While delaying a final decision until the next parliament, Business Secretary Peter Mandelson yesterday confirmed plans to have UK residents accused of illicit file-sharing disconnected from the Internet as a “last resort”.

Preceded by months of sending warning letters with an aim of achieving a 70% reduction in online piracy by 2011, Mandelson claims that only persistent offenders would be affected by the harshest measures – those accused of infringing copyrights multiple times.

However, downloading a single music track constitutes an infringement, so being accused on the basis of three or four tracks downloaded over a period of months could be enough to have an entire household disconnected from the Internet. Hardly the promised “proportionate” response.

While the Business Secretary is insisting that there will be an independent appeals process to ensure that any accusations are accurate, his words aren’t inspiring confidence with Internet service providers.

Yesterday, BT Group made a statement indicating its concern at the government’s proposals, noting its disappointed that ISPs will have to bear some of the costs of the scheme, resulting in increased prices for broadband customers.

As detailed earlier, those costs are likely to spiral to £365m per annum, putting the alleged music industry piracy “losses” of £200m in the shade.

“We are also interested to hear whether or not customers will have some form of fair legal hearing before their broadband supplier is required to take any action against them,” said BT.

TalkTalk, the UK’s second largest ISP, owner of the Tiscali and AOL brands and operator of the Dont Disconnnect Us website, went much further.

“The approach is based on the principle of ‘guilty until proven innocent’ and substitutes proper judicial process for a kangaroo court. What is being proposed is wrong in principle and it won’t work in practice. We know this approach will lead to wrongful accusations,” said Andrew Heaney, TalkTalk’s Executive Director of Strategy and Regulation.

According to a report this morning, TalkTalk is now threatening to launch legal action if Mandelson makes good on his threats and implements any disconnection scheme without due process.

“If the government moves to stage two we would consider that extra-judicial technical measures and would look to appeal the decision because it infringes human rights,” Heaney told The Guardian. “TalkTalk will continue to resist any attempts to make it impose technical measures on its customers unless directed to do so by a court or recognised tribunal.”

One pressing issue that seems to have been completely ignored is the existence of current copyright laws which are already being used to punish alleged file-sharers in the UK.

Companies like ACS:Law are already making accusations against UK Internet users who they claim are infringing the rights of their clients, demanding £600+ for the alleged infringement of a single music track.

Are we to have a dual system where Internet users can be both disconnected by the government and financially punished by private companies for the same offenses? The government should decide which system is to prevail and pick one, changing the law if necessary.

The full proposals for the graduated response scheme will be detailed in the Digital Economy Bill, set to be published later on this year.

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However, none of this stopped the lobby groups, or the politicians looking to push for the ruling.

In the EU, the amendment, which would protect against 3-strikes laws by requiring due judicial process to occur before any sanction (such as cutting off Internet access), has been substantially watered down. Meanwhile, in France the Constitutional Court has ruled in favor of a slightly modified version of HADOPI – their legislation which includes a 3-strikes sanction.

On Tuesday, the Parliament gave up on Amendment 138, which had been voted on twice by the assembly, gaining a majority both times. The amendment was supposed to protect the rights of citizens from being treated as guilty upon the accusations of an industry group, and punished based on the same. It read;

Applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened in which case the ruling may be subsequent.

Instead, they are now considering a version which does not guarantee the right to an effective and timely judicial review.

Christian Engstrom, the Pirate Party’s MEP, commented on the amendment in his blog. He included the differences in text that have been made since Tuesday (bold denotes added text, strike-through indicates removed) in a meeting between three negotiators for the European Parliament and representatives for the Council of Ministers.

The changes included the removal of the judicial guarantee, that any measures should come only after a fair an impartial procedure (and should now just ‘respect’ such things), and the ACTA-like inclusion of ‘National Security’ clauses.

He summarized things simply, saying: “It shows utter contempt for Parliament by totally ignoring everything it says. The Council plans to bypass Parliament and once and for all prove that it is they who make the decisions, end of story.”

