ISP ordered to clean up network

The long-running case was brought by the Belgian Society of Authors, Composers and Publishers (SABAM) against ISP Scarlet, formerly Tiscali and the third largest operator in Belgium. In 2004, SABAM obtained an intermediary injunction against Tiscali, leading to the court appointing an expert. The expert recommended 11 techniques the ISP could use to identify peer-to-peer material, including Audible Magic\'s filtering software. The Register notes that last week a judge agreed that these were acceptable, and gave Scarlet six months to get cracking. ISPs once baulked at the implications of policing their networks, and sought to extend the ‘common carrier’ defence developed for the first circuit-switched telephone networks. However, the argument was not recognised outside the US, and could not be made when the carrier knew of the offence. Full report in The Register

The decision overturns conventional thinking on how two major European directives – the Copyright Directive and the E-Commerce Directive – relate to one another, says Struan Robertson, a technology lawyer with Pinsent Masons, in an Out-Law.com report. He notes that the Copyright Directive says copyright owners should be able to get relief from the courts against intermediaries whose services are used for piracy – the argument in this case. However, it adds that its provisions should not prejudice the E-Commerce Directive, which says ISPs are generally not responsible for the activity of their customers and that ISPs are not generally obliged to police their services for illegal activity. It is believed to be the first time that a European court has ruled that an ISP must block such traffic. Until now, ISPs have been seen to be conduits for information but that they are not held responsible for that information. The ruling could influence courts in other EU member states, though it will have been based on the particular Belgian laws which implemented the E-commerce and Copyright Directives, so its impact could be limited, Out-Law.com notes. Full Out-Law.com report