16 April 2011

Scarlet vs SABAM: Gone With The Wind?


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Interiorsphoto © 2009 jaci Lopes dos Santos | more info (via: Wylio)

In Margaret Mitchell’s novel Gone with the Wind, the novel’s protagonist, Scarlett O’Hara wonders to herself if her home on a plantation called “Tara” symbolising the pre-civil war South is still standing, or if it was “also gone with the wind”.

I must say that I had similar thoughts when I read the opinion of Advocate general Cruz Villalón in the case Scarlet vs SABAM.
I bet you want to know why?

Good, before I share them with you, however, I will present you with the

Background

In 2004 the Société belge des auteurs compositeurs et éditeurs (SABAM) applied for interim relief against the Belgian ISP Scarlet on the ground that Scarlet’s users had shared musical works contained in SABAM’s repertoire without SABAM’s permission, thereby infringing the copyright in the works.
In 2007 the Brussels Tribunal of First Instance ruled that Scarlet was under an obligation both to block the accounts of its users and to implement a mechanism to filter out infringing content. According to this decision, Scarlet was obliged to make it impossible for its customers to send or receive a P2P file that would include works from SABAM, and faced fines of €2,500 a day if it failed to comply within six months.

In 2008 the Tribunal of First Instance in Brussels decided, on an application for “absolute impossibility of compliance” filed by Scarlet against its decision of 2007, that the Tribunal had been badly informed when it decided that appropriate filtering technologies were available on the market. Scarlet had argued that it was technically impossible or unreasonably expensive to block the P2P traffic and that the solution developed by Audible Magic, a filter mechanism, did not work. Additional technical options were considered and implemented but none of them led to a satisfactory solution.
The Tribunal declared itself not competent to deal with the question as to whether filtering can be made compulsory for ISP and referred the case to the Brussels Court of Appeals.

The Court of Appeals sought a ruling from the Court of Justice of the European Union on whether EU law and, in particular, the fundamental rights guaranteed by the Charter of Fundamental Rights, permit a national court to order an ISP to install a system for filtering and blocking electronic communications.

Advocate General’s opinion

Advocate General Cruz Villalón considers that a court order to install a system to

1. filter all data communications passing via Scarlet’s network, in order to detect data which involve a copyright infringement and
2. block communications which actually involve copyright infringement, either at the point at which they are requested or at the point at which they are sent

constitutes a general preventive obligation that would apply in abstracto without determining whether there had been an actual infringement of an intellectual property right or even that an imminent infringement was likely.

This obligation, says the Advocate General, would also delegate the legal and economic responsibility for combating illegal downloading of pirated works to the ISP.

In the light of the above, Cruz Villalón considers that the installation of that filtering and blocking system is a restriction on the right to privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. Equally important, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.

To say it with Cruz Villalón’s own words: “As far as we can tell, no system of filtering and blocking seems to guarantee, in a manner that is consistent with the requirements of Articles 11 and 52, paragraph 1, of the Charter, that it will block only content specifically identifiable as illicit”.

Consequently, the Advocate General proposes that the Court of Justice should declare that EU law precludes a national court from making an order that an ISP installs such a filtering system.

This is not just a wind, no, it is a real bomb blast!

Nuclear Blast 1945photo © 2005 Thomas Williams | more info (via: Wylio)

 

Consequences

As you might know, the Court of the European Union follows Advocate General’s opinion in about 80 percent of its decisions.
This means there is more than just a fair chance that the Court rules against the requested filtering system.

In fact it is not a simple ruling that we need.
We need the Court to sweep the adversaries of fundamental human rights away and make them “gone with the wind”!

 

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