An attempt to force ISPs to monitor and filter copyrighted material found itself stranded in the European Court, but the group has not given up.

This week SABAM sued the Belgian ISPs Belgacom, Telenet and Voo, claiming a 3.4 percent cut of Internet subscriber fees as compensation for the rampant piracy they enable through their networks.

SABAM argues that authors should be paid for any “public broadcast” of a song. Pirated downloads and streams on the Internet are such public broadcasts according to the group, and they are therefore entitled to proper compensation.

“The ISPs make profits by offering Internet subscriptions through which movies and music can be downloaded and thus need to pay royalties,” SABAM states in a comment on the case.

The proposed “pirate tax” would not make it legal for consumers to download from unauthorized sources.

For their part the ISPs criticize SABAM’s demands, which would effectively require all customers to pay a “tax” while only a small minority download or stream unauthorized music.

“What SABAM wants is tantamount to imposing a linear tax,” says a Belgacom spokesman. The ISP further points at European legislation under which they are not liable for the traffic of their consumers.

“A postman doesn’t open letters he delivers. We are also just transporting data, and we are not responsible for the contents,” Belgacom says.

Telenet responds with a similar claim, pointing out that they cannot be held liable for pirating consumers.

“Providing Internet access is a ‘mere conduit principle’: Forwarding information without any intervention also means that an Internet provider can not and should not be liable for the content distributed over the Internet,” the ISP says.

Aside from the question of whether the law provides for an Internet licensing fee on ISP subscriptions, the 3.4 percent figure seems unfair as only a minority of Internet users transfer unauthorized music.

ISPA, the professional association of Internet providers, agrees with this assessment. The group further points out that those who already pay for their music will be required to pay twice if SABAM has its way.

“The so-called license fee on Internet access comes down to a tax that will hurt all consumers, including people who do not use their Internet to download music or movies. Those who download legally will be punished by SABAM’s proposal, as they will pay twice,” ISPA writes in a press release.

Internet access will certainly become more expensive in Belgium if Sabam is successful. And it may be just the beginning, as the movie, book, software, gaming, photography and other industries may also try to claim their share of the booty.

A ruling in the case is expected to be handed down next year.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

But rather than being scared of the big bad wolf, kids in Belgium have a new foe – the country’s evil copyright overlords.

In quite possibly their lowest move yet, rights group SABAM are now trying to attach a price to children’s reading sessions taking place in libraries up and down the country.

More often associated with music-related collections, SABAM have been contacting libraries that hold sessions where children can listen to stories read out by library staff. These, the group insists, are events held in public and are therefore chargeable.

One target for SABAM is a library in Dilbeek that has been holding a twice-monthly reading hour for children.

“Each time a dozen or so children attend,” library worker Alexandra Vervaecke told DeMorgen. “A while ago we were suddenly contacted by SABAM and told that we have to pay. I have done the calculations: for us it would amount to 250 euro per year.”

Naturally the libraries are mulling ways to avoid paying SABAM – one option is to limit readings to older stories that are copyright free, but even that’s not easy.

“Even Grimms’ Fairy Tales are on a list of works for which one must pay,” said Vervaecke. “This is because only the original version is copyright-free. In any case it’s impossible to read only older texts.”

LINC, a non-profit organization that helps to set up public reading spots in libraries, is concerned by developments.

“A few hundred euros might not sound like much, but for small libraries it is quite a lot of money and the effects will not help to promote reading”, said spokesperson An Valkenborgh. “Since the report from Dilbeek we’ve heard from a few other libraries that have also been contacted about paying or are already paying.”

It’s not clear if there is a link with the increased SABAM activity in this area, but currently in Belgium it’s Jeugdboekenweek – children’s literature week. Nevertheless, SABAM insist they have a right to get paid.

“We have a department that actively tracks events for which royalties must be paid. It could be that they have seen a notice and thus contacted us,” said spokesman Jérôme Van Win. “For libraries there are no exceptions to the law. They are public places and so royalties must be paid for a public reading session.”

