The law
DMCA became law in 1998. Title 1 criminalised the production and dissemination of technology, devices, or services used to circumvent Digital Rights Management (DRM) of copyright material, including the act of circumventing DRM when no infringement of copyright occurred.
Title 2, the Online Copyright Infringement Liability Limitation Act, created a “safe harbour” for ISPs that remove or block access to allegedly infringing material on receipt of a notification claiming infringement from a copyright holder, who may also subpoena ISPs to provide user identities.
Liability for ISPs in Europe was limited by the Electronic Commerce Directive of 2000. The EU equivalent of DMCA Title 1 was the Copyright Directive (EUCD) of 2001, which favoured copyright-holders more strongly. Implementation across the EU has been variable.
The threat
The music and movie lobby got almost everything it wanted in the EUCD, and is trying to get the rest by persuading officials in the individual EU nations to implement draconian enforcement provisions, without any balancing requirement to prove wrong-doing on the part of internet users they choose to target. They have already done so in France.
The ability to adjust the interpretation of the law, through precedent, was historically the great advantage of Common over Statute Law. It acted a check on ill-drafted or ill-intentioned measures enacted into law by governments, and helped the law adapt to changing social circumstances.
The ‘community acquisition’ of European Union (EU) statute law has moved Britain a considerable distance towards the European model, and away from the Common Law legacy still flourishing in the States. But as a society we are, in legal as in many other matters, uneasily neither fish nor fowl.
“The government clearly shares the creative community's frustration at the failure of ISPs to take action.”Last February, the Department for Culture, Media and Sport declared that if ISPs and copyright holders cannot agree on joint action against illegal file-sharers, the government will implement legislation by April 2009. “This is not the time for ISPs to delay further,’ gloated British Phonographic Industry (BPI) CEO Geoff Taylor. “The government clearly shares the creative community's frustration at the failure of ISPs to take action.”
The threat, therefore, is clearly defined. The music and movie industry will continue to advance its interest by influencing the formulation of public policy, our officials are clearly itching to follow the lead of their much-admired French peers, and our courts cannot force them to reconsider.
