Today, the European Court of Justice gave a preliminary opinion that will have far-reaching implications in the fight against overaggressive copyright monopoly abusers. It is not a final verdict, but the Advocate General’s position; the Court generally follows this. The Advocate General says that no ISP can be required to filter the Internet, and particularly not to enforce the copyright monopoly.
The opinion is very clear: Advocate General Cruz Villalón considers that the installation of that filtering and blocking system is a restriction on the right to respect for the privacy of communications and the right to protection of personal data, both of which are rights protected under the Charter of Fundamental Rights. By the same token, the deployment of such a system would restrict freedom of information, which is also protected by the Charter of Fundamental Rights.
This means that Eircom can no longer be forced to eavesdrop on its customers to filter out certain parts, and it means that Danish ISPs can no longer be mandated to censor The Pirate Bay and AllOfMP3. Black Internet in Sweden can give the finger to the court order to block The Pirate Bay. Many, many aggressions from the copyright industry stand to just fall flat on their face. You would think that respecting fundamental rights wouldn’t need to go to the highest level, but now it has, and they have been respected.
More bloggers: Hax.
UPDATE: Ok, I had intended to follow up with a more detailed analysis tomorrow, but HI SLASHDOT! in the interest of the high-profile current attention, I will post my thoughts immediately instead.
What this does is say that:
One, no court may impose an ISP with an order to filter, in particular not because of enforcement of copyright monopolies;
Two, such filtering is a reduction of fundamental rights, so
Three, if laws are written requiring an ISP filter or block parts of the internet, such laws must conform to very strict criteria that are applied to laws limiting fundamental rights. They must be necessary, they must be effective, they must be proportionate, and they must be defensible in a democratic society. While this sounds like political wishywashing, it has some very specific meanings. It is useful to compare to what laws have been written to prevent terrorism: these laws are held to that standard, which the copyright industry wants badly to supersede. The Advocate General also goes into detail how such laws must be transparent and predictable.
What this does not say is that:
Four, this does not say that no censorship must ever take place.
Five, this does not say that ISPs can’t choose to limit what they present as “The Internet”. An Internet Service Provider can still choose for themselves to cripple the service they sell, but they can’t be forced to do so by court order against their will.
Six, it has been the modus operandi of the copyright industry to threaten ISPs with “block to our wishes or we’ll take you to court”. This has been their standard operating procedure for the past couple of years, in order to establish enough precendents to get them written into law. Today’s verdict, or potential verdict, gives those ISPs the power to say “go play on the highway, parasites, we have a paper from the highest possible court saying no court can force us to do that. We care more about our customers than about obsolete irrelevants”.
Seven, this is the highest court in Europe, referring to the (equivalent of) Constitution of Europe. Thus, there are no courts and no laws that can supersede this. No EU Directive can change this (potential) verdict. The way forward for the copyright industry appears permanently blocked; I hold it as absolutely improbable that they’ll get paragraphs in the referred European Charter of Fundamental Rights that puts the copyright monopoly before the sanctity of correspondence, of personal data, and freedom of information.