Only 3 months in, 2012 is proving to be a busy year for SABAM. Last month the group lost their legal battle with social networking site Netlog, with the European Court of Justice ruling that hosting sites aren’t allowed to filter copyrighted content as that would violate the privacy of users and hinder freedom of information.

In a separate case originally brought by an artist back in 2004, a judge’s findings means that SABAM is now facing accusations of falsifying accounts to cover up bribe payments, abuse of trust, copyright fraud and embezzlement.

Update: Although the original article at Belgium’s DeMorgen seems very clear, and despite the author of that article contacting SABAM and receiving a quote for his story, SABAM are now saying that there is a misunderstanding. While they clarify that they are able to ask for payment when a literary work is read out as a public performance, in the case of the Dilbeek library, SABAM say that the fee requested was only for the playing of music.

The bottom line is that if libraries arrange a reading they do have to contact SABAM to see if the work to be read is protected. If it is then the library has to pay SABAM a fee.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The court ordered the 48-year old to pay the local music rights group SABAM 65,651 euro ($87.500) in damages. The man was further fined 5,500.

In addition to the Kaiser Chiefs tracks, police found a total of 1127 infringing files on the man’s home computer.

He was found not guilty of distributing movies and music for profit.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Delhaye’s complaint, which was backed up with witness statements from a former SABAM general manager and a former group auditor, triggered off interest in SABAM’s internal affairs.

Later that year Judge Frederic Lugentz began a fraud investigation which focused on SABAM’s non-profit association Caisse d’Entraide et de Solidarité (CES), a fund which SABAM claimed was to support older members over 60.

The investigation culminated in 2007 and resulted in 24 complaints against the group including embezzlement, money laundering and the falsification of accounts, the latter to allegedly cover up the payment of bribes to an official in the Ministry of Finance.

Although many charges were dropped due to Belgium’s statute of limitations, SABAM must now face Belgium’s criminal court on six charges.

Former SABAM President Jacques Leduc is one of the accused but former financial directors Marcel Raiglot and Jean Huysmans and current finance director Luc Van Oycke are being held accountable for corruption and forgery.

“We are pleased that the merits of the case will be heard by the criminal court,” says SABAM general manager Christophe Depreter. “I am fully confident that we can show that nothing wrong happened.”

A date has not yet been set for the court hearing.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

Today the European Court of Justice delivered its ruling, concluding that the social network can’t be forced to install an anti-piracy filter.

“This obligation would be contrary to the requirement that a proper balance is ensured between the protection of copyright and the freedom of entrepreneurship, the right to privacy freedom, and the freedom to obtain knowledge and information,” the Court announced.

The Court noted that the privacy of users is more important than protecting copyright. In addition, it fears that a filter would result in censorship of legitimate content, thereby obstructing freedom of information.

“[The filter] 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,” the Court writes.

The unprecedented decision may have major implications for all services in Europe that host user uploaded content, not least among cyberlockers such as RapidShare. Also, the verdict would prevent copyright holders ordering BitTorrent sites to filter uploaded files, something that isoHunt already does based on a US injunction.

“I think this would apply to general file-hosting services, just as it has also done to conventional ISP services,” Mark Owen, head of the intellectual property practice at the London law firm Harbottle & Lewis told TorrentFreak. “A rightsholder may be able to get an injunction provided it is drafted narrowly enough. The ruling is against injunctions which it thinks are too wide, such that they are tantamount to a general duty to monitor.”

Rick Falkvinge, founder of the first Pirate Party in Sweden, is happy that the EU Court of Justice has placed the rights of people above those of corporations.

“I think it is quite remarkable, and very promising, that Europe’s highest court says outright that the copyright monopoly and people’s right to privacy of correspondence cannot be protected at the same time – and most importantly, that the latter has unequivocal precedence,” Rick Falkvinge told TorrentFreak.

