Lawmakers in Internet piracy merry-go-round

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EU policymaking history is repeating itself as another row erupted in the European Parliament yesterday (22 September) over how to tackle Internet piracy and whether users can be cut off from the Internet for making illegal downloads. EURACTIV reports from Strasbourg. 

The Parliament voted yesterday (22 September) in favour of a proposal to beef up EU laws on authors' rights and copyright infringement, but rejected calls to penalise online piracy.

The report, which is non-binding, highlighted deep divisions in the EU assembly over the issue of Internet piracy and consumers' rights.

MEPs from the Parliament's socialist and liberal factions rejected calls to tackle offline counterfeiting and online piracy under the same banner for fear that it would pave the way for draconian measures to stop file-sharing on the Internet.

Under plans pushed by Marielle Gallo, a French centre-right MEP who steered the report through Parliament, Internet users could see their connection cut off for sending MP3 files by email, for example.

The battle over Internet users' rights is reminiscent of fights that took place last year over the EU's telecommunications package, which was blocked by MEPs keen to protect consumers' rights (EURACTIV 07/05/09). The blockade came in response to a draft French anti-piracy bill that would have given national authorities a right to cut users off the Internet after they had been caught downloading illegal files three times – the so-called "three strikes" approach.

The French bill, called Hadopi, is currently in limbo as the country's data protection authorities struggle to understand its merits.

The battle for Hadopi

Though Gallo does not explicitly ask countries to adopt Hadopi-like policies, Internet activists argue it will give national authorities enough wiggle room to do so.

The main activists in the debate are a group called La Quadrature du Net, a French NGO campaigning for web neutrality, which appears to have convinced MEPs that an anti-piracy law will open the door to Hadopi.

"Soon, elected representatives across Europe will realise that the crusade of these industries against their own public undermines the founding values of our democracies, and that it should be stopped by all means," said Jeremie Zimmermann, the NGO's founder.

The Parliament's out-and-out piracy advocate is Christian Engström MEP, the founding member of the Swedish Pirate Party. Engström advocates letting illegal downloading run riot and leaving businesses to either catch up by launching new services or lose out.

Both Engström and Zimmermann argue that the fine print of draft EU policy on piracy allows for co-operation between Internet providers and law enforcement authorities to bypass the courts and cut users off without a fair trial.

The European Commission's attempts to legislate against piracy have been slow to come, with a 2009 communication simply advocating "enhanced administrative cooperation" to tackle the issue.

The Commission is currently engaged in global talks on an Anti-Counterfeiting Trade Agreement (ACTA), whose contents have also roused suspicions that it will ask Internet Service Providers to police the web (EURACTIV 10/03/10).

Music as a case in point

According to Zimmermann, the fight against piracy is a matter of protecting citizens' fundamental rights. But it also raises questions about the revenue model of recording companies, where Zimmermann sees as unnecessary rich middlemen between artists and consumers.

Innovation in music has created a growing slump in the recording industry, a trend some artists are drawing valuable lessons from, argues Zimmermann.

Radiohead last year gave away their music for free while iTunes makes money not from selling music but from locking customers with additional perks, like providing users with tour dates and artist's biographies.

Engström cites a study conducted in Norway showing that while recording companies continue to lose money, artists' revenues have jumped exponentially.

MEPs after commercial-scale piracy only

Though recent elections in Sweden dealt a blow to Engström's Pirate Party, their calls to allow private file-sharing to go unpunished are shared by many MEPs.

For instance, Stavros Lambrinidis, a Greek socialist MEP, is best known for saying "access to the Internet is a fundamental right".

In a more nuanced fashion, Irish Labour MEP Alan Kelly says only commercial piracy should be punished by law. "Commercial piracy must be treated very differently to person-to-person file sharing or a small amount of illegal downloading," he said after yesterday's vote.

"I am of the view that personal downloading should not be a criminal offence per se as there is no value in prosecuting a teenage for finding a ringtone or a song. You would be making a criminal of 80% of the young people in Ireland," Kelly argued.

