November 28, 2011
European Court of Justice Says No To Filtering Internet Traffic As A Response To Copyright Infringement
The European Court of Justice issued an opinion last week holding that it is a violation of EU law for member states to impose filtering requirements on ISPs. The case came by way of a dispute between Belgian IP licensing company SABAM and ISP Scarlet Extended SA. A lower court in Belgium found that copyright infringement was taking place over Scarlet’s network through its customers’ use of peer-to-peer software. That court ordered Scarlet to filter out traffic containing SABAM’s unlicensed content. Scarlet appealed to a higher court in Belgium which referred the case to the European Court of Justice.
The question before the ECJ as appealed by Scarlet is whether the imposition of a filtering requirement violates EU privacy, data protection, and human rights laws. Apparently, it does, as the mechanism for identifying SABAM’s copyrighted content requires monitoring all content to make the distinction. That would interfere with Scarlet’s business, and it would not respect the right to protection of personal data and the freedom to receive or impart information.
One statement from the Court’s opinion is likely to offend copyright holders everywhere:
43 The protection of the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’). There is, however, nothing whatsoever in the wording of that provision or in the Court’s case-law to suggest that that right is inviolable and must for that reason be absolutely protected.
Or putting it another way, yes, intellectual property is important, but we’re not going to destroy the Internet to protect it. Aggrieved parties may sue intermediaries such as ISPs, but the remedies will not include the imposition of a filtering system. The Viacoms of the world will not be happy with this one.
Congress, in contrast, takes the opposite attitude, hence the PRO-IP Act and SOPA. I suspect that the U.S. Government will put Europe on a watch list or such over this decision. The ECJ judgment is here, and the press release accompanying the decision is here. [MG]