The following is an informal preliminary transcript of the "ISP Subscribers' Privacy Rights" panel from the Fordham IP Law Conference which took place on March 28, 2008.
FORDHAM UNIVERSITY SCHOOL OF LAW
SIXTEENTH ANNUAL CONFERENCE
INTERNATIONAL INTELLECTUAL PROPERTY
LAW & POLICY
Friday, March 28, 2008
SESSION X — COPYRIGHT LAW
Part C: The Role, Effectiveness and Issues in Infringement Actions against Individual P2P
Downloaders; Recent Legislative Initiatives
Aimed at Downloaders
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3. What role should privacy play in learning the identities of downloaders? A look at recent case law in the United States and the European Union
(e.g., Promusicae in ECJ)
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Moderator
Prof. Hugh C. Hansen
Fordham University School of Law, New York
Speaker
Dr. Volker Kitz
Max Planck Institute for Intellectual Property,
Munich
Panelists
Ray Beckerman
Vandenberg & Feliu LLP
Fabienne Brison
Howrey LLP, Free University of Brussels
Eddan Katz
International Affairs Director, Electronic
Frontier Foundation, San Francisco, CA
Barbara Norcross-Amilhat
Principal Administrator, Copyright and Knowledge-Based
Economy, DG Internal Market and Services,
European Commission, Brussels
Ted Shapiro
Deputy Managing Director, VP & General Counsel Europe,
Music Publishers Association, European Office, Brussels
PROF. HANSEN: We are going start the last session. This is privacy. We have Dr. Volker Kitz from Max Planck and from practice in Germany. We have an outstanding panel. Let’s get going.
[SUBSTITUTE PAPER FOR KITZ ORAL REMARKS]
PROF. HANSEN: Thank you. You get a gold star for ending early. A nice presentation of the issue.
We have a bunch of people on our panel: Ray is back; Fabienne Brison, Howrey and the Free University of Brussels; Eddan Katz, the International Affairs Director of the Electronic Frontier Foundation in San Francisco; Barbara Norcross-Amilhat, the Principal Administrator, Copyright and Knowledge-Based Economy, Copyright Unit of the Commission; and finally, Ted Shapiro.
Richard Pfohl had to leave, but he did say that Canada has a similar statutory damages scheme to the United States and I should pass that on. And he hates Australia.
Who would like to go first?
MS. NORCROSS-AMILHAT: In fact, I was very relieved to hear what the gentleman to my left was saying. I was always a bit worried. We’ve been attacked so much, because I was very much involved in the Enforcement Directive, which has been greatly criticized, and the right of information was terrible because we were trying to allow people to get the identities of infringers on the Internet.
When this Promusicae case that he has been referring to came up, we all thought: “Oh no, here we are, this is it.” We had, I have to admit, internally within the Commission discussions with the data protection people. I won’t go into the details of the law. We don’t have time.
In fact, the end result of this Promusicae case is actually quite a good thing. The judge was very reasonable. I think right holders can benefit from it. In fact, the judges said they don’t have to provide data, allow IP addresses to go out, identity, etc., but they say you have to think about a fair a balance and you have to, when you are interpreting your law, also think about fundamental rights and proportionality. So basically they are saying yes, there is actually a balance between IP rights and data privacy.
Now, what I would say is it has also brought the whole problem out into the air. The good thing is that in the Commission we now have a telecom package going through. This telecom package is updating telecom directives. There are about four of them. In those two directives, in a similar way that was in the Enforcement Directive, there is now a reference to the Enforcement Directive in the telecom package, plus the Copyright in the Information Society Directive, referring specifically to the articles that allow injunctions for right holders against intermediaries.
I think people will be going through the European Parliament to perhaps put more things in, in a similar vein that was in the Enforcement Directive, which said we have to look out for data privacy. There will perhaps be things coming in there saying we have to be careful of IP rights. So I think that is a good opportunity.
I think there would have been perhaps not so much movement in the telecom package if people had not had the opportunity to discuss the Promusicae case.
Now, in fact it is not finished, because there is a new preliminary ruling gone to the Court of Justice now very recently, in fact in December. I will give you the number, C-55707. This is from an Austrian court, where at first instance and on appeal the Internet identity was given out. Here they are asking the ECJ now: Is the court not allowed in civil cases to give out the name? So in fact, it is a question coming from the other way around from the Spanish case. It will be interesting to see what the Court does. It will give it another opportunity to follow up on what it has already said.
But I think now it’s all out in the open. We have a new unit in the Commission specifically on enforcement because they have realized that the big issue is piracy. So we have this new unit. They are going to have hearings and things. They want to put ISPs together with right holders, the usual sort of thing, to get together and talk. I think that is probably the best way, is to get them talking and trying to agree on something.
But certainly it is out in the open. From a copyright point of view, I think it is good, because it was like an abscess that had to be burst. I think it is probably going to go in the right direction finally, after a bit of difficulty.
