[governance] UK imposes technical measures against P2P

[Marilia Maciel]

http://www.iptegrity.com/index.php?option=com_content&task=view&id=419&Itemid=9

*UK latest: it's not a Hadopi, not as we know it *  Written by Monica Horten
     Oct 07, 2009 at 09:50 AM

*
*

*Parking-fine style Internet suspension may be proposed by the British
government, as a sanction for against peer-to-peer users who are alleged to
have infringed  copyright. *

Details have emerged of British government proposals for  an
administrative body to handle appeals by  users under threat of their
Internet being cut off by "technical measures".



The new proposals follow the agenda set out in the Digital Britain report
and the P2P Consultation, whereby  the rights-holders will make allegations
of copyright infringement, and ISPs will send warnings to their customers,
before applying "technical measures".



The new element is that the users will get a final warning, telling them
that a "technical measure" will be applied. The warning notice will give
them  opportunity to appeal before the measure is applied. The appeal will
be made to a panel of adjudicators. The panel will comprise legally-trained
people, but it is not envisaged that they will be judges, and it is not even
clear whether it will be a formal institution or a call centre.



The "parking fine" element is that users would receive a lesser technical
measure if they do not appeal, or conversely, they would risk a more severe
measure - possibly a longer period of being cut off the Internet - if they
do appeal and lose.



"Technical measures" is the British government's euphemistic term for the
use of network technology to cut off, block or slow traffic. They include
protcol blocking, URL blocking, "traffic shaping", throttling, and
suspension of the users account. In other words, "technical measures" mean
‘cutting people off the Internet'  either directly by suspending access, or
indirectly, by blocking them from doing specified activities. They would be
applied to users individually.



"Technical measures"  require equipment such as  traffic management systems
and deep packet inspection. Indeed,  the deep packet inspection systems are
necessary in order to apply technical measures to specific individual users.
They work in conjunction with software called ‘policy management' which
enables the ISPs to manage exactly what each individual user's account can
do.



The proposals are not strictly speaking the same as a Hadopi, because the
new adjudication panel  will be an appeals body,  whereas the French Hadopi
will impose sanctions. However, it arguably is a Hadopi in the sense that it
is about administrative justice, applied on the basis of an allegation by
private, commercial organisations, and it deprives the user of the right to
an oral hearing, before the sanction is applied.



There is also of course the question of whether an adjudication panel,
staffed by ‘legally trained' people  is a ‘legally competent tribunal'. It
is not clear whether industry or government would run the panel.



It's  understood that the new  proposals were drawn up by the  British music
industry at the request of the Department for Business, Innovation and
Skills (BIS). The request was apparently made because Amendment 138 in the
EU Telecoms Package is a problem.



It is another indication of the British government's failure to understand
Amendment 138, namely that the European Parliament  opposes cutting people
of the Internet as a sanction for copyright enforcement. It should not
matter what form the cut-off takes.



This article is licensed under a Creative Commons Attribution
Non-commercial-Share Alike 2.5 UK:England and Wales License.
http://creativecommons.org/licenses/by-nc-sa/2.0/uk/ It may be used for
non-commercial purposes only, and the author's name should be attributed.
The correct attribution for this article is: Monica Horten (2009) UK latest:
it's not a Hadopi, not as we know it  , http://www.iptegrity.com 6 October
2009.


-- 
Centro de Tecnologia e Sociedade
FGV Direito Rio

Center of Technology and Society
Getulio Vargas Foundation
Rio de Janeiro - Brazil
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