Filtering & graduated responses against online video infringers

With France’s so-called HADOPI law just voted, JIM BURGER, Partner at law practice Dow Lohnes, takes stock of the various measures for suppressing illegal Internet file sharing, considered or already implemented around the world.

In most legal systems, the primary copyright enforcement mechanism is for the copyright owner to bring a civil action against an alleged infringer. Critics have complained that, given widespread online infringement, case-by-case judicial enforcement imposes unjustified costs on rights owners, accused infringers, and the court system. The cost and perceived limited effectiveness of individual lawsuits have led some copyright owners, and sympathetic governments, to support alternative measures for suppressing illegal Internet file sharing.

The two most popular alternatives to judicial process are filtering and graduated response (or “three-strikes”). Both methods require Internet service providers (ISPs) to take action on behalf of copyright holders. To implement filtering, ISPs must install hardware or software that detects and in some cases slows, stops, or blocks access to allegedly infringing content on their network. Graduated response regimes require ISPs to relay two warnings from copyright holders to alleged infringers and, upon a third allegation, to disconnect users from the Internet, without a judicial determination of infringement – hence “three strikes and you’re out.”

Neither form of regulation requires government action. ISPs could agree to implement these measures voluntarily, but few have done so, despite copyright owner efforts. Absent private arrangements, some copyright holders and government officials have advocated government action to require or encourage ISPs to implement filtering and three strikes regimes. This article is a survey of such government action worldwide.

The United States
Several US laws create extra-judicial mechanisms for copyright enforcement by obligating ISPs to take action, but none requires widespread filtering or graduated response. The most significant is the Digital Millennium Copyright Act (DMCA). Among other things, the DMCA creates a “safe harbor” for ISPs from liability for infringing material on their networks, provided they meet certain requirements.

One such requirement is that ISPs cooperate in a notice-and-takedown process whereby ISPs receiving proper notice from a copyright owner take down alleged infringing material. A user who believes a takedown notice is not appropriate can submit a counter-notice to have the material re-posted, at which point the copyright holder must go to court for a remedy. The notice-and-takedown process creates extra-judicial procedures for enforcement of copyright, but unlike graduated response the remedy is provisional and limited to removal of the infringing material, and unlike filtering the onus remains on copyright holders to police networks for infringement.

Another provision of the DMCA requires ISPs that desire immunity to adopt and implement a policy of terminating “in appropriate circumstances” subscribers and account holders who are repeat infringers. While this language may at first glance seem consistent with graduated response, ISPs generally interpreted the statute as requiring disconnection only where there has been a judicial determination of repeat infringement. This falls far short of a complete graduated response regime, such as the French proposal, where copyright holders’ allegations alone can be sufficient to support disconnection.

Three other US laws and one state law provide for extra-judicial measures to combat illicit content on the Internet. The Child Internet Protection Act requires certain libraries and schools to implement filters to block content deemed inappropriate for children. The provision is tied to the receipt of federal funds and does not address copyright.

The Higher Education Opportunity Act comes closer to the kind of filtering requirement some copyright owners propose. The Act requires certain higher education institutions to certify they have “developed plans to effectively combat the unauthorized distribution of copyrighted material, including through the use of a variety of technology-based deterrents.” The Department of Education is pursuing a negotiated rulemaking to implement this provision of the Act, which became law in August 2008.

Finally, the Child Safe Viewing Act, passed in 2008, requires the Federal Communications Commission to conduct a proceeding to examine “the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms.” The FCC must report its findings to Congress by August 29, 2009. Providers of technology that can be used in filtering and graduated response regimes have provided comments to the FCC touting their effectiveness. The FCC is still conducting its investigation.

One state, Tennessee, has passed a law imposing a filtering requirement on certain higher education institutions. The law, passed in November 2008, requires educational institutions receiving more than 50 DMCA takedown notices in a year to take action to deter infringement on the network, including the use of technical measures, i.e., filtering.

Filtering Outside the United States
While the U.S. requires filtering only in narrow contexts, filtering technologies have found much wider acceptance among governments abroad. It is well-known that governments in countries such as China, North Korea, and Cuba use filters to enforce cultural and political orthodoxy by suppressing the influence of foreign media and censoring dissident domestic speech. According to the filtering watchdog group the Open Net Initiative, for example, China has “one of the largest and most sophisticated filtering systems in the world.” China is able to control the Internet usage of its enormous population by using a complex system of regulation, licensing, and ISP liability, touching every point of Internet access and transmission.

In marked contrast to the DMCA safe harbors and similar provisions in the EU’s Electronic Commerce Directive, Chinese ISPs hosting user-posted content are directly liable for any illicit content on their servers. ISPs and Internet Cafes are required to install filtering tools and to keep detailed logs of the activities of their users.

Several democracies have proposed or instituted much narrower nation-wide filtering regimes. Of these, most are voluntary efforts instituted by ISPs with government support. So far, democratic countries use filters only to target child pornography and similar “illegal” content by means of a simple blacklist of domains. Nationwide filtering for copyright violation has yet to be required by law anywhere.

France
Although one of its nicknames derives from American baseball, “réponse graduée” is a more appropriate name for a proposal whose most vocal and successful advocates are in France. The official name of the French proposal is “Création et Internet.” The law is also known as “HADOPI,” after the acronym for a new bureaucracy that will be in charge of enforcing copyright online when the law passes.

