By Dugie Standeford for Intellectual Property Watch
French record labels and Internet service providers (ISPs) have agreed on a ground-breaking plan to fight online music piracy. Among other things, the 23 November memorandum of understanding requires Internet access providers to experiment with filters to block infringing files.

Making ISPs shoulder more responsibility for copyright violations on their networks while leaving intact their immunity from liability for content for which they are “mere conduits” represents a sea-change in the interpretation of the European Union E-Commerce Directive, said attorney Winston Maxwell of Hogan & Hartson.

The pact among ISPs, the music industry, audiovisual producers and public authorities was hammered out by Denis Olivennes, CEO of electronics company FNAC, who was appointed by French President Nicolas Sarkozy. It is a simple model any country could follow, said International Federation for the Phonographic Industry (IFPI) Chairman John Kennedy. Sweden and the United Kingdom are already mulling similar moves, he told Intellectual Property Watch.

Philosophical Change for ISPs

Among the 13 recommendations issued by the Olivennes committee there are several applicable to ISPs, Maxwell said. They must make filtering technologies for illegal content more widely available through agreements on hosting and user-generated content platforms with the support of a fingerprinting technology that would enable the creation of large fingerprint catalogues. In addition, service providers agreed to experiment with filtering technologies directly within their own networks and disseminate any that prove effective, he said.

The first recommendation envisions that user-generated content platforms will begin implementing content recognition technology immediately, Maxwell said. Several well-known sites such as DailyMotion and MySpace are already doing so, he said, so the recommendation does not really change anything.

The recommendation that Internet access providers begin testing the use of content recognition technology on the network itself is completely new, Maxwell said. Until now, “the suggestion of any kind of filtering on the network itself has been off-limits.”

But the “taboo is slowly being lifted,” Maxwell said. In June, the Brussels Court of First Instance ordered Belgian ISP Scarlet Extended Ltd. to filter infringing music downloads (IPW, European Policy, 9 July 2007). Like the judge in the Belgian case, the Olivennes panel “saw that Article 15 of the E-Commerce Directive speaks to the issue of liability of ISPs and does not prevent all filtering measures,” he said.

“This is a real change in philosophy, since up to now Article 15 of the directive has been cited as preventing any general measure on filtering,” Maxwell said.

Other recommendations

For their part, recording companies agreed to make a “special effort” to promote interoperability, IFPI said. The music industry has pushed for interoperability but one of its biggest roadblocks has been the Apple iPod, Kennedy said. IFPI now plans to approach Apple again, explain the situation in France, and see what happens, he said.

The Olivennes panel recommended that as long as digital rights management systems hamper interoperability, they should be removed from music libraries, Maxwell said.

The agreement also calls for the creation of an independent agency to issue infringement warnings that could lead to termination of users’ Internet subscriptions.

Other recommendations, Maxwell said, include shortening the video-on-demand window from seven and one-half months to four after theatrical release of a film, value-added tax modifications, changes to data protection rules, publication of a piracy indicator, and aggregation of rightsholders in a unique agency created to fight global piracy.

It could take a while to enact legislation needed to implement the agreement, Maxwell said. That will give consumers time to try to convince lawmakers to block the recommendations because they limit users’ freedom to download peer-to-peer content of their choice, Maxwell said. Consumer group UFC-Que Choisir has already blasted the agreement, saying last week that it is very hard, potentially freedom-destroying, anti-economic and counter to digital history.

The Société des auteurs, compositeurs et éditeurs de musique (SACEM) backed the “welcome advance” in the anti-piracy battle but warned the plan must be monitored regularly to ensure it is working.

Yahoo China

A Chinese appeals court, meanwhile, is considering IFPI’s demand that Yahoo China stop enabling unauthorised music downloading. The company’s “music delivery service” lets users type in an artist or track and then searches for and provides links to the sound recording, allowing free downloads without copyright owners’ permission, IFPI Vice-President, Litigation and Regulatory Affairs Jo Oliver said earlier this month. The Internet company collects revenue from the use of the service and actively encourages downloading by providing charts of top hits, she said.

The appeal followed a lower court ruling that Yahoo China remove some 200 infringing tracks from its site, Oliver said. When Yahoo China challenged the decision, IFPI asked the appellate court to order the company to strip infringing tracks from its entire service.

The music industry also urged Yahoo Inc., which holds a 44 percent share in Alibaba.com (of which Yahoo China is a subsidiary), to put pressure on Yahoo China to clean up its act, she said. IFPI is disappointed” that Yahoo is risking its reputation by taking advantage of the intellectual property rights situation in China, she added.

Neither Yahoo Inc. nor Yahoo China responded to requests for comment.

Dugie Standeford may be reached at info@ip-watch.ch.