Meanwhile, France’s highest Constitutional Court has approved a slightly modified version of HADOPI. While initially blocked last September, a change to require a judge to sign off on the disconnection action (rather than the Agency itself) has meant it passed the Court. However, such court measures will be ‘fast tracked’ rather than given full judicial process, a situation the New York Times describes as ’similar to traffic violations’.

This has angered many, including (of course) the Pirate Party. Laurent Le Besnerais of the Parti Pirate and Pirate Party International called it “a huge blow for Internet Freedom.”

“In June 2009, this same Council declared that Internet access is a fundamental right which cannot be restricted without judicial process,” he told TorrentFreak. “Today, the council gives a judge the right and responsibility to pronounce a closure of Internet access to anyone suspected of having shared illegally. Furthermore, the suspect will have to prove his innocence, which creates a presumption of guilt.”

With the flip-flopping over these measures, it can only be seen as a greater boost for the European Pirate Parties in future elections. However, since much of the party works and draws its support online, there is the risk that members could start having their net connections cut off. With evidential standards so low, would it really be beyond the realms of possibility that political critics of these plans could end up being cut off at the say-so of those they oppose?

If all goes as planned the agency will be staffed next month, with letters starting in the new year, and terminations starting as soon as next summer. How long the law will stay once the innocent start being punished is harder to predict. As with IPRED, the people the law aims to deal with will just use seedboxes, VPNs, and open WiFi hotspots instead of their home connections.

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This week alone we’ve had an Early Day Motion from a member of Lord Mandelson’s own party, and more recently ISPs have talked about the futility of the suggested legislation.

Mandelson reportedly started pushing it after a meeting with Hollywood mogul David Geffen, and was apparently uninterested in the whole situation prior to the meeting, although that claim was flatly denied.

Now, the All Party Parliamentary Communications Group (apComms) has released its own findings to its more broad consultation, and it’s not good reading for 3-strikes proponents.

There were significantly fewer responses than for other similar consultations, although the scope was much wider. It was also much more open, without assumptions or leading questions. It was, in fact, fairly neutral and seemed to be concerned with gathering information, rather than trying to solicit support for a predetermined policy. Most appropriately, it was titled “Can we keep our hands off the net?”

The topics covered included dealing with ‘bad traffic’ (which includes copyright infringement, P2P and botnets), behavioral advertising (such as Phorm), online privacy and child pornography procedures. Finally it dealt with the issue of who should foot the bill for Internet traffic, and whether network neutrality should be codified. The first and last questions are of particular concern to TorrentFreak, and the conclusions make for interesting reading.

On the subject of P2P and copyright enforcement, they came to the following conclusions;

58. We conclude that much of the problem with illegal sharing of copyrighted material has been caused by the rightsholders, and the music industry in particular, being far too slow in getting their act together and making popular legal alternatives available.
59. We do not believe that disconnecting end users is in the slightest bit consistent with policies that attempt to promote eGovernment, and we recommend that this approach to dealing with illegal file-sharing should not be further considered.
60. We think that it is inappropriate to make policy choices in the UK when policy options are still to be agreed by the EU Commission and EU Parliament in their negotiations over the “Telecoms Package”. We recommend that the Government terminate their current policy-making process, and restart it with a new consultation once the EU has made its decisions.

Network Neutrality and actual bandwidth availability was also a concern, with the following recommendations being made;

212. We recommend that Ofcom keep the issue of “network neutrality” under review and include a section in each annual report that indicates whether there are any signs of change.
214. We recommend that Ofcom regulate to require ISPs to advertise a minimum guaranteed speed for broadband connections.

We know that many of our UK readers will be happy with the last recommendation, especially after a study by OFCOM earlier this year found that many subscribers were seeing an average of 40% of their connection’s advertised speed. A more appropriate advertised speed will also prevent many BitTorrent clients from being setup for speeds they can’t actually achieve.

If you thought that such open minded, clearheaded and competent recommendations couldn’t have come from elected officials, well, the good news is they’re not all luddites. ApComms’s Joint-Chairman, Derek Wyatt MP was formerly Head of Programmes at WireTV, before becoming the director of BSkyB’s Computer Channel (later ‘.tv‘), leaving when he was elected to government. Other executives of apComms include a former BT researcher (Chris Mole MP), and Dr Nick Palmer MP, who has studied AI at MIT.