The law would empower HADOPI to process complaints of copyright infringement, send warnings to accused infringers (first by email, then by post), and if accused three times, to add them to a blacklist that would prevent them from accessing the Internet for up to one year. The measure passed handily in the French Parliament this May. However, in June, the French Constitutional Council struck the power to disconnect from the HADOPI law.

The European Union has noticed France’s efforts. A comprehensive EU telecommunications reform bill has been mired in controversy over whether to endorse or condemn the French approach. HADOPI’s opponents, led by Socialist Party French MEP Guy Bono, have won support in the European Parliament for amendments to the EU “telecoms package” to require a judicial determination prior to any disconnection of Internet access. This would directly contradict France’s law, as HADOPI is an administrative body empowered to disconnect alleged infringers without any judicial process.

The European Council must approve the measure before it can become law, however, and France has considerable influence in that body. The EU has thus been at a standstill for months over whether and how to address graduated response. Recent reports are that member states have reached a compromise on the telecoms amendment that would drop the explicit requirement that a judicial determination be made prior to disconnection. Another possible compromise is that Bono’s language be moved to the “recital” section of the bill, a kind of preamble. The telecoms package is still making its way through the circuitous EU legislative process, but HADOPI opponents say they will challenge the French law as contrary to EU principles regardless of the language that emerges.

United Kingdom
Last month, the UK government released its long-promised Digital Britain Report. The 245-page document includes several proposals with potential consequences for content protection. The Report proposes legislative strategies for discouraging online infringement. These include a “graduated response” mechanism (but, without extra-judicial Internet disconnection) as well as possible mandates for technical measures, including filtering.

The Report proposes legislation to empower the U.K.’s telecom regulator Ofcom to require ISPs, when informed “in an agreed format” by rights-holders, to notify account holders that their account appears to have been used to infringe copyright. Ofcom would also require ISPs to retain “anonymised” data (“derived from their notification activities”) on users’ alleged infringement and, upon a court order, to make that data and the identity of the user available to rights-holders for use in a civil proceeding against the alleged repeat infringer. These processes would be governed by a private code of practice negotiated between ISPs and rights-holders under Ofcom’s supervision.

Germany
In early 2009 German officials similarly backed away from filtering. German news sources reported that the German Department of Justice met with ISPs to discuss the idea of a graduated response regime. Reportedly a consensus emerged that to do so would conflict with other German legal protections, presumably due process and privacy. The German Secretary of Justice reportedly told an interviewer the graduated response model is not fitting for Germany, or for the rest of Europe, and if France succeeds in passing its law, there will be widespread outcry.

Italy
Italy has proclaimed itself an ally of France on this issue, and announced its intent to cooperate with France on copyright enforcement. Italy’s communications minister said her government intends to follow “the French model” of copyright reform, which commentators have interpreted as an endorsement of three strikes.

New Zealand
New Zealand passed a tentative three strikes provision along with a comprehensive copyright reform bill in 2008, but later abandoned the provision. Most of the law went into effect in October 2008, but the government scheduled the graduated response portion, known as Section 92A, to go into effect in February 2009. Section 92A would have required ISPs to establish a code of practice requiring the disconnection of repeat infringers.

In response to criticism that the bill was unworkable, the prime minister postponed the law’s effective date to March and asked ISPs to convene a panel to find a consensus answer as to how the disconnection regime would operate. When the ISP group failed to reach consensus, the prime minister announced that the provision would be re-worked from the ground up. He gave no indication of when the new provision would be unveiled.

Ireland
In Ireland, the country’s largest ISP Eircom agreed to implement graduated response as part of a settlement agreement ending an infringement suit brought by copyright owners. Following the settlement, copyright owners approached other ISPs, threatening legal action for alleged infringement taking place on their networks and suggesting the graduated response regime Eircomm accepted in its settlement was required by Irish and European copyright law. The ISPs rejected this claim and publicly denounced the copyright owners for sending the threatening letters.

South Korea
South Korea’s National Assembly passed an anti-file sharing provision covering message boards where infringing content is often posted as well as the users who post there. Such boards can be shut down for up to six months if the site is warned three times about a failure to delete or discourage infringing content. Also, users can have their Internet access suspended. The Minister of Sports, Culture, and Tourism is empowered to order these suspensions; he may do so even without a copyright owner complaint.

Taiwan
Taiwan recently enacted copyright reforms including a graduated response provision as well as a DMCA-style notice-and-takedown regime. According to reports, the graduated response law allows ISPs to “restrict Internet access” of users repeatedly alleged to be infringing copyright. In defense of the measure, Taiwan officials have stressed that “restricting access” is not the same as cutting off access.

Conclusion
This brief survey shows that several countries, including the United States, have considered or enacted procedures that allow copyright enforcement without judicial process. Although extensive Internet filtering is common among authoritarian regimes, and is gaining acceptance in democracies seeking to block access to narrow classes of extremely objectionable content, none has actually implemented a filtering regime to monitor Internet traffic for copyright infringement.

Graduated response regimes have been considered seriously in many countries, but so far most have rejected the idea. France is a notable exception in the West, and South Korea and Taiwan in Asia. Parties on all sides of the issue will be watching these countries to see how their efforts play out.


Jim Burger, a Dow Lohnes partner, represents technology companies on IP, communications, and government policy. He was a Senior Director in Apple's Law Department. Jim received his Law (cum laude) degree from NYU Law School, and was editor of the NYU Law Journal.
Contact: www.dowlohnes.com

This is one of the expert features in DVD & Beyond 2009, just published. Ask for your complimentary copy...

Article Comments

comments powered by Disqus