society and Media.

It seems the early reporting was correct that there is a drive from within the European Commission and stakeholders to increase the focus on ISPs as active enforcers of copyrights. Says Reding: "[I]llegal uploading and downloading takes up enormous amounts of bandwidth, which puts a lot strain on the backbone of the internet." (Note the suggestion that downloading is illegal, something which is, again suggestively, contravened in the same speech.) There is a clear call for ISPs to doctor this "strain" and co-operate with rightsholders to create a healthy environment for legal online movie distribution. Reding puts forward a "graduated response" to "unauthorised file-sharing or downloading of films which is being advocated in a number of Member States now". From the speech:

A graduated response to illegal file sharing entails, for instance, the following steps:

(1) ISPs send an e-mail to their clients telling them to stop their illegal activities;
(2) ISPs send a registered letter to their clients telling them to stop their illegal activities;
(3) ISPs cut the bandwidth of their clients;
(4) ISPs suspend or terminate the contract. This is of course to be done under judicial review.

Of course, this is to be done under judicial review. Worrisome is that past regulation has provided a regime largely based on private codes of conduct, which lack (public) procedural safeguards that clearly line out how ISPs take down allegedly infringing or illegal content before a possible judicial review. When it comes to ISPs as hosting providers the liability regime set forth by article 14 of the European E-Commerce Directive creates a legal environment in which the incentive to take down content is higher than the potential costs flowing from liability.

However, in her speech Reding is focusing on ISPs as "mere conduits", providing internet access and the transmission of content. She sees "clear opportunities for close co-operation between rights holders and the access providers, taking into account in particular Articles 12 and 15 of the eCommerce Directive". Those articles exclude ISPs from liability for "mere conduit" (article 12) and a general obligation "to monitor the information they transmit or store". The close co-operation Reding envisions is a hint at the expansion of ("mere conduit") ISPs as enforcers of copyrights and a possible expansion of their liability under this co-operation.

What stings is that after some heavy regulative steps are summed up, the judicial review of these actions is presented as no-brainer. Of course the centralized control of internet access will be guarded. Have no doubts, don't worry, sleep tight. Well, excuse me for staying awake for just a while longer.

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