“This is what we have been saying since 2006, that there is a strong conflict between the copyright monopoly and fundamental rights. It is quite a relief to see that not only confirmed in black and white, but also a verdict that the fundamental rights override the copyright monopoly.”

The entertainment industry on the other hand, will be greatly disappointed, as they are pushing hard for online services to take greater responsibility when it comes to copyright infringement.

Today’s ruling follows a similar European Court of Justice ruling last November which concluded that Belgian Internet provider Scarlet could not be forced to monitor subscriber traffic to detect piracy because that would violate the fundamental rights of both the ISP and its subscribers.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

In 2007 SABAM enjoyed a brief victory when a decision went their way, but when the mandated Audible Magic fingerprinting system did not perform to expectations, Scarlet was unable to comply with the court order. That order was subsequently reversed and the case went to the Brussels Court of Appeal and then to the European Court Of Justice for a definitive decision.

That ruling is now in and it’s bad news for SABAM but great news for Scarlet, its customers, and privacy advocates everywhere.

The Court ruled that issuing an order mandating the use of a filtering system where all subscriber communications are routinely monitored for infringements, not only on currently protected works but also those in the future, would be disproportionate and fraught with difficulty.

Scarlet would be required to install an expensive and complex computer system, which would run contrary to an EU Directive stating that measures to protect copyright may not be unnecessarily complicated or costly, the Court notes.

The implementation of such a filter would also be contrary to the requirement that an appropriate balance be found between the protection of intellectual property rights and the entrepreneurial freedom Scarlet is entitled to enjoy.

For privacy advocates the rights of Scarlet’s subscribers are of paramount importance in the case, and the Court did not disappoint in protecting them. The ruling clearly states that a proactive filter would violate their fundamental rights, “….namely their right to protection of personal information and their freedom to receive and impart information.”

Perhaps most fundamentally, though, the censoring system proposed by SABAM simply would not work.

The Court states that the filter would restrict freedom of information since it would be incapable of adequately distinguishing between legal and illegal content. The filter would be ineffective when trying to deal with geographic variations on exceptions to copyright, fair use, works residing in the public domain or indeed their creators simply authorizing distribution.

The unacceptable end result: blocking perfectly legal communications in error.

The ruling from the European Court of Justice arrives at many of the same conclusions first drawn by Advocate General Cruz Villalón, and then Prof. Cedric Manara in his paper investigating the potential negative consequences of proactive filtering.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

In this respect Belgian group Sabam is one of the most aggressive of its kind. Earlier this year it was revealed that they even collect money for artists that don’t exist.

Today Sabam is making the headlines again, and this time they want to see money from Internet providers (pdf). The music group is claiming 3.4 percent of Internet subscriber fees as compensation for the rampant piracy that they enable through their networks.

Sabam base their claim on a provision in the Copyright Act of 1994, which states that authors should be paid for any “public broadcast” of a song. According to Sabam, downloads and streams on the Internet are such public broadcasts, and they are therefore entitled to proper compensation. This 3.4 percent share is the same amount as the copyright fees on cable television.

But even in the event they begin to receive payments, Sabam stresses that any compensation would by no means legalize piracy. The license fee is only meant to legitimize the ISPs part in transferring these unauthorized files.

The Belgian Internet providers, who are also involved in a longstanding legal battle with Sabam over a network-broad piracy filter, believe the demands of the music rights group make little sense.

“It’s their interpretation of the law, but that is not legally justified,” Belgacom spokesman Jan Margot told De Standaard in a response.

IT lawyer Matthias Dobbelaere agrees that Sabam’s interpretation might be a bit far-fetched: “I don’t think such a broad interpretation of copyright law will hold up,” he noted.

The decision of the music rights group to claim a share of subscriber fees comes after they were unable to reach a workable solution in direct talks with ISPs. The ISPs say they would rather focus on offering legal alternatives than quibble over piracy, a point also noted by Minister of Economy Vincent Van Quickenborne.

“The timing is unfortunate, just as Belgacom and others come to the market with a range of legal streaming services,” a spokesman for the Minister said, adding that his department would look into the legal issues.

