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.

A year later, Scarlet’s lawyers were back in court. The court previously ordered that Scarlet has to pay compensation of 2,500 Euros for every day they failed to stop file-sharers sharing files, but the company’s lawyers argued it was impossible to comply, since the anti-piracy system ‘Audible Magic’ they were told to use by the court (on the advice of the music industry and SABAM), simply did not work.

Now, having heard a lawyer for SABAM admit that they had misled the court over the effectiveness of Audible Magic, the judge in the case has reversed the ruling. The final ruling in the case is due in October 2009 at the court of appeal in Brussels, so until then, the judge decided that Scarlet are no longer subject to the 2,500 Euros per day fine, which had already reached around 750,000 Euros.

This year, several music industry lobby groups have spoken out in favor of content filters. They argue that ISPs have the responsibility to prevent their customers from accessing copyrighted works, and thus act as a virtual police force. Earlier this year, IFPI took the Irish ISP Eircom to court for this reason. In addition, IFPI asked the European Parliament to adopt legislation that would make such filters mandatory, and to block entire websites including The Pirate Bay.

Luckily, the European Parliament decided that anti-piracy filters were not appropriate. In addition, it later ruled that other anti-piracy measures, such as “three-strikes” laws are too strict as well, as such policies restrict the rights and freedoms of Internet users. In the light of these recent developments, and because it is simply impossible for any ISP to filter transfers of copyrighted works on their network, Scarlet has a good chance to win their appeal next year.

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

Scarlet said right from the start that it believed that if it complied with the court order it would be breaking the law. The ISP claimed that Belgian law forbids it from spying on its customers so it lodged an appeal against the ruling, with managing director Gert Post saying: “This measure is nothing else than playing Big Brother on the Internet. If we don’t challenge it today, we leave the door open to permanent, and invisible and illegal, checks of personal data.”

Now, over a year later, Scarlet’s lawyers argued in court that the company simply cannot stop the flow of illicit files, which is a serious situation since the ISP has to pay compensation of 2,500 Euros for each day it fails to do so. According to a report, Scarlet has tried different techniques to try to comply with the ruling but has had no success.

First of all, Scarlet slowed down P2P traffic with the help of some Cisco technology. All this led to was complaints from the customers, and it did nothing to stop the availability of the illicit files. A lawyer for Scarlet, Christoph Preter said: “We have actually received complaints that P2P traffic was slower, but it remained possible. It is only a deterrent measure.”

The ISP quite rightly refused to block all P2P traffic, since it said it would be blocking legitimate traffic too. However, copyright group SABAM said this was not a valid excuse. “The argument put forward by Scarlet,” said SABAM’s lawyer, “is not about the impossibility of blocking, but about the consequences.” SABAM clearly doesn’t care who is affected, as long as it gets its way, stating that Scarlet simply hasn’t tried hard enough to comply with the court.

The second solution, the filtering of illicit files, was a solution put forward last year by SABAM itself. On the advice of an appointed P2P ‘expert’, the court ruled that Scarlet must use the content filtering technology offered by Audible Magic. However, Scarlet tried this system and it didn’t work when scanning for files on their network. During last year’s court case it was claimed that Audible Magic had experience with filtering in the US with Verizon and in Asia with another ISP. However, Scarlet made inquiries with Verizon about the partnership but was told that no such deal exists and Audible Magic refused to reveal who the Asian ISP is.

“We have misled the court,” said SABAM’s lawyer. “But SABAM followed the expert in the choice of Audible Magic, so we were acting in good faith.”

A ruling in the case is not expected until 2010.

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

The judge thought otherwise (pdf) and, based on claims from a P2P expert, said that ISPs do have the technical means at their disposal to block or filter pirated content on P2P networks. The ISP in question was given six months to implement such measures.

In a response to this news Rick Falkvinge, the leader and founder of the Swedish Pirate Party, told TorrentFreak:

“this confirms what we’ve been saying all along: the record industry wants to abolish postal secrets and freedom of the press in order to maintain their crumbling monopolies. They are actually celebrating the fact that a third unaccountable party gets to inspect everything sent between any and all private individuals, and gets to destroy any undesired communication.”

The ruling by the Belgian court implements EU legislation, and iaccording to the IFPI, it sets an important precedent in the fight against piracy internationally. In a response to the decision IFPI Chairman and CEO John Kennedy said: “This is a decision that we hope will set the mould for government policy and for courts in other countries in Europe and around the world.”

Let’s hope not. And, can anyone explain to me how ISPs are supposed to filter copyright infringing content?

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