updatedA Belgian court has ordered the third-largest Internet service provider in the country, Scarlet, to block its users from sharing copyrighted music, video and other files belonging to a Belgian group of entertainment artists and publishers.
This is significant because so far ISPs have generally been let off the hook from filtering the content that regular users like you and me obtain over the Web. Debate, however, has heated up lately, now that such massive amounts of content are being transferred over the networks, and improved filtering technology makes it easier for ISPs to automatically monitor it. With most Internet traffic flowing through their gates, filtering by ISPs would have huge impact on the sharing of pirated content. Hundreds of millions of dollars are potentially at stake.
SABAM, a group representing the artists, is hoping the ruling will set a precedent for the entire European Union (pdf). Conflicting decisions on copyright within the E.U., however, may kill such dreams.
Under the ruling, Scarlet now has to implement “automatic” filters to block the person-to-person (P2P) sharing of files that SABAM claims are under its ownership. The technical decision was reached by a court-appointed expert who developed seven technical solutions for how Scarlet could implement the ruling. One of suggested solutions was Audible Magic, the copyrighted-file blocker behind MySpace.
Courts in the United States, meanwhile, have consistently ruled that ISPs are not responsible for actively blocking their users’ activities — even if there are copyright issues in question.
Here’s one helpful summary:
ISPs once balked at the implications of policing their networks, and sought to extend the “common carrier” defence developed for the first circuit-switched telephone networks [i.e., that they're not responsible for the content they deliver]. However, the argument was not recognized outside the United States, and could not be made when the carrier knew of the offence…ISPs had argued that the obligations were onerous and intrusive. Modern techniques such as deep packet inspection, and content filtering also make such claims hard to justify. Audio filtering can identify a song accurately from a small number of short samples, for example. In other words, identifying potentially infringing material is now easy and cheap.
Because the files in question are normally high-quality audio or video, sharing them accounts for a significant portion of the ISP traffic. American companies — AT&T for one — are also getting scared.
However, some European legal experts aren’t so sure about even the Belgian ruling. One article quoted Struan Robertson, a senior associate at Pensent Masons and
editor of internet law web site Out-law.com, saying that:
The copyright directive is not supposed to supersede the terms of an earlier E.U. directive, the E-Commerce Directive, which includes a “mere conduit” defense that shields ISPs from responsibility for what happens on their networks, said Struan Robertson, senior associate with Pinsent Masons and editor of the legal Web site Out-law.com. “These laws were designed to complement each other, but there was always a risk of a collision like this,” he said. “The copyright directive says copyright owners should be able to get a court order against intermediaries whose services are used for piracy, but it also says its provisions should not prejudice the E-Commerce Directive.”
Record companies, for example, already go through the courts to require ISPs to reveal the identities of users in question. We can expect more legal battles before the issue is decided here or overseas (except, now, for places like
In the meantime, for ways that Scarlet users could try to circumvent the forthcoming filters, check out this Slashdot conversation.