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DRM by mandate? Belgium court imposes a filtering duty on ISP

In a press release from today the IFPI hails a Belgium court decision, which reportedly imposes a duty on an Internet Service Provider to use filtering technology for stopping illegal file sharing activities running through its network. From the press release:

A court in Belgium has confirmed that an Internet Service Provider must take responsibility for stopping illegal file-sharing on its network. The ruling is the first of its kind in Europe … it sets an important precedent in the fight against piracy internationally … The judge said that ISPs have the technical means at their disposal to either block or filter copyright-infringing material on P2P networks and gave the ISP Scarlet (formerly Tiscali) six months to implement such measures.

The judgement pointed in particular to the filtering technology developed by Audible Magic. It also referred to six other possible solutions to block the traffic of unlicensed music, which are highlighted in an experts’ report commissioned by the court. This is the first case in Europe that has examined in detail the technologies that are available to block or filter copyright-infringing traffic on file-sharing networks.

IFPI Chairman and CEO John Kennedy said: “This is an extremely significant ruling which bears out exactly what we have been saying for the last two years - that the internet’s gatekeepers, the ISPs, have a responsibility to help control copyright-infringing traffic on their networks. The court has confirmed that the ISPs have both a legal responsibility and the technical means to tackle piracy. 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.”

Two observations. I did not have the chance to read the decision yet, but assuming that the details are accurate, the defendant is an ISP for general internet connection services. In previous posts (here and also here) I have discussed the growing trend among companies like MySpace and YouTube to adopt fingerprinting technology in order to get copyright holders off their back and ensure that users do not exploit their services for illegal exchange of copyrighted material. The difference here is that filtering is not voluntary and that the court order is directed against a general ISP, not a service that allows users to upload files to the internet. When an ISP turns on a filtering system such as the one engineered by Audible Magic, the user cannot simply switch to another service (say, a competing social networking website that does not police traffic) – without replacing provider of internet connection service. A user might have many legitimate reasons to object filtering that is applied, say, to a video sharing site, all the more when filtering affects the entire information exchange with the Internet. Now, if the duty to deploy filtering technology were a legal duty (as the Belgium court would have it), this duty should then apply to all ISPs in the jurisdiction. Switching out becomes impossible. In case that the duty to police internet traffic attaches directly to ISPs, filtering technology will become unavoidable, like a built-in fishing net hovering over cyberspace (at least from the perspective of users in jurisdictions that adopt such an approach.)

Second, it should be remembered that the assumption of technical and practical obstacles greatly influenced the safe harbor regime that currently maps the duties and responsibilities on ISPs wishing to avoid infringement liability. The assumption that monitoring the entire network traffic were infeasible stood at the basis of the pre-legislation bargains that eventually secured ISPs immunity under a statutory scheme. If it is true that ISPs now “have the technical means at their disposal to either block or filter copyright infringing-traffic” – should it follow that the rationale behind safe harbor provisions is vanishing?

The notion of large-scale DRMs-by-mandate has never passed legislation, neither in the U.S. nor in Europe. Recital 48 of the famous E.U. Copyright Directive of 2001 also contains its “no mandate” language (“legal protection [i.e., anticircumvention laws] implies no obligation to design devices, products, components or services to correspond to technological measures, so long as such device, product, component or service does not otherwise fall under the prohibition of Article 6.”) One may argue that filtering technology is more like “broadcast flag” and less like technological protection measures, but that does not render technological mandate less objectionable. The Belgium court seems to have entered a rather explosive minefield.

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