Firstly I'll throw my hands up and admit I didn't do my homework on the law in question, doing just a quick search for info on the law, not turning up very much and then taking the website at face value. I reasoned if someone wanted to challenge me on this, they'd so some digging themselves to find the facts to support their argument. Well done you. ;)
I'll admit the slogan of "guilt upon accusation" is a bit misleading, as the law itself doesn't call for that. What it does call for, however, is for the ISPs to be held responsible for terminating service, according to their own internal policies. This effectively circumvents the usual due process of law relating to copyright infringement case - the ISP must judge what is infringement and sentences the alleged infringer appropriately. Not only is this done outside of the usual legal system, but it is not in the ISPs interest to gather evidence, aim to be fair or impartial, or fight for the individual's rights.
The quickest and safest action for the ISP is just to terminate the service when they get an infringement claim, so this is what they will do. Copyright holders, as represented by film and music industry bodies, have the money to litigate these ISPs if they feel had done by. The average Jog Bloggs is less likely to have the resource to fight back, so it makes good business sense for the ISPs to side with the copyright holder's allegations - effectively creating the "guild upon accusations" scenario. In addition, the alleged infringer can only act *after* the ISPs have terminated their service. Even if they could appeal, they're left out in the cold until their case is resolved.
The main issue with the law from my point of view is, why must the ISP adopt a policy providing for termination for copyright infringement? The ISP provides a service, and is in effect a utility company like electricity, water and telephone companies. What people do with that service is up to them, and the service provider should not be held responsible for it. Law enforcement is the job of the police, not private companies. If copyright infringement is suspected, the onus should be on the copyright owners and law enforcement to gather evidence to support that claim (e.g. by packet sniffing), but only under a court order after due legal process (like with wiretaps, unless you live in the US under GW Bush).
If the ISPs are held responsible for an individual's infringment, of course ISPs are going to adopt a "drop first, ask questions later" approach - otherwise their business suffers. Without any legislation in place, it's a lot easier for copyright holders to litigate against the owner of the network than find the person actually breaking the law (i.e. something that would involve actual effort on their part).
I'll admit the slogan of "guilt upon accusation" is a bit misleading, as the law itself doesn't call for that. What it does call for, however, is for the ISPs to be held responsible for terminating service, according to their own internal policies. This effectively circumvents the usual due process of law relating to copyright infringement case - the ISP must judge what is infringement and sentences the alleged infringer appropriately. Not only is this done outside of the usual legal system, but it is not in the ISPs interest to gather evidence, aim to be fair or impartial, or fight for the individual's rights.
The quickest and safest action for the ISP is just to terminate the service when they get an infringement claim, so this is what they will do. Copyright holders, as represented by film and music industry bodies, have the money to litigate these ISPs if they feel had done by. The average Jog Bloggs is less likely to have the resource to fight back, so it makes good business sense for the ISPs to side with the copyright holder's allegations - effectively creating the "guild upon accusations" scenario. In addition, the alleged infringer can only act *after* the ISPs have terminated their service. Even if they could appeal, they're left out in the cold until their case is resolved.
The main issue with the law from my point of view is, why must the ISP adopt a policy providing for termination for copyright infringement? The ISP provides a service, and is in effect a utility company like electricity, water and telephone companies. What people do with that service is up to them, and the service provider should not be held responsible for it. Law enforcement is the job of the police, not private companies. If copyright infringement is suspected, the onus should be on the copyright owners and law enforcement to gather evidence to support that claim (e.g. by packet sniffing), but only under a court order after due legal process (like with wiretaps, unless you live in the US under GW Bush).
If the ISPs are held responsible for an individual's infringment, of course ISPs are going to adopt a "drop first, ask questions later" approach - otherwise their business suffers. Without any legislation in place, it's a lot easier for copyright holders to litigate against the owner of the network than find the person actually breaking the law (i.e. something that would involve actual effort on their part).
Reply
Leave a comment