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Obligation for ISPs to set anti-piracy filters dealt blow by EU Justice Court

In a judgement, the Court of Justice of the European Union decided that EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files.

The case pitted Internet service provider Scarlet Extended SA against SABAM, a Belgian management company responsible for authorising the use by third parties of the musical works of authors, composers and editors. In 2004, SABAM established that users of Scarlet's services were downloading works of its members’ catalogue from the internet, without authorisation and without paying royalties, by means of peer-to-peer networks.

At first, the Brussels Court of First Instance ordered Scarlet, on threat of a periodic penalty, to bring those copyright infringements to an end “by making it impossible for its customers to send or receive in any way electronic files containing a musical work in SABAM's repertoire by means of peer-to-peer software.”

Scarlet appealed to the Brussels Court of Appeal, claiming that the injunction failed to comply with EU law because it imposed on itself, de facto, a general obligation to monitor communications on its network, something which was incompatible with the Directive on electronic commerce.

The Appeal Court sided with Scarlet, judging that “such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between, on the one hand, the right to intellectual property, and, on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information.”

The Court points out that, while holders of intellectual-property rights may apply for an injunction against internet service providers, whose services are being used by a third party to infringe their rights, national rules, however, must respect the limitations arising from European Union law, in particular, the prohibition laid down in the E-Commerce Directive on electronic commerce. It states that national authorities “must not adopt measures which would require an internet service provider to carry out general monitoring of the information that it transmits on its network.”

SABAM would have required Scarlet to actively monitor all the data relating to each of its customers in order to prevent any infringement of intellectual-property rights. It follows that the injunction would impose general monitoring, something which is incompatible with the E-Commerce Directive.

The CEO of SABAM, Christophe Depreter, said that the organisation “regretted the ruling” and that they “felt that an important door had been closed in the battle against piracy.” However, Depreter hinted that “other measures could be taken to prevent piracy and protect their members.”

Story filed 28.11.11

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