At the end of March we reported that the MPAA’s pirate-chasing lawyer Espen Tondel sent a letter demanding that Norwegian ISPs disconnect file-sharers from the Internet. Unfortunately for him, the ISPs aren’t going to comply and have issued a letter in response, refusing to break the law to please copyright holders.
It’s becoming a trend for outfits such as the IFPI, MPAA, BPI and their equivalents to demand that ISPs disconnect their file-sharing customers from the internet. Unfortunately for them, ISPs don’t want to play ball with these demands and are starting to make their opinions known while refusing to be bullied. Even the European Parliament thinks that disconnecting file-sharers from the Internet is disproportionate.
When Simonsen Advokatfirma sent a letter to Norwegian ISPs via the MPAA’s lawyer Espen Tondel, it was probably expected that the ISPs would agree to their outrageous demands. Not so. Instead, IKT Norway – an interest group for ISPs – stood up for the ISPs stating:
“In a constitutional state, the police and the prosecuting authority have the job of investigating and indicting, not lawyers and communication engineers. Most of the big ISPs in Norway are members of IKT Norway and we will support the various ISPs as best we can against what we see as a preposterous demand from Simonsen”
Now, in a detailed letter, IKT Norway has responded in the strongest possible way:
Regarding demands to prevent alleged unauthorized publication.
We refer to the letter from Simonsen Advokatfirma DA on behalf of Norsk Videogramforening dated 4. March 2008, also other letters from Simonsen dated 19 march 2008 and sent to several internet service providers (ISPs)
1. Demands issued to the ISPs
In your letter you claim that the ISPs have an obligation to prevent alleged illegal activity. It’s further suggested that this should be carried out by the ISP by matching IP addresses with customer names and thereafter forward provided letters to the subscribers which (apparently) used the listed, dynamic IP addresses.
Principally we do not consider it an ISPs role to report on suspicions regarding breach of intellectual property rights without a court ruling, to contribute to legal decisions regarding our customers.
The ISPs will of course follow current laws and, if they receive a final ruling which demands action, they will follow it.
However the ISPs do not believe it to be their task to monitor or through their own evaluation and/or the subjective assessments of others, to censor or sanction [content] on the net. It’s important that the rule of law is upheld and that the protection of rights is correct in accordance with the constitution, i.e. the police investigate and the court of law makes the judgment.
2. Roles of the ISP and responsibility
We stress that the ISPs on their own do not breach the law. We believe that you are familiar with the national implementation of the European Info-Soc Directive and that it deviates from Denmark. Your reference to a Danish ruling is not relevant in this case.
(Comment from Norwegian translator: Norway parted from Denmark in 1814, that’s why we celebrate 17th May and they should know better!)
In your letter you refer to the law regarding e-trade and cease and desists. Such an instruction must be issued to the one who’s allegedly breaching your clients rights. A superficial trial to ascertain an copyright breach without the accused being a part of the case, and without letting the accused defend himself according to the normal principle of contradiction, is inexpedient.
The consequence of this will be of such a large magnitude for the individual Internet user that we believe a more though investigation and court involvement is needed. Further investigation [by the police] will show if it’s possible to identify the user which the copyright holder claim has beached their rights, and after this a justified ruling can be made by the court of law.
When it comes to your comment on responsibility and helping out to commit the crime if the ISP does not prevent the alleged illegal activity, we do not agree. An ISP has no responsibility for what the customer does on the net as you suggest in your letter.
Based on this we reject your accusation that the ISPs have a responsibility for the users use of network and devices. The ISPs will not follow your demand to block access/prevent alleged illegal activity.
IKT-Norway stresses that it’s important to protect intellectual property. Without a strong governance of intellectual property rights, the incentive to invent and create may suffer. We do not protect nor sympathize with breaches of intellectual property rights, or other actions which breach the law.
However, the work to protect intellectual property must be carried out in such way that it does not breach fundamental constitutional principles. Your private investigation carried out on the net has be further investigated by the police and/or the court of law.
Director of “governmental contact”
Thanks to Harald for the translation of the original letter and Happy Birthday!