Bags- to-bubbly manufacturer LVMH (Louis Vuitton Moet Hennessy) is lobbying the European Commission for amendments to EU law which will radically threaten the open Internet as we know it. It's a thinly-veiled variant on what other rights-holders tried to do with the Telecoms Package.

LVMH wants ISPs and web hosts to be given a duty of care to take action in cases of alleged intellectual property infringement. It is pushing an amendment to the IPR Enforcement directive, which is currently being reviewed by the European Commission.The LVMH amendment would use the law of tort as the legal basis for imposing such a duty on intermediaries. The basic idea of it is:

The EU Commission's planned revision of the EU IP Enforcement Directive offers a good possibility to further clarify the role of online sales platforms and other intermediaries by introducing the principle of Duty of Care. Such a Duty would - in line with the judgment -oblige intermediaries that create or control a dangerous situation to take any reasonable measures to prevent damages to third parties.

What's concerning about the LVMH proposed amendment is its breadth. It does not just cover copyright, but all forms of IP. It does not just cover online - LVMH brags that it covers offline as well, and could impose liability on companies shipping physical goods.

The idea of giving ISPs such a duty first appeared in the Telecoms Package (see my book The Copyright Enforcement Enigma). This looks like a reprise.

It would seem as though LVMH want to use tort law, inserted into copyright law, to avoid the difficulties of amending telecoms law.

The effect of the LVMH amendment would be to over-ride the mere conduit provision. Mere conduit not only absolves ISPs of liability for content, but protects the right to free speech on the Internet. The LVMH amendment would force a reversal of the principles of open communication on which the Internet is built, creating a back-door obligation for ISPs to monitor traffic and block content.

The LVMH amendment is also very clearly targetting eBay, forcing the auction site to police sellers and potentially forcing some sellers out of business.

If my information is still correct, the LVMH lobbyist used to work for eBay, and no doubt she now carries a nice expensive handbag. How paper-thin are the loyalties of those lobbyists!

The European Commission and Parliament should seek independent and impartial advice, and beware whose champagne they drink.

However, I fear the worst.

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The proposal for the LVMH amendment to the IPR Enforcement directive is based on the following:

We propose to use this article as basis for introducing a Duty of Care for intermediaries in the IP Enforcement Directive.

The provision should be drafted on the basis of the following 5 key principles:

A Duty of Care should be imposed for intermediaries that create or control a dangerous situation

Such Duty should entail any reasonable measures to prevent damage to the intellectual property of third parties

The Duty should take into account the business model of the intermediary, adjusting the level of Care to the type of service the intermediary is providing

The Duty should be measured against the seriousness of the harm on the one side and the ease of avoiding the damage on the other side

The breach of that Duty should give rise to shared liability for the IP infringement and entitle the right holder to claim damages from the intermediary that has breached it

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To find out more about copyright, ISP liability and the Telecoms Package, see my book

The Copyright Enforcement Enigma: Internet Politics and the 'Telecoms Package'

Please cite this article: Monica Horten ( 2011) IPRED alert - LVMH takes pop shot at ISPs, www.iptegrity.com 27 October 2011

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