PROF. HANSEN: Thanks.
Fabienne, you wanted to comment?
MS. BRISON: Yes, thank you.
One thing. There is nothing anymore like absolute rights and we need to seek a balance, that’s for sure. So I am particularly interested in that criterion of proportionality.
Now, as Barbara mentioned, the Promusicae ECJ case law might be a good thing. But I think the abscess is still there. I think it is, frankly, a rather disappointing judgment. Why? Because they do not apply the test of proportionality in this case.
Now, we might like it or dislike it, but I prefer to read something like the conclusions of Advocate-General Kokott, who at least tries to do something.
I am going to skip all the national case law.
In the Promusicae decision, the ECJ actually rephrased the conflict between copyright and data protection as a conflict between the right of protection to property and the right to privacy.
I am personally much more charmed by the case law of the European Convention of Human Rights that we also have in Europe. I would like that we might just have a look to the case law, which is very interesting, very dynamic, and much more courageous than the ECJ case law so far. The European Court of Human Rights is experienced in trying to find balances. You look to Article 8 on the right of privacy, you look to Article 10 on the freedom of expression. They just try to find the right balance. Sometimes they do, sometimes they don’t, but I think it is more courageous and I prefer that.
PROF. HANSEN: Ted?
MR. SHAPIRO: Privacy and the rights and freedoms of others, this is what it is all about. It is quite clear from the Court’s decision.
There is no question that privacy is essentially in a democratic society, but there are a lot of other rights and freedoms out there that need to be balanced.
And there is a broader context to this. What about civil enforcement overall on the Internet? What about online fraud, defamation, pfishing, identity theft? What if the criminal authorities aren’t interested in going after someone? What if someone defames you in a chat room and you lose your livelihood, you lose millions, and you want to sue that person; you want to have civil redress, but you can’t find out who it is? There is no way to redress civil wrongs if taken to the extreme in this case, and that’s part of the problem.
In the copyright sector, this lack of balance can permit infringers to get away — and I’m not just talking about end-users. From the film perspective, we haven’t been going against end-users. But we are worried about the impact of such decisions on cases against facilitators and another form of the graduated response different than the one that was just presented.
I do agree with Barbara that the decision is an invitation to the legislators to look at this issue once again.
I would note also that filtering does not necessarily equal monitoring, and perhaps the Belgian Court of Appeal in Brussels will tell us more about that in 2009.
PROF. HANSEN: Are you going to speak on the United States or international?
DR. KATZ: On the issue of right and wrong, perhaps. I think that actually some of the decision really illuminates that we do need some sort of proportionality. If we are going to apply a harsh judgment, it should be within the criminal context, within the kind of due process allowed there. I think going beyond that actually begins to tilt the imbalance towards those who are trying to intimidate users in a disproportionate way.
PROF. HANSEN: Ray?
MR. BECKERMAN: The two foreign nations that I am familiar with are Canada and The Netherlands. They do not have the cases against individual alleged file sharers that we have in the United States because, at the first stage, when they tried to get subscriber information, the courts actually evaluated the quality of the evidence that the recording industry was presenting and came to the conclusion that the evidence was defective, that proper safeguards had not been taken that would be normal for an anti-piracy investigation, and that the information, at best, would lead to the person who paid for an Internet access account, but that none of the possible error rates and other things were taken into account.
The United States has not been so discriminating. The thing is, in the United States it just hasn’t been litigated.
The problem is that there are important privacy statutes out there involving the three classes of ISPs that I can think of. You have the cable companies, which are under the Telecommunications Act, and arguably it’s illegal for them to be providing this information. You have similar laws involving the telephone companies that are ISPs. You also have laws regarding colleges and universities that are ISPs disclosing the identity of their students.
The thing is these issues are not really getting litigated. The recording industry embarked on a procedure of doing these cases ex parte. No one receives notice. The ISP receives no notice and the people whose privacy rights are at stake receive no notice. The only time they ever learn of it is after the case was commenced, after a motion was made, after the motion was granted and the judge signed an order. Even then, they usually receive only a few days’ notice that the subpoena is about to be complied with and they receive none of the underlying documents, so that they couldn’t even get legal counsel as to whether they have a right to vacate the ex parte order or to quash the subpoena.
Now, at least in one jurisdiction the college issue is being litigated right now, which is in Oregon. In Oregon they went in, they made their ex parte application, and the judge signed the order, but the Oregon Attorney General, on behalf of the University of Oregon, has made a motion to quash the subpoena and to vacate the ex parte order.
Among other things, they point out that the record industry’s investigation tactics are illegal in themselves on several grounds: (1) that the investigators they use do not have a license to investigate; (2) it appears that they actually invaded the privacy of people’s computers by actually accessing their hard drives remotely; and (3) they also point out that the university would be violating laws protecting the privacy of college students were it to comply with the order.
