Belgian Ruling: ISPs Must Protect Copyright

by on July 6, 2007 · 6 comments

TechCrunch has a write-up of a Belgian court ruling, based on the EU copyright directive, that Internet Service Providers bear responsibility for stopping illegal file-sharing on their networks. Apparently, though, the ruling doesn’t create a general obligation to monitor.

We get a lot of benefit from treating ISPs as common carriers, empty vessels without any obligation other than to serve their customers. I wrote a piece in Regulation magazine a while back arguing against imposing a responsibility on ISPs to control viruses. Though they can do so as a service to customers, requiring it of them sets a precedent that leads to all kinds of regulation and monitoring being imposed through the ISP bottleneck.

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Jim Harper is the Director of Information Policy Studies at The Cato Institute, the Editor of Web-based privacy think-tank Privacilla.org, and the Webmaster of WashingtonWatch.com. A Poli Sci major at the University of California at Santa Barbara, Jim served as Editor-in-Chief of the Hastings Constitutional Law Quarterly in his final year at Hastings College of the Law. Prior to becoming a policy analyst and advocate, Jim served as counsel to committees in both the U.S. House and Senate. He avoids genuine life experience by watching lots and lots of reality TV.

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  • http://dush-law-politics.blogspot.com/ Dushyant Patel

    Wow, so the ISP’s have 6 months to comply with the judgment, if not they are fined 2.5k euros a day. This is an awful decision. It would prove to be costly to invest in technology that would curb copyright infringement, the only cheap way would be a mass blocking of P2P protocols. This would effectively stem innovation and be such a blunt tool.

    Also the assertion by the IFPI that a ruling in a lower Court in Belgium sets an EU wide precedent is ludicrous. Only the European Court of Justice can do that.

    Furthermore, each State has its own implementing measures for the EU Directive (it isn’t a Regulation), this varies country by country. The Belgium decision would only set precedent for that countries Statute.

    Secondly, I know vicarious liability is excluded in the UK’s implementation of the Copyright Directive by Sections 97a and 191(j)(a) which requires a service provider to have “actual knowledge of another person using their service to infringe copyright”. So unless the ISP is specifically informed about infringement they won’t have to do anything.

    The UK legislation also has common carrier provisions, I can’t recall them right now but it’s just copyright Nazi propaganda that this will speak for the entire EU. It probably won’t even speak for the rest of Belgium unless it gets to Appellant. level.

  • http://dush-law-politics.blogspot.com/ Dushyant Patel

    Recital 27 of the Copyright Directive “the mere provision of physical facilities for enabling or making a communication does not itself amount to communication within the meaning of the Directive”.

    This makes it express that the Directive will not apply to ISP’s. I hope this decision gets appealed to the ECJ, but it clearly wrong.

  • http://dush-law-politics.blogspot.com/ Dushyant Patel

    Wow, so the ISP’s have 6 months to comply with the judgment, if not they are fined 2.5k euros a day. This is an awful decision. It would prove to be costly to invest in technology that would curb copyright infringement, the only cheap way would be a mass blocking of P2P protocols. This would effectively stem innovation and be such a blunt tool.

    Also the assertion by the IFPI that a ruling in a lower Court in Belgium sets an EU wide precedent is ludicrous. Only the European Court of Justice can do that.

    Furthermore, each State has its own implementing measures for the EU Directive (it isn’t a Regulation), this varies country by country. The Belgium decision would only set precedent for that countries Statute.

    Secondly, I know vicarious liability is excluded in the UK’s implementation of the Copyright Directive by Sections 97a and 191(j)(a) which requires a service provider to have “actual knowledge of another person using their service to infringe copyright”. So unless the ISP is specifically informed about infringement they won’t have to do anything.

    The UK legislation also has common carrier provisions, I can’t recall them right now but it’s just copyright Nazi propaganda that this will speak for the entire EU. It probably won’t even speak for the rest of Belgium unless it gets to Appellant. level.

  • http://dush-law-politics.blogspot.com/ Dushyant Patel

    Recital 27 of the Copyright Directive “the mere provision of physical facilities for enabling or making a communication does not itself amount to communication within the meaning of the Directive”.

    This makes it express that the Directive will not apply to ISP’s. I hope this decision gets appealed to the ECJ, but it clearly wrong.

  • V

    There’s too much ambiguity. Since nobody can build a magical copyrighted content detector, what specifically would allow an ISP to fulfill this requirement?

  • V

    There’s too much ambiguity. Since nobody can build a magical copyrighted content detector, what specifically would allow an ISP to fulfill this requirement?

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