Belgian ISP appeals anti-piracy injunction mandating filtering

The ISP Scarlet (formerly Tiscali SA) has appealed a Belgian court’s order to implement a filtering mechanism as part of granting an injunction against music piracy. On June 29, 2007, the Brussels Court of First Instance (decision available here) ordered Scarlet to implement one of seven filtering ‘solutions’ to prevent P2P file-sharing of copyrighted material over its network. Scarlet was sued by the Belgian Society of Authors, Composers and Publishers (SABAM) in June 2004, and upon granting SABAM a temporary injunction in November 2004 the court appointed an outside expert to conduct a technical and commercial evaluation of filtering applications.

In apparently the first inquiry its kind in Europe, the expert investigated 11 types of filtering tools, found only 7 P2P blocking mechanisms to be applicable to Scarlet, and out of these determined that only one was capable of parsing out specific protected musical content. Audible Magic’s CopySense application claims to cover over 70 percent of copyrighted songs shared over the Internet. In support of its decision the court promoted Audible Magic's deals to supply its ‘digital fingerprinting’ system to Internet giants such as MySpace and Microsoft. It also accepted the expert’s calculation that the cost of rolling out CopySense would be minimal—estimating that the 3 year cost spread out over 150,000 people would only be .50 euros a month.

In citing the technical and automatic nature of this filtering mechanism, the court rejected all of Scarlet’s arguments:

Rights to freedom of expression, privacy, and privacy of correspondence:
The court rejected Scarlet’s position that this type of filtering violates freedom of expression or right to privacy by stating simply that Scarlet had not provided any support for its argument.

“Mere conduit” limitation of liability for ISPs:
As defined in Article 12 of the EU Directive on Electronic Commerce, the “mere conduit” limitation of liability for ISPs appears to be analogous to the safe harbor provisions for online service providers (OSPs) in the US Digital Millenium Copyright Act of 1998. While different in important respects, both the E-Commerce Directive and the DMCA limit liability for service providers that do not initiate the transmission, select the receiver of the transmission, or select or modify the content of the transmission.

In the US, benefiting from the safe harbor requires adherence to the DMCA’s “notice and takedown” procedures, where upon a notice of infringement filed by a copyright holder with agents designated by the service provider, the service provider must quickly remove or disable access to the infringing content and give notice to subscribers whose content has been removed.

The Belgian court's remedy eliminates these formal steps. While its approach is not binding on other jurisdictions, commentators (see, e.g. here and here) are discussing the implications of this decision for the enforcement and implementation of copyright protections across Europe.

Service providers not responsible for monitoring:
Finally, the court also rejected Scarlet’s argument that the E-Commerce Directive similarly protects ISPs against government-imposed obligations to monitoring or surveillance of their networks (Article 15). Its reasoning that filtering of copyrighted music would be enabled purely by technical and automatic tools, and thus the intermediary would have no role in filtering, allowed it to distinguish filtering from surveillance.