Law and Information

The Berkman Center’s Digital Media Project team has released one new and one updated report on the current state of the digital media ecosystem. One report is an update of the 2003 foundational White Paper by the Berkman Center and GartnerG2 on Copyright Law in a Post-Napster World. The updated edition includes the following:

• Updated business model section that includes new survey data and an overview of “legitimate” P2P stores like Wippit and Weed (Chapter 2)
• Updated and expanded analysis of legal cases and decisions relevant in the digital media space, including a brief discussion of Grokster and RIAA v. Verizon (Chapter 3)
• Revised subsection on international enforcement issues like jurisdictional questions among nations (Chapter 3)
• Updated section on regulatory developments like provisions related to the broadcast flag and digital radio, as well as proposed laws in the U.S. such as the INDUCE Act (Chapter 4)
• Expanded chapter on DRM systems including new standards, challenges, and policy issues related to the use of DRM (Chapter 5)
• Updated outlook for the future (Chapter 6)

In addition, we’ve written an International Supplement to the White Paper, which examines the transition from analog/offline to digital/online media from an international legal perspective. Here’s the abstract/overview of the Supplement:

Comments, as always, are most welcome.

A recent ruling by a Belgian court addresses the obligations of an ISP in cases where its users infringe copyrights. The Belgian Society of Authors, Composers and Publishers (SABAM) instituted in June 2004 a prohibitory injunction in the court of first instance of Brussels against the Internet service provider Tiscali. Through this injunction, SABAM seeks to put an end to the use of P2P networks in Belgium. Reportedly, the court now ruled that Tiscali should disconnect customers if they violate copyrights, and block access for all customers to websites offering file-sharing programs. The court also ordered a technical investigation into the possibility of blocking access. While the decision has not been made public by now, EDRI raises the interesting question of the ruling’s conformity with the relevant provisions set forth by the EU Copyright Directive and the EU E-Commerce Directive.

In this context, two aspects are particularly interesting. First, it is puzzling how an ISP could detect possible copyright infringements on P2P networks by its users. Arguably, a “blocking access”-approach would also include a “monitoring”-element in order to be effective. Would such a duty to monitor imposed upon an ISP be consistent with Article 15 of the E-Commerce Directive? Article 15(1) reads as follows:

This clear statement suggests that it is contradictory to EU law if an ISP was obliged by a national court to monitor the information that it transmits on its network. However, things are getting more interesting once we take Recital 47 of the E-Commerce Directive into consideration, which states:

Thus, it seems clear that general monitoring obligations are not allowed, whereas monitoring in specific cases – arguably with regard to particular users and/or websites – is allowed. But the distinction between general and specific obligations gets blurred in Recital 48:

Against this backdrop, it is less clear that a general requirement to implement and operate a monitoring or filtering system imposed by national authorities – if reasonable from a technical and economic viewpoint – would be a priori contradictory to the E-Commerce Directive’s provider liability provisions. (At least where the ISP hosts information provided by the recipients of its service.)

Second, it is important to note that SABAM obtained a prohibitory injunction, since the broad wording of Recital 45 seems to include “preventive” injunctions:

This Recital suggests that the court verdict in question is unlikely to be in contradiction to the “limited liability” provisions of the E-Commerce Directive; in this regard, I tend to disagree with EDRI’s initial analysis. Read also Article 8(3) of the EU Copyright Directive (EUCD) and Recital 59 of the EUCD:

However, it remains an open question what the scope and burden of a potential ISP’s monitoring and blocking obligation imposed by a preventive injunction can be.

Berkman Center’s Executive Director John Palfrey lectured earlier today at Cornell’s University Computer Policy and Law Program. In the first session, he made a strong case why, in fact, it makes sense to teach “cyberlaw” rather than the “law of the horse”. John started with an analysis of three contemporary legal and regulatory issues that are Internet-specific: Spam, the digital media crises, and VoIP. From there, he moved to a more abstract level and discussed some of the basic characteristics – phenomena such as large-scale infringements, uncertainty surrounding the applicability of traditional legal doctrines such as fair use, high costs of enforcement and coordination, and global reach of the medium, among others – which make the law of the Internet (at least in part) different from other areas of law. John also used variations on Lessig’s theme of the four modalities of regulation to illustrate what makes Internet law special.

In the second lecture, John Palfrey offered a thoughtful and comprehensive overview of the current digital media crisis. Starting with the Napster saga, he moved forward to the current state of affairs, discussing from a comparative law perspective, among other things, the Berkman Center’s iTunes case study and recent case law at the intersection of copyright and contract law as well as technological protection measures. Finally, John discussed possible scenarios for the future of digital media.

Both lectures provide a great opportunity to get an expert’s overview where cyberlaw stands and what some of today’s hottest topics are; highly recommended, also to the audience abroad. And even if you are a scholar working in the same field, you’ll enjoy Palfrey’s presentation, since it’s one of the increasingly rare occasions to re-think some of the fundamental assumptions and concepts of cyberlaw. Thanks, John!