EU Court: ISPs Can't Be Forced To Monitor All Traffic 67
mmcuh writes "Back in 2004, Belgian copyright group Sabam managed to get a court order forcing the ISP Scarlet to filter out filesharing traffic. Scarlet took the case to a national appeals court, which in turn asked the European Court of Justice for an opinion. The opinion was delivered today: 'EU law precludes an injunction made against an internet service provider requiring it to install a system for filtering all electronic communications passing via its services which applies indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period.
[...] It is true that the protection of the right to intellectual property is enshrined in the Charter of Fundamental Rights of the EU. There is, however, nothing whatsoever in the wording of the Charter or in the Court's case law to suggest that that right is inviolable and must for that reason be absolutely protected.'" An anonymous reader adds a link to the ruling itself, but notes "The ruling is not quite as broad as I would have liked, since it only pertains to filtering 'which applies indiscriminately to all its customers; exclusively at its expense; and for an unlimited period.'"
Re:Priorities (Score:5, Informative)
In this case the ISP's and their customers have the same goal: no filtering. It's the ISP who brought the case before the court so it's normal that the judgement should be framed in such a way that it represent their case against the filtering. In fact I believe there is a law which says that the verdict must be explained by the court in such a way as to indicate it was based on the evidence brought forward during the trial or it's invalid.
Re:Well, this too sounds good (Score:4, Informative)
The ruling is not quite as broad as I would have liked, since it only pertains to filtering 'which applies indiscriminately to all its customers; exclusively at its expense; and for an unlimited period."
That seems like a perfectly adequate compromise position.
It's not a compromise. The court simply ruled on the question it was asked, which is in fact all it could rule about. See also the FAQ [edri.org] by European Digital Rights (EDRI).
Re:Not an inviolable right (Score:5, Informative)
Great, so, can we stop pretending that copyrights are more important than free speech now?
The ruling doesn't go quite that far. It says that copyrights are less important than freedom of expression (the European equivalent of free speech) + privacy + freedom to conduct a business in these specific circumstances. There's still a lot of talk about "striking a fair balance" between "the protection of the fundamental right to property [and] the protection of the fundamental rights of individuals."
Having said that, they do, it seems for the first time, acknowledge that the "protection of the right to intellectual property" isn't absolute in [43], noting that "[t]here is, however, nothing whatsoever in the wording of [Article 17(2) of the CFREU) or in the Court's case-law to suggest that that right is inviolable and must for that reason be absolutely protected."
It's nice to have that on record.
Re:British Telecom (Score:4, Informative)
The difference between this and the Newzbin2 ruling is that the Newzbin2 order was very specific that the Hollywood studios had to do all the monitoring etc..
While the order itself (given right at the bottom of the judgment [bailii.org]) says that BT must "block or attempt to block access by its customers to the website known as Newzbin2 ... and any other IP address or URL whose sole or predominant purpose is to enable or facilitate access to the Newzbin2 website", which seems to be a general monitoring obligation the judgment made it clear that "[i]t will be the Studios' responsibility accurately to identify IP addresses and URLs to be notified to BT." In theory, all BT has to do is take IPs and URLs given to it and add them to its existing block-list. While BT may be able to use this new ruling if they end up appealing the Newzbin2 order (or if ISPs face further orders), I'm not sure how much use it will be.
The CJEU ruling sets an upper bound on the extend to which courts can order ISPs to enforce copyrights, but anything less than the ridiculously-wide order SABAM sought is still fair game.