Can Hollywood stop filesharing through ISP terms and conditions?

Digital rights organization Bits of Freedom (BoF) reports that film producers Warner and Disney have tried to impose on Internet Service Providers (ISPs) in the Netherlands the duty to terminate the internet subscription of customers that infringe their copyrights. BoF fears the emergence of an Internet ban for clients that are uploading and downloading. It is doubtful whether this fear is justified.

This issue, which first surfaced in 2008, was probably raised again by BoF because the Dutch Parliament will soon consider a new Telecommunications Act. BoF calls for the new law to establish that ISPs are not allowed to deny users access to an internet subscription. The organization warns of the emergence of an Internet ban for some consumers.

It is doubtful whether fundamental rights are at stake. In the contractual relationship between provider and client, the ISP is free to set general terms and conditions for using their service, provided these are not unreasonable for the consumer. From the perspective of consumers, the agreements envisaged by the film industry would not result in unprecedented constraints of the use of their subscription. The conditions would have been similar to the current practice, where the account of customers that refuse to pay bills or users that send large amounts of spam can be closed.

In their crusade against copyright infringements, Warner and Disney wanted to offer an affordable service of high quality downloads to customers of Internet service providers. In 2006, Warner offered the company @Home, now Ziggo, a so-called DTO (download-to-own) agreement. This meant, among other things, that customers of @Home could download new or popular Warner Bros. titles with permission from Warner.

As part of the agreement, Warner Bros. Would notify the ISP in case one of its subscribers starts spreading unauthorised copies of protected movies or television series over their Internet connection. The provider then had to contact its subscriber and inform them that copyright infringements where suspected. If customers where to ignore the warning and continued to infringe on the copyrights of Warner Bros., the ISP could end the agreement to deliver internet access to the end customer on the basis of breach of the terms of the agreement.

Ruud Lamers, then general manager of Warner Home Video Benelux, explained the DTO agreement in an interview in 2008: "We consider @Home (now Ziggo, ed) as a reliable and stable partner in combating piracy. Ultimately, all customers will benefit, because massive piracy clutters the web. Losing the pirates will eventually reduce bandwidth traffic.  So, this means more free space on the net. "