Notice, takedown and raising the bar for ISP immunity

I've talked before on the blog about the pressures for the bar to be raised for continued legal immunity for ISPs, hosts and other intermediaries from carrying or hosting illegal content.

The standard response is that ISPs and intermediaries are in the same position as the Post Office. "ISPs deal with many more packets of data each day than postal services and data protection legislation actually prevents ISPs from looking at the contents of the packets sent" (ISPA - Internet Service Providers Association) quoted in today's FT.

But will that position continue to be tenable? In my last post about the European Court of Justice decision in the case of Promusicae v Telefonica, I talked about the balance between IP rights on the one hand and privacy on the other. That balance means that, in a circumscribed way, the laws of Member States could require ISPs to disclose data about their users who are using networks for copyright piracy.

There is growing evidence that at least some Member States believe that ISPs and other intermediaries have to move from passive to active mode in order to continue to be immune from legal liability:

• In the UK, Recommendation 39 in the Gowers Review, published in November 2006, is to “Observe the industry agreement on protocols for sharing data between ISPs and rights holders to remove and disbar users engaged in 'piracy', If this has not proved operationally successful by the end of 2007, Government should consider whether to legislate”.

• In a decision of a French Court in Zadig Productions v Google, Inc late last year, the Court looked at what Google needed to do in order to 'act expeditiously' to remove infringing content from Google Video, and so be able to rely on the exemption from liability for hosts. The problem here was that although Google removed the infringing content, it was re-posted. The Court rejected Google's argument that each post required another takedown notice. It took the view that, having received the first notice of the infringement, Google was responsible for implementing technical measures to block posting of the same content.

• The Memorandum of Understanding, otherwise know as the 'Accord Olivennes' is an agreement sponsored by the French Government between rights holders, service providers and the public authority contains this undertaking on their part: This authority will also have, under the control of the judge, the ability to request technical providers (hosting services, access providers etc.) to take any measures necessary to prevent or put an end to injury caused by the content of an online communication service.

• The European Commission's Content Online Communication consultation, which is open until February 28th, clearly seeks a direct relationship between the development of legitimate online service offerings and a more effective enforcement regime against online piracy of copyright

The issues are complex and the answers aren't simple. But there's a clear message from the regulators - at least in Europe - that if all the stakeholders in the market for online content can't reach agreement on this issues, the law will step in.

So watch this space.

Laurie Kaye

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