United States: Combating Piracy And Protecting Privacy: A European Perspective

Last Updated: October 9 2008
Article by Jacqueline Klosek and Tamar Gubins

Around the world, the entertainment industry remains vexed by the challenge of combating illegal downloading and file-sharing. Members of the recording industry and various special interest groups have approached this problem in a number of ways, including by lobbying for tougher infringement penalties, launching public service campaigns, and using local police and court systems to find and prosecute alleged infringers. The industry has also attempted to secure aid and cooperation of Internet service providers (ISPs), both to help identify and apprehend infringers and to implement safeguards that would make potentially infringing behavior more difficult. Pro-privacy groups, for their part, rebuff attempts to monitor or make public the online activity of individual users. And the quest to strike a proper balance between combating piracy and protecting privacy remains challenging.

The Role Of ISPs In Detecting Infringement

In order to pursue remedies against illegal downloaders, the individuals doing the allegedly infringing act must first be identified. Often Internet users, particularly those engaging in activities that may be considered illegal, are only identifiable by a fake username or by their Internet Protocol ("IP") address, which is essentially a string of numbers that distinguishes the virtual location of a particular computer. All Internet users have an IP address when they are online, since no data can be received without one. Most ISPs maintain a pool of dynamic IP addresses which are allocated to users as needed, rather than provide to each user a never-changing static IP address. Therefore, although it is easy to look up the registered owner of an IP address, the actual identity of the user is often obscured because the IP address will simply be registered to the ISP. This makes it extremely difficult for a copyright holder to figure out the identity of a suspected infringer without the help of the ISP.

Strategies For Uncovering Infringers Can Raise Privacy Concerns

Industry groups approach this problem in different ways in different countries. In the United States the industry has relied in large part on a strategy of mass litigation, filing thousands of civil suits against suspected infringers.

In Europe, recording industry representatives have also been using litigation to identify potential infringers through ISP subscriber information. There, too, they have encountered resistance from ISPs and some courts have not been hospitable to their strategies. In the 2005 case Foundation v. UPC Nederland, a Dutch court ruled against the Dutch counterpart of the RIAA, BREIN, and ordered ISPs not to divulge subscriber information because of the way the industry group had collected the IP addresses. BREIN had employed the U.S. firm MediaSentry, which is also used by the RIAA in the United States, to identify possible infringers. The Dutch court ruled that, due to stringent privacy laws in force in Europe, using an overseas party to collect the data made the collection unlawful, and the fruits of the investigation could not be used to obtain subscriber information from ISPs.

In 2006, using different collection tactics, BREIN was able to obtain subscriber information from an ISP. However the requirements for data collection in the Netherlands are strict: ISPs can only be ordered to provide personal data if it is plausible that an unlawful act occurred and if it is shown beyond a reasonable doubt that the subscriber information will identify the person who committed the infringing act.

As the UPC Nederland case illustrates, civil suits have been less successful in Europe than in the United States. Consequently, the recording industry is more focused on trying to force ISP cooperation through governmental pressure and new legislation. Recording industry representatives have engaged in significant lobbying to require ISPs to provide information about their users and/or to install filtering technology.

Germany exemplifies this attempt to overcome judicial protection of privacy rights through legislative means. In March 2008 the German Federal Constitutional Court ruled that an ISP could only give out IP address subscription information in a serious criminal investigation, and determined that copyright violation was not a serious enough offense to qualify. Just one month later the German Parliament approved a new law requiring ISPs to divulge the identity of suspected infringers who infringe on a commercial scale. Although this measure removes privacy safeguards for some suspected infringers, it is not the win the German recording industry had hoped for. In return for curtailing IP address privacy protection, the fine for each copyright violation was significantly reduced. Under the new law the maximum fine is 100 euros per violation, about one-tenth of the previous penalty.

The new German law is an attempt to facilitate a fair compromise. Not all other European countries are approaching the issue as fairly. A number of nations are considering a three strikes system that would result in cutting off Internet access for users who illegally download or file-share protected material. France and Britain are both seriously considering this option.

