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2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

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9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

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    Contradictory Court Rulings, Continuing Tension On Internet Liability In EU

    Published on 17 February 2010 @ 2:42 pm

    By for Intellectual Property Watch


    In its 2010 digital music report [pdf], the International Federation for the Phonographic Industry (IFPI) said that despite the availability of 400 legitimate online music offerings worldwide and significantly higher 2009 revenues, the music sector remains hard-hit by peer-to-peer and emerging forms of copyright infringement.

    The organisation has argued for several years that internet service providers (ISPs) should take more responsibility for policing their networks through a “graduated response” (or ‘three-strikes and you’re out’) mechanism that includes notices and warning letters to suspected infringers followed by internet access suspension if the first two stages are ineffective. “The push for graduated response continues” because it is picking up steam in several countries, an IFPI spokesman said.

    But on 4 February, the Federal Court of Australia muddied the waters further by ruling, in Roadshow Films Pty Ltd v. iiNET Limited, that ISP iiNET did not “authorise” users to infringe plaintiffs’ films simply by giving them access to the BitTorrent system that allowed them to download movies. According to the court, the case was the first trial of its kind in the world to reach judgment and hearing.

    The judgment is here.

    Thirty-four major movie studios in the United States and Australia sued the ISP, claiming some of its subscribers were unlawfully downloading their films. The studios wanted iiNET to put in place a graduated response system of warnings and possible disconnection, and they also suggested the ISP block certain websites, the court said.

    Some iiNET subscribers infringed copyright but the ISP did not authorise those breaches, the court said, because the violations were a direct result of the use of the BitTorrent system which iiNET does not control. It also said the ISP did not have the power to prevent the piracy from happening, and that iiNET did not approve, sanction or countenance copyright breaches.

    The judgment vindicates the fact that iiNET has “never supported or encouraged breaches of the law,” the ISP said. The private-sector Australian Federation Against Copyright Theft, which played a key role in pursuing the case, said the decision was based on a “technical finding centred on the court’s interpretation of how infringements occur and the ISP’s ability to control them.”

    Meanwhile, the Italian Supreme Court held recently that Italian ISPs can be ordered to censor their networks and to block BitTorrent search sites even if they are not hosted in-country or by Italian citizens, said attorney Innocenzo Genna, a telecommunications consultant. According to the court, sites offering torrent files linking to copyrighted materials are considered to be engaging in criminal activity, he said.

    Relying on the high court decision, the Court of Bergamo ordered all Italian ISPs to deny subscribers access to the website of The Pirate Bay, Genna said. That ruling, annulled by the appeals court, was reinstated by the high court, he said. The Supreme Court decision, and several pieces of legislation in Italy seeking to regulate service and access providers to various extents, makes the ISP liability issue even more controversial than it has been, he said.

    Genna added a couple of caveats. Decisions of Italy’s Supreme Court are not binding although they do indicate support for a given interpretation. Moreover, the BitTorrent ruling is based on Italy’s peculiar implementation of the European Union E-Commerce Directive, which grants immunity from liability for copyright infringement to internet access providers who are “mere conduits” for content.

    Italy’s law apparently extends to these providers some of the responsibilities imposed on hosting providers, such as the obligation to remove content, Genna said. That is why Italian precedent should not be invoked in other countries, and why sooner or later the matter will end up in the European Court of Justice to determine if Italy has correctly interpreted the directive, he said.

    Human Rights Issues

    Legislation working its way through the United Kingdom Parliament allows rights owners to issue “copyright infringement reports” to ISPs whose subscribers are suspected of breaching copyright, and requires service providers to notify account holders when they receive a report and to keep a list of those who have been the subject of reports. The Digital Economy Bill also gives the Secretary of State the power, subject to further legislation, to order ISPs to use technical measures, including disconnection of internet access, to deal with unauthorised downloading.

    Parliament’s Joint Committee on Human Rights, which vetted the file-sharing aspects of the wide-ranging bill, issued a report on 5 February. In it, the panel said that while the proposals for warning notices do not potentially seriously implicate users’ privacy or free speech rights, those dealing with technical measures and the right to a fair hearing, whose details are still scanty, may do so. It asked the government to clarify the scope of the measures.

    The report is here [pdf].

    EU Eyes Tougher IP Enforcement

    Updated European telecommunications rules contain a provision protecting citizens’ rights to access the internet (IPW, European Policy, 24 November 2009). The text is the result of extensive, and often rancorous, negotiations among the European Commission, Parliament and Council of Ministers. Some activists, however, believe it leaves the door open for restrictions on internet access without prior judicial hearings.

