European Court Refuses to Force ISP’s Installation of System for Monitoring/Filtering Out Unlawful Music Sharing

European Court Refuses to Force ISP’s Installation of System for Monitoring/Filtering Out Unlawful Music Sharing

The European Court of Justice (Third Chamber) recently ruled that general, indiscriminate monitoring cannot be forced upon ISPs in the event of illegal music sharing. The ruling, a setback for copyright representative Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), precluded an injunction against the ISP, Scarlet Extended SA. The injunction would have required Scarlet to install a system for monitoring/filtering out unlawful file sharing.

Scarlet's customers illegally downloaded works in SABAM's catalogue, and SABAM sought an order requiring Scarlet to install a system for filtering electronic communications which used file-sharing software. The monitoring required active observation of all electronic communications conducted on Scarlet's network. Consequently, the monitoring encompassed all information to be transmitted and all customers using the network. In the light of the foregoing, the filtering system obliged Scarlet to actively monitor all the data relating to each of its customers in order to prevent any future infringement.

Scarlet argued that the installation was illegal because it would impose on Scarlet, de facto, a general obligation to monitor communications on its network, inasmuch as any system for blocking or filtering peer-to-peer traffic would necessarily require general surveillance of all the communications passing through its network.

In denying SABAM's request, the Court ruled that:

Directives 2000/31, 2001/29, 2004/48, 95/46 and 2002/58, read together and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering

●all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

●which applies indiscriminately to all its customers;

●as a preventive measure;

●exclusively at its expense; and

●for an unlimited period,

which is capable of identifying on that provider's network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual-property rights, with a view to blocking the transfer of files the sharing of which infringes copyright.

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