European Court Of Justice Says ISPs Cannot Be Forced To Be Copyright Cops

from the good-for-them dept

Last Thursday, as many of us in the US were getting ready for a nice turkey dinner, the European Court of Justice issued a very nice ruling we should all be thankful for, saying that it is against EU law to require an ISP to set up a filtering system to prevent copyright infringement.
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.

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.
We had mentioned this was likely earlier this year, when the Advocate General had recommended such a ruling, and now the court has agreed. The specific case involved a fight between Belgian anti-piracy organization/collection agency SABAM and ISP Scarlet. A Belgian court had ruled that Scarlet had to implement a filter that would magically end infringement, or it would face "periodic penalty." Of course, that's an impossible request. The courts ruling says that a copyright holder can file for an injunction, but it must "respect the limitations" of EU law, including a prohibition on "general monitoring of information" that goes over an ISP's network.
In this regard, the Court finds that the injunction in question would require 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. Moreover, such an injunction would not respect the applicable fundamental rights.
The court also makes a good point. While intellectual property should be respected, nothing in the law says it should be "absolutely protected" in such a way that tramples many other rights. It seems that many supporters of more stringent copyright laws always seem to forget this point. They don't much care about the collateral damage.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    Swedish Turnip (profile), Nov 28th, 2011 @ 4:40am

    European Court of Justice rolls for SAN.
    European Court of Justice rules in favor Fundamental Rights.

    Man, we need more good SAN checks like this one.

    reply to this | link to this | view in thread ]

  2. icon
    ethorad (profile), Nov 28th, 2011 @ 4:56am

    fingers crossed

    I very (very) rarely have much good to say about the European project my politicians have signed me up to, but ... I'm liking this decision!

    Particularly since we're slowly building our own Great Firewall here in the UK.

    (I appreciate that there's a difference between blanket website blocking and scanning for copyrighted material, but at least it's a step in the right direction)

    reply to this | link to this | view in thread ]

  3. icon
    Butcherer79 (profile), Nov 28th, 2011 @ 5:25am


    I wonder if this means the court ruling regarding BT's blocking of newzbin2 (which they've failed to put in place according to BT customers here), will now have to be overturned, or is this one of those European laws that the UK can ignore.

    reply to this | link to this | view in thread ]

  4. icon
    Rose M. Welch (profile), Nov 28th, 2011 @ 5:48am

    They don't much care about the collateral damage.

    Or reality.

    reply to this | link to this | view in thread ]

  5. icon
    Rose M. Welch (profile), Nov 28th, 2011 @ 5:49am

    Re: fingers crossed

    A more troubling difference is between scanning for copyrighted material and scanning for material that is being illegally transmitted. After all, copyrighted doesn't mean un-sendable, un-uploadable, un-downloadable, etc.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Nov 28th, 2011 @ 5:50am

    EU letting the pirates win, this is a shameful day for coyright, ip protection.


    reply to this | link to this | view in thread ]

  7. identicon
    anonymous, Nov 28th, 2011 @ 5:56am

    my concern with this ruling is, will the EU countries abide by it, or, as i suspect, totally ignore it? i cant see the UK or France taking any notice. those governments are getting too much 'encouragement' from the entertainment industries. after all, they ignore the wishes of the people and what is best for the people, opting to back big corporations and their interests every time.

    reply to this | link to this | view in thread ]

  8. identicon
    abc gum, Nov 28th, 2011 @ 6:00am

    Deep Packet Inspection is simply nice words used to describe a man in the middle attack. This is the same method employed by many nefarious "hackers".

    In the past, the clandestine monitoring of personal communications (aka wire tapping) was considered illegal and not just in Europe. In the UK it has become common place thanks to News Corp. Hopefully this ruling will put an end to the attempts at legalizing such activity for the privileged while keeping it illegal for the peons (ex: video tapping police).

    reply to this | link to this | view in thread ]

  9. icon
    The eejit (profile), Nov 28th, 2011 @ 6:10am


    By which you mean, lots and lots of cash from Rupert Murdoch to make all them bad inquiring politicians go away?

    reply to this | link to this | view in thread ]

  10. icon
    Steve R. (profile), Nov 28th, 2011 @ 6:33am

    Rule of Law and Due Process

    Excellent post. Those who push for "strong" copyright seem to think that the law is meant to serve them, not society as a whole, meaning that those accused are also entitled to due process under the rule of law.

