Telecoms Package vote deals a blow to the French 'riposte graduee' or '3-strikes' measures to enforce copyright on the Internet, and could mean a second reading

In an unexpected result, the European Parliament has expressed its opposition to 3-strikes for the second time this year. In the vote on the Telecoms Package today (24th September 2008) by the full plenary session, the Parliament has carried amendments protecting Internet users' fundamental rights. It has also removed a requirement for ISPs to enforce copyright, rejected an amendment giving rights-holders access to communications traffic data, and dropped without a vote, a proposal for "joint industry solutions" .

The result is a serious blow to the French government's wish for a wider implementation of its 'riposte graduee' measures, and is likely to lead to a second reading in the European Parliament - which will delay things until the Swedish Presidency takes over next year.

The key amendments in this regard were Amendment 166 to the Harbour report and Amendment 138 to the Trautmann report, which were both carried. They state that users' access may not be restricted in any way that infringes their fundamental rights, and (166) that any sanctions should be proportionate and (138) require a court order. They both reinforce the principle established on April 9th in the Bono report, that the Parliament is against cutting off people's Internet access as a sanction for copyright infringement. Cutting off Internet access was not explicitly in the Telecoms Package, but it did open the door to 3-strikes. These amendments close that door.

The vote in favour of these two amendments came as a surprise. Harbour Amendment 166 was tabled by the Swedish MEP Eva-Britt Svensson of the Nordic Green group. It was not online unless yesterday afternoon - less than 24 hours before the vote, due to a mix-up by the European Parliament clerks in the tabling service, which gave it very little time to gather support. And it did not have the backing of the rapporteur (was that a thumbs down that we saw?). All of this means that by rights it should have failed, and it speaks volumes for the democratic process that it succeeded.

Amendment 166 was carried by 346 to 312, with 6 abstentions. Almost all of the majority EPP Conservative group voted against, including the rapporteur, UK Conservative MEP Malcolm Harbour. The majority was formed by all the of the smaller groups - Socialist, Independent and Greens. UK MEPs who voted for it include London MEPs Syed Kamall and Baroness Sarah Ludford, and Baroness Nicholson of Winterbourne and Sharon Bowles (who represent my area). Robert Kilroy-Silk abstained.

Trautmann Amendment 138 was tabled by Guy Bono, and signed by 40 MEPs including Christofer Fjellner - both MEPs were behind the original anti-3-strikes amendment in the Bono report.

The final text of Amendment 138 was only known after the vote, due to an oral amendment by the rapporteur Catherine Trautmann. She clarified the text in an email circulated to MEPs after the vote. It reads:

ga) applying the principle that no restriction may be imposed on the */fundamental/* rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information,* /save when public security is threatened where the ruling may be subsequent./*

Amendment 120 of the Trautmann report deleted a proposal that had been inserted by the College of Commissioners, and was one of two 'copyright hooks' in the Package. This was Annexe 1, point 19 of the Authorisation Directive, which would have meant that European governments could ask ISPs to enforce copyright.

Amendment 132 to the Trautmann report, was mysteriously withdrawn. This was the re-worked co-operation amendment tabled by Jacques Toubon and Ruth Hieronymi. This is also good news, as Amendment 132 was the one that contained the new concept of "joint industry solutions".

Amendment 177 of the Harbour report, asking for rights holders to get access to communications traffic data, was rejected.

The bad news is that Amendment 61 of the Trautmann report was carried. This amendment introduces the concept of lawful content at the framework level of telecoms law, and

MEP Erika Mann indicates  there may be a move in the European Parliament to get copyright enforcement and content out of the Telecoms  Package -  and a second reading next Spring

German MEP Erika Mann has said that content and copyright has no place in telecommunications law, and that in her opinion, it should never have been in the Telecoms Package. She says she has worked to get the controversial  amendments related to content and copyright re-examined.  Her comments are made in a video  interview with the German website Netzpolitik on 11th September.

But what is really interesting about this interview is the insights that she gives into the latest developments in the European Parliament.  When asked about the concept of 'lawful content' which is in some of the controversial copyright amendments, Mann refers to discussions between herself and her colleagues Catherine Trautmann and Malcolm Harbour. She indicates that there is a general agreement that

The European Data Protection Supervisor's report condemns the copyright amendments in the Telecoms Package

The office of the European Data Protection Supervisor yesterday (2nd September 2008)  issued public comment  on privacy related issues in the Telecoms Package Universal Service and ePrivacy Directives, otherwise known as the IMCO report. He  says that the concern is not about any amendment taken individually, but about the effect of the amendments  taken collectively.

 The net effect of a series of amendments inserted into the Package  could be increased monitoring of individuals on the Internet and a "slippery slope" towards a 3-strikes regime. Another effect could be to lay the ground for filtering and monitoring of individual users for the purpose of detecting copyright violation. In this respect, he goes further than most commentators, including myself, have so far suggested.  The amendments he is concerned about are: IMCO report 9,30,76,81,112,130 and 134.

 The issues covered in the report are:privacy status of IP addresses; graduated response; systematic monitoring of the Internet; and standardisation of equipment for "privacy-friendly" products. 

 On IP addresses, he calls the the relevant amendments to be rejected, (IMCO Amendment 30) and for  a study to look into the full suite of consequences of altering the status of IP addresses, prior to any legislation being drawn up. 

On graduated response, he says that Amendment 30 - which weakens the privacy protection for IP addresses - combined with Amendments

 Key amendment switched at the last minute before the 7 July vote. What kind of law-making is this?

Annexe 1, Point 19 amendment to the Authorisation Directive has been deleted and replaced with an alternative text, that paves the way for ISP filtering at the framework level of EU law. 

Annexe 1, Point 19 of the Authorisation Directive  was an amendment which meant that EU governments could place copyright enforcement as a term of doing business for ISPs. In principle, it's a good thing that it has been deleted. What I am concerned about, is  the possible interpretation of the  text that has replaced it.

The deletion was voted through by the Industry, Research and Energy committee (ITRE)  on July 7th.  In its place, there is a new text, which  refers to another amendment  - Article 8 - point 4 - g. This amendment refers (via another linked amendment)  to co-operation between ISPs and rights-holders.  I have now been able to analyse it, and as I  suspected,  it means

 EU policy-makers should take note as they contemplate the Telecoms Package  and 'degradation of service'

The Federal Communications Commission (FCC) which oversees telecoms regulation in America, has officially sanctioned the Internet provider Comcast for throttling traffic. Comcast was accused of 'throttling' - that is, slowing down - its users' connections every time they attempted to download video files from the BitTorrent website. Bit Torrent is the company behind the peer-to-peer (P2P) file sharing technology of the same name, only in America, it operates a  licenced service. 

 The FCC determined that Comcast "unlawfully" disruputed the transfer of video files, thereby violating an important principle of the Internet, namely the open and interconnected nature of the public Internet and that broadband networks should be widely available, open, afforedable and accessible to all. The decision sets a legal precedent for cases where ISPs are accused of throttling. For  European policy-makers and law-makers, it represents a landmark case against the current political will to go along with content industry requests for filtering equipment to be installed. 

 For the full story, see TelecomTV.