Paragraph against ISP throttling hailed as users' rights victory in EU

A simple recommendation that the European Commission consider not passing laws that help ISPs throttle Internet traffic, is being heralded as a stick in the eye of French President Sarkozy, who has aims to require ISPs to do just that.

What passed the European Parliament yesterday was not a bill or a new law. But a single paragraph of text added to a simple parliamentary report, at no less than the last minute, is being treated as a huge symbolic victory for users who don't want their ISPs throttling or cutting off their Internet access.

A report drafted last September by Member of Parliament (MEP) Guy Bono (Socialist, SE France) is quite literally a catch-all list of recommendations of policy matters that the Parliament feels the European Commission should consider. The subject of that report is "Cultural Industries in Europe," which the report itself defines as businesses that deal with the arts, and thus with intellectual property.

"Cultural industries are industries which give intellectual works additional economic value that at the same time generates new values for individuals and society, traditional industries such as the film, music and publishing industries, the media and industries in the creative sector (fashion and design), tourist, arts and information industries," reads the September draft of the report (PDF available here).

The report addresses a guiding principle of the EU government called the Lisbon Strategy, which is essentially a blueprint for attaining Europe's goal of becoming the world's principal economy by 2010. (Some would say the US has helped considerably toward this goal in recent years.) Thus the report's purpose is to shine some spotlights on possible ways the EC could help enable Europe to reach that goal, in the field of intellectual industries including movie and television production, publishing, and the Internet.

It's this last part, of course, which is the subject of so much scrutiny: Last week, MEP Chrisofer Fjellner (Moderate, Sweden) co-authored one of several dozen very simple amendments to the Bono report, which simply asked the EC to consider not passing any laws which may contribute to an ISP's ability to cut off Internet access, as that may be a violation of users' rights. Here is the entire text of the amendment:

The amendment is receiving particular scrutiny in Europe as it may be the first serious gesture, if only a symbolic one, to stand against the motives of French President Nicolas Sarkozy, who proposed laws for his own country last February that would require ISPs there to throttle or disconnect Internet users found (or suspected) to be trading in unlicensed files. Pres. Sarkozy called this a move toward a "civilized Internet," and key European Commissioners, including Internal Market Commissioner Charlie McCreevy and Information Society Commissioner Viviane Reding, are said to be studying Sarkozy's proposal as a model for similar laws to be applied across the continent.

Last Tuesday, the Electronic Frontier Foundation's European coordinator Erik Josefsson wrote to various members of Parliament, urging their support of Fjellner's amendment on the grounds that Mr. Sarkozy's proposed "civilization" would lead to a tangled and unmanageable bureaucracy playing itself out on the Internet.

"In order to implement this strategy, the proposal would require service providers to sift through and examine all Internet users' every activity to uncover bits that may infringe copyright," Josefsson wrote. "As encryption techniques improve, the surveillance will become more vigilant and slow down everyone's traffic in order to actually work. Files identified as infringing may in fact be legitimate or justified by the exceptions and limitations of copyright, yet 'graduated response' affords no due process to appeal mistaken claims. The adjudication of copyright will move away from courts and policymakers to the deal-making of self-interested industry negotiators desperate to preserve old business models."

But the international recording industry representative firm IFPI took issue against the amendment yesterday, after having earlier supported the Bono report in principle. In a statement, executive VP Frances Moore wrote, "Many of the recommendations in this [Bono] Report stress the need to protect intellectual property as a driver of growth in the creative sector. The Report also calls on the European Commission and Member States to provide the necessary resources to ensure that intellectual property is respected and protected.

"However, one badly drafted, rushed through amendment was adopted which is in contradiction to the rest of the text," Moore continued. "If the aim of the Report is to protect creative content, including in the online environment, we should be looking at all options available in the fight against copyright theft. Instead, this amendment suggested discarding certain options before there is even a proper debate."

The final vote on the resolution backing the Fjellner amendment passed quite handily: 536 votes yea, 36 nay, 12 abstentions. However, this amendment was one of 17 considered yesterday on various issues, all of which passed handily, some without debate.

Advocacy groups and P2P news services today applauded the news, some going so far as to mistake the news as the passage of a law protecting file-sharers' rights. However, in fact, yesterday's passage adds one voice to a sea of recommendations for the EC, including calls for strengthening copyright and patent protections for creators and artists on a par with, if not beyond, standards currently set by the US.