An extremely well-educated and technologically literate group making these recommendations should help carry some weight. Whether or not it will be enough to convince the Peter Mandelson’s and Sion Simon’s of the government, remains to be seen.

The full report is available here.

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“The lesson of iTunes and Spotify is that what people want is ease of use and convenience and cheapness. And you only have to look at the decrease there has been in filesharing since the increase in popularity of Spotify.
“You only have to look at the number of people who came off illegal filesharing when iTunes came out to know that filesharing isn’t the answer, it’s not the future, it’s not valuable of itself – it’s a technology that currently is being used to circumvent the law.”

However, his words, as reported by the Birmingham Post, lack a certain ring of truth. For example, let’s take the claim that file-sharing decreased after Spotify gained popularity. While we agree that the service has the potential to convert many music pirates, its effect on the overall volume of file-sharing is simply not there.

The Pirate Bay informed TorrentFreak that traffic from the UK is still growing, at an average of around 1% per month. Mininova likewise has seen a 15% growth, of 7 million unique visitors a month, from 38.6 million in September 2008, to 45.6 million in August of 2009. Clearly Spotify hasn’t decreased much. Strike 1.

More worrying though is the claim that file-sharing technology is not valuable. For one, Spotify itself is based on file-sharing technology, with the brain behind the popular BitTorrent client uTorrent as one of its main developers. That aside, the state-funded BBC is involved in various BitTorrent-based projects, and the technology chiefs there believe that P2P TV has a future, and many independent artists are already putting it to use.

Over the past few years, we’ve brought you dozens of stories about people being enabled by the technology, from independent artists, to filmmakers (large and small) and even large corporations that can now effectively distribute data without incredible bandwidth outlay. File-sharing technology is very valuable to those people, Strike 2 for the MP from Birmingham.

That brings us to another statement Simon made, with Yahoo reporting him as saying that whilst it is illegal, there is currently no anti-piracy legislation. Those that have read our stories about Davenport Lyons, and ACS (and the thousands they have targeted) know there is indeed legislation. So too does Alan Ellis, and the Oink uploaders who were sentenced earlier this year. For Mr Simon, that’s strike 3.

It’s just lucky for him that no-one’s proposed a law where if an MP has gone on the record and made 3 basic factual errors, his parliamentary benefits should be cut off or throttled.

Mr Simon was contacted for comment, but did not reply at time of press

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On July 8th, a modified version of the bill was accepted by the Senate following reassurances that any final decision to disconnect an Internet user under a 3 strikes regime would be handled by a judge.

Last week French legislators voted on this compromise bill. In the National Assembly it passed with 285 votes in favor and 225 votes against. This acceptance signaled the bill would move to the Senate for approval.

The bill, which has received strong support from President Nicolas Sarkozy and musican first lady Carla Bruni, was passed yesterday in the joint legislative committee of the two houses by 258 votes in favor to 131 against.

Under the law, once an individual has been warned about a third online copyright infringement, he or she will enter a mechanism which will see them reported to a judge. After a hearing the judge will have the power to cut the individual off from the Internet, and issue a range of other penalties including fines.

Reporters Without Borders referred to the legislation critically, saying it was “..alarmed that the alleged offender will not be given details of the illegal download when the disconnection order is issued. This recalls the censorship methods in force prior to the 1881 press freedom law, when the censor did not have to tell offenders why they were being censored.”

The bill now requires Nicolas Sarkozy’s signature to become law, but even this will face dissent.

The opposition Socialists, who were responsible for taking the earlier version of the law to the constitutional council, immediately announced that they will mount another challenge.

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On July 8th, a modified version of the bill was accepted by the French Senate after assurances were made that the final decision of disconnection under a 3 strikes-style regime would be passed to a judge.

The new structure is suggested as follows. Once an individual has been warned about a third online copyright infringement, he or she will enter a mechanism which will see them reported to a judge. After a hearing the judge will have the power to cut the individual off from the Internet, issue a fine of up to 300,000 euros, or even hand out a 2 year jail sentence.

Furthermore, innocent ISP account holders who find themselves accused over the infringements of a 3rd party could be found guilty of “negligence”, risking a maximum 1,500 euro fine and a 4 week disconnection.

