The comments contain one from someone who wrote to Malcolm Harbour as his MEP and received a form response on the amendments in question. The relevant part is below:
"Amendment H2 asks national regulatory authorities to promote - not force - cooperation, as appropriate, regarding protection and promotion of lawful content. It is entirely independent of "flexible response" and does not prescribe the outcome of any such cooperation.
As opposed to the text proposed by the Commission, amendment H3 shifts the burden of explaining the law from the ISPs to the appropriate national authorities. It also broadens the concept so that any type of unlawful activities are covered, not only copyright infringement. Such other activities could be for example child pornography. This public interest information would be prepared by the relevant national authority and then simply distributed by the ISP to all their customers. It involves no monitoring of individual customer usage of the internet. [italics added]
This may all be accurate in Mr Harbour's view although I would suggest that amended recital 12c actually speaks against the part I have italicised. However ,Pangloss sticks by her legal analysis in posts below - H2 and H3 can indeed be read in a benign way, but they can also be interpreted widely enough, in my opinion, to allow a national legislature to install a "3 strikes and you're out" type regime. That would be a matter for debate in each member state, of course, but this would certainly be a useful place to start, given the opposition even Sarkozy has aroused in France.
One is reminded of the Data Retention Directive: see Judith Rauhofer's excellent analysis of how when Tony Blair ran into troubles getting the data retention provisions he wanted through Parliament, he simply shifted his ground to the EP (where the UK then held the EU presidency) and won there. The resemblance to this battle ground is startling. Technollama has also pointed out that there is recent history of unpopular laws being buried in unlikely European legislation to get it through - the software patent provisions, which were in fact eventually defeated, were at one point proposed via a fisheries committee.
If MEPs have been criticised for acting in good faith, that is very unfortunate, but these amendments remain highly worrying from the perspective of human rights, clarity of lawmaking, and the rule of law.
EDIT: same views expressed in ZedNet by self and others -
See aso excellent piece by Bill Thompson on BBC tech blog .
