File sharing, intermediaries and the law

In my September 07 post, I highlighted 'liability for 3rd party content' as my top issue for digital media law. OK, no brilliant insight there, but the trick is seeing the underlying themes and connections and how these will play out in the law.

A couple of events this week made me think about this. Yesterday, bbc.co.uk carried a piece about anti file-sharing laws being considered. Lord Triesman, the parliamentary Under Secretary for Innovation, Universities and Skills, said intellectual property theft would not be tolerated. "If we can't get voluntary arrangements we will legislate," he said.

The other event was the publication of Principles of User Generated Content Services by a number of leading 'old' and 'new' media companies (and,yes, Microsoft) in support of using filtering technologies to counter the flow of illegal user generated content.

So what are these themes and connections?

I think there are four:

1. When it comes to liability for 3rd party content, pleading 'mere conduit' and other legal immunities as a reason for inaction will become an increasingly untenable position. They're in the firing line, whether they like it or not.
2. As the world of 'intermediaries' becomes more diverse - from ISP's and web hosts to social networks, virtual worlds and other online platforms - rules about intermediary liability will cease to be 'one size fits all' and will become increasingly granular, reflecting their different roles.
3. But the combined weight of Court cases and self-regulatory 'softlaw' such as industry codes and statements of principle makes it more likely that all intermediaries will need to use filtering technologies and the like to benefit from legal immunity.
4. Even where service providers are immune, they may still find themselves on the end of court injunctions to stop infringement by users of their services.

From passive to active immunity for service providers

The Belgian ruling in SABAM v Scarlet is a sign of the times for ISP intermediaries. The Belgian court decided that Scarlet (now known as Tiscali) should put into place technological measures to identify infringing content distributed  peer to peer via its service. This effectively placed the burden on Tiscali to vet third party content - a burden from which it had assumed (along with many other ISPs) it was exempted by virtue of the E-Commerce Directive or the Copyright Directive. The Belgian court decided that it was not inconsistent with either Directive to oblige ISPs to use such technological measures. Now not all Courts will follow this decision, but it is a sign of the times.

This trend is increasingly apparent in the world of self regulation, admittedly being pushed along by media owners. The  Principles of User Generated Content Services covers "services providing user-uploaded and user-generated audio and video content "(“UGC Services”) such as MySpace and YouTube. etc. There are 15 Principles in total, so we cannot explore them in great detail in this post. But they range from emphasising the importance of clearly notifying users that they are prohibited from uploading infringing content, to encouraging the implementation of identification tools and filtering mechanisms.

In the same vein, Google's announced the YouTube Video Identification tool last week, which "will help copyright holders identify their works on YouTube" - although Google is careful to emphasize that this tool is to assist copyright owners in notifying YouTube of infringing content, rather than to act automatically to monitor and remove infringing content. Of course, Google have their own agenda as they move towards indexing the world's content and identifying individual user preferences - a topic for another post.

And intermediaries still in the firing line, even if immune from claims against them

The current exemptions in Europe for intermediaries for 'mere conduit', 'caching' and 'hosting' are in the E-Commerce Directive and there is a 'copyright-specific' exemption for ISP's in the Copyright Directive. As we've just noticed, the current trend - at least from the content owners' perspective - is to interpret these rules as requiring a more active role from the intermediary. It's because of doubts about the scope of current rules that ISP immunity for carrying illegal peer to peer traffic is being looked at.

But even if the immunity applies, those current rules still allow rights owners to seek injunctions against intermediaries as a way of getting at the infringer, even though the ISP is immune from damages claims. It's worth quoting the E-Commerce Directive on the point: "The limitation of liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts...requiring the termination or prevention of any infringement, including removal of illegal information or the disabling of access to it." (Recital (45).

Another issue is how the issue of liability fits with privacy rules. The  E-Commerce Directive nobly states that its implementation should be made in full compliance with the Data Protection Directive, "...in particular as regards the liability of intermediaries." My September 07 post, 'lprivacy' was issue no.2 for digital media law. But that's for another blog!

Laurie Kaye