EU Says No To Three Strikes On Accusation Only; Requires Court Order

from the that's-a-start dept

One of the biggest problems with most of the proposed "three strikes" laws out there (the entertainment industry likes to call them "graduated response laws," but I prefer Bill Patry's recent description of calling them "the digital guillotine") is that it works based on accusations rather than actual conviction. This is a pretty significant issue if you believe in innocent until proven guilty -- combined with the rather long and detailed history of the entertainment industry falsely accusing people of file sharing. The EU Parliament has rejected the various three strikes laws as civil rights violations in the past, but the issue keeps coming up again (especially considering France is still insisting such a law is necessary. However, in the latest vote, the EU Parliament has said that no one should be kicked offline without a court order, meaning that a court would need to review any accusation, rather than just the ISP being told to kick those accused of file sharing offline.

No restriction may be imposed on the fundamental rights and freedoms of end users, without a prior ruling by the judicial authorities … save when public security is threatened...

Your move, France.

Filed Under: eu, three strikes

French Three Strikes Law Rides Again, EU Rules Be Damned

from the liberte,-egalite,-we-make-you-pay dept

It was a bit of a surprise when the French parliament rejected the country's proposed three-strikes law against file-sharers a few weeks ago. The bill had gotten a lot of support from President Nicolas Sarkozy (who is something of a pirate himself) and many musicians, but it was able to get defeated by a little bit of clever chicanery from the opposition. But the proposal lives on, and has been revived in parliament. This legislation continues, even though there isn't agreement on whether the proposal is okay with the EU's new draft of rules on three-strikes laws. Previous stories on the EU rules seemed to indicate that France had shaped the European rules so that this law would be acceptable, but Billboard says the proposal is in conflict with EU telecom law. One fantastic new detail of the revived bill: the BBC says two members of Sarkozy's party have joined the opposition to the bill, because it features an amendment that would make users who were banned under the law continue to pay their ISP bills. It just gets better and better...

Filed Under: france, nicolas sarkozy, three strikes

EU Reaches Draft Deal That Would Make Three Strikes Provisions More Difficult

from the good-for-them dept

Over in the EU, they've been battling back and forth over telco reform, that has been hung up on the issue of ISPs and three strikes regulations, with countries like France wanting to make sure such things were allowed, and other countries worrying that cutting people off from the internet violated their basic human rights. However, it appears that a "compromise" of sorts has been worked out, whereby countries will be able to enact three strikes laws if they involve an independent and impartial tribunal, rather than the ISPs themselves or copyright holders. So, basically, France can continue down its path (since it was going to establish a gov't bureaucracy anyway).

Filed Under: eu, france, three strikes, tribunal

Taiwan Sorta, But Not Really, Approves Three Strikes Law

from the not-quite dept

Billboard is noting that Taiwan has passed a "three strikes" law for ISPs to kick file sharers off the net -- except it's not clear that's really true. While that's what the headline says, the details sound a bit different. Taiwan did approve an amendment to copyright law, oddly "based on the 2005 U.S. Supreme Court decision against Grokster." Again, from the details provided, it sounds like it's based a lot more on the DMCA than the Grokster decision -- and nowhere is it explained why Taiwan would update its copyright law based on a US court case... The law sets up a notice-and-takedown provision (again, this is like the DMCA, not the Grokster case, which was about secondary liability), requiring ISPs to pass warnings on to users. Users are then able to file counter-notices.

What's not entirely clear, however, is how an ISP is supposed to "take down" content that is hosted on a user's own computer, or even how/why it should be responsible for what's on a user's computer. Instead, it seems more like the law just requires ISPs to pass on notices from copyright holders, and then has a three strikes provision where ISPs can restrict internet access. That doesn't sound mandatory, and it's not clear what the definition of "restrict" includes. It still doesn't make sense why ISPs would want to restrict their customers, but as long as the law isn't mandatory, then it hardly seems like a problem. ISPs have always had the ability to cut off users if they wanted to, so this hardly seems like a change.

The other interesting element of the new amendment is that:

ISPs are not automatically permitted to disclose the identity of individual copyright abusers. Only if an individual user submits a counter-request to restore content previously removed can their personal information be furnished to the rights holder.

At first, that may seem like a good thing. ISPs don't have to hand over private info on a mere accusation. It would be great if plenty of other countries followed that. But, what's troubling is the second part, whereby if a user files a counter-notice, their info can be given to the rights holder. That puts a massive liability on anyone if they wish to file a counter-notice, and will almost certainly create a massive chilling effect scaring most people in Taiwan from ever submitting a counter-notice, for fear of having their private info handed out. That means that copyright holders can have pretty free reign in demanding takedowns, knowing that most people won't bother filing counter-notices in order to protect their identity.

