ArtsWatch: EU Sends ACTA To Court

European Commission refers ACTA to European Court of Justice
February 27, 2012 -- 1:58 am PST
By Philip Merrill /

In recent news ...

On Feb. 22 the European Commission announced it had referred the Anti-Counterfeiting Trade Agreement to the European Court of Justice for a determination on whether its terms violate fundamental rights and freedoms. EU Trade Commissioner Karel De Gucht said, "In recent weeks, the ratification process of ACTA has triggered a Europe-wide debate on ACTA, the freedom of the Internet and the importance of protecting Europe's intellectual property for our economies. ... So I believe that putting ACTA before the European Court of Justice is a needed step. This debate must be based upon facts and not upon the misinformation or rumor that has dominated social media sites and blogs in recent weeks." Last week's ArtsWatch covered street protests in major European cities, demonstrating popular concern that seemingly sensible antipiracy measures could be used as a smokescreen providing cover for heavy-handed government interference with online communication. Meanwhile, European Parliament's consideration of ACTA continues to go forward, with discussion by the Committee for International Trade scheduled for Feb. 29, followed by a workshop the next day. Parliament could elect to join the commission's referral to ECJ, delaying further steps until after the court renders its decision.

The European Court of Justice ruled against Belgian collecting society SABAM on Feb. 16, regarding the permissible scope of antipiracy injunctions that could apply to social network Netlog NV. Essentially repeating its Scarlet decision last November, ECJ found that general monitoring by Internet service providers is already prohibited under Europe's E-Commerce Directive, and also found that such a broad injunction would not strike a fair balance between IP rights and other rights and freedoms. SABAM said, "SABAM takes note of this ruling without surprise. ... SABAM endeavors to define appropriate alternative measures that take this case law of the European communities into consideration, with a view to protecting the authors and to managing their works efficiently."

On Feb. 20 London's High Court ruled that both users and operators of the Pirate Bay infringe copyrights belonging to or represented by a group of claimant record labels, including EMI Records, Sony Music Entertainment UK and Warner Music UK. Neither the defendants, which include leading British Internet service providers such as BT and TalkTalk, nor the Pirate Bay appeared at this first stage of a two-stage proceeding. The labels want the ISPs to block the Pirate Bay and the defendants agreed to a consent order on Jan. 20 to first establish infringement before continuing on to the issue of blocking the site. This process follows from the movie studios' success against Newzbin2, although the details of what constitutes infringement differ because of dissimilar applicable laws governing movies versus sound recordings. To paraphrase the UK ISPs' response regarding Newzbin2, they will block a specific website once they receive a direct order from a court but not otherwise. It has been estimated that the ruling whether or not to block the Pirate Bay could be reached in June.

Britain's Serious Organized Crime Agency shut down the music blog on Feb. 14 and arrested an individual for fraud, relating to pre-release recordings made available by the website. Electronic Frontier Foundation reviewed several of the issues this raises, notably including the warning page SOCA initially displayed to the site's visitors. EFF complained that if this was done with ISP cooperation without a court order that could set a "dangerous precedent" and said, "If the hosting provider took down this site voluntarily without any court oversight, it raises the prospects of future cases being dealt with in a similar extrajudicial manner."

France's graduated-response, three-strikes system for dealing with Internet piracy sent 165 third-strike cases to court — the first set of such court cases — earlier this month. The New York Times profiled the program and the HADOPI agency that oversees it, calling attention to several potential cases that were dropped before the court-referral stage, indicating that not all 165 defendants are necessarily guilty. HADOPI sent out 822,000 first-warning emails, followed by only 68,000 registered postal letters to second-time offenders — an indication that warnings work. Multiple studies of French music sales have shown a decline in piracy, for which the program probably deserves some credit. Unfortunately, candidates running against France's President Nicolas Sarkozy, on the right and the left, oppose the program, turning it into what the Copyright and Technology blog described as a "political football."

On Feb. 14 an international coalition of book publishers served the operators of two infringing sites with notice of court proceedings accusing them of infringement for the unlicensed digital distribution of 400,000 copyright-protected ebooks. The lawsuit was brought in Germany. After a seven-month investigation across seven countries, the operators were finally located and served in Ireland despite sophisticated technical efforts to conceal their identities. Seven members of the Association of American Publishers are among the 17 plaintiffs. AAP President/CEO Tom Allen said, "This action ... captures the enormous investment of time and cost required for rights holders to protect their work. For every rogue site that is taken down, there are hundreds more demanding similar effort. I can't think of a more timely example of the need for additional tools to expedite such action."

As U.S. Vice President Joe Biden and China's Vice President Xi Jinping visited Los Angeles on Feb. 17, they resolved the countries' World Trade Organization dispute over market access for American movies in China — just before Xi's departure home. MPAA Chairman/CEO Chris Dodd said, "This landmark agreement will return a much better share of the box office revenues to U.S studios ... and it will put into place a mechanism that will allow over 50 percent more U.S. films into the Chinese market."

The Recording Academy actively represents the music community on such issues as intellectual property rights, music piracy, archiving and preservation, and censorship concerns. In pursuing its commitment to addressing these and other issues, The Recording Academy undertakes a variety of national initiatives. ArtsWatch is a key part of an agenda aimed at raising public awareness of and support for the rights of artists. To become more involved, visit Advocacy Action @ and sign up for Advocacy Action E-lerts.

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