An opinion from the Advocate General (AG or GA) in the European Court of Justice today slams the door shut for the copyright industry’s strategy of suing people who share culture and knowledge.
This is part of the long-running conflict with the copyright industry in Sweden suing an the Internet Service Provider ePhone for access to subscriber data under the Swedish grotesque over-implementation of the European IPRED directive. EPhone has won the case in the district court and the appeals court; the copyright industry has appealed it to the Swedish Supreme Court which, anticipating the request from the parties, asked the European Court of Justice (ECJ) for an opinion.
(In the European Union, the ECJ is the highest court, above the national Supreme Courts. To save time, the national Supreme Courts can ask the ECJ for a pre-verdict on some specific aspects in order to shave a couple of years off a case in the last step of appeal.)
Specifically, the ECJ was presented with the fact that the Data Retention Directive prohibits dissemination of subscriber information to parties other than authorities, and asked whether this applies to (and thus nullifies) IPRED.
The Advocate General gave a 50/50 response that kills IPRED and thus the entire copyright industry’s strategy. The opinion (French) states that while the Data Retention Directive does not prohibit this, the data must have been originally retained for the express purpose of handing it to the copyright monopoly industry in case they would ask for it.
Thus, to be very clear: the copyright industry may not ask for data retained under the Data Retention Directive to sue sharers of culture and knowledge. This has been their strategy, years in the making.
If today’s opinion stands, for the copyright industry to acquire subscriber data, it must have been retained by the Internet Service Providers for the explicit purpose of handing it to third parties with the intent of suing their customers. That’s not going to be done by any sane ISP.
Now, there are a number of caveats with this. First, it is only the Attorney General’s opinion on the case; the actual verdict is expected about six months out. While the court usually follows the GA, it doesn’t always.
See also TorrentFreak.
“That’s not going to be done by any sane ISP.”
Sounds like a famous pre-Hadopi quote. If the copyright Gestapo makes an offer they can’t refuse, they’ll happily move on to insane mode. See US six strikes et al.
Everyone seems to be busy spinning this to their own advantage. The copyright lobby in Sweden says that this was a win for them, since the GA says that IPRED and the data retention directive are not incompatible, and that was the important bit.
Welcome to the game.
“…Swedish grotesque over-implementation of the European IPRED directive”…. That’s the problem. Sweden follows insane EU directives, that are written by faceless and nameless unelected bureaucrats. All those directives are not based on trust law or common law, thus should be ignored by those who still love freedom. What about copyright industry and corporations in general lobbying all those directives?
generaladvokatens utlåtande på svenska
I’d be willing to wager that as we speak there will be a draft in the works amending IPRED or altering the fundaments of the telecom package and/or swedish ELKOM in order to strike the clause which says ISP’s are prohibited for saving traffic data for anything but internal use.
Anyone holding against?
Rhethorical question, really. Within a month or two of this ruling we’ll see a draft to amend IPRED hit the table coming from the EU commission. I hope Christian has a weather eye out here.