ECJ Ruling Could Aid Push for More ISP Infringement Responsibility
EU countries may, but need not, require ISPs to reveal information on alleged file-swappers, the European Court of Justice (ECJ) said Tuesday. The closely watched case pits Spanish music producers and publishers group Promusicae against Spain’s Telefonica in a dispute over alleged Kazaa users. The decision could bolster efforts to make ISPs take more responsibility for online infringement, sources said.
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Promusicae sought and obtained a court order forcing Telefonica to name and give physical addresses for subscribers alleged to use Kazaa to share tracks in which Promusicae held rights, and whose Internet Protocol addresses and date and time of connection were known, the ECJ said. Telefonica appealed, arguing that Spanish law allowed such disclosures only in criminal inquiries or for public security or national defense. The Spanish court asked the ECJ for a preliminary determination on whether EU law requires governments to mandate disclosure of personal data in civil proceedings such as copyright cases.
The ECJ analysis centered on elements of EU directives on e-commerce, copyright, enforcement of IP rights, and privacy. They “do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings,” the court said. But EU law requires that when countries adopt the directives into national law, they must fairly balance privacy and property protections, it added.
The ruling disputes an earlier decision by the court Advocate General. He said ISPs could turn over Internet Protocol addresses only in criminal cases, Paris attorney Winston Maxwell said. Many feared that if the ECJ bought that argument, it would end civil copyright enforcement actions, and kill proposals like one by the French Olivennes Commission to create a “graduated response” regime for Internet copyright infringement, he said.
The ECJ agreed with its adviser that communicating names and addresses corresponding to Internet Protocol addresses constitutes processing traffic data under the privacy and e- communications directive, Maxwell said. That law lets ISPs make limited use of such data for value-added services to customers but not to convey it to third parties except in cases involving network or public security or in criminal cases, he said.
The court found a loophole in a reference to the older data protection directive, which refers to limitations on confidentiality of data needed to protect the rights and freedoms of others, Maxwell said. The ECJ said it’s legal even in civil matters to give traffic data to authorized persons in connection with copyright protection, he said. By grabbing onto that “rather thin branch,” the ECJ “was able to stop a free fall,” Maxwell said. The decision greenlights national laws requiring ISPs to name subscribers to third parties in criminal and civil matters, or for sending graduated-response letters to infringers such as the French propose, he said.
The ruling clarifies the burden on governments to offer effective means to fight piracy, and EU law’s lack of any bar on a country requiring ISPs to provide personal data in civil cases to stop mass downloads, said Philippe Kern, managing director of KEA European Affairs, a consultant to the creative industries. Its implication is that the content industry must push governments harder to find ways to make ISPs liable for infringement, he said.
The judgment means music rights owners can keep taking enforcement actions and “sends a clear signal” to member nations that they can’t ignore IP rights, said International Federation for the Phonographic Industry (IFPI) Chairman John Kennedy. For copyright owners, it’s “business as usual,” an IFPI spokesman said. The decision won’t affect ongoing file- swapping cases or influence the “disconnection model” the music industry wants, he said. Under that system, a content owner provides an ISP with details of a particular Internet Protocol address which the ISP then links to its subscriber. The ISP orders the individual to stop infringing or face disconnection, exemption rights holders from the need to seek the user’s details, the spokesman said.
The ECJ ruling reaffirmed a well-established principle that ISPs are intermediaries, a spokesman for the European Telecommunications Network Operators’ Association (ETNO) said. ETNO members join rights holders in seeking useful ways to fight piracy but continue to believe that the best defense against illegal downloads is to ensure the widest variety of legitimate online content offerings, he said.