So at least we have one jurisdiction. Of course they have an uphill fight because the judge already signed the order. Every litigator knows it is much harder to get a judge to undo something they have done. It requires them to admit they weren’t discriminating and they weren’t careful and they hadn’t really thought about all the possibilities. So we’ll see how that turns out.
But generally it is not being litigated in the United States. I am hopeful that the courts will be more vigilant.
In the Eastern District of Virginia, in Interscope v. Does 1–7, the judge took the ex parte application and said: “Whoa. I’m reading the statutes. I just don’t see it.” The judge just denied the application and said, “They have no right to this kind of discovery; there is no law that authorizes them to get this information.” This involved students at the College of William and Mary. The judge said, “There is no law that authorizes them to get this information,” and denied their motion.
In New Mexico, the University of New Mexico case, the judge said, “Well, why is this being done ex parte? At least give notice to the university and at least make sure that the students get forty days to deal with this motion after it is done.”
In Rhode Island, the judge said, “I don’t see why this is being done ex parte. Let’s have a conference and make sure that the College of Rhode Island is brought into it.”
So I am hopeful that the issues will get litigated in a proper forum so that we’ll find out what the law really is in the United States. But I can say generally that there is a general attitude in the U.S. courts, and it has a constitutional dimension and it’s also common law, that if you are seeking identification of an anonymous person, you have to prove that you have a cause of action against that person and you have to do it by competent evidence that would be admissible at trial. That’s the general rule, and it will probably wind up being the rule here as well.
PROF. HANSEN: Ted, do you want to say something?
MR. SHAPIRO: Even if that comes to pass, that will not mean that the RIAA can’t necessarily do what they are doing. They will merely have to alter their tactics, if you will.
What we are talking about in Europe is not even being able to do anything to redress certain civil wrongs. Whether the way that the RIAA actually may or may not be violating the very limited data privacy rules in the States is another matter. They won’t be stopped from bringing their actions, they will just have to do it in a different way, because there are no limitations along the lines that were outlined in the ECJ that have to be balanced against different fundamental rights.
PROF. HANSEN: Ted, what do you predict about what’s going to eventually happen in Europe?
MR. SHAPIRO: There is going to be a huge debate, as Barbara suggested, in the European Parliament about whether or not the E-Privacy Directive, which is part of the telecoms package, needs to be amended to do something about clarifying the situation following the ECJ decision.
The decision is good and is relatively welcomed by rights holders. The problem is — and it is a bit strange to hear it from the Commission, but I understand where you are coming from — that the harmonizing directive now leads to twenty-seven different results. So they may have to amend it to repair that.
PROF. HANSEN: Let’s look to the audience. Are there any thoughts or comments, other than the usual troublemakers? I guess we just have the usual troublemakers. I’m reluctant to call on Howard, but go ahead.
QUESTION [Howard Knopf, Macera & Jarzyna LLP, Ottawa]: Further to what Ted said and Ray said, Ray I think pretty well described quite accurately what is happening in Canada, and Ted’s follow-up.
We have been there and we have done this four years ago in Canada. I fought this case. We have a strong privacy statute in Canada. The Canadian counterpart of the RIAA, CRIA, lost that case quite badly. They lost it on appeal, although they were given a very specific roadmap by the court of appeal. The court of appeal said, “If you’ve got a bona fide case and you can bring good admissible evidence, then we’ll give you the names.” But they never did come back, because the evidence, frankly, was terrible. They were either unwilling or unable, or both, to come forward with the kind of evidence that any decent court, any intelligent judge, would accept. They never did do it.
The other dimension to this is — it’s not just bad enough that maybe somebody’s name will be handed over and they’ll end up losing their house, like Jammie Thomas — is that once that name is handed over — and I’m sure Ray can tell us more — the hard drive is going to be handed over and everything that is on the hard drive, from somebody’s income taxes to pictures of their girlfriend and their dog and their cat and whatever, is going to be in the hands of some unlicensed RIAA investigator and a bunch of lawyers gawking around at it. It’s a pretty gruesome thing. Judges are right to be protective.
PROF. HANSEN: Thanks, Howard.
Brian?
QUESTION [Prof. Brian Fitzgerald]: In Australia, the recording industry hasn’t pursued smaller individuals. We’ve had three major cases in which the evidence has been collected. I think the court has felt that the evidence-gathering in those cases has been pretty good. There were the KaZaA case, the Cooper case, and another one against universities that didn’t go further. I think that the evidence-gathering in those bigger cases was done very professionally and largely to the court’s liking, although privacy interests in one of the cases was a significant issue.
I still am wondering whether pursuing the smaller individuals, hearing all of this discussion, is the viable alternative or whether the bigger parties or the new business models really are the way to get the better solutions out of this. It seems to me that on this panel and the panel before there is a lot of angst over chasing these very small individual players, and people seem to be very upset that they are penalized to such a large extent.
PROF. HANSEN: Any final comments?
Thank you, panel, very much.
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