By Bruce Gain for Intellectual Property Watch
The International Federation of the Phonographic Industry (IFPI) and other associations representing record labels are facing significant challenges in their efforts to enforce European Union copyright laws against unauthorised downloads of music files over peer-to-peer networks.

It remains to be seen whether the EU Copyright Directive and other EU mandates, as well as thousands of lawsuits filed against downloaders, will be enough to contain file sharing in the EU.

Different degrees of enforcement and the reluctance of some criminal courts to convict so-called “music pirates” in the different EU states can make it difficult for recording industry groups to successfully seek court remedies against individuals who illegally download copyrighted files.

“It’s hard to tell whether the [campaign] against file-sharers is successful or not,” said Urs Gasser, a professor of law at the University of St. Gallen in Switzerland and a fellow at the Berkman Center for Internet & Society at Harvard Law School. “If traffic over peer-to-peer file sharing is the benchmark, then arguably not.”

The Legal Barrage

IFPI’s legal campaign in the European Union is significant. Over 10,000 lawsuits filed against users accused of illegal file sharing have resulted in 2,700 settlements in Germany and 530 in Denmark, typically worth between 2,000 and 3,000 euros, according to IFPI. One settlement in Denmark totalled 13,000 euros while another in Germany was 15,000 euros.

In parallel, EU policy and lawmakers are lending more support for intellectual property enforcement and measures taken against counterfeiting in general in the different member states, Pedro Velasco Martins of the EU trade directorate told a recent intergovernmental gathering (IPW, Enforcement, 30 July 2007).

An EU enforcement directive update in the making would further raise criminal sanctions for infringements and tighten rules on copyrights, trademarks, databases, design rights, and geographical indications.

For criminal cases where an alleged perpetrator is accused of illegally distributing media files, privacy laws in different EU states also do not necessarily protect users. While statutes can prevent Internet service providers from disclosing the names and addresses of alleged music file distributors upon request by copyright owners, prosecutors can sometimes work around these laws in criminal cases, Gasser said.

“The standard approach taken by the industry is to file criminal cases against individual file sharers in order to reveal their identity,” Gasser said. “Once the names are known, the users also face a civil lawsuit, which usually ends with a settlement.”

IFPI contends that its legal actions are helping it to achieve its aims, which representatives say involve copyright enforcement and an emphasis on educating users about legal alternatives, such as channels through which consumers can purchase songs online. “Actions against illegal file-sharing continue, and they have been successful as a deterrent and in helping containing the problem,” said Adrian Strain, an IFPI spokesman.

According to IFPI statistics, the percentage of Internet users sharing files in the European Union decreased from 18 percent to 14 percent last year. However, IFPI wrote in a report released earlier this year: “Digital piracy is still a massive problem for the music industry and one of the major reasons that the surging legitimate digital market is not expected to make up the shortfall in the decline of the physical market in 2006.”

EU Courts Mixed

Indeed, IFPI faces an uphill battle in the European Union in many respects. In criminal courts, no one has served prison sentences in the EU for illegally downloading or uploading music files despite penal codes mandating imprisonment for some offences. Also, judges are sometimes reluctant to enforce criminal sanctions against those who are caught. A key element in the decisions is whether commercial gain was sought by the downloader.

In July, for example, a court in Offenburg, Germany, blocked prosecutors from subpoenaing names corresponding to IP [Internet Protocol] addresses used for P2P file distribution. Distributing copyright-protected music tracks over a P2P network was “a petty offence,” the court said, while noting that the defendant was not seeking commercial gain in downloading files.

Courts elsewhere in EU countries have refused to enforce penal code statutes against alleged file downloaders. Earlier this year, an Italian criminal court overturned a criminal conviction and dismissed a case against two defendants who created a peer-to-peer network for media file distribution, since they had not profited financially from the venture. Last year, a Spanish court made a similar ruling in favour of a defendant, deeming him innocent since he downloaded the files for his personal use and not for commercial gain.

Furthermore, privacy laws in individual EU states pose barriers against enforcement of civil lawsuits. A recent advisory opinion by the Advocate General Juliane Kokott in the Spanish case Promusicae v. Telefonica de Espana suggests that EU member states were not violating EU law if they would ban the disclosure of personal data by an ISP in civil lawsuits, Gasser noted.

“Generally speaking, it is indeed questionable whether stronger copyright protection will be successful in significantly reducing illegal file-sharing over P2P networks, because strong social norms of sharing might overwrite legal norms,” Gasser said. “Much depends, ultimately, on the relation between ‘law on the books’ on the one hand and ‘law in action’ on the other.”

The ISP Backdoor Approach

Meanwhile, IFPI plans to take a more direct approach in its quest to prevent the illegal distribution of music files in EU member states by relying on the ISPs for enforcement. Specifically, the association seeks to leverage a recent ruling in which the Brussels Court of First Instance recently held that Belgian Internet service provider (ISP) Scarlet Extended Ltd. was responsible for filtering illegal music downloads.

IFPI spokesman Strain said plans to seek copyright protection on an ISP level was one of the association’s “top priorities” in order to “make a bigger difference.”

“It is the ISPs who are the gatekeepers of the Internet- they have the technical ability to curb infringement on their networks and for most of them it is just a question of enforcing their terms and conditions,” Strain said.

Still, it remains to be seen whether other judges will follow the Brussels court’s interpretation of the EU E-Commerce Directive and agree that ISPs are not responsible for filtering illegal file distribution as a “technical intermediary.”

“Imposing filtering obligations on an ISP in the Scarlet case is both illustrative and, in my view, alarming in this regard,” Gasser said. “It remains to be seen whether such extensive interpretations by national courts and legislators, such as in France, will be in compliance with the relevant safe harbour provisions of the EU E-Commerce Directive.”

Bruce Gain may be reached at brucegain@gmail.com.