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European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement

97

Copyright Monopoly

Copyright Monopoly

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.

In conclusion:

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.

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About The Author: Rick Falkvinge

Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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97

  1. 1

    RT @Falkvinge: Nobody missed that the European Court is outlawing Internet filtering/blocking, ESPECIALLY for copyright enforcement? http://is.gd/gmO7QM

  2. 2
    Jim Hansson

    Normalt brukar jag inte gilla posta saker vidare på Facebook, men denna nyhet gjorde mig så glad att jag bara var tvungen.

  3. 3

    RT:Nobody missed that the European Court is outlawing Internet filtering/blocking, ESPECIALLY for copyright enforcement? http://is.gd/gmO7QM

  4. [...] har också bloggat om det och Kulturbloggen likaså. Jag är säker på att fler kommer att göra det. Jag brukar [...]

  5. 4

    After reading the full text (only available in French atm.) I can’t share this optimistic view. Filters can still be created by law. Yes they need to be “proportionate” and “necessary”, but it is still possible to pass a law fixing general internet filters, even in the AG’s opinion.

    • 4.1
      Scary Devil Monastery

      The difference being vast. In order to create a filtering on a European level you would in such a ruling have to demonstrate effectiveness and proportionality. Something which no expert so far has found to be the case with any of the tabled propositions.

      Yes, on the national level you can still override such a ruling but what it does mean is a far better and clarified position on an EU level. It’s a first step, b ut a monumental one. And it implies that some people in influential positions actually appear to be reading from the book of law and from their job statement rather than from the memo’s of a lobbyist, which is refreshing.

  6. 5

    RT @Falkvinge: on #infopolicy: European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright… http://goo.gl/fb/N2Sk4

  7. 6
    ANNM

    Does this apply at all to “voluntary” filtering, or does it just relate to filtering mandated by law? Because twisting the ISP’s arms to agree to “voluntary” filtering and blocking has been the strategy of the copyright industry for a couple of years now.

    • 6.1

      No, this would not apply to “voluntary” filters. It wouldn’t even apply to all filters fixed by law as this case was dealing with a court injunction to force ISPs to filter and block the internet. Parliament can, under some conditions, still force ISPs to filter!

      This is some good news but by no means the end of internet filter!

      • 6.1.1
        Jonathan Eyler-Werve

        You hint at an interesting question: since the courts (or threat of lengthy legal hassle) can no longer be used as a lever on ISPs to “voluntarily” filter content, what non-legal levers of influence will pro-filtering actors use on the ISPs? The separation of business interests (content creators and pipe-providers, for instance) suddenly becomes very important.

      • 6.1.2

        @ Jonathan (reply button wasn’t working for your post)

        First of all some ISPs want internet filters. In the UK f.ex. “Virgin and Sky both have close ties with major copyright owners so are happy to do anything.” (citation from Pirate Party UK Legal Expert Will Tovey) .
        Also new ISPs might have problems entering a market if they don’t sign “voluntary” agreements with the government.
        Another option would be for governments to limit some ISPs if they refuse to comply, f.ex. if net neutrality is abolished (not as probable, but always a possibility).

        And finally, and most important, the Advocate General clearly states that a law passed by Parliament can, under some circumstances, fix general internet filters. That means that ISPs can not be forced by a court injunction to filter, but a court can order an ISP to filter because of such a law.

        We have to wait for the exact wording of the ECJ. But if they go with the AGs opinion, internet filtering such as in France with Hadopi is not necessarily violating EU law!

  8. 7

    RT @falkvinge European Court of Justice To Outlaw Internet Filtering; E.. http://t.co/fz35IHS

  9. 8

    RT @Falkvinge: Nobody missed that the European Court is outlawing Internet filtering/blocking, ESPECIALLY for copyright enforcement? http://is.gd/gmO7QM

  10. [...] general’s position; the Court generally follows this. The Advocate Generals says that no ISP can be required to filter the Internet, and particularly not to enforce the copyright [...]

  11. 9

    RT @Falkvinge: Nobody missed that the European Court is outlawing Internet filtering/blocking, ESPECIALLY for copyright enforcement? http://is.gd/gmO7QM

  12. 10

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://bit.ly/fk2uoh

  13. 11

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://is.gd/EPFIqn

  14. 12

    Europe looking forward. EU Court of Justice To Outlaw Internet Filtering http://bit.ly/e6lSsO http://bit.ly/gCupEo #blackout NZ’s backward.

  15. 13

    ECJ preliminary opinion strikes a huge blow for net freedom: ISPs not required to filter content! http://goo.gl/TAepN #digitalrights

  16. 14

    RT @jackschofield: European Court of Justice To Outlaw Internet Filtering, Esp. For Copyright Enforcement, says Rick @Falkvinge – http://bit.ly/fIsQAA

  17. 15

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://bit.ly/fk2uoh

  18. 16

    RT @techdelight: European Court of Justice To Outlaw Internet Filtering #technology http://bit.ly/fsKze9

  19. 17

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement ━ http://kiq.me/DOA ━ Finally a good news #@

  20. 18

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement h/t @Groklaw http://bit.ly/gqoHxz

  21. 20

    Tasub šampanjapudelitelt korgid maha võtta – http://is.gd/gmO7QM #win #internetifiltrid

  22. [...] noch kein Urteil, kommt aber vom Generalanwalt des EuGH, dem das Gericht oft folgt. Beispielsweise hier gibt es noch mehr [...]

