The ruling is not surprising, in my opinion, given the "other" Sabam ruling (against the Belgian ISP, Scarlet) at the end of last year, and supports the court's previous ruling in Promusicae that any injunction must balance the fundamental rights involved, rather than siding solely with a rightsholder.
The concluding sections of the court's rationale is:
50 ... injunction could potentially undermine freedom of information, since that system might not distinguish adequately between unlawful content and lawful content, with the result that its introduction could lead to the blocking of lawful communications. Indeed, it is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to copyright which vary from one Member State to another. In addition, in some Member States certain works fall within the public domain or may be posted online free of charge by the authors concerned (see, by analogy, Scarlet Extended, paragraph 52).
51 Consequently, it must be held that, in adopting the injunction requiring the hosting service provider to install the contested filtering system, the national court concerned would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information, on the other (see, by analogy, Scarlet Extended, paragraph 53).
52 In the light of the foregoing, the answer to the question referred is that Directives 2000/31, 2001/29 and 2004/48, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against a hosting service provider which requires it to install the contested filtering system.
This seems like a sensible decision to me — but what do you think?
Very interesting. I am told by people much more technically literate than I, that there are serious questions about the accuracy of some of the technologies being used. We also seem to have increasing involvement by law enforcement agencies including for the UK the serious Organised Crime Agency (SOCA). See http://www.guardian.co.uk/technology/2012/feb/16/publishers-bid-close-filesharing-sites
ReplyDeleteI think there is a blurring of the boundaries between civil and criminal law and we do need to think about the differing standards of proof. In criminal law in the UK the prosecution has to establish a case beyond reasonable doubt.In civil law cases are decided on the balance of probabilities. I think there is a significant difference and there is need to decide whether enforcement of IP rights should primarily be a matter for civil or for criminal law.
ReplyDeletethere is need to decide whether enforcement of IP rights should primarily be a matter for civil or for criminal law.
Would it suffice, in your opinion, to apply civil proof in the case of civil / tortious infringements, and a criminal standard for the statutory offences? For example, in the UK, someone who commits a s107 offence should be subject to a criminal standard of proof, which would not be necessary if the rightsholder merely wished to sue the individual.
I do agree that it could lead to the conclusion that certain evidence gathering techniques are insufficient for criminal purposes — or, at least, could be challenged by technically-competent defence counsel — but suitable for civil issues, but I am not sure that this would be a new situation; I believe it was a relatively recent murder inquiry, or similar, where a claim for damages was pursued since, whilst criminal liability could not be made out, civil liability could, for the same injury?
I would be very nervous about making any infringement of copyright (or trade marks etc.) a criminal matter; this would not seem to me to be the right approach at all.
My real concern is about blurring of boundaries. In previous decades we saw copyright as primarily a civil issue. Today there is much (misguided?) talk about copyright theft. The UK's Digital Economy Act will, if it is ever implemented, blur boundaries further. The argument I was trying to advance is that if we are going down a criminal or quasi criminal road in the field of copyright enforcement, we have to be very careful to ensure that we can trust the evidence.
ReplyDeleteNo disagreement there — but the arguments as to why infringement should be equated with theft, and then become theft, are frequent and forcefully delivered.
ReplyDelete