Today French legislators voted on the new compromise bill. In the National Assembly it passed with 225 votes against and 285 votes in favor. The bill (now known as Hadopi 2) will now move to the upper house (the Senate) for approval. It will then be signed into French law.

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ISPs wouldn’t be expected to play copyright cops, but instead decisions about disconnections under a 3 strikes regime would be made by the Copyright Tribunal, which would give those wrongly accused a chance to put their side of the story. This was generally accepted as a fairer way of going about the issue.

However, the Federation Against Copyright Theft has indicated that it is unhappy with the proposals and would prefer a “streamlined” process of justice, which would mean people could be disconnected without the full hearing in front of an independent body as suggested by the Economic Development Ministry.

FACT director Tony Eaton says that his organization doesn’t have a problem with judicial process – as long as it’s on their terms.

“The concern is that we send out 1000 infringement notices, and then someone says, `The way to stall this is let’s all go to arbitration’, and a year later we could still be going through that same process,” Eaton said.

“Do we get to the point where we have 1000 cases to be heard by the Copyright Tribunal? If everyone brings their lawyer, we will only do five in a day,” he added.

By anyone’s measurement, even given the lack of accuracy inherent in some anti-piracy evidence, 100% error rate and 100% appeals is a little pessimistic to say the least and to suggest everyone would bring a lawyer is absurd – the cost would be hugely prohibitive. Nevertheless, Mr Eaton said he would prefer to be able to present evidence in bulk to the tribunal – in search of corresponding disconnections in bulk, no doubt.

The discussion document for the amended Section 92a was open for submissions until August 7 and according to Ministry of Economic Development spokesman Joshua Herron, many of those submissions show opposition to disconnecting people from the Internet, period.

InternetNZ, a non-profit organization dedicated to protecting and promoting the Internet, said it is “absolutely opposed to the inclusion of termination of Internet accounts as a penalty for copyright infringement.”

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After a mountain of bad publicity, the ISP released a statement admitting that it had been “exceeding the expectations of copyright owners, the media and internet users.” Announcing a change in policy, Karoo said in future it would provide customers with three written notifications before their service was temporarily suspended.

Although this rethink was fairly well received, at TorrentFreak we wanted to find out more. How does Karoo – indeed any ISP – know that it is acting on accurate information from the copyright holders when it chooses to accuse its customers of acting illegally on their behalf? How does an ISP know that the anti-piracy companies haven’t made a terrible mistake?

We put this question to Karoo and after a few back-and-forth emails, finally received back a rather interesting statement, which included the following paragraph:

“Going forward, we will provide customers with three written notifications to make them aware that a copyright owner has alleged that their internet account has been used to infringe their copyrighted material. These letters do not accuse the customers of any wrongdoing and will offer help and support so that those customers whose internet access is being used unknowingly are able to address it.”

So far so good, but what about the earlier threat of 3 strikes and disconnections? What about the accuracy of evidence from the anti-piracy tracking companies?

“We will no longer suspend a customer’s service unless we receive a court order from a copyright owner taking legal action. As a result it is the responsibility of the legal system, not Karoo, to ensure the accuracy of the information provided by the copyright owners.”

Common sense prevails. Well done Karoo, you got there in the end. But we still haven’t had our question answered.

How does an ISP know that they are acting on accurate information when passing on copyright warnings to its customers or threatening disconnections?

If any ISP anywhere in the world is prepared to answer this important question, please feel free to get in touch. We’ve asked a few already with no success – we’re starting to think this issue is a very delicate one indeed, judging by the apparent reluctance to answer.

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There is no such doubt in South Korea. Today, tough new anti-piracy legislation takes effect which targets illicit file-sharers in a particularly aggressive way. The scheme, hatched by the country’s Ministry of Culture, Sports and Tourism, gives authorities the power to disconnect pirates for up to 6 months.

However, 3 Strikes for file-sharers is just a small part of the issue.

Although the government insists the rules are targeted at large scale infringers, thanks to a lack of clear boundaries in the legislation – which simply refers to “copyrighted content” – South Korea has extended the 3 Strikes concept to pretty much everyone adding content to the Internet.