    Furthermore, those who claim that the legal system owes them protection are undertaking a massive "land-grab" to assert ever greater control over so-called "intellectual property". Like a drug addict, they need an ever bigger fix. Time to put an end to the "land-grab". Those who buy products are also entitled to the rights of ownership.

    reply to this | link to this | view in thread ]

  11. identicon
    Edward Teach, Nov 28th, 2011 @ 7:18am

    What ye be blatherin about, mate?

    Shiver me sides! What fool's cant ye be uttering, mate?

    "Shameful day for copyright"? Nay, lad, if the ill-named Court of Justice had ruled the opposite way, then it would be a shameful day! For then one class of people would force another class of people to enforce artificial laws! This manner of injustice is what leads men to spit on their palms, raise the black flag and set to slitting throats!

    And what unholy, heathen palaver be this "IP"? Pray, how can an idea be made "property"? If I copy your rigging, how can you tell? Further, we both sail faster! "Property"? An idea can no more be "property" than a Man can be "property"! "IP" is slavery, ye scurvy freshwater swab!

    Sea gherkin! Ectoplasm! Pithecanthropus!

    reply to this | link to this | view in thread ]

  12. icon
    Planespotter (profile), Nov 28th, 2011 @ 7:20am

    Re: BT

    Checked it this morning.... still viewable ;)

    reply to this | link to this | view in thread ]

  13. icon
    Planespotter (profile), Nov 28th, 2011 @ 7:21am


    Then under current legislation I can take my case to the EU Court and have them rule on it.

    reply to this | link to this | view in thread ]

  14. identicon
    justsayin, Nov 28th, 2011 @ 7:55am

    Re: What ye be blatherin about, mate?

    /s means "I'm just kidding, mate"

    reply to this | link to this | view in thread ]

  15. icon
    Ben (profile), Nov 28th, 2011 @ 8:15am

    Re: Re: What ye be blatherin about, mate?

    I think he is too

    reply to this | link to this | view in thread ]

  16. icon
    Duke (profile), Nov 28th, 2011 @ 9:22am

    Re: BT

    Probably not. The Scarlet case (the one the CJEU ruled on) was very specific, and so only an upper bound on what isn't allowed.

    The ruling only applies directly to cases where an ISP is being asked to set up a system where they have to:
    (1) monitor all communications going through their network,
    (2) from all customers,
    (3) as a preventative measure,
    (4) at their own expense, and
    (5) for an unlimited time.

    In the Newzbin2 case, the ruling was very specific that (1) didn't apply, as BT doesn't have to do any monitoring; the Hollywood studios are responsible for identifying IP addresses and URLs (and liable for any wrong ones) and giving them to BT to block. All BT has to do is add them to its existing blocklist.

    However, if the case does get appealed (or if future cases are brought), or in the DEA judicial review appeal, this case is likely to be useful as an indication that it is OK to ignore copyright if enforcing it would be too onerous, invasive or impractical.

    reply to this | link to this | view in thread ]

  17. icon
    mike allen (profile), Nov 28th, 2011 @ 11:16am

    good ruling by the court we need more than one though we need something similar in the USA.

    reply to this | link to this | view in thread ]

  18. icon
    Jeffrey Nonken (profile), Nov 28th, 2011 @ 11:19am

    It's easy.

    It's really not difficult at all to put a system in place that blocks all copyrighted communication.

    Just block all communication.

    Will some legal communication get caught in the net? Sure, but hey, you can't make an omelet without breaking a few eggs.

    It's all about Pyrrhic victory. And if you freetards can't see that, well, tough beans.

    reply to this | link to this | view in thread ]

  19. identicon
    Anonymous Coward, Nov 29th, 2011 @ 4:27pm

    I like the smell of no anti-Mikes in the morning.

    reply to this | link to this | view in thread ]

  20. identicon
    Loki, Nov 30th, 2011 @ 12:16pm

    They don't much care about the collateral damage.

    And the more collateral damage they cause, the less people care about their "rights".

    reply to this | link to this | view in thread ]

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