  23. 21

    RT @minut_ee Tasub šampanjapudelitelt korgid maha võtta – http://is.gd/gmO7QM #win #internetifiltrid

  24. 22

    European Court of Justice To Outlaw Internet Filtering
    http://tinyurl.com/3dnplbz

  25. 23

    Der Europäische Gerichtshof will Internet #Zensur und #Websperren verbieten? http://bit.ly/f3YOIC http://bit.ly/eYZTY7 ? #fb

  26. 25

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://bit.ly/f3mRkd

  27. 26

    RT @falkvinge European Court of Justice To Outlaw Internet Filtering; E.. http://is.gd/gmO7QM (vía @sinkdeep)

  28. 27

    RT @cfarivar: #EU Court of Justice 2Outlaw Net Filtering http://bit.ly/gsOq9x #rp11 #netfreedom

  29. 28
    HateBadPoliticians

    Yeah, dream on if you think this is going to happen. In the so called western democracies the big greedy companies buy the laws they want – its called lobbyism.
    Look what happened to ACTA, first it was: “Overwhelming Majority Of EU Parliament Votes Against ACTA” http://www.techdirt.com/articles/20100310/0425238499.shtml

    Then 8 months later: “EU Parliament Rubber Stamps ACTA Approval”
    http://www.techdirt.com/articles/20101124/13000612011/eu-parliament-rubber-stamps-acta-approval.shtml

  30. 29

    RT @liberationtech RT @cfarivar: #EU Court of Justice 2Outlaw Net Filtering http://bit.ly/gsOq9x #rp11 #netfreedom

  31. 30

    European Court of Justice to outlaw internet censorship, esp. for copyright enforcement ~ http://j.mp/gkHBJr

  32. 31

    RT @teamcymru: EU Court of Justice: ‘no ISP can be required to filter the Internet’ #cyberlaw http://bit.ly/ifPbMq

  33. 32

    RT @teamcymru: EU Court of Justice: ‘no ISP can be required to filter the Internet’ #cyberlaw http://bit.ly/ifPbMq

  34. 33

    RT @mthorbruegge: European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://j.mp/g0w4Vn

  35. 34

    RT @mthorbruegge: European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://j.mp/g0w4Vn

  36. 35

    RT @mthorbruegge: European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://j.mp/g0w4Vn

  37. 36

    RT @teamcymru: EU Court of Justice: ‘no ISP can be required to filter the Internet’ #cyberlaw http://bit.ly/ifPbMq

  38. 37

    RT @gurifunu: EU Court of Justice rules that no ISP can be required to filter the internet, as it reduces freedom of information http://bit.ly/ifPbMq

  39. 40

    RT @teamcymru: EU Court of Justice: ‘no ISP can be required to filter the Internet’ #cyberlaw http://bit.ly/ifPbMq

  40. 41

    RT @mthorbruegge: European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://j.mp/g0w4Vn

  41. 42

    RT @teamcymru: EU Court of Justice: ‘no ISP can be required to filter the Internet’ #cyberlaw http://bit.ly/ifPbMq

  42. 43

    RT @teamcymru: EU Court of Justice: ‘no ISP can be required to filter the Internet’ #cyberlaw http://bit.ly/ifPbMq

  43. 45

    RT @teamcymru: EU Court of Justice: ‘no ISP can be required to filter the Internet’ #cyberlaw http://bit.ly/ifPbMq

  44. 48

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://bit.ly/gigMfy

  45. 50

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://goo.gl/yxUdR #fb

  46. 52

    RT @glynmoody: European Court of Justice To Outlaw Internet #Filtering; Esp. For #Copyright Enforcement – http://bit.ly/gzoUx7 #TPPA

  47. 53

    Internet filtering outlawed by European Court of Justice http://bit.ly/eYZTY7

  48. 54

    RT @TheCyberLawyer: The European Court of Justice says that no ISP can be required to filter the Internet, and particularly not to enf… http://sns.mx/Adc9y3

  49. 55

    European Court of Justice To Outlaw Internet Filtering, http://is.gd/gmO7QM

  50. 56

    RT @glynmoody: European Court of Justice To Outlaw Internet #Filtering; Esp. For #Copyright Enforcement – http://bit.ly/gzoUx7 #TPPA

  51. 57

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement – Falkvinge on Infopolicy: http://bit.ly/fAranX

  52. 59

    EU Court to Outlaw Internet Filtering (@Falkvinge) #TWiL108 #TWiL http://ff.im/-BqaGd

  53. 60

    European Court Outlaw Internet Filtering http://is.gd/gmO7QM #UBB #bell #rogers #telus #shaw #cdnpoli #elxn41#nspoli #novascotia #CapeBreton

  54. 61

    No European ISP can be forced to spy on its customers
    http://bit.ly/fWGH6g

  55. 62

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://bit.ly/fk2uoh #UBB

  56. 63

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://bit.ly/fk2uoh

  57. 64
    DuLac

    The spectre of a “private” police with power over the citizens, surpassing nations is DELAYED.

