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

[mwvdlee]

My guess is that the EU court is just trying to be cautious about setting a broad precedent without a lot more study.

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

[lordholm]

Ah... yes, we want the council of ministers to make the laws, it is always better if elected lawmakers have no influence on the laws, I mean really it is just so much better if the council who have their meetings partially in secret is the only body that makes European law. Silly commission and parliament that is accountable to the citizens, we should get rid of them!

Re:No Unlimited Period

[lordholm]

Your proposal is called european federalism. I like it very much :)

Re:No Unlimited Period

[SomeKDEUser]

I think my point was unclear. I have no problem with governments pushing political agendas -- it is their job. As long as these agendas do not involve curtailing basic freedoms or pandering to special interests at the detriment of everyone else.

I do not expect rulers to not rule to their advantage. This is fair game. But this does not dispense them from doing their job, which is improving the lot of all of us as well. The EU does that. moreso than national governments.

This is logical: problems are global or at least continent-wide these days. National government are too weak to tackle them, yet they need to pretend to. When they fail, as they must, they resort to populist tactics to stay in power. Power must be at the level where the problems are, and in the XXIst, this is at the continent/world scale and at the local scale.

Nations are obsolete, and I think they know that.

Re:No Unlimited Period

[SomeKDEUser]

True, I have painted with too broad a brush. The problem usually lies in systems where the national governments can try to prosecute citizens, or influence the outcome of a trial.

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

[ThePhilips]

[...] 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.

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

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.

Until the time comes when large business, which outgrew every standalone state, has purchased every other state and you have nowhere to move.

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.

The gov't is dysfunctional because people allowed it to be so.

And also, honestly, I think that democracy (rule of majority) simply can't work when majority of people spend most of their lives passively consuming. Your US democracy is quite exemplary in that respect. It worked well when taking part in political process was highly involving, required some sort of commitment. And many did commit themselves, many were involved. And politicians couldn't dare to act against the will of people.

Another opinion could be that the majoritarian systems, based on populism, simply had no sufficient time to adapt themselves to the environment where information travels very fast and very cheaply. Never before it was so easy to manipulate opinion of the masses. I'm constantly reminded of the ancient Bread and circuses. Fast food and TV, to put it in modern terms.

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?

Re:Not an inviolable right

[FBeans]

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

You can stop pretending, but you just can't talk about it, just in case!

Re:Not an inviolable right

[Grumbleduke]

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

The ruling doesn't go quite that far. It says that copyrights are less important than freedom of expression (the European equivalent of free speech) + privacy + freedom to conduct a business in these specific circumstances. There's still a lot of talk about "striking a fair balance" between "the protection of the fundamental right to property [and] the protection of the fundamental rights of individuals."

Having said that, they do, it seems for the first time, acknowledge that the "protection of the right to intellectual property" isn't absolute in [43], noting that "[t]here is, however, nothing whatsoever in the wording of [Article 17(2) of the CFREU) or in the Court's case-law to suggest that that right is inviolable and must for that reason be absolutely protected."

It's nice to have that on record.

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

[Maury Markowitz]

"Obviously you are unfamiliar with DMCA takedown abuses here in the United States."

I am more than familiar with them. They still place the onus on the rights holder, not the ISP. Ask your ISP which they would prefer.

"I guess people no longer run servers out of their homes."

I'm sure they do. And if you wish to support other users on such a server, and those users commit copyright violations, you'll now have multiple options on how you would like to deal with this problem, compared to the singular option you have today, disconnection.

Is this your counterargument? It's specious.

Re:Well, this too sounds good

[Krneki]

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

Re:Well, this too sounds good

[Xest]

I do have somewhat of a concern about the ruling, it leaves open the potential that even a slight bit of movement on one of these makes the measures okay:

"which applies indiscriminately to all its customers; exclusively at its expense; and for an unlimited period"

So if it's not exclusively at it's expense, i.e. the music industry pays a pittance, say, £1000 towards the measure or requests it for a finite period such as an effective lifetime - 100 years, then does that make it okay?