A recent draft of the French three strikes proposal, backed by President Nicolas Sarkozy, calls for a "graduated response." Through ISP monitoring, users will receive e-mail and registered letter notifications that material was illegally downloaded by the IP address allocated to their accounts. Finally they could be subject to a one-year broadband service suspension. All ISPs would be required to comply with the suspension plan, so a chastised user could not simply switch providers to escape penalty. The plan creates a "High Authority" to oversee the notification process and possible broadband termination. This Authority would be able to obtain one year's worth of Internet-use records based just on accusations of suspected infringement. The ultimate penalty, discontinuation of service and being placed on a banned user list, would be administered without a trial.

The British have not yet drafted a three strikes policy and are instead leaning towards voluntary deals between ISPs and the recording industry. British ISPs have reluctantly agreed to cooperate, perhaps because of the British government's stated willingness to step in if a voluntary system cannot be quickly agreed upon. In the first British deal, recently reached, between an ISP and the recording industry, Virgin Media will begin sending warning letters to users. The agreement with the British Phonographic Industry (BPI) requires only notification to alleged infringers; Virgin Media does not yet have any plans to disconnect users.

In response to these three strikes proposals, the European Parliament recently voted to condemn policies that might result in termination of Internet access. In a close vote in April 2008, the Parliament passed a resolution admonishing laws that would require ISPs to disconnect their users and would keep individuals from acquiring broadband access. The resolution is non-binding, however, and despite the censure, adoption of three-strikes policy seems increasingly likely.

Critics of both three strikes laws and RIAA litigation tactics assert that such campaigns can easily target the wrong person. The person named on the account may not be the infringer. A friend or family member could be using the computer for the problematic activity, not the subscriber. With the prevalence of wireless access, it is also possible for a stranger to piggyback off the connection or to mimic another's IP address.

Not all European countries have been so quick to make ISP subscriber records accessible. In addition to the Dutch requirements described earlier, Spain also protects Internet users. In 2004, the Spanish Data Protection Agency (AEPD) determined that IP addresses are considered "personal data" and are protected under the country's Data Protection Act. In the civil context the Spanish Supreme Court recently considered an argument in Productores de Música de España v. Telefónica de España SAU that personal data associated with an IP address could only be disclosed in the course of a criminal investigation or for public safety reasons. The court sought input from the European Court of Justice, which determined that an EU member state is not required to obligate ISPs to provide personal data information in civil copyright cases (although it may do so). In a recent criminal case the Spanish Supreme Court allowed the collection of IP addresses and a subsequent court order to obtain subscriber information. In May the AEPD announced its intention to draft regulations that would govern obtaining IP subscriber information. In the P2P sphere the agency stated that access to subscriber information must come "in a way that is compatible with the fundamental right to data protection."

In Italy, too, recent events provide privacy protection for Internet users. One is not criminally liable in Italy for file sharing copyrighted material, as long as it is not done for commercial gain. One can be civilly liable, however, and Italian courts can order ISPs to provide personal data associated with IP addresses. So when a court issued such an order in 2007 to Peppermint Jam Records, a German record company that had employed a third party to collect IP addresses of suspected infringers, it sparked a controversy not about the legality of the order, but about what sort of data collection might violate data protection laws. In February 2008, the Italian Data Protection Authority settled the issue by decreeing that one could not systematically monitor P2P activities for the purpose of detecting copyright infringers and suing them.

Conclusion

The entertainment industry is dealing with challenging times. Technology has dramatically altered the ways in which consumers access music, movies and other entertainment. Just as technology has and will likely continue to alter the distribution means for entertainment, it has and will likely continue to provide new means for users to access entertainment media by unauthorized methods. As the entertainment industry and consumers pursue their respective interests, legislators and policymakers continue to struggle to develop solutions that strike a proper balance between protecting commercial property interests and protecting individual privacy rights and freedoms. With the huge stakes at issue, it seems unlikely that these issues will be resolved definitively any time soon.

Goodwin Procter LLP is one of the nation's leading law firms, with a team of 700 attorneys and offices in Boston, Los Angeles, New York, San Diego, San Francisco and Washington, D.C. The firm combines in-depth legal knowledge with practical business experience to deliver innovative solutions to complex legal problems. We provide litigation, corporate law and real estate services to clients ranging from start-up companies to Fortune 500 multinationals, with a focus on matters involving private equity, technology companies, real estate capital markets, financial services, intellectual property and products liability.

This article, which may be considered advertising under the ethical rules of certain jurisdictions, is provided with the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin Procter LLP or its attorneys. © 2008 Goodwin Procter LLP. All rights reserved.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions