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The battle between ISPs and rights owners has been hotting up as copyright owners’ enthusiasm for suing individual downloaders has cooled down. Over the past five years, music and film industry groups have turned to providers of broadband services, urging them to do more in the fight against piracy.
IP owners have adopted two tactics in relation to ISPs. The first is to lobby national governments to require them to track and prevent piracy, a practice that has had mixed results. Another, increasingly adopted by IP owners, is to take direct action against ISPs.
The biggest test so far came when Belgian copyright collecting society Sabam asked the country’s courts to order an ISP called Scarlet (now part of incumbent telecoms operator Belgacom) to put in place a mechanism to prevent its users from downloading copyrighted works via peer-to-peer networks. In 2007 the Brussels Court of First Instance told Scarlet to ensure that no copyrighted works were downloaded or face a daily fine of €2,500. This was in spite of the fact that a technology specialist had told the Court that only one piece of filtering software was available and that it was unsuited to resolving the problem.
Scarlet appealed. The Court of Appeal then asked the Court of Justice of the EU whether the Copyright Directive and the Enforcement Directive could authorise a national court to require ISPs to put a filtering system in place at their own cost and for an indefinite period.
Last month Europe’s top court ruled that national laws must respect the ban in the E-Commerce Directive that prevents national authorities from forcing ISPs to carry out general monitoring of information transmitted on their networks. The Court said an injunction would require Scarlet to actively monitor all data relating to each of its customers in a way that would be incompatible with the Directive.
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Although the decision was a setback to rights holders, it was not a surprise: six months earlier the Advocate General had advised the Court to rule against Sabam’s request. Copyright owners had anticipated the decision and have been busy honing their strategies in preparation for new battles.
They are putting those strategies to the test in courts from Australia to the UK. As judges in Canberra prepared to hear the final arguments in a long-running copyright dispute between the Australian Federation Against Copyright Theft (AFACT) and ISP iiNet (see case of the year on page 40), in London six major movie studios persuaded the High Court to order BT to use filtering technology to prevent its services being used by users and operators of the file-indexing websites, Newzbin and Newzbin2, to infringe copyright. Even though the Court of Justice was mulling over the issues in Sabam, the judge in the Newzbin case, Mr Justice Arnold, concluded that the cases were “clearly distinguishable”. Rather than the rights owners seeking an order than covers all BT’s customers for an unlimited period as a preventative measure, he said that in this case, the film studios has sought a “clear and precise” order.
Whether a request for such a clear and precise measure is effective, however, is another matter. Last month the group behind Newzbin 2 claimed that more than 90% of its active users in the UK had downloaded software provided by the site to circumvent BT’s filtering measures.
While courts continue to define the obligations of ISPs and copyright owners to tackle piracy, technological advances seem set to keep infringers one step ahead. Expect rights owners to play legal catch-up as a result. Last month Sabam tried a new tactic, writing to ISPs in Belgium asking them to pay 3.4% of the price of a broadband connection (amounting to around €1 a month for each subscriber) as a levy to compensate rights owners for making copyright material available online. Whether its PR gambit can translate into a successful legal campaign remains to be seen. EB
