On 18 April WIPO hosted a seminar in Geneva on copyright and ISP liability. Dominated by representatives of the entertainment industry and international government officials, the highly politicised seminar ended with the conclusion that more legislation was indeed necessary. The main issue however remained unsolved; whether this legislation should provide stronger protection for the fundamental rights and freedoms of all internet users, or whether this legislation should further facilitate the entertainment industry in hunting down individual internet users.

The opening keynote speeches by Lilian Edwards and Charlotte Waelde from the AHRB Research Centre in Intellectual Property and Technology of the University of Edinburgh provided the audience with an excellent overview of all the issues related to provider liability for content provided or shared by their customers. Edwards started with the problematic definition of 'service provider', which now also includes online auctions, search engines, RSS feeds, blogs, chat-rooms and price comparison sites. In the period leading up to the year 2000 governments were hesitant to regulate liability, fearing it would disturb the nascent market. But after 2000 the market was mature enough and governments and the entertainment industry were dissatisfied about the lack of self-regulatory solutions. The EU E-commerce directive from 2000 then forced a compromise by distinguishing in possible liability for hosting third party content and no liability for mere conduit and temporary caching. Charlotte Waelde analysed the jurisprudence of the different court cases against producers of P2P software, both in the US and in the Netherlands. She concluded that it is crucial for the liability question in P2P cases to determine whether the ISP is somehow authorising the infringement, or whether an ISP is entitled to presume that facilities will be used in accordance with the law.

Jule Sigall from the US Copyright Office showed himself very content with the Digital Millennium Copyright Act of 1998 (DMCA) and stated that the actual rise of P2P usage was directly caused by the success of notice and takedown of websites. The possibility for a customer to file a counter notice was very effective, according to him, to prevent abuse. An entirely different view of the DMCA was given by Cory Doctorow, the European Affairs director of EFF. He gave an overview of the wrongful complaints collected by the Chilling Effects project and said many small providers receive up to a 100 complaints a month, many of them not even compliant with the minimum DMCA standards. Doctorow asked repeatedly 'What problem does notice and takedown solve?' since hotly contested information will always reappear in hundreds of other places, the procedure costs a lot and leads to the inefficient prosecution of John Does, while seriously threatening free speech and undermining due process rights.

In the afternoon the debate finally began to heat up, when attorney Christiaan Alberdingk Thijm, Verizon Vice President Sarah Deutsch en Universal Music Vice President Barney Wragg debated the pros and cons of peer to peer usage. Wragg said his company embraced P2P usage but only within systems that allow total control for artists, control the exact usage of the materials and provide compensation at agreed rates. Universal Music is signing up 10 new online download services a week, and even though the revenues still account for less than 1% of the total business, online sales are rising exponentially. Alberdingk Thijm, who successfully defended KaZaA at the Dutch Supreme Court, replied by pointing out how difficult the WIPO copyright treaty of 1996 had made life for people that wanted to do legal business with online music. While the rise of Internet made it possible to skip the intermediary from the exploitation, the copyright treaty had made it much more difficult to get international clearance from copyright owners. KaZaa for example tried very hard to get licenses, but was refused everywhere. This deadlock put consumers in an impossible position. The only solution Alberdingk Thijm saw is compulsory licensing or general levying.

Sarah Deutsch started from a moderate position, saying most service providers have evolved into content producers, with a joint interest in combating piracy. But after those reassuring words, she opened a frontal attack on the Motion Picture Association, specifically the wish-list circulated in advance of the conference, demanding a.o. that providers should immediately hand-over identifying details about their customers to right holders and terminate contracts with 'repeat' (alleged) infringers. This proposed 'ISP code of conduct' conflicts with all existing law in the US and Europe, and doesn't contain a single reciprocal obligation for right holders. She said Verizon received hundreds of thousands of invalid notices per year, based on automated search bots operated by commercial bounty hunters, leading to a barrage of complaints sent from invalid e-mail addresses. An ISP is not a policing service and privacy-rights of users should be respected. She also disqualified the demands from the industry to use 'available filtering or blocking technology' to stop users from file-sharing as 'a slippery slope that can easily lead to situation we know from China, where all traffic is filtered on the backbone.'

A spokeswoman from the IFPI (International Federation of the Phonographic Industry) stood up from the audience and explicitly denied any involvement with the MPA wish-list (See also EDRI-gram 3.7). Later on, panellist Ted Shapiro from the MPA said the wish-list was based on the success of general agreements with service providers in France, Spain and Italy and that the MPA had exchanged information with the IFPI. The denial of any IFPI interest is even stranger in the light of the speech by IFPI CEO John Kennedy to the European network operators on 3 March 2005, published on the IFPI website, with remarkably similar demands on the ISP industry.

In the closing debate the audience didn't get much chance to speak up; the 7 panellists used almost an hour of the dedicated 1,25 hour interaction time. In the few possible interventions the complete lack of consensus became extremely clear, with ISPs being bluntly accused of promoting thievery, while the entertainment industry was accused of only using a stick to change the behaviour of customers, in stead of also holding out carrots. When Ted Shapiro said it was impossible to compete with free, Lilian Edwards immediately pointed to the success of expensive mineral water, in spite of the abundant availability of free tapwater.

WIPO program with presentations of most speakers (18.04.2005)
http://www.wipo.int/meetings/2005/wipo_iis/en/program.html

Speech John Kennedy, CEO IFPI at ETNO conference (03.03.2005)
http://www.ifpi.org/site-content/press/inthemedia14.html