Wednesday, July 18, 2007

Can ISPs be required to block file-sharing?

EDRI has a very good summary of the remarkable decision in SABAM vs SA Scarlet which requires a Belgian ISP to monitor its network so as to block the sharing of copyrighted files over peer to peer networks:
In an unprecedented decision, the Court of First Instance in Bruxelles has ordered Scarlet, a Belgium ISP, to implement technical measures in order to prohibit its users to illegally download music files.

The decision comes after a complaint initiated in 2004 by Sabam (Belgian Society of Authors, Composers and Publishers) against the Belgium ISP Tiscali, now renamed as Scarlet. A first intermediary ruling of 26 November 2004 accepted the possibility for an ISP to disconnect customers if they violate copyrights, and block the access for all customers to websites offering file-sharing programs. But further technical clarifications were needed, so an expert was appointed in order to present its opinions.

In a report published on 3 January 2007, the expert presented 11 solutions that could be applied in order to block or filter the file-sharing, and seven of them could be applied by Scarlet.

The court has decided that Scarlet need now to implement one or more technical measures in order to stop the copyright infringement, by making it impossible for its subscribers to send or receive music files from the repertoire of Sabam via p2p software. Scarlet also needs to inform Sabam on the technical measures that will be implemented. The decision needs to be implemented in 6 months, or the ISP must pay 2 500 euros /day as damages for non-compliance.

The decision did not consider the issues regarding privacy, freedom of expression or the right to the secrecy of the correspondence. Scarlet also claimed that the duty imposed by the court is a general obligation to monitor the network, that is contrary to the EU E-commerce Directive. But the court stated that the decision was not an obligation to monitor the network and that the solutions identified by the expert were just technical measures allowing blocking or filtering certain information sent through the Scarlet's network.
There is a tension here between different aspects of European law. Copyright law requires member states to give copyright holders effective remedies against infringement - including injunctions against intermediaries who facilitate infringement. On the other hand, the E-Commerce Directive recognises that it would be impossible to operate a regime where ISPs were responsible for the activities of their users, and establishes protections for ISPs including a provision which prevents member states from imposing a general duty on ISPs to monitor their networks for illegal activity. This decision appears to privilege copyright law over the safeguards of the E-Commerce Directive, privacy of users, and freedom of expression and, if upheld, will result in ISPs become privatised censors (at their own cost, no less). Once the technology is put in place to prevent one type of material being distributed, we can expect function creep as other interest groups seek to censor other material also.


  1. Anonymous26 July, 2007

    The Internet Service Providers Association of Ireland (ISPAI) firmly holds the position that commercial communications providers must never be expected to monitor the subject matter of customers' Internet communications.

    Where specific crimes are being investigated by An Garda Síochána and, when presented with the appropriate warrents or court orders, our members have always cooperated in providing evidence pertaining to the occurence of a communication that may be held in logs.

    The Association is totally opposed to any obligation (such as that apparently in this Belgian court decision) that ISPs should monitor all of their customers' Internet communications on the off-chance that someone may be distributing copyrighted work which they do not have permission to use. (How is an ISP, or any other third party, to know whether a communication is copyrighted, who owns the copyright or whether permission has or has not been granted?)

    The privacy of all personal and business communications is at stake here. This is the electronic equivalent of the post-office steaming open every letter in the sorting office, checking the contents and never delivering the bits some unknown worker believes should be censored. If legislation forced ISPs to monitor, never mind the democratic or moral issues, in practice everyone would immediatly switch to encryption rendering any such monitoring useless, the monitoring process itself would slow the Internet to an unusable snail's pace.

    Paul Durrant
    General Manager

  2. i realise the original Blog entry is based around the intermediaries protection of EU ISPs, V Copyright law.

    this POV brings up an interesting case.

    in the totally unconnected storm now brewing in the feb 2008 users V ISP/Phorm '[personal data] interception for profit' news*.

    IANAL, and so am looking for as much input and feedback from your good selves on this matter as posible,perhaps a new Blog entry And/or followup on the cable forum thread were we are trying to collate as much EU as well as Uk options open to all the effected ISP users .

    all the talk is regarding the DPA and RIPA..., but it seems to me, after reading several aspects of UK and now EU law, that Virgin Media,BT and and Talk Talk (70% of the UK market broadband)
    are infact also potentially breaking Copyright law by collecting and then processing a users personal data property and selling that data to a 3rd party/ commercial party (Phorm).

    can this 'profiling for profit' be considered Comercial Piracy, with all the implications that implys?, i thinkit can.

    also, given that these UK VM,BT,and BB ISPs have volunteered to a 'general obligation to monitor the network' through their signing of comercial contracts with Phorm, does that mean they now automaticly loose their rights under the 'intermediaries' protection and/or EU E-commerce Directive ?

    how does this effect the users and (SOHO) business using these effected ISPs ?.

    any and all thoughts on this are really welcome (both here while im watching this URL and the cable forum thread)as its hard to get any UK/EU wide legal opinion on any of this potential ISP/Phorm comercial piracy aspect it seems.

    as one final point of information for your consideration here

    the UK Phorm and their many PR firms official line is they _cant_ and dont see or use potential personal data.

    to your average tech user its a lie.

    if you look at their Patent, its clear they can as any point both now and in the future.

    and the real truth even to a non tech user now, is they do and can.

    as officially pointed out by Phorms very own COO in his public quote here:

    " As you browse, we're able to categorize all of your Internet actions ," said Virasb Vahidi, the chief operating officer of Phorm. " We actually can see the entire Internet ."

    The company, called Phorm, has created a tool that can track every single online action of a given consumer, based on data from that person's Internet service provider."

    How Phorm plans to tap your internet connection

    Related stories
    Phorm agrees to independent inspection of data pimping code (19 March 2008)
    Net think thank: Phorm is illegal (17 March 2008)
    BT admits misleading customers over Phorm experiments (17 March 2008)
    Top security firm: Phorm is adware (12 March 2008)
    Qualcomm buys into Phorm-alike firm (12 March 2008)
    CPW builds wall between customers and Phorm (11 March 2008)
    Dear ISP, I am not a target market (10 March 2008)
    Phorm launches data pimping fight back (7 March 2008)
    BT targets 10,000 data pimping guinea pigs (5 March 2008)
    Data pimping: surveillance expert raises illegal wiretap worries (4 March 2008)
    Broadband big boys waiting on data pimping (29 February 2008)
    BT pimped customer web data to advertisers last summer (27 February 2008)
    ISP data deal with former 'spyware' boss triggers privacy fears (25 February 2008)

  3. Anonymous28 July, 2008

    Bt are now using PHORM for advertising over the web... In Ireland Eircom were taking to court by Sony but it never stood up... The UK and Irish opinions on this legally are completely different to Belgium...