Realistically the ruling is too vague to offer any long term guaranteed protection and this will return to the courts once the industry has made a slight bit of movement on one of these points in a manner I described.

The key word that really ruins it all is the "and" in the "and for an unlimited period", if this word was instead "or" then it would imply that none of these things is acceptable, instead it implies that they are only unacceptable when all hold true in combination, so the content industry only has to mitigate one to work round this ruling, which is fairly trivial.

Re:Well, this too sounds good

[Kjella]

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.

That's one big conditional AND. If it applies to only some people - like people that have had their first "strike" in a three strike system or the copyright holder copays or it is only for a limited time may still be legal. Courts like to make their decisions as narrow as possible, the really big principled decisions are only decided if no lesser decision could suffice.

Re:Well, this too sounds good

[betterunixthanunix]

You said this was a fair compromise; I say it is not, because at the end of the day it will still affect non-infringing uses and it will not just affect individuals who are accused of infringement. The copyright lobbyists come in demanding that we cede Internet freedom because they do not know how to deal with the vast amount of copyright infringement that occurs on the Internet, and we are supposed to believe that ceding any amount of our freedom to them is a fair compromise? It sounds more like the copyright industry gets more power, and everyone else loses their freedom -- how is that a compromise?

Re:Well, this too sounds good

[Halo1]

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.

It's not a compromise. The court simply ruled on the question it was asked, which is in fact all it could rule about. See also the FAQ by European Digital Rights (EDRI).

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.

Re:Well, this too sounds good

[ScrewMaster]

You said this was a fair compromise; I say it is not, because at the end of the day it will still affect non-infringing uses and it will not just affect individuals who are accused of infringement. The copyright lobbyists come in demanding that we cede Internet freedom because they do not know how to deal with the vast amount of copyright infringement that occurs on the Internet, and we are supposed to believe that ceding any amount of our freedom to them is a fair compromise? It sounds more like the copyright industry gets more power, and everyone else loses their freedom -- how is that a compromise?

That is correct. What the GP fails to understand (or perhaps understands all too well) is that we aren't dealing with enlightened capitalists here, in fact we aren't dealing with enlightened anything. The copyright cartels (that is, the major copyright holders, the ones who rip off their customers and artists alike to the tune of billions of dollars every year, and fund RIAA/MPAA/CRIA-like groups worldwide) are organizations who must be resisted at every turn, on principle. That's because they are no more than criminal gangs who do not care who gets hurt, what social and economic harm they cause, as long as they get their way. Their efforts for the past few decades alone have proven that to the nth degree. These are bad people. Period. End of statement. Compromising with them is like compromising with terrorists: it only ends well for the terrorist.

The arrogance of these corporations is just beyond belief: they act is if they are some multinational treasure that must be preserved at all costs. They are not. Matter of fact, if you want a shining example of overarching corporate greed, you need look no further. What makes them so dangerous is that they are willing to spend enormous sums to buy any government, any elected or unelected official, if it offers even the slimmest possibility of regaining control of content distribution. That's really what we should be up in arms about, this idea that corporations should be allowed to influence public policy-making and rewrite core elements of multiple legal systems. Reese said it best: "It can't be bargained with. It can't be reasoned with. It doesn't feel pity, or remorse, or fear. And it absolutely will not stop." These guys are out to terminate any last vestige of logic or reason in copyright.

Personally, I think it's high time that the entire notion of copyright and its legitimate function in society (any society) be revisited. Certainly here in the U.S., copyright law has turned into an abomination rivalled only by our equally drain-bamaged patent system. I do not know what the EU's stance on copyright is, insofar as why it is suffered to exist in the first place, but in the United States our Constitution mandates that it is to "promote the advancement of the useful arts and sciences." Yes, you've all heard that quote before, but I believe it demonstrates the disconnect between what the supreme law of our land requires of copyright, and what it is actually doing to us now. And this all occurred because a corrupt Congress, at the behest of certain corporations (many of whom aren't even based in the U.S.) turned copyright into a protectionist nightmare.