Françoise Castex, a French MEP for the Socialist group, says current attempts to fight online piracy have hidden motives. "The [Gallo] report advocates the setting up of non-legislative measures similar to those Sarkozy has attempted to introduce in France with Hadopi, and around the world with ACTA, which aim to circumvent judicial authority."

"This is an open door for a private police on copyright issues and private justice on the Internet," argues Castex, who is shadow rapporteur on intellectual property for the Parliament's socialist group.

"By assimilating not-for-profit file-sharing to counterfeiting, Ms. Gallo is pushing for the criminalisation of millions of Internet users – who are also consumers of discs, videos or other high-tech products. By doing so, they are turning artists against their own audiences, without providing creators and workers from this sector with a more promising economic future," Castex went on.

The case against software piracy

An assistant in Gallo's office insisted that she was not advocating Hadopi and cited examples of software piracy as the reason to carry the report all the way to legislation.

According to the Business Software Alliance (BSA), an industry group, reducing software piracy over four years could inject €33 billion in new technology spending into the European economy, creating more than 61,500 new jobs and generating nearly €10 billion in new tax revenues for governments.

"Cutting the prevalence of this theft sends ripples of stimulus through the economy by generating new spending on related information technology (IT) services and distribution," the BSA argues in a study.

"The Gallo report is an illustration of the will of the entertainment industry to try to impose private copyright police and justice of the Net. Repressive schemes such as the 'three strikes' policies and other Internet access restrictions - typified by the French HADOPI or the UK Digital Economy laws - negate fundamental rights, such as the right to a fair trial, the freedom of communication or the right to privacy," said Jeremie Zimmermann from Internet advocacy group La Quadrature du Net.

French centre-right MEP Marielle Gallo (European People’s Party), the European Parliament's rapporteur on the file, described the vote as "the victory of a responsible approach".

"The European Parliament is at last taking its responsibility and refusing the sterile polemics launched by the left," she claimed, calling their campaign one of "disinformation".

"This text makes no assumptions about any penalties that should be imposed and does not foresee a European 'Hadopi' law. We never thought of putting teenagers in jail!" she said.

"I am concerned by the use of counterfeiting and piracy as synonymous terms, said Austrian independent MEP Martin Ehrenhauser.

"This report criminalises citizens and not the behavior of criminals," Ehrenhauser continued.

"We need a different strategy on and offline," said Austrian Green MEP Eva Lichtenberger.

"I do not want to risk prison for making mistakes online," Lichtenberger continued.

"Let's get the facts and figures before we legislate," added Christian Engström, a Swedish MEP and member of the Swedish Pirate Party.

"The International Federation of Actors (FIA), the International Federation of Musicians (FIM) and UNIMEI Global Union for Media, Entertainment & Arts (UNI MEI) welcome the adoption of the 'Gallo report' on the Enforcement of Intellectual Property Rights in the Internal Market by the European Parliament today," read a statement from trade unions in the creative industries.

"As trade unions representing actors, musicians, technicians, screenwriters, directors and other creative workers in the EU cultural industry, FIA, FIM and UNI-MEI are satisfied that a majority of members of the European Parliament acknowledge that copyright and neighbouring rights are as relevant to creators in the digital world as they are in the analogue environment," the statement continued.

In the summer of 2009, EU telecoms ministers and the European Parliament were embroiled in a row over the EU's telecoms package and how it should treat illegal downloading.

EU ministers were in favour of a more hardline law, like the "three strikes and you're out" approach, while MEPs fought to water down sanctions for fear that people downloading content for non-commercial purposes would receive the same punishment as criminal gangs committing piracy on a much larger scale.

Ireland is the first country to introduce a "three strikes" approach after Internet service provider Eircom caved in to the pressure from the music industry, which filed a lawsuit against the company.

The French version of the law, Hadopi, is currently in limbo as the country's data protection authorities struggle to understand its merits.


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