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March 03, 2010 | Francis Davey

Francis Davey: quick analysis

 

It's technically defective, for instance:
[1] there's no power to vary or discharge the injunction
[2] the definition of "online location" is insufficiently precise -
almost all internet gateways would be covered for instance
But the most enormous defect is in 97B(4) - the proposed costs
provision. An ISP told by a copyright owner that they are seeking an
injunction will have the choice of block or face a costs bill. That is
an unfair position in which to place an ISP who will usually have no
knowledge of whether the claim is good or not (that evidence belongs
to other people). There is no sanction against the operators of the
online locations, its the ISP's who are almost always going to pay
costs, yet they are ex hypothesi innocent.
There will be a serious chilling effect as ISP's play safe.
Also: there is no requirement to notify the owners of the online
location *prior* to the making of the application. What that means is
that 97B(2)(b) appears to make the success or failure of the
injunction depend on whether the operator of the online location has
taken reasonable steps to remove material that they may not know
exists (since there's no requirement to notify them), that may factor
into "reasonable" but its a weird way to put things.
Something *more like* a DMCA notice would surely be reasonable.
Ditto (c) - how is the ISP meant to take reasonable steps when it may
not know it should.
Just completely the wrong way to go about it.
Further,
Section 97A of the CPDA 1988 provides:
"97A Injunctions against service providers
(1) The High Court (in Scotland, the Court of Session) shall have
power to grant an injunction against a service provider, where that
service provider has actual knowledge of another person using their
service to infringe copyright.
(2) In determining whether a service provider has actual knowledge for
the purpose of this section, a court shall take into account all
matters which appear to it in the particular circumstances to be
relevant and, amongst other things, shall have regard to—
(a) whether a service provider has received a notice through a means
of contact made available in accordance with regulation 6(1)(c) of the
Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013);
and
(b) the extent to which any notice includes—
(i) the full name and address of the sender of the notice;
(ii) details of the infringement in question.
(3) In this section “service provider” has the meaning given to it by
regulation 2 of the Electronic Commerce (EC Directive) Regulations
2002."
Rights holders may the following concerns about this provision:
[1] Its unclear what form the injunction will take and whether it
would be satisfactory.
[2] They are likely to have to pay the ISP's costs, which could be
high (cf the way in which Norwich Pharmacal orders have developed, and
other forms of 3rd party).
[3] If they do bring claims in the High Court they may set a precedent
they don't like so they have been reluctant to try.
[4] They would have to keep making applications concerning different
sites (these things move around).
The lib dem amendment solves [2] for them nicely, and probably [1] and
[3]. It would be wrong in principle for ISP's to pay costs of such
applications unless they were somehow at fault.

The proposal is technically defective, for instance:

[1] there's no power to vary or discharge the injunction

[2] the definition of "online location" is insufficiently precise -

almost all internet gateways would be covered for instance

But the most enormous defect is in 97B(4) - the proposed costs provision. An ISP told by a copyright owner that they are seeking an injunction will have the choice of block or face a costs bill. That is an unfair position in which to place an ISP who will usually have no knowledge of whether the claim is good or not (that evidence belongs to other people). There is no sanction against the operators of the online locations, its the ISP's who are almost always going to pay costs, yet they are ex hypothesi innocent.

There will be a serious chilling effect as ISP's play safe.

Also: there is no requirement to notify the owners of the online location *prior* to the making of the application. What that means is that 97B(2)(b) appears to make the success or failure of the injunction depend on whether the operator of the online location has taken reasonable steps to remove material that they may not know exists (since there's no requirement to notify them), that may factor into "reasonable" but its a weird way to put things.

Something *more like* a DMCA notice would surely be reasonable.

Just completely the wrong way to go about it.

 

Further, Section 97A of the CPDA 1988 provides:

"97A Injunctions against service providers

(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.

(2) In determining whether a service provider has actual knowledge for the purpose of this section, a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, amongst other things, shall have regard to—

(a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013);

and

(b) the extent to which any notice includes—

(i) the full name and address of the sender of the notice;

(ii) details of the infringement in question.

(3) In this section “service provider” has the meaning given to it by regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002."

 

Rights holders may the following concerns about this provision:

[1] Its unclear what form the injunction will take and whether it would be satisfactory.

[2] They are likely to have to pay the ISP's costs, which could be high (cf the way in which Norwich Pharmacal orders have developed, and other forms of 3rd party).

[3] If they do bring claims in the High Court they may set a precedent they don't like so they have been reluctant to try.

[4] They would have to keep making applications concerning different sites (these things move around).

 

The Lib Dem / Conservative amendment solves [2] for them nicely, and probably [1] and [3]. It would be wrong in principle for ISP's to pay costs of such applications unless they were somehow at fault.

 

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