File-Sharing Ban Has Its Pitfalls, EU Adviser Says

     (CN) – European Union countries can make Internet service providers block peer-to-peer file sharing only under certain conditions, an adviser to the European high court said.




     A Belgian court asked the Court of Justice if, under EU law, it was allowed to order Belgian ISP Scarlet Extended to block the unauthorized sending or receipt of copyright works over peer-to-peer file-sharing networks.
     The Société Belge des Auteurs Compositeurs et Editeurs, a Belgian association of artists, brought the original complaint against Scarlet. The copyright infringement was confirmed in 2004, and in 2007 a Belgian court ordered Scarlet to block the file sharing within six months or face a daily fine of about $3,600.
     Scarlet reportedly tried to block the illegal file sharing, but said this was impossible without affecting legitimate peer-to-peer traffic as well.
     Court of Justice Advocate General Pedro Cruz Villalón pointed out that such a system would have to filter all data to root out actual copyright infringements. He also said this would be a new, permanent obligation for ISPs, which would have to carry the costs.
     Villalón advised the court that requiring ISPs to block file sharing is a violation of the fundamental rights of privacy, protection of personal data and freedom of information. He added that under an EU charter, this could be allowed through national law, but only if this law is accessible, clear and predictable.
     The Belgian law does not fulfill these conditions, Villalón said, as it is an “unexpected” obligation for ISPs and there are insufficient safeguards in place.
     Although the opinion is not binding, the Court of Justice takes it under close consideration in issuing a ruling.
     If the Luxembourg-based Court of Justice rules in line with the adviser’s opinion, this would conditionally place such regulation in the hands of EU member nations. Scarlet Extended would also be off the hook for threatened penalties.

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