A solution to P2P filesharing remains elusive

Published on 15 Feb 2010 at 11:07 am. No Comments.
Filed under Misc, illegal file sharing, HADOPI.

Blog Author: Tony Ballard

Illegal peer to peer filesharing continues to test the boundaries of the law.  Now the European Court of Justice is to consider it, because the SABAM v Tiscali (Scarlet) case is being referred to it.
When in 2007 a Belgian court ordered Scarlet, an ISP, to filter traffic on its network to identify illegal P2P filesharing and then to block it, rights owners were pleased but ripples of concern spread through the European ISP community.  As well as questioning whether the technology was available and who should pay for it, serious questions arose as to how to resolve the competing claims of (a) rights holders as to their intellectual property, (b) intermediaries as to their responsibility for traffic passing across their networks and (c) users as to their privacy.
These questions are being addressed all over Europe.  Some indications as to a solution are visible in the ECJ’s decision in Promusicae v Telefonica that a balance has to be struck between competing fundamental rights, which was followed in 2009 by the French Constitutional Court when, weighing the balance in relation to three-strikes legislation to curb illegal filesharing, it struck down part of the HADOPI law.  And then in November the Framework Directive was amended to require that measures regarding end-users’ access to the internet should respect their fundamental rights and freedoms and any measures restricting those rights or freedoms were subject to safeguards and general principles of Community law.  Meanwhile the Digital Economy Bill proposing the UK’s solution to the problem is passing through Parliament.
Now the ECJ is to consider these questions head-on, thanks to a reference being made to it in the SABAM v Tiscali (Scarlet) case.  The Belgian Court of Appeal on 28 January 2010 decided that the Promusicae decision, dealing as it did with remedies for an existing infringement, did not provide guidance as to how the court should deal with an application for an injunction to require filtering and blocking as a means of preventing future infringements.  So the question is being referred back to the ECJ.  That is good news for all concerned except that the wheels of justice turn slowly and it will be a year or two before the ECJ makes its decision.
A brief account of the Scarlet case is set out below.
SABAM v Tiscali (Scarlet): the litigation
In June 2007, in SABAM v SA Tiscali (Scarlet), the Brussels District Court ordered Scarlet, an ISP, to prevent all forms of P2P file sharing by its subscribers involving copyrights in the repertoire of SABAM, a collecting society, and to give SABAM details of the measures that it would apply to do so.  Scarlet, as well as appealing to the District Court on the ground that it was not technically feasible to comply with the order, appealed to the Brussels Court of Appeal to set aside the District Court’s judgment and make a fresh ruling on the original claims.  The Court of Appeal has now given its judgment (on 28 January 2010).
The issues between the parties were briefly as follows.  SABAM relied on national copyright laws, interpreted in the light of Directive 2001/29 (the Information Society Directive) and 2004/48 (the Enforcement Directive), which not only permitted an injunction to be granted against an intermediary whose servicers were used by a third party to infringe IP rights but, in SABAM’s submission, required it.  Scarlet in turn relied on national laws implementing Directive 2000/31 (the e-Commerce Directive), 95/46 (the Data Protection Directive) and 2002/58 (the e-Privacy Directive), submitting in particular that blocking or filtering systems inevitably involved monitoring all traffic on its network (and anyway did not work) which was not consistent with e-Commerce laws, and that they breached community laws concerning data protection and the confidentiality of communications, particularly as they involved the use of IP addresses which Scarlet considered to be personal data.
The Court decided that it was necessary, before considering whether effective filtering and blocking systems exist and could be made to work, to consider whether the national law relating to the rights of authors was consistent with European law, having regard to Scarlet’s submissions.  To resolve this question, it looked at the decision of the European Court of Justice in Promusicae where the ECJ had held that a balance should be struck between the different fundamental rights protected by the community legal order.  In that case Promusicae, a society representing rightsholders, sought the disclosure of personal data held by an ISP to enable the rightsholders to take action to protect their copyrights.  In the present case, the Brussels Court held that the same need to reconcile different fundamental rights arose but in a different way - in Promusicae, the remedy was sought after infringement had occurred, whereas in the present case, the filtering and blocking remedy was sought with a view to preventing infringements in the future.
The Court held that the Promusicae judgment was not sufficient to allow it to give a ruling on the compatibility with community law of the relevant provisions of Belgian national law and whether it was an adequate transposition of the Directives.  It therefore referred two questions to the ECJ -
whether, having regard to the various Directives and Articles 8 and 10 of the European Convention on Human Rights, a Member State can authorise a national court to require an ISP at the ISP’s expense to filter, without limit of time, traffic on its network, particularly traffic using P2P software, with a view to identifying files containing content in which a person claims to hold rights, and then blocking them
if so, whether the court is required to apply the principle of proportionality when asked to rule on the effectiveness and dissuasive effect of the measure sought.

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