According to SKC, the operator of social networking site Cyworld and web portal Nate, any South Korean running a blog or a social networking page will have to be very careful indeed.

In recent days the company has been alerting its users to the new law, notifying them that not only is the sharing of copyright songs, movies and TV shows illegal, but also the use of any copyrighted images or videos. Any of these could earn the infringer a strike.

Any ‘YouTube’-style homemade videos that contain copyrighted music in the background are also banned and will also get you a strike.

And song lyrics. And excerpts from books.

We shall know shortly if the copyright industries behave responsibly with their new found power or if they choose to use it as a weapon of mass disconnection. Either way, South Korea’s enviable broadband position is hardly likely to benefit from the legislation.

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A modified version of the bill, which passes the ultimate disconnection decision to a judge, was accepted July 8th by the French Senate.

Now, according to a report, the Ministry of Culture has decided that a company called Extelia – a subsidiary of the post office – will be made responsible for administering identification information and sanctions under the so-called Hadopi legislation.

Extelia will be responsible for processing the IP addresses provided by the rights holders and collecting subscriber information from ISPs. The company will then send out emails and letters advising allegedly infringing recipients of their obligations under the law. It will also manage the issuing of sanctions, the monitoring of their implementation and connection restoration following the dreaded 3rd strike.

Extelia will conduct a trial period of 10 to 12 months beginning this fall, to be financed by the Hadopi agency from its annual budget of 6.7 million euros (apprx $9.5m).

To begin, around 1000 semi-automated warning emails will be sent out per day, which is just one tenth of the proposed output when the scheme is up to speed.

The outfit that will actually carry out the monitoring of suspected infringers is yet to be decided. However, Marc Guez CEO of music collection society Civil Society of Phonographic Producers (SCPP) – which works with the likes of EMI, Warner, Universal and Sony BMG – said that two companies are in the running, Advestigo and TMG.

Lawmakers in the lower house of parliament will start debating today on the modified bill. However, the opposition Socialists are threatening to refer the bill back to the Constitutional Council after loading more than 700 amendments, apparently in an attempt to slow down parliamentary debate.

If the bill successfully passes the lower house, it will next be examined by lawmakers from both the upper and lower houses and submitted to a new vote in both houses of parliament, before eventually becoming law.

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They had taken a similar stance to that of the European Parliament, deeming the proposed “3 strikes” regime for dealing with illicit file-sharers unconstitutional. They said that individuals must have a fair trial and striking an individual from the Internet is something only a judge can do after a hearing.

So now in modified form the bill is back. Moving the decision to disconnect file-sharers away from the Hadopi agency to the courts, the new version of the law addresses the objections of the Constitutional Council by presenting “3 strikes” cases to a judge, who will fast-track decisions in around 5 minutes per case.

The new structure is as follows. When an individual is warned about an infringement for a third time, the Hadopi agency will report the offender to a judge. After a hearing the judge will have the power to cut the individual off from the Internet, issue a fine of up to 300,000 euros, or even hand out a 2 year jail sentence.

ISP account holders who find themselves accused over the infringements of a 3rd party could be found guilty of “negligence”, risking a maximum 1,500 euro fine and a 4 week disconnection.

The revamped bill was adopted today by the French Senate and in the next few weeks will head to the National Assembly for its adoption.

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Now, the leader of Spain’s Popular Party (Partido Popular), Mariano Rajoy, is warning Spaniards that Prime Minister José Luis Rodríguez Zapatero of the Spanish Socialist Workers’ Party (PSOE) may try to implement a French-style “3 strikes” regime for alleged file-sharers.

At a rally held in the Prince Felipe Auditorium in Oviedo to promote the European Parliament elections, Rajoy raised questions over the tax currently paid by everyone on devices such as computers, hard drives, blank media, CDs and DVDs etc, which should be divided between all artists but is actually going mainly to the big ones.

On the ‘3 strikes’ issue, Rajoy asked the gathered crowds if it would be acceptable to stop people from using the Internet because a government agency (at the behest of the entertainment industries) says so – is this what the young people want?