Granted, this discussion is about Europe, but what I want everyone to understand is that it is the same organizations that are behind all of this. Vivendi, Universal, BMG, Disney and the rest of the big boys. These multinational operations are doing their level best to impose a restrictive copyright regime over as much of the globe as they possibly can: if that manages to retard progress, limit the utility of the Internet and cost taxpayers billions ... well.

There is no compromise possible with these people. Look at what is before our Congress right now, with SOPA and the Protect-IP acts (and let us not forget ACTA.) Do you really want that crap promulgating itself to Europe? Because if it succeeds here, I guarantee our government (under the mind-altering influence of big media's bribe money) will be strong-arming Europe to support similar regulation. Guaranteed.

Bigger issue...

[FBeans]

Most of these cases and problems all step from piracy. The Respective authorites trying to "fix" a broken system. Copyrights, patents, trademarks, they just wont ever work for all parties when it comes to intelectual property and digitally stored media. Instead of running around, putting pots and pans down to catch leaking rain water, we need to fix the roof. Until then, there will be countless, pointless conversations about Moral vs Legal aspects. Each of which are vague and ever-changing. Every story I read about Authorities trying to tackle piracy, or tackle Internet related issues in general, I die a little more inside. Having said that, I don't thin we're in for any revolution anytime soon...

Re:Bigger issue...

[sjames]

Ultimately, it's just not going to work unless/until copyright law is re-formulated to be in line with what most everyone considers to be right. The elephant in the room is that the common citizen doesn't really obey the law, he does what he believes to be right and hopes for the best. The more the law reflects what reasonable people believe to be approximately right, the better society works.

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.

Re:Priorities

[CharlyFoxtrot]

In this case the ISP's and their customers have the same goal: no filtering. It's the ISP who brought the case before the court so it's normal that the judgement should be framed in such a way that it represent their case against the filtering. In fact I believe there is a law which says that the verdict must be explained by the court in such a way as to indicate it was based on the evidence brought forward during the trial or it's invalid.

the right to "violate" the copyright

[stanlyb]

What they are saying is that there are cases where you could "violate" the copyright, some of them are even already defined, like in libraries for example, and some are not, but it would be up to the defendant to prove it.

Re:You're thinking of the EU parliament

[mmcuh]

Spelling aside, you are also factually incorrect. There are a number of different legislative methods used in the EU, but in none of them does the Council of Ministers initialise the procedure.

Depending on the type of legislation, it's either

• Commission proposes -> Council and Parliament amends and accepts or rejects (codecision procedure)
• Commission proposes -> Council consults Parliament -> Council ignores Parliament and amends and accepts or rejects on its own (consultation procedure)
• Commission proposes -> Council amends and accepts or rejects -> Parliament accepts or rejects (consent procedure)
• Commission proposes -> Council amends and accepts or rejects
• Commission dictates!

Re:British Telecom

[Grumbleduke]

The difference between this and the Newzbin2 ruling is that the Newzbin2 order was very specific that the Hollywood studios had to do all the monitoring etc..

While the order itself (given right at the bottom of the judgment) says that BT must "block or attempt to block access by its customers to the website known as Newzbin2 ... and any other IP address or URL whose sole or predominant purpose is to enable or facilitate access to the Newzbin2 website", which seems to be a general monitoring obligation the judgment made it clear that "[i]t will be the Studios' responsibility accurately to identify IP addresses and URLs to be notified to BT." In theory, all BT has to do is take IPs and URLs given to it and add them to its existing block-list. While BT may be able to use this new ruling if they end up appealing the Newzbin2 order (or if ISPs face further orders), I'm not sure how much use it will be.

The CJEU ruling sets an upper bound on the extend to which courts can order ISPs to enforce copyrights, but anything less than the ridiculously-wide order SABAM sought is still fair game.

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.