Wednesday, April 09, 2008

Heise Online provides English-language summary of recent events in Europe on record company attempts to extract confidential customer info from ISP's

The good folks at the excellent German-language web site Heise Online, knowing that some of us (except long time reader and commentator extraordinaire "Alter_Fritz") have a little trouble reading stuff in German, and that in Europe, unlike the United States, a lot of attention is being paid by the courts to protecting the privacy of ISP subscribers, have extended to us the incredible kindness of providing us with a brief English language summary and overview of some of the stories they have been covering. Here it is:

British provider TalkTalk publicly refused talks with lobby group
British Phonographic Industry (BPI) about voluntarily handing over
customer data in cases of alleged infringement. In Britain, ISPs are
under political pressure to settle the dispute with film- and music
industries or else new legislation will force their hands. Whether that
legislation comes to happen remains to be seen, though. But it's a
threat that access and hosting providers are taking seriously, and it's
looming in other countries as well. Filtering, cutting of alleged
infringers and other measures are also being discussed in Ireland,
France, Australia.

This year, lobbying for more legislation in their favour is music
industry's top priority in Germany and elsewhere. They demand leverage
to access ISP customer data in cases of alleged infringements. Not
totally sucessful so far, but not unsuccessful either: Although German
government has agreed on a new law that will give rights holders some
leverage against third parties (eg ISPs), the provision leaves the
decision of whether or not data will be handed over to a judge.
Furthermore, the planned law will apply only in cases of infringement
"of commercial scope". That distinction is not very precise and leaves
ample room for argument. Critics fear that sharing a complete new album
might already be deemed "commercial". The law has yet to pass both
chambers, Bundestag and Bundesrat. Today it passed Bundestag's
commission of legislation, so parliament's consent can be expected.

A little sign of hope: The planned law takes vast databases generated by
new legislation out of music industry's reach, at least in theory. For
national security and the fight against terrorism, German ISPs have been
forced by law to collect and store all customer and connection data for
six months, generating a honeypot the film and music industry would love
to dip into. Practically, as of now there is no effective way to
distinguish data that can be shared and data that's out of reach, so
operational and technical issues may taint that provision.

In other news, more prosecutors have opposed the discovery tactics by
German music industry lawyers, saying they're abusing criminal
prosecution for their civil cases. DA's from Wuppertal recently stated
they'd stop pursuing file sharing cases brought onto them (in the
thousands) by music industry lawyers. Investigating those complaints,
they argue, would be disproportional, as filesharers didn't have any
financial interests. Music industry, the prosecutors say, didn't want to
see these cases prosecuted in the first place, they were just after the
customer's identity to advance their civil proceedings.

Also, a court in Saarbr├╝cken has forbidden that personal data relating
to IP addresses be shared with music industry lawyers as defendants
rights to privacy protection might have to be held higher than music
industry's claim for remedies.

Finally, mirroring the scrutiny MediaSentry's methods are getting in the
US, a Hamburg court recently ruled that printouts of shared folder
contents aren't sufficient evidence to support a file sharing claim.
Those printouts are generally provided by ProMedia, the German twin of
MediaSentry. This is just a procedural glitch, though, as ProMedia is
likely to adjust procedures and/or be required to support evidence by
witness testimony from the investigators that gathered the evidence.

By Volker Briegleb





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