24 November 2011

Scarlet vs SABAM: Do Neither Block, Nor Filter!


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Image: …E O VENTO LEVOU (Gone With The Wind) by jonycunha on Flickr
...E O VENTO LEVOU (Gone With The Wind)

If you have landed here, I guess you are interested to find out more about today’s ruling of the Court of Justice of the European Union in the case Scarlet Extended vs Société belge des auteurs compositeurs et éditeurs (SABAM).

Some months ago I blogged on the opinion of the Advocate General Cruz Villalón, in which he asked the Court to declare that

the EU law precludes a national court from making an order that an ISP installs a system for filtering all electronic communications. 

I suggest that you read this older post of mine in order to be familiar with the background of the case.

So,

what did the Court decide?

The Court basically backed the Advocate General’s opinion and held that

1. while the right to intellectual property is indeed enshrined in Article 17(2) of the Charter of Fundamental Rights of the European Union (‘the Charter’),  it has no absolute protection;

2. national authorities and courts, when undertaking measures to protect copyright holders, must strike a fair balance between the protection of copyright and (i) the protection of the fundamental rights of individuals who are affected by such measures and (ii) the protection of the freedom to conduct a business enjoyed by ISPs such as Scarlet pursuant to Article 16 of the Charter;

3. the obligation of ISPs (such as Scarlet) to install and maintain a complicated, costly and permanent filtering system in the interests of copyright holders (such as SABAM) without any limitation in time, directed at all future infringements and intended to protect not only existing works, but also future works, would well infringe both, ISPs freedom to conduct a business and the fundamental rights of that ISP’s customers, namely their right to protection of their personal data and their freedom to receive or impart information, which are rights safeguarded by Articles 8 and 11 of the Charter respectively.

Consequently, the Court held that an injunction ordering an ISP to filter its network traffic in the manner of para 3 above would represent a

serious infringement of EU law

and any national court, having issued such an injunction, would disrespect the legal framework of the European Union.

In my previous blogpost I predicted that Advocate General`s opinion, if followed by the Court, would create a bomb blast to sweep away the adversaries of fundamental human rights.

Did I promise you too much? I hope not.

Anyway, although the Court did in fact light a fuse that will eventually cause an explosion, it will not be a hurting one. It will rather provide ISPs such as Scarlet with the necessary shell to protect them in the performance of their most important services to the information society.

What does this mean in practical terms?

Basically and since the ruling heavily relies on Article 15 of the Directive 2000/31/EC, an ISP is protected only to the extent that it does not filter or modify its network`s traffic. Should the ISP – be it by means of an excessive compliance or an anticipatory self-regulation – begin to filter or block traffic, it would then lose the abovementioned privilege.

So, ISPs all over the EU – do simply enjoy the new dawn of the ruling and do neither block, nor filter, because otherwise you might be gone with the wind!

26 May 2011

One Breach To Compromise Them All


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Image: Demon Dog by Samuel Cockman on Flickr

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This is a watchdog. A very cute one.
Its job is, nevertheless, to bark to alert its owner of an intruder’s presence and scare away the intruder.

France, the country which advertised the three strikes rule on a large scale and did eventually adopt it, has also a watchdog.
A dog to watch for file-sharing and online piracy of any kind.
Not a very cute one.

In fact, the French government represented by HADOPI, the executive agency established to enforce the three strikes rule, has commissioned the private company Trident Media Guard (TMG) to scan file-sharing networks and gather the IP addresses of alleged copyright infringers.

However, this watchdog was hacked and suffered a massive

Data Breach

some ten days ago.

I found the information about the breach on Ars Technica which have been continuously covering (click and click) the issue.
It appears that not only the unguarded servers were TMG’s Achilles’ heel. Their anti-piracy software was full of faults as well.

What a negligence, huh?

But that would not be all!

Imagine that this poorly managed company, empowered by the order of a special government agency and, employing a software that would very likely fail during a diligently conducted acceptance test, has the means to count your three strikes and

Send You Off

the digital playground?

The good news is that HADOPI must have considered this state of affairs unacceptable and has thus (temporarily) suspended TMG’s authorisation to collect the IP addresses of French Internet subscribers.

If the Court of the European Union follows Advocate General’s opinion in Scarlet vs SABAM, it could rule such Internet scanning outdated.

Either way, TMG’s data breach did its deed – it managed to harm the three strikes policy’s image and to (hopefully) ultimately and entirely compromise it.