Sunday, October 26, 2008

SABAM v. Scarlet: Belgian ISP released from obligation to filter network for illegal downloads

Significant news from Belgium where it's being reported that ISP Scarlet has succeeded in overturning the injunction requiring it to monitor users and filter out illegal peer to peer filesharing of music. That injunction, granted in June 2007, was the first in a series of attempts by the music industry to oblige ISPs to police their users, and was granted on the basis of evidence by SABAM (representing the industry) that monitoring downloads and filtering infringing content was both technically feasible and cost effective. Since then, however, Scarlet has demonstrated to the court that even the system of filtering suggested by SABAM - produced by Audible Magic - was technically unworkable and that SABAM had deceived the court by falsely representing that the technology had been used elsewhere (automatic translation). On that basis the trial court has set aside the order against Scarlet.

This is far from an end of the matter - it seems (though the reports are unclear) that the trial court still proposes to require Scarlet to filter if an effective solution can be found, an appeal against the original decision remains scheduled for the Court of Appeal in Brussels next year (automatic translation) and ultimately it looks likely that the ECJ will have to decide whether in principle ISPs can be obliged to filter user connections in this way. In the meantime, though, it's a significant blow for the music industry insofar as it undermines their argument that filtering is a technically viable solution. It also couldn't come at a better time for Eircom who will be defending an Irish rerun of the SABAM v. Scarlet litigation in the High Court in Dublin in the near future.

Edited to add (8.02.10): The Belgian courts have now made a prelimary reference to the European Court of Justice, which promises to be one of the most important cases yet on the scope of the E-Commerce Directive.


  1. Thanks for the update and please forgive me if I am wrong but do most if not all of 'their' solutions base themselves on port numbers and traffic across those ports.
    I can change my shape through those ports whth a few taps on the keyboard.

  2. Ports can be modified alright, but it's not feasible in most cases, as technically blocking or modifying ports will mean a reduction or indeed cessation of a specified service e.g., Protocol HTTP for example defines the format for communication between internet browsers and web sites.

    UDP Port 27 may use a defined protocol to communicate depending on the application. A protocol is a set of formalised rules that explains how data is communicated over a network. Think of it as the language spoken between computers to help them communicate more efficiently.


  3. Correct me if I'm wrong but as I understand it:

    It is common for a peer to peer file sharing program to utilize a default port. The default port is often chosen to be one that is not used by other programs. Simply blocking the use of that port across a network will block the use of the program under its default settings. Changing the default settings avoids this block and does not cause compatibility issues with the other peer.

    Whilst I do not know how the proposed monitoring software operates I can conclude that it would only serve to detect the most novice of users. Perhaps this category of user is the least deserving of punishment.

    Further, developing the program to randomly allocate a port number upon installation instead of using a default would not be a significant obstacle.

  4. Blocking ports as a solution to copyrighted file sharing is a really stupid idea.
    First of all, and if it worked, it would block any peer to peer communication, and that includes a lot of legal file sharing that is completely legal. Why could it not be used to share public domain works?
    And second; ports are just numbers that can be used by any internet application. They do not belong to any program or service.
    Some programs may use some default ports, and dome others may not. If some programs do it, a ISP blocking of these ports would simply make people to change a number to avoid it, and newer programs using other ports to appear.
    But the numbers themselves are general purposed, and can be used by anyone. And it WILL be used by other programs unless it is not occupied. Any NAT server may randomly map this 'suspicious port' to a well known port, for instance, an HTTP connection.

    Anyway... the general idea is like if we knew that some terrorists live in the number 25 of some street. And then the solution proposed were to simply forbid the access to any building with this number on its address.

  5. Audible Magic is about traffic filering based on deep packet inspection. There is nothing to do with blocking ports.