    The European Parliament Legal Affairs Committee is now preparing a response to European Commission non-legislative proposals for tightening IPR enforcement. The draft document chides the Commission for failing to deal with internet infringement effectively and urges it to propose law changes if content owners and ISPs cannot resolve the problem this year.

    French civil rights group La Quadrature du Net called the report a “perfect example of the worst kind of IPR dogmatism.” Asking the Commission to revamp the EU legal framework on the basis of national experiences risks the introduction of graduated response or “three-strikes” measures and criminalisation of file-sharing tools, the organisation said.

    The draft report is here [pdf].

    Trends

    The Australian decision is based on the “safe harbour” principle that has been essential to the development of a free, democratic and open internet over the past 15 years, said European Digital Rights Advocacy Coordinator Joe McNamee. The case is “far from isolated, but is based on the long-standing, broadly logical and balanced approach that is coming under increasing threat” now, he said.

    Far from the idea of making ISPs liable for infringement going away, the trend is increasingly in the other direction, as shown in France, the UK, Italy and Poland, McNamee said. The move is toward imposing on the industry, “often under the guise of ‘self-regulation,’” policing measures that would never survive democratic scrutiny, he said. These will have little impact on the problems targeted but “vast potential for collateral damage” for internet freedoms, openness and democracy and the “very innovation that is the only real answer to the problem of IPR infringement by end-users,” he said.

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

     


    Leave a Reply

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website. By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    We welcome your participation in article and blog comment threads, and other discussion forums, where we encourage you to analyse and react to the content available on the Intellectual Property Watch website.

    By participating in discussions or reader forums, or by submitting opinion pieces or comments to articles, blogs, reviews or multimedia features, you are consenting to these rules.

    1. You agree that you are fully responsible for the content that you post. You will not knowingly post content that violates the copyright, trademark, patent or other intellectual property right of any third party or which you know is under a confidentiality obligation preventing its publication and that you will request removal of the same should you discover that you have violated this provision. Likewise, you may not post content that is libelous, defamatory, obscene, abusive, that violates a third party's right to privacy, that otherwise violates any applicable local, state, national or international law, that amounts to spamming or that is otherwise inappropriate. You may not post content that degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual preference, disability or other classification. Epithets and other language intended to intimidate or to incite violence are also prohibited. Furthermore, you may not impersonate others.

    2. You understand and agree that Intellectual Property Watch is not responsible for any content posted by you or third parties. You further understand that IP Watch does not monitor the content posted. Nevertheless, IP Watch may monitor the any user-generated content as it chooses and reserves the right to remove, edit or otherwise alter content that it deems inappropriate for any reason whatever without consent nor notice. We further reserve the right, in our sole discretion, to remove a user's privilege to post content on our site. IP Watch is not in any manner endorsing the content of the discussion forums and cannot and will not vouch for its reliability or otherwise accept liability for it.

    3. By submitting any contribution to IP Watch, you warrant that your contribution is your own original work and that you have the right to make it available to IP Watch for all purposes and you agree to indemnify IP Watch, its directors, employees and agents against all damages, legal fees and others expenses that may be incurred by IP Watch as a result of your breach of warranty or of these terms.

    4. You further agree not to publish any personal information about yourself or anyone else (for example telephone number or home address). If you add a comment to a blog, be aware that your email address will be apparent.

    5. IP Watch will not be liable for any loss including but not limited to the following (whether such losses are foreseen, known or otherwise): loss of data, loss of revenue or anticipated profit, loss of business, loss of opportunity, loss of goodwill or injury to reputation, losses suffered by third parties, any indirect, consequential or exemplary damages.

    6. You understand and agree that the discussion forums are to be used only for non-commercial purposes. You may not solicit funds, promote commercial entities or otherwise engage in commercial activity in our discussion forums.

    7. You acknowledge and agree that you use and/or rely on any information obtained through the discussion forums at your own risk.

    8. For any content that you post, you hereby grant to IP Watch the royalty-free, irrevocable, perpetual, exclusive and fully sub-licensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content in whole or in part, world-wide and to incorporate it in other works, in any form, media or technology now known or later developed.

    9. These terms and your posts and contributions shall be governed and interpreted in accordance with the laws of Switzerland (without giving effect to conflict of laws principles thereof) and any dispute exclusively settled by the Courts of the Canton of Geneva.

     

     
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