European Court issues new file sharing directives

Written by Tim Smalley

January 31, 2008 // 11 a.m.

Tags: #copyright #court #directives #european #file #infringement #intellectual #ip #justice #new #of #property #sharing #theft

The European Court of Justice decided earlier this week that EU law does not force the disclosure of file sharer’s details in copyright infringement cases.

In the ruling, the court was essentially asked to balance the consumer’s right to privacy against the industry’s right to protect its intellectual property. The court sided with the Internet user – something that could be seen as a massive victory for the file sharing community in Europe.

But, it wasn’t quite that clear cut because the court did accept the fact that there is a fundamental conflict between the Internet user’s privacy and the company’s right to protect its copyright.

The ruling has essentially put the ball back in the member state’s courts, stating that “authorities and courts of the Member States must not only interpret their national law in a manner consistent with [the EU’s] directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.

The ECJ also said that, in civil cases, a court could decide whether or not an Internet Service Provider has to turn in its customers.

In the end then, we’re likely to see 27 different legal interpretations of the EU’s directives across the member states. Countries that have a history of protecting copyright infringement favouring the rulings and will continue to order ISPs to hand over details of file sharers, while those that don’t have the same track record are likely to protect the file sharer’s privacy.

Iain Connor, an IP specialist and partner with Pinsent Masons, is quoted by Out-Law as saying that this will be bad news for UK Internet Service Providers. “In terms of the rationale of the ruling, in some ways it’s actually just preserving the right of member states to have their own court procedures and in the UK the court procedure is such that disclosure would almost certainly be ordered,” he said.

Connor added that this could potentially put UK ISPs at a commercial disadvantage to those in Spain on the basis of the ruling, because we’re likely to see people that want to host this type of material shopping around to find an ISP in a country where disclosure wouldn’t be ordered.

On the whole then, whether or not these rules are going to be good for the Internet user is going to come down to the member state’s interpretations of the new directives. In the UK at the very least, it doesn’t look too rosy. Share your thoughts in the forums.

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