Rajoy is clearly against such punitive measures and announced that if Zapatero or anyone else tries to bring in something akin to Sarkozy’s ‘3 Strikes’ HADOPI law, he will be strongly against it.

“If someone takes this decision,” he said, “we’ll oppose it and go to the courts.”

In response PSOE candidate for the European Parliament, Iratxe García, said that PSOE is an overwhelming supporter of Internet user’s rights.

“PSOE doesn’t support or accept measures or laws like the ones in France,” she said adding, “We are voting in favor of keeping telecommunication interventions in the hands of judges and not by any other administrative authority.”

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For ISPs, the legislation provides a double-edged sword. The plus side is that in future ISPs will be exempt from taking responsibility for the copyright infringing actions of their customers, under a DMCA-style ’safe harbor’ provision, coupled with a ‘takedown’ system for alleged infringing content.

The downside is ISPs will have to introduce a ‘3 strikes’ regime for subscribers accused of infringement by copyright holders. After the third ’strike’, the ISP can take a range of measures against the user including throttling or disconnection.

The ‘3 strikes’ regime in no way protects file-sharers from the copyright holders taking legal action against them, so they could face disconnection and a claim for damages. The change in the law is aimed squarely at heavy uploaders, not casual file-sharers.

According to another report, ISPs will not be permitted to hand over the personal details of alleged file-sharers to copyright holders. However, should the individual submit a counter claim to restore previously removed content (read: protest innocence), his or her details can be made available to the rights holders.

Several countries are currently considering to implement ‘3 strikes’ legislation, most notably France. The UK was thought to be heading in a similar direction, but Minister David Lammy ruled out this possibility. “We do not believe that would be the right road to go down,” he said recently.

Taiwan sides with France and believes that the new legislation will be effective in reducing copyright infringement on file-sharing networks. In addition, Taiwan’s Intellectual Property Office will also launch an anti-piracy publicity drive to help the public understand the new legislation and the ‘problem’ of piracy.

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The new law has been criticized by the majority of the French public, with many of them believing it will fail to reduce piracy. After the parliament voted in favor of the law, no one doubted that it would be approved by the senate and National Assembly as well. As expected the law was indeed ratified by the senate this morning, but to everyone’s surprise it didn’t make it through the National Assembly.

After a two hour discussion, the law was rejected by the National Assembly with 21 votes against and 15 votes in favor. According to early reports, the Socialist deputies changed their initial position and decided to vote against the law after witnessing the mass opposition from the French public.

“There was a wind of revolt in the country, which engulfed the Assembly and made us move from opposition to the majority,” a Socialist member said in a response, adding “The government is now in trouble.” France’s Minister of Culture Christine Albanel was shocked by the rejection and said it was a “trap” set up by the Socialist opposition.

Unfortunately the law is not completely off the table. It is likely to be voted on again on April 27 according to members of UMP, one of the supporting parties. However, failing to get it passed through the National Assembly the first time is clearly a huge mistake that is almost amateurish, and public opinion is not likely to change anytime soon.

Last month the European Parliament indicated it was opposed to “3 strikes” legislation when it defined Internet access as a “fundamental freedom.”

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The new ‘HADOPI’ (Creation and Internet) law introduces unlimited options for copyright holders to go after individuals and sites that are alleged to have infringed copyright, without having to actually prove that the accused are categorically guilty. Now, a new survey by French Institute of Public Opinion (IFOP) for LeJdd shows just how (un)popular this so-called ‘graduated response’ is with the public.

From a survey of 1004 individuals representative of the French Internet user, 60% of respondents said they were not in favor of the law (42% were strongly against), with a third saying they support it “somewhat”. Only those respondents over 65 years old showed greater support, with 53% in favor and 41% against. Despite this, 64% of the respondents in this category felt that the graduated response wont be affective at all.

Interestingly, there was no difference between the different age groups in the expected effectiveness of the new anti-piracy legislation. Overall, the majority responded quite negatively. Just 24% of respondents said that they felt the ‘graduated response’ would be “very” or “somewhat” effective, with a huge 69% believing it will fail.

