Three Strikes Coming In?
Olswang associate Jas Purewal muses on the anti-piracy implications of the EU's Telecoms Package for videogames
Fight the Good Fight
A battle is underway throughout Europe regarding the protection of online content (including videogames), in which governments, rights holders, ISPs and consumers are all weighing in and the resolution of which will have great importance for the games industry.
The genesis of this battle lies in the dissatisfaction of rights holders (from music and film companies to games developers and publishers) at the legal regime on which they must currently rely upon to protect their content. With court proceedings slow, lengthy and expensive, rights holders have been lobbying for legislation to compel ISPs to take 'technical measures' to curb online piracy/copyright infringement over their networks.
One well-known proposal has been to introduce a 'graduated response' (known rather better as 'three strikes'), under which rights holders would work together with ISPs to identify individuals who are suspected of committing online copyright infringement/piracy, to serve them with warning notices and, if they do not cease their illegal activity, to take 'technical measures' against them including suspending their internet access.
This is a contentious proposal and ISPs in particular have resisted it, claiming that they are not responsible for policing the actions of their users or enforcing copyright. Furthermore, many consumers - particularly gamers - have also been hostile to the possibility of having their internet access suspended for any reason.
Most recently, there has been press coverage regarding a battle within the European Union over these proposals. In a nutshell, the EU is in the process of preparing new telecoms legislation (known as the Telecoms Package), as part of which it has been debating whether EU law should permit EU Member States to introduce into their domestic legal systems the ability to use technical measures to fight online copyright infringement/piracy - including games piracy. This proposal was championed by the Council of Ministers (the body which represents Member State governments) but was opposed principally by the European Parliament (the democratically elected body of the EU).
The battle coalesced around a controversial amendment to the Telecoms Package known as Amendment 138. This amendment was put forward by the European Parliament and would have required that any attempt to take technical measures against an EU citizen's internet access could only be carried out pursuant to a Court order - which would make attempts by rights holders/ISPs to take direct unilateral action against suspected online pirates/copyright infringers very difficult.
So, for example, action against a suspected repeat illegal downloader of games would have to be approved at a court hearing in which the individual could defend him/herself. The European Parliament proposed Amendment 138 twice and twice it was rejected by the Council of Ministers in controversial circumstances. There seemed to be a deadlock.
With All Thy Might
But it looks like that deadlock has been broken this month, with the European Parliament reportedly dropping Amendment 138 in favour of a compromise text. This seems to remove one obstacle to the EU adopting a regime which is friendlier to the kinds of action which rights holders would like to take against suspected online pirates/copyright infringers.
Of course, that is by no means the end of the story. Even if and when the Telecoms Package is finalised, it cannot on its own introduce a three strikes system into the EU. Rather, it will still be up to national governments to decide exactly what their own laws should say about any technical measures to be taken against suspected online pirates/copyright infringers. These national governments - two leading examples being France and the UK - are therefore pushing ahead with their own proposals to fight online piracy/copyright infringement independently of the EU debate.
In France, the French legislature famously passed 'la loi Hadopi' (albeit on a second attempt, the first having failed), which has implemented a graduated response system into French law. That law quickly became the subject of a legal constitutional challenge, although it now seems that that challenge may have fallen away with the announcement earlier this week that the French Constitutional Council has in principle approved la loi Hadopi.