Aside from the question of whether the law provides for such an Internet licensing fee, the 3.4 percent figure seems unfair as only a minority of the Internet users transfer unauthorized music.

The plan would mainly hurt legitimate consumers who will have to pay more for their Internet access. Perhaps even much more, as the movie, book, software, gaming, photography and other industries will also claim their share of the booty.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.

The case involves the Belgian music rights group SABAM and Internet service provider Scarlet. The pair have been locking horns for some time, with the former demanding that the latter install filtering devices on its network to monitor customer communications and stop them if they attempt to send or receive copyrighted music.

In 2007 SABAM initially won their case, but the mandated Audible Magic fingerprinting system did not perform which meant that Scarlet could not comply with the court order. The court reversed its decision and the case went to the Brussels Court of Appeal. The case is now awaiting a ruling from the European Court Of Justice.

In advance of the ECJ decision, intellectual property expert Prof. Cedric Manara has published an enlightening paper that investigates the potential consequences of implementing such a draconian filtering system.

In his paper Manara argues that such a system would be illegal, since communications of all Scarlet subscribers would have to be spied on in order to work out what information they are sending or receiving. Furthermore, this spying would have to be carried out by a private anti-piracy company, one which would have to be given authority to check all customer traffic for apparent wrong-doing.

“Indeed, to be able to seek out all infringements of copyright, one would have to screen every electronic communication,” writes Manara, adding that SABAM is seeking to shift the costs of doing so to intermediaries, an act he describes as “disproportionate”.

Manara notes that the legal concerns are numerous. Article 15 of the Electronic Commerce Directive states that providers may not be subject to “a general obligation to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.” Simply put, providers are already forbidden by law to install a filtering system of the nature demanded by SABAM.

One of the most serious drawbacks of this kind of filtering is the effect it can have on legitimate activity. SABAM’s list of musical ‘fingerprints’ is non-negotiable and would block the transfer of any material matching them, potentially affecting legitimate parties.

“With such a measure aimed at filtering and blocking everything listed in the collective management society comprehensive way possible, one can imagine a video whose creator or producer wishes to put online; it would be blocked as soon as it was recognized by the access provider leading also to unsolvable conflicts of interest between the artists and producers themselves, both having distinct rights over the same works,” writes Manara.

And what happens when Internet subscribers or indeed copyright holders want to put some of their legally purchased or indeed personally created music into “the cloud”? The filtering system is nowhere near ‘smart’ enough to work out the legality of that and would simply block the transaction. “Fair Use” does not exist in the world of copyright filtering.

“Thus it can be seen that the proposed measure may lead to paradoxical results with respect to copyright, forbidding certain actions in the name of the copyright holder himself or herself, or authorized person,” Manara adds.

As previously noted, the Audible Magic fingerprinting system has already failed to perform, which creates what Manara describes as a “double jeopardy” situation for service providers.

An order which requires an ISP, in this case Scarlet, to block infringements or face punishment would be unfair, not least because it would be forced to operate a technical solution developed and selected by third parties. Not only would the ISP have to pay for it, but would also be found liable when it inevitably failed to perform 100% of the time.

“To make [the ISP] liable for the fact that an effective system does not exist goes against the principle of lex cogit ad non impossibilia,” writes Manara. In other words, the law does not contemplate the impossible.

But the problems don’t stop there. The notion that an ISP is a “mere conduit” of information is torn apart if a court orders the provider to start spying on and interfering with subscriber traffic.

Furthermore, as previously pointed out by Advocate General Cruz Villalón in his advice on the case, the effect of a filtering order would extend outside Scarlet’s customer base to subscribers of other ISPs, since Scarlet customers may very well be communicating with them on the Internet.

“Should they be warned that these blockings have taken place, and how? Do they have recourse against their contractual counterpart, the latter having proceeded to block because of a legal order?” the paper questions.

“The contemplated measures are so general that they would conflict with many other legal rules, let alone endanger some fundamental rights,” says Manara, adding in conclusion that they are excessive and, most importantly, will not be effective.