As in most countries, illegal file-sharing is widespread in France. One in four of the respondents admitted that they downloaded copyrighted music or movies regularly. There is a clear generation gap here, as 40% of those younger than 30 years categorized themselves as active downloaders opposed to 6% in the 65 years and older group.

Not not everyone is sceptical of the scheme. While repeating the IFPI nonsense that 95% of all music is pirated, U2 manager Paul McGuiness writes that not only is the Creation and Internet law “the right solution to an enormous problem” but also “a fair and balanced solution” that “will work in practice.”

Clearly not everyone agrees. The full survey is available in French here (.pdf)

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The report from Greek MEP Stavros Lambrinidis concerning security and the protection of fundamental freedoms on the Internet, has been accepted by an overwhelming majority. The European Parliament adopted the report with 481 votes in favor, 25 against and 21 abstentions. French proposals that would allow a ‘graduated response’ aka ‘3 strikes’ regime to deal with alleged copyright infringers were rejected.

“While ensuring that the Internet is more secure is a legitimate goal for our societies, we must monitor and restrict the use of surveillance and control techniques that threaten our freedoms, especially in cases which question its necessity, proportionality and effectiveness,” says the report.

In a clear snub to both the French government and copyright holders the report says, “Governments or private companies should not see the denial of such access as a means of imposing sanctions, as proposed in some countries in the union.”

The report further states that computer and electronic literacy is the new literacy of the 21st century and that guaranteeing Internet access to all European citizens is synonymous with guaranteeing education.

The French tried to protect their upcoming 3 Strikes law, but failed. An amendment proposed to read, “Access to the Internet should not be the subject of abuse for purposes of illegal activities and that a balance between the various basic rights guaranteed in Community legislation must be respected,” was rejected.

At this stage it is unclear if this pressure from the European Parliament will cause the French to reconsider their ‘3 strikes’ plans. It would not be the first time Sarkozy has chosen to ignore the democratic vote.

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“The Copyright Act was amended in 2008 to include s92A which requires Internet Service Providers to have a policy to terminate the accounts of repeat copyright infringers in appropriate circumstances,” said TCF CEO Ralph Chivers. “This Draft Code is intended to be a template policy for ISPs, to assist them in meeting their obligations under the Act.”

The draft has been created by a group of New Zealand’s largest ISPs, the Internet Service Providers Association of New Zealand (ISPANZ) and Internet NZ, with input from the entertainment industries. It puts some much-needed ‘meat-on-the-bones’ of how allegations of infringement under Section 92 could be handled in practice, along with clarification of what would constitute someone being labeled as a “repeat infringer” for example.

This is how TCF propose that part of the system will work. First off, a copyright holder would identify an infringement and notify the ISP of the infringing customer immediately. The ISP would check to ensure that the complaint meets the standards required by the draft code and ensure that the evidence provided would be of such a quality that it would stand up in court. If it does not meet the standards, it will be returned to the copyright holder. If it is discovered that the copyright holder hasn’t already been ‘pre-approved’ to participate in the scheme, they are given the opportunity to join by paying a fee. The claim is then processed.

At this point the ISP checks to see if the customer has already been complained about. If they have received less than two complaints already, they receive what is known as an ‘Education Notice’. If they have received two of such notices, the ISP well then active the ‘Termination Process’. In either event, the copyright holder is notified of the action taken.

The definition of a ‘Repeat Infringer’ (and one who will be disconnected) is an Internet user who has received three Education Notices in any given 18 month period. Education Notices expire 18 months after being issued, effectively giving the user a clean sheet again.

There are also systems proposed for dealing with the actual termination of a customer’s ISP account, with provisions for taking extra caution over so-called ‘Vulnerable Customers’ (someone “who for reasons of health, disability or safety, or that of a member of their household, is reliant on their Internet Account”) and ‘Essential Service Providers’ (a “person who requires their Internet Account in order to deliver an essential service referred to in Part A of Schedule 1 of the Employment Relations Act 2000“)

Customers accused of infringement will also have the right to dispute the allegations made against them and the draft details the procedure clearly.

The draft Internet Service Provider (ISP) Copyright Code of Practice is available for viewing here. Submissions to the draft should be emailed to submissions@tcf.org.nz or posted to: Telecommunications Carriers’ Forum, PO Box 302469, North Harbour, Auckland.

