Restitutional Justice in Copyright, or why should Copyright Holders seek justice from the ISPs.

The research we conducted with Ynet News in regards to p2p throttling and DPI in Israel, which was (even after reading the criticism) most likely the most comprehensive in Israel, even though it needed more research. One of the results was a Parliamentary hearing by Meir Sheetrit, the chair of the Science & Technology Committee. The real question is what to do with it.

Daniel, one of the commentators in the Hebrew blog, claimed that a class action lawsuit could not be substantiated on contractual grounds. I disagree, but in spite of many calls and mails I received to launch a class-action, I’m not sure it’s the right thing to do. A class action may be filed according to the consumer protection act or based on other obligation. Allegedly, the ISPs obligation to net neutrality in their license (and see clause 5.4.1 to the general ISP license) and their obligations according to clause 29 to the Telecommunication Act are sufficient cause. The problem? The Class Action Act requires monetary damages, and there is more than one problem to prove it.

And what are things all about? If the cause of class action lawsuits is not to enrich the attorneys and plaintiff but to bring restitutional justice, then it will not be made; in the best case, a settlement would be made where the attorneys will receive 500K ILS and the plaintiff 1M ILS, where all the related clients will receive 10% bandwidth upgrades for a few months. Apart from that, even if different damages were made to different potential plaintiffs, there’s still place for class action lawsuits (OCR 31032/06 Shalom & Malka Fabrics v. Tel-Aviv). But what was the damage?

Many comments were written in wrath and required justice and a lawsuit. The problem, none of the commentators had any monetary damage. Is blocking a p2p download cause-worthy? Could those people come to the court in clean hands and explain to the judge what are the files they downloaded? Most likely, some lawyers’ will to be first just went up to their heads.

Of course, one should understand the difference between illegal file sharing and other interference that may occur in prioritizing VOIP traffic or blocking other services.

The people with the most to gain from this research, most likely, may be the Copyright Organizations. If we recap the discussions on the Electronic Commerce Bill around a year and a half ago, where the idea was that An ISP shall not be liable to acts committed by its users if it wasn’t aware of the activity and was not supposed to be aware, we understand the problem (See also Dubitsky v. Shabiro and MGM v. Grokster). Actually, ALIS, the Israeli equivalent of the MPAA could request the ISPs for damages, as they interfered with traffic and blocked. De-facto, this claim would not be far from the required legal conclusion: if the ISPs did not interfere with traffic, they were better of in regards to liability.

Therefore, if someone should sue the ISPs to bring restitutional justice, it should be the Copyright Holders. If they were actually harmed by file sharing (and I doubt they were), let them sue the ISPs and make them pay, understand and acknowledge that by blocking they inflicted liability on themselves. That way, and only that way, they’ll learn.

[Posted in Hebrew]

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