ISPs held liable copyright infringement throughout EU
In June of 2007, the Belgian Court of First Instance ordered Scarlet, a Belgian Internet Service Provider, to use filtering technology to purge their network of copyright infringement content. At first the Belgian court was hesitant to enforce the ruling by penalizing the ISP without an indication that there was a practical way to prevent the infringement.
The court appointed an expert who promptly filed a report stating that there were eleven technologically feasible implementations that could put a stop to sharing copyrighted content without authorization. The court concluded that ISPs had an obligation to monitor their network content and suggested that Scarlet terminate the accounts of those who choose to pursue illegal activities including copyright infringement. What makes this ruling so critical is that it no longer accepts an ISP user’s privacy as a reasonable defense, as is accepted in the United States, and holds the ISP responsible, rather than the user. The Belgian Court was cautious in differentiating between filtering and conducting any sort of surveillance, which would violate EU law.
The Swedish government responded soon after with a proposition to change the law so that ISPs would be forced to terminate the accounts of users who repeatedly violate copyright infringement laws. If the proposition is passed, copyright holders will be able to enforce this action in court. The proposal, not unlike a recent similar proposal from the UK Government, has met a great deal of resistance from Swedish ISPs who claim that they are not responsible for what users do and consider monitoring as a type of privacy violation. Proponents of the proposal contend that the increasing illegal file sharing in Sweden has drastically reduced consumers’ expenditures on music-selling sites and decreased investors’ eagerness to enter the music market. Currently the Swedish Consumer Protection Act (SCPA) does not apply to digital sales. An amendment or addendum is essential to protect both consumers and copyright holders as the digital domain grows.
A similar position was taken by the French Government as well who set up the Olivennes Commission to battle illegal file sharing. The commission suggested that a policing system be put in place where authorities would impersonate file sharers and expose ISP accounts involved in copyright infringement. Warning messages would be sent to ISP users, but then if the users persisted to participate in illegal file sharing their accounts would be terminated and/or they would be subject to penalties.
Member by member, the EU states are tightening the reigns on copyright infringers and increasingly pressuring ISPs to take action. Many proposals have yet to be finalized but progress has been made. Time will measure the effectiveness of these changes.
by Gian Marco Fanelli