Block the Filtering! A Critical Approach to the SABAM Cases can be downloaded here (pdf)

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SABAM hoped that through aggressive legal action, funded by its paymasters in the international music industry, that it could force Scarlet to install filtering devices in its network to monitor customer communications and stop them if they attempt to send or receive copyrighted music.

In 2007 they succeeded, with the Brussels Court ruling that Scarlet should install the industry-approved Audible Magic music fingerprinting system. The ISP objected, saying that by spying on its customers it would be acting illegally. Adding insult to injury, Audible Magic did not perform meaning that Scarlet could not comply with the court order to stop all infringement with the tools it had been given.

The court reversed its decision and the case went to the Brussels Court of Appeal which immediately handed it over to the European Court Of Justice. The outcome would be crucial, since it would indicate whether ISPs could be held responsible for subscriber behavior and be forced to block or introduce filters.

In the last 24 hours, an advocate general of the European Court of Justice has handed down his advice in the case.

Advocate General Cruz Villalón said that “the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights.

“By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.”

Villalón said that the rights within the Charter can be restricted, “on condition, inter alia, that any such restriction is ‘in accordance with the law’” and if it were “adopted on a national legal basis which was accessible, clear and predictable.”

Villalón also expressed concern that decisions made by the filter would be made without judicial oversight.

The court order would apply “…in abstracto and as a preventive measure, which means that a finding would not first have been made that there had been an actual infringement of an intellectual property right or even that an imminent infringement was likely.”

Furthermore, Villalón said that a pro-filtering ruling would not only affect Scarlet users in Belgium but those contracted to other ISPs in different countries, since Scarlet customers may very well be communicating with them on the Internet

Taking the above into consideration, Advocate General Cruz Villalón ruled that the installation of this kind of blocking and filtering systems would amount to a restriction on the right to privacy and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights.

“By the same token,” adds Villalón, “the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.”

The European Court of Justice are not obliged to act on the advice given by Advocate General Villalón but his opinion will add significant weighting to the decision process.

Court of Justice Release (.pdf)

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They target schools and kids’ community centers, charge charities for the singing of Christmas carols without a license, and even crash weddings if they have to.

While these copyright collectors are very strict in forcing their rules onto others, they often fail to live up to their own standards. This attitude was brilliantly exposed by the Belgian TV-show Basta who exposed local music royalty collecting agency SABAM for charging people to pay non-existent artists.

This week SABAM made the headlines once again, this time claiming money from truck drivers who listen to music in their cabs. Since a truck’s cab is a place of work the drivers are obliged to pay royalty fees, they argue. Those are simply the rules according to the copyright police, but not everyone agrees.

“It’s utter nonsense,” said Maggie De Block, member of the Belgian Parliament in a response to the claim. “The truck drivers don’t need the radio so much for playing music, but for their safety. So it is illogical that they should pay for it.”

Minister Vincent Van Quickenborne is not backing the theory of the copyright police either. He said that listening to radio is essential for truckers and noted that above all, a truck’s cab is an intimate space.

Angered by the responses from these politicians, SABAM said that they have the right to claim money from anyone who listens to music while working. The copyright collectors refer to an agreement they have with Minister Van Quickenborne which allows them to charge anyone, anytime. Whether they are in an office or a truck cab makes no difference, they say.

The safety argument doesn’t impress SABAM either, as they claim truck drivers still profit from listening to ‘free’ music when the radio is on.

Although SABAM might be right while following the letter of the law, the above example and numerous others where small businesses or non-profits have been hunted down in the past do not help them to maintain a good public image. We also wonder if the artists are very happy with such a strict copyright regime.

But then again, someone has to pay for the luxurious furniture at the SABAM offices, and the generous salaries these copyright crusaders enjoy. Piggybacking on the creations of musicians is big business after all.

Source: TorrentFreak, for the latest info on copyright, file-sharing and anonymous VPN services.