The closing date for submissions is 5pm, Friday 6th March 2009.

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Today, in 2009, the situation is moving quickly. In common with situations in many countries around the world, the entertainment industries have all but given up chasing down individual file-sharers, declaring that their new focus will be on ISPs, who they will pressure to clamp down on pirates on their behalf.

In October 2008 a technical roundtable got underway in Italy which promoted collaboration between the music, movie and ISPs. In basic terms, in part it was a discussion about the mechanics of implementing a ‘3 strikes’ or ‘graduated response’ to deal with piracy on P2P networks.

France has one of the toughest approaches to the ‘problem’ in Europe, so it will be of concern to many Italian citizens that their country appears to be taking the lead from Sarkozy’s vision of copyright enforcement.

According to a THR report, yesterday Italy’s Ministry of Culture signed an agreement with French officials to cooperate on anti-piracy issues. Furthermore, in an indication of how Italy sees its legislation progressing in the future, Minister of Culture Sandro Bondi said that Italian laws will “follow the French model” in providing strict protection and controls for copyright works.

As we previously reported, plans for a “3 strikes” regime had already been touted in Italy by the movie industry during meetings in Venice, with the MPAA’s President Robert Pisano stating: “Maybe the first couple of times they get a warning e-mail, then perhaps the speed on their account is reduced, and if they keep doing it then maybe their account is closed.”

With this announcement that Italy will follow the ‘French model’ and Sandro Bondi previously going on record saying that the fight against piracy is a priority for the government, it looks like the entertainment industries are getting closer to their aims, not just in Italy but in countries around Europe, and others across the world.

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According to the poll of 2,011 people over 15 years old, the French use a diverse range of digital media to store or play pirated content. Of those questioned, 34% said their media players contained pirated files, with 20% admitting they go as far as using external hard drives to store illicit content. The USB storage key was used by 8% of respondents to shift illegal content, with 7% admitting to using mutimedia-capable cellphones.

Although the piracy ‘problem’ seems to be massive in France, it is certainly not limited to that one country. Just over the English Channel from France lies the UK, where an estimated 6 million people engage in online piracy – roughly 10% of the population. Across the pond, in the United States, a 2007 study found that 18 percent of the total US online population downloaded at least 1 movie from the Internet, illegally.

The French survey shows that the ‘problem’ is not limited to the younger generation, as is often assumed – it affects the entire population. The report further suggests that the actual numbers might be much greater than reported, but with news of draconian measures to deal with online piracy making headlines regularly, just how many people are prepared to be honest about their piracy habits?

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In common with many other countries, in September the Danish Ministry of Culture received proposals from the IFPI for the ‘Graduated Response Scheme’, aka ‘3 Strikes’. Now, according to Comon.dk, just a matter of weeks later, the possibility of Denmark adopting such measures are dead.

Comments from politicians which seem to indicate that the IFPI will not succeed in Denmark have been leaking out recently. This has forced the organization to accept defeat: “We have to deal with the political reality that there will be no 3 strikes [in Denmark],” said IFPI’s Jesper Bay.

Stating the obvious reasons why these proposals aren’t being welcomed across Europe, and have been wholly rejected by Danish ISPs, Jesper Bay notes: “3 Strikes is an extremely far-reaching solution and we have said that we must continue to discuss it. We still need to see proof of the allegations of legal security problems, as critics of the 3 strikes have put forward.”

However, the IFPI won’t give up trying to force through something in Denmark. “I think we can find a solution which the Consumer Council can live with,” said Bay, although if warning, limiting and disconnecting file-sharers is too much, there doesn’t seem many places left to go.

Not everyone from the IFPI is in favor of the ‘3 strikes’ proposals. Recently, Peter Schønning, a lawyer working for the IFPI, came out and said he wasn’t in favor of the model, which is notable since the organization usually speaks with one voice. Interestingly, up until March 2008 Schønning worked for the government’s Ministry of Culture as the head of Media, Author and Sport, with a responsibility for copyright law.

The IFPI’s Jesper Bay said he was unaware of Schønning’s comments and refused to comment.

Thanks to Peter_Pan

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