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.