    This will be attempted again, possibly with attempts to infiltrate the EU court. Once it is forgotten.

    We are seeing similar situations with attempts to force the population to become subservient to corporations interests, when corporations are virtual entities only existing as useful to the Nations that allow its existence and exploration of its resources.

    So, in a broad view, we are seeing attempts from “private” interests to rise from an pretended usefulness to the status of Nations. This rise of economical feudalism should makes us ask the reasons of existence of those entities (corporations).

    A machine should not ever control it’s owner!
    If tried, it should be dismantled before a 2nd attempt.

  58. 65
    DuLac

    The other attempts mentioned, are:

    - the attempt to forbid centuries medical plants, in favor to pharmaceutical imitations where the imitation is the base of patents.
    - The attempt to force the feed of population with seeds from “credited” sources, as nature is not considered credited and the presented “credited” seeds may become “property”.

    Al this is insane, but it is happening, not anymore in Amerika, but now in our courtyard.
    And to be tried by other means, as the intentions behind is maintained.

  59. 66

    European Court Outlaw Internet Filtering http://is.gd/gmO7QM #UBB #bell #rogers #telus #shaw #cdnpoli #elxn41 (via @chromiumdr76)

  60. 67

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement – http://t.co/N7cfRJS

  61. 68

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://bit.ly/fk2uoh

  62. 69

    @mikkohypponen Thankfully, the EU Advocate General isn’t happy about it, though. http://is.gd/gmO7QM #greatwall

  63. [...] Tribunal de Justícia Europeu opina que els estats no poden obligar els proveïdors a filtrar l’accés a Internet, i molt menys pel copyright (via OSNews). Si la cosa tira endavant, vorem com pretenen casar això [...]

  64. 70

    European Court of Justice To Outlaw Internet Filtering; Esp. For… http://lnkd.in/RGSahZ [Like it?… http://ff.im/-CNBnW

  65. 71

    European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright Enforcement http://bit.ly/fk2uoh

  66. 72

    http://j.mp/gCupEo Holy shit! For once, the EU might even do something good!

  67. 74

    @Karde Tämä näyttää paremmalta kehityssuunnalta: http://goo.gl/eFrNG (EU rights vs. Internet filtering)

  68. [...] which I have been talking about in January. Even if I don’t share the very optimistic view of Rick Falkvinge that the ECJ will outlaw internet filtering in general, this is definitely a good sign for the [...]

  69. 75

    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

  70. [...] lobby is now pushing Commissioner Malmström to create a similar censorship regime, despite clear setbacks from the European Court of Justice defending human rights and freedom to [...]

  71. [...] lobby is now pushing Commissioner Malmström to create a similar censorship regime, despite clear setbacks from the European Court of Justice defending human rights and freedom to [...]

  72. [...] lobby is now pushing Commissioner Malmström to create a similar censorship regime, despite clear setbacks from the European Court of Justice defending human rights and freedom to [...]

  73. [...] is now pulling Commissioner Malmström to emanate a identical censorship regime, notwithstanding clear setbacks from a European Court of Justice fortifying tellurian rights and leisure to [...]

  74. [...] News just arrived that movie studios have made yet another court issue a censorship order against an ISP, despite the expected decision from the European Court of Justice that such orders violate Fundamental Rights and are illegal. [...]

  75. [...] is now pulling Commissioner Malmström to emanate a identical censorship regime, notwithstanding clear setbacks from a European Court of Justice fortifying tellurian rights and leisure to [...]

  76. [...] ISPs Need To Form A Retaliatory Censorship Alliance Aug 6, 2011 Consumer Protection News just arrived that movie studios have made yet another court issue a censorship order against an ISP, despite the expected decision from the European Court of Justice that such orders violate Fundamental Rights and are illegal. [...]

  77. 76
    Anonymous

    hey guys i found this awesome website go check it out!
    http://www.securepartner.dk/l%C3%A5sesmed-amager

  78. [...] Commissioner Cecilia “Censilia” Malmström to create a similar censorship regime, despite clear setbacks in these ambitions from the European Court of Justice which defended human rights and freedom to [...]

  79. [...] Cecilia “Censilia” Malmström to create a similar censorship regime, despite clear setbacks in these ambitions from the European Court of Justice which defended human rights and freedom to [...]

  80. [...] Falkvinge on Infopolicy: European Court of Justice To Outlaw Internet Filtering; Esp. For Copyright … [...]

  81. [...] European Court of Justice, the highest court in Europe, today gave its preliminary opinion on the appeal case between artists’ rights agency Sabam (Société Belge des Auteurs, [...]

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About The Author

Rick is the founder of the first Pirate Party and is a political evangelist, traveling around Europe and the world to talk and write about ideas of a sensible information policy. He has a tech entrepreneur background and loves whisky.

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