Filed Under: copyright, isps, taiwan, three strikes

Kicking People Off The Internet Will Encourage Musical Diversity?

from the please-explain dept

After the surprising rejection of Nicholas Sarkozy's "three strikes" law in France to kick file sharers off the internet, Sarkozy and the bill's supporters have decided to bring the law back for another vote on April 29th. While plenty of politicians and consumer groups have urged supporters not to resubmit the bill, Sarkozy apparently will hear nothing of it, insisting that this bill is somehow necessary to "protect creative diversity." Can we ask how? What does kicking people off the internet have to do with creative diversity? It's the same question we asked when U2's manager seemed to think that kicking people off the internet would get people to buy music again. It's fantasy thinking. You don't force people to buy a product they don't want to pay for. It's not clear why so many people think that kicking people off the internet is a viable business model for the recording industry.

Filed Under: france, music, nicholas sarkozy, three strikes

And, Just Like That, France Rejects Three Strikes

from the pendulum-swinging dept

The situation in France just gets stranger and stranger when it comes to the proposed "three strikes" law for kicking music and movie fans off the internet. You probably know that just last week it was approved by legislators in a surprise vote, where just a small number of elected officials waited until most others (who believed the vote would be held later) had left before holding the vote. This resulted in cheers from Hollywood and others in the legacy entertainment business. However, now it appears that The National Assembly has surprised everyone back by rejecting the measure, but with a similarly small group of officials voting. The law was rejected 21 - 15 in what's described as "a near-empty National Assembly." I'm sure more will come out about how this happened, but perhaps politicians who were upset about how it passed in the first place, just played the same trick back. Either way, I'm sure this is not the end of this issue in France (or elsewhere).

Filed Under: france, three strikes

U2's Manager Says No Business Models Work... But Kicking People Off The Internet Will?

from the confusion dept

A bunch of folks have been sending in the opinion piece in the Guardian written by U2's manager Paul McGuinness expressing strong support for France's approval of a three strikes law (ignoring, conveniently, that the law was passed using trickery, telling everyone the vote would happen at a later date, waiting to most elected officials had left, and then passing the law with a vote when only a few people were still around). This isn't a huge surprise, because McGuinness has gone around (loudly) blaming everyone else for the problems in the recording industry (while reaping the rewards of the more than $300 million that U2 brings in per year). So, it's no surprise that he's in favor of laws that puts the onus on others to somehow fix the business model problems he's unwilling to fix. But some of his comments deserve a response:

There are a few simple reasons why the new law deserves strong support. First, the crisis in our music community is real. A generation of artists, all over France, and further afield, are seeing their livelihoods destroyed, their career ambitions stolen. Investment that should help them build careers is draining out of the industry. This isn't just a shift in the business model from recorded to live music. It's a catastrophe for all the business models, old and new. It is a myth that artists can build long-term careers on live music alone....

There are clearly people who oppose the new law, but I have not heard of any viable economic alternative to the system now being introduced, committing ISPs to helping protect copyright. The only other proposals offered look like solutions produced for the laboratory, not for the market place.

That's odd. For someone who claims he's "followed this debate closely" for him to claim that this is a catastrophe for all business models. After all, every single other business related to music has been doing amazingly well. And, we've gone through example after example after example after example of it working in "the marketplace" rather than "the laboratory." And we've discussed how it works for bands small, mid-sized and large -- and works in ways that has allowed them to make more money than they could have in the past. So, for him to claim that those business models don't exist or don't work is simply wrong. Furthermore, he pulls a sleight of hand by pretending that the only other business model is "live music." However, as we've seen live music is one business model that works, but not the only one.

But the key thing, is that McGuinness is confusing protection with a business model. He talks about all the problems with business models, and then seems to jump to the conclusion that kicking people off the internet will suddenly make people buy music again -- as if he can suddenly turn back the clock. Kicking people off the internet doesn't make them feel better about your product. It doesn't make people more comfortable giving money to the recording industry -- it makes them pissed off and eager to spend their money elsewhere.

It's the exact opposite of a business model. It's a "piss your customers off" model.

Meanwhile, the business models that work (the same ones McGuinness is apparently ignorant of) are all about the opposite: they're about appealing to your customers, connecting with them, building up a relationship and trust. McGuinness, instead, prefers to treat them all as criminals. He shouldn't be surprised when they respond with anger rather than money.

Filed Under: business models, france, music, paul mcguinness, three strikes, u2

Hollywood's Favorite Lawmakers Preparing Next Level Of Draconian Copyright Laws

from the because-ProIP-wasn't-enough dept

Because (of course) last year's ProIP bill that (once again) strengthened copyright laws wasn't enough, Hollywood's favorite lawmakers all got together outside of LA and complained about how copyright laws needed to be even more draconian. They once again quoted the same mythical stats about the damage done by infringement, and didn't hear from a single defender of the public or someone who could explain the basic fact that strengthening copyright law doesn't solve anything. Instead, they just complained, blamed pretty much every foreign country (other than France) and insisted "something must be done!"

Apparently changing their business models to adapt to a changing marketplace has yet to be considered. Not when all of these Congressional Reps from California have no problem swallowing made up stats and misleading fear mongering from an industry unwilling to embrace new business models. Instead, they blame everyone else, including apparently a major session blaming Canada. It's still not clear why Hollywood thinks Canada is such a copyright pariah. The country already has pretty strong copyright laws and doesn't seem to be a haven for piracy at all.

The only country they did seem to like? Apparently that would be France, which just sneakily (after most of Parliament had gone home for the night) passed a three strikes bill. The entertainment industry execs seemed to think this might be a perfect solution -- once again looking to kill off any opportunity to create a better business model, and instead piss off fans and drive them further underground. It's like seeing the same dumb horror movie over and over again, where we the consumers/audience keeps yelling out "no, don't go in there!" and yet they still go in there, make the same mistakes over again and end up only damaging themselves. Is it really that difficult for them to recognize that the business model is the issue, and no amount of increased copyright protection is going to change that?

In the meantime, it's pretty sickening that our elected officials would choose only to hear from one extremely biased side on the debate, and will now introduce legislation that bails out that one industry at the expense of the public. Clearly, these hearings were not to "hear" anything new -- but to put on a puppet show prior to already written (by the industry) legislation to be introduced.

Filed Under: canada, copyright, foreign countries, howard berman, legislation, piracy, three strikes

France Passes Three-Strikes Law

from the oh-non dept

They've been talking about it for a while, now they've gone and done it: French legislators have passed a three-strikes file-sharing law. The plan is essentially the same as the one discussed before: a new government agency will be set up to to investigate file-sharing complaints made by copyright holders. If it believes there's been infringement, it will send out a first letter to the ISP account holder, warning them and recommending they make sure their WiFi is secure; a second offense within six months will generate a second letter, and if they're busted within a year of that notice, the agency can cut them off from the internet for anywhere from a month to a year. The agency has a lot of discretion on who to cut off and for how long, as apparently legislators didn't want to see businesses get cut off from the internet because of the actions of a few employees. That level of discretion is raising some eyebrows, while some speculate that cutting people off at all runs counter to the French constitution (just as the EU Parliament has said the laws violate civil and privacy laws).

One interesting aspect of the law, though, is the so-called "Hallyday Clause", named after aging French rocker Johnny Hallyday. Hallyday is a very popular and successful French musician, and he moved to Switzerland in 2006 to escape high French taxes. The part of the three-strikes bill with his name on it says that downloading copyrighted material of people who live in tax havens, or otherwise don't "properly" pay their taxes to the French government, will attract a lesser punishment than downloading the material of artists who pay up. It's a slightly amusing "gotcha" idea, but when the actual monetary losses from illegal downloads are pretty minimal at best, it doesn't seem too likely to lure tax-dodging rock stars out of their havens and back into France.

Filed Under: france, hallyday clause, three strikes

European Parliament Still Debating Three Strikes Laws

from the which-way-will-they-go dept

I don't understand enough about how EU policy-making works to fully understand this, but the EU Parliament which has rejected "three strikes" type rules (that would kick those accused of copyright infringement offline after three accusations) as being against basic civil rights in the past, has apparently rejected yet again a three strikes approach. Yet... at almost the same time, we're being told that France is actively pushing the EU Parliament to approve a three strikes provision in a telco bill that will be voted on next week. There was some concern last year that while the EU Parliament rejected three strikes, it would backdoor its way in via a separate telco bill. Is that what's happening again, where there are two separate discussions about three strikes provisions? It would be great if those familiar with how the EU Parliament system works could explain the two items.

Filed Under: europe, isps, politics, three strikes