EU Advocate General Anti-Piracy Advice “A Victory For Freedom”

A long-running dispute over whether an ISP can be forced to hand over the details of one of its customers to an anti-piracy group is now with the EU after courts in Sweden couldn't decide. Now the EU's Advocate General has delivered his assessment which is being described as "a victory for freedom" by the Pirate Party's MEP. But that, according to the Advocate General, all depends on ISPs' intentions when they store information on their subscribers.

Soon after Sweden’s controversial IPRED legislation became law in 2009, five book publishers coordinated by anti-piracy group Antipiratbyrån handed a request for information to a local court.

This first test of IPRED was designed to get the personal identifying details of a subscriber who allegedly stored more than 2000 audio books on his server, 27 of which breached the publishers’ copyrights.

In June 2009 the court ordered ISP ePhone to hand over the personal details of the individual. However, ePhone protested and took the case to the court of appeal which overturned the decision and sent the case to the Supreme Court.

So could IPRED, the law created to enable copyright holders to more easily chase down copyright infringers, be used for its intended purpose? Sweden’s Supreme Court said that only the European Court of Justice could decide. Yesterday, Advocate General Niilo Jääskinen gave his advice on the matter and it was a victory for privacy which could deliver a fatal blow to IPRED, but one to which Internet service providers hold the key.

Jääskinen’s statement concluded that while no EU Directive ­ exists which prevents copyright owners requesting personal information on file-sharers from ISPs under IPRED, the data being stored by ISPs must have originally been stored for the purpose in order to be subsequently released.

“It is a victory for freedom. Although it is difficult to interpret, it is very good news,” says Christian Engstrom, MEP for the Pirate Party. “Internet service providers collect customer data to manage their operations, not to bust suspected file sharers as the copyright mafia want them to do.”

But speaking with Expressen, pro-copyright advocate Per Strömbäck says that the Supreme Court asked the ECJ only one question – Is there any conflict between the EU data retention directive and the Swedish IPRED-law? – and the response to that was a clear “no”. Further discussion on the reasons why data was originally stored was an error by the Advocate General, he believes.

Pirate Party’s Engstrom says the advice by the Advocate will mean that it will still be OK for the ISPs to disclose information to police and prosecutors in criminal cases, just not to private companies, adding that “the justice system has more important ­ things to do than to track down teenagers who listen to music.”

Indeed, ePhone’s original objection to IPRED was that it would give surveillance powers to private companies where that should be an issue for the police, so they will be pleased with the advice. Needless to say, ePhone did not store customer information for the purposes of handing it over to Antipiratbyrån.

But for now, as the advice from the Advocate General is digested by the ECJ before heading back to Sweden’s Supreme Court, increasingly Antipiratbyrån are doing just fine without help from IPRED. By conducting their activities alongside the police – who already have the necessary powers to get information from ISPs – they are getting the information they want anyway, just in other ways.

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