SABAM v. Scarlet (& Netlog)

Thank you for listening

European Court of Justice

24 nov. 2011

Court Ruling :

[A]n injunction to an ISP to introduce a system for filtering

• all electronic communications
• applying indiscriminately to all its customers
• as a preventive measure
• exclusively at its expense
• for an unlimited period

here the Court merely summarizes the question

is precluded by EU law

SABAM v. Scarlet

E-Commerce directive (2000/31)

EU Charter of Fundamental Rights

Article 15

SABAM v. Scarlet

• 17(2) : Intellectual property

(not "inviolable" nor "absolute")

(Rights Management Society)

"Member States shall not impose a general obligation on providers, when providing services covered by articles 12, 13, and 14, to

• monitor the information which they transmit or store,

• nor a general obligation actively to seek facts or circumstances indicating unlawful activity"

must be balanced with

• 16 : Freedom to conduct a business

• 8 : Protection of personal data

Civ. Bruxelles

Note however :

Recital 47

"Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case"

As long as it is "in a specific, clearly defined individual case" ( COM(2003)702 )

• 10 : Freedom of expression

(freedom to receive or impart

information)

Context

29 jun. 2007

2 approaches to stop unauthorized file sharing :

(Internet Service Provider)

Civ. Bruxelles 26 nov. 2004 (Cessation / Interim order)

Civ. Bruxelles 29 jun. 2007

(Decision)

The Judge :

• "Presuming" the existence of copyright infringements by Scarlet users

• Appoints an expert, to evaluate
• whether internet filtering techniques are feasible
• whether these techniques permits the filtering of solely illicit file sharing or also affects legitimate uses
• the cost of such filtering techniques

The tribunal de première instance de Bruxelles :

"Condemns Scarlet Extended to put a stop to copyright infringement (...) by making it impossible for its customers to send or receive in any way electronic files featuring a musical work belonging to the SABAM directory"

European Court of Justice

Cour d'appel de Bruxelles

Private enforcement

Public enforcement

16 feb. 2012

28 jan. 2010

Court Injunction

"Action en cessation"

Traffic filtering by Intermediaries

Similar decision in the case of a hosting provider (Netlog)

2 preliminary questions to the ECJ

Conclusion

(2)

(1)

• E-Commerce Directive (2000-31)

• Infosoc Directive (2001-29)

• IPRED Directive (2004-48)

• Data Protection Directives

(95/46 & 2002/58)

• EU Charter of Fundamental Rights

Does EU law authorize a court to order an ISP to : "

• order an ISP to install, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period,

DRMs

"Méthodes Techniques de Protection"

If the answer to (1) is in the affirmative,

is the court required "to apply the principle of proportionality when deciding on the effectiveness and dissuasive effect of the measure sought?"

• a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in particular those involving the use of peer-to-peer software, in order to identify on its network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold rights,

• and subsequently to block the transfer of such files, either at the point at which they are requested or at which they are sent?"

Private

Graduated Response

(US "Six Strikes" scheme)

Administrative

Graduated Response

(Hadopi)

Conclusion (1)

Conclusion (2)

• General internet filtering is precluded by EU Law

Food for thought...

• Should we bypass the judge because judicial procedures are slow ?

• Rules on intellectual property may not affect the liability regime of intermediaries provided by the E-Commerce directive

(recital 16 Infosoc, Art 2(3) IPRED)

SABAM v. Netlog

• Is assessing the existence of a copyright infringement akin to finding a violation of traffic rules ?

• The requirement to strike a fair balance between the protection of intellectual property and the protection of fundamental rights is reasserted

(Promusicae)

• Is the fight against copyright infringement worth doing harm to the neutrality and openness of the Internet ?

• Not only protection of personal data, but also freedom of expression and freedom to conduct a business

The Scarlet & Netlog cases

Intermediary liability and general Internet filtering

Maxime Lambrecht

10 July 2012

International Summer Seminar 2012

Universités Paris-Sud et Panthéon-Sorbonne