Hi All,
you may have seen today's decision of the Euorpean Court of Justice.
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-70/10
This was in relation with the belgian case of Scarlet vs Sabam where the national association in charge of collecting reproduction rights for the authors was seeking to have Scarlet (an ISP) blocking the connections of its users to pirate sites.
This doesn't seem a surprising decision, due to the provision of section 4 of Chap II ( 2000/31/EC) and should not impact the "non preventive" filtering/repression (eg. HADOPI in France, ...).
I would be interest to read your comments on this.
Regards,
Salva
My immediate thought was that the court's decision enforces the fiduciary duty that Scarlet owes to society and SABAM in particular to "act in the best interest" of these authors.
ReplyDeleteFurther to this, I believe the court could have created an environment that makes it easier to institute punitive charges for web hosting companies whose servers are used for storing/hosting such pirate content.
There is an ongoing issue in India which could be a reference point for such cases, especially when jurisdictional questions are raised. See the link below.... http://www.medianama.com/2011/07/223-files-sharing-sites-blocked-in-india-because-reliance-big-pictures-got-a-court-order/
ReplyDeleteI believe the court could have created an environment that makes it easier to institute punitive charges for web hosting companies whose servers are used for storing/hosting such pirate content.
However, this would go directly against the principle of the eCommerce directive, and the wider regime - intermediaries should not be punished for the actions of users.
This principle still seems absolutely sound to me, and I would struggle to find any reason to increase the burdens on intermediaries. Personally, I would much rather tackle the underlying question as to why so much copyright infringement takes place; I do wonder whether it would point to a problem with the notions of intellectual "property" and indicate that action to resolve the problem is not necessarily to impose further obligations on ISPs, or to attempt to punish downloaders.
Perhaps the response is not to impose obligations on IAPs/ISPs, but to lessen the stranglehold of copyright, and remove the idea that copyright (and other IP) should constitute "property" rights?
(In any case, I am not sure that there should be *punitive* sanctions - recovery for the proven damage by copyright infringement should be more than sufficient, particularly in jurisdictions in which the statutory level of recovery is (in my opinion) entirely out of touch with recovery). One would also need to consider here that not every download constitutes a loss of a sale - something which the recording industry, at least, appears to have now conceded.)
That being said, and given the regime we have at the moment, I have sympathy for the Grokster style reasoning, and I do think that a line should be drawn - although, in practice, it is very hard to do so - between intermediaries which are merely used by third parties for nefarious purposes, and sites / systems which are set up to be used for this very purpose. The line is, of course, grey, and substantial.
I would expect that this ruling is likely to give BT considerable food for thought for a possible appeal against Arnold J's injunction in the Newzbin2 litigation, but I would not pin too much hope on that though - the wording of the court would permit a reasonable easy modification to the injunction to bring it inline with the principles set out by the court here.
ReplyDeleteMy immediate thought was that the court's decision enforces the fiduciary duty that Scarlet owes to society and SABAM in particular to "act in the best interest" of these authors.
I also struggle with this rather - I am not sure why an access provider has any duty, fiduciary or otherwise, to act in the best interests of the copyright industry, or of authors?
In the alternative, if such a duty exists, does this not mean that the copyright industry has a duty to society, which might necessitate reconsideration as to whether copyright actually secures the societal benefits which, back in the 1800/1900s, it was seemingly set out to achieve?
(Sorry for multiple postings - thoughts bouncing all over the place at the moment.)
ReplyDeleteIn terms of obligations owed by ISPs, I'd take a look at both the court of first instance and the appellate court rulings in the Australian case of Roadshow Films Pty Limited v iiNet Limited - they are both rather long, but they are interesting in this regard. In particular, to be contrasted with the views of Charleton J in the Irish cases EMI v. Eircom and EMI v. UPC, which show a very different (pro-copyright industry) approach.
Its probably more closely connected with the IP module but you might look at the House of Lords decision in CBS v Amstrad where they rejected the argument that a hardware producer (whose equipment could be used to infringe copyright) owed any tortious duty of care to copyright owners.
ReplyDelete
ReplyDeletethe House of Lords decision in CBS v Amstrad where they rejected the argument that a hardware producer (whose equipment could be used to infringe copyright) owed any tortious duty of care to copyright owners.
I wonder if the reasoning would stand today - although I caveat this by saying that it was a thought which crossed my mind at dinner last night, and so I haven't done any reading to inform my opinion.
The rationale in Amstrad was, in part, one of not overstretching the neighbour principle. On the basis that Amstrad did not infringe copyright by virtue of producing the recorder, there was no reason for inferring a proximate relationship akin to that of neighbours.
Nowadays, although the IAP is unlikely to be found a primary or secondary infringer of copyright - if they are, then the copyright industry claimant need go no further in any case, as the measure of damages would likely be the same, if not greater where there is a statutory regime - one might argue that there is an increased proximity. For example, Art. 8 of directive 2004/48/EC establishes that an injunction can be ordered against a "person involved" - whilst Amstrad was clearly involved, in this loosely-worded sense, as the provider of hardware, the expression obligation on member states to ensure that an investigatory injunction is available could be used as a basis to argue for a recognition of a relationship of increased proximity between copyright holder and ISP. One would need to counter that Art. 8 does not establish a duty of IAPs, or other private actors, but rather on member states, but perhaps the underlying principle is one of increased legal duty. Conversely, even without the specific wording of Art. 8, and the mandatory establishment (if there were not one already under local law) of an injunction, one might argue that the position at the time of Amstrad was exactly the same - despite the lack of specificity relating to IPR enforcement, Amstrad would be no less bound by an injunction ordered by a court back then as an IAP would be today.
Similarly, one might put weight on the provisions of Art. 9, which provides inter alia that "an interlocutory injunction may also be issued ... against an intermediary whose services are being used by a third party to infringe an intellectual property right" as evidence of legislative desire to force a legal relationship between copyright holder and intermediary. I would seek to argue against such an approach for all number of good reasons, but it would make an interesting forensic / academic exercise to see if a compelling argument could be put forward, given the renewed emphasis on IPR enforcement...