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Advocate General Cruz Villalón says the European Court of Justice should declare that EU law precludes a national court from requiring an ISP “to install, in respect of all its customers, in abstracto and as a preventive measure…a system for filtering all electronic communications passing via its services (in particular, those involving the use of P2P software).”Advocate General Cruz Villalón for the European Union Court of Justice says that courts of individual member nations cannot order ISPs to filter copyrighted material on their networks because such a system would ultimately violate the Charter of Fundamental Rights.The opinion stems from a 2007 ruling in which the Belgian Society of Authors, Composers and Publishers (SABAM) convinced the Court of First Instance of Brussels to order ISