EU Court: ISPs Can't Be Forced To Monitor All Traffic

mmcuh writes "Back in 2004, Belgian copyright group Sabam managed to get a court order forcing the ISP Scarlet to filter out filesharing traffic. Scarlet took the case to a national appeals court, which in turn asked the European Court of Justice for an opinion. The opinion was delivered today: 'EU law precludes an injunction made against an internet service provider requiring it to install a system for filtering all electronic communications passing via its services which applies indiscriminately to all its customers, as a preventive measure, exclusively at its expense and for an unlimited period. [...] It is true that the protection of the right to intellectual property is enshrined in the Charter of Fundamental Rights of the EU. There is, however, nothing whatsoever in the wording of the Charter or in the Court's case law to suggest that that right is inviolable and must for that reason be absolutely protected.'" An anonymous reader adds a link to the ruling itself, but notes "The ruling is not quite as broad as I would have liked, since it only pertains to filtering 'which applies indiscriminately to all its customers; exclusively at its expense; and for an unlimited period.'"

Comments

No Unlimited Period

[dcollins]

Complainant asks the court to require the ISP filter out content X for all customers, at its expense, for the next 20 years. (P.S.: See you in 20 years when we plan to re-file a duplicate of this request.) *

* See also U.S. Copyright duration.

Re:No Unlimited Period

[SomeKDEUser]

You know, the EU is in many case the only thing standing between the citizens and the populist/totalitarian tendencies of the national governments.

Basically, the EU courts care about basic rights, whereas the national courts care about either political agendas, or power. The EU commission cares about having the economy work, and will prosecute monopolists. The EP (except the loonies) actually cares about doing a good job.

Now the national part, the council of ministers, that is a disgrace. I really want the EU to become more democratic, and this means more power to the commission and EP, and way, way less to the national governments.

Re:No Unlimited Period

[betterunixthanunix]

20 years later

The EP has far too much and is pushing political agendas! We need to reduce the power of the commission and the EP!

Re:No Unlimited Period

[hedwards]

I'd mod you up if I had points. That's exactly how it's worked in the US. The GOP has figured out that by scaring the crap out of people and blaming the government for them being scared that they can get reelected without even trying to provide a better government. More than that they've found that they get rewarded for making the government as dysfunctional as possible.

What's scary is that at this time they aren't even lying about their priorities.

Re:No Unlimited Period

[causality]

I'd mod you up if I had points. That's exactly how it's worked in the US. The GOP has figured out that by scaring the crap out of people and blaming the government for them being scared that they can get reelected without even trying to provide a better government. More than that they've found that they get rewarded for making the government as dysfunctional as possible.

What's scary is that at this time they aren't even lying about their priorities.

Oh. Here I thought you were going to relate having a federal government that has too much power over the states to the situation with the EU where a strong central government with too much control of the member nations is what GP was warning about. But you turned it into an anti-Republican rant instead. That's ... not nearly so useful.

Can we just settle this matter and move on? The Democrats? They fucking suck and will gladly take us down the road to totalitarianism and it will be in the name of "fairness" and "spreading the wealth around" and unions. The Republicans? They fucking suck and will gladly take us down the road to fascism and it will be in the name of "patriotism" and "national defense" and being pro-business.

You see, the nice thing about not allowing the central federal government to get too powerful is that neither group can do much damage that way because almost all of the government a citizen experiences comes from the local and state levels. Local and state politicians no matter their affiliation are more accountable and it is much easier to relocate (and deny them your taxes) if you really have a problem with the way they run things.

The EU might seem wonderful right now but if you triple its power it won't be so nice anymore. But no, you wanted to rant about a political party and not about the system under which it operates, demonstrating to anyone with the slightest insight that you have been suckered by the two-party system. Wake up, man. It's designed to cause precisely this kind of squabbling that never changes anything.

Yeah the government is dysfunctional, no dispute there, and it took the coordinated efforts of both parties (really a single Statist Party with two factions) to make it that way. After you keep trying one thing hundreds of times and it keeps failing over and over again, it's time to try something different. What that something might be is the worthy question.

Re:No Unlimited Period

[causality]

Another nice thing, is that it is much cheaper for large business to bribe local politicians.

This is where the fact that the citizens outnumber those businesses works in our favor.

Contrast that to the federal level where you either bring tremendous lobbying dollars to the table or your voice is drowned out. Those businesses and lobbyists are the only ones who can afford influence when it is this way. That in combination with a high incumbency rate is precisely why the voters are marginalized.

Lowering the cost and effort required to be heard by your elected officials makes them more accessible to everyone, not less. What you count as a disadvantage there is actually the most desirable aspect of keeping things small and local wherever possible.

Not an inviolable right

[betterunixthanunix]

Great, so, can we stop pretending that copyrights are more important than free speech now?

Well, this too sounds good

[Maury Markowitz]

The ruling is not quite as broad as I would have liked, since it only pertains to filtering 'which applies indiscriminately to all its customers; exclusively at its expense; and for an unlimited period."

That seems like a perfectly adequate compromise position.

This ruling places the onus for detection back on the rights holder, where it belongs. They are tasked with identifying violations and informing the ISP.

Then, if this holds up, the ISP places filters for a time less than infinite on that account. This does not limit that account to any other non-infringing use, nor does it limit any of the ISP's other customers.

Quite frankly, this sounds like the most logical solution to the "problem" I've seen to date. It's certainly much better than disconnection from the internet, and frankly I suspect this is much easier to implement as well.

Does anyone have a good counterargument?

Re:Well, this too sounds good

[causality]

You can't put a restriction or surveillance on any citizen without court order. This right is protected by every EU country constitution.

This one is a matter of scope, not a binary "yes there is a court order or no one hasn't been obtained". Sabam wanted to get a single court order that applies to all users of this particular ISP.

The question then is shouldn't they have a burden of proof to identify and accuse individuals and not apply monitoring to everyone who happens to use a particular company just in case they *might* be filesharing, along with all the increased costs this would imply? Any kind of sanity would say "yes". The desperation of the copyright cartels and their desire to place their profits above even basic human freedoms would say "no".

They wanted a filtering system? How would such monitoring even detect copyrighted traffic anyway? You can't just monitor all BitTorrent traffic because legitimate items such as Linux distros are downloaded there. A digest or hash wouldn't be so reliable because it wouldn't apply anymore to a file that was altered or transcoded and wouldn't easily apply to files that are compressed. Torrents can be encrypted and there are alternate peer-to-peer protocols. It's not really even a feasible task in the first place.

Priorities

[JustNiz]

Although this ruling is a win for our rights and freedoms, given the deciding 3 terms: "indiscriminately, exclusively at its expense; and for an unlimited period", its clear the ruling is based on the rights of the ISP to not have to face additional undetermined expenses, rather than anything to do with protecting the internet or free speech.

Its been clear for decades if not centuries that the US government is so sold out that it prioritises big business profits above its own constitution, however its sad to see the same is apparently now true of the EU.

Filtering is futile

[xenobyte]

Today, most major trackers (bittorrent) support SSL connections, TOR was always encrypted, most filehosters (megaupload, hotfile, rapidshare, fileserve, filesonic, wupload etc.) also support SSL and then there's VPN...

There's simply no way filtering would hamper serious file sharers, not the common leecher if portals and tracker links silently used SSL. It's only effect would be higher bills (due to investments in computing power to perform the filtering) and slower traffic. It would not do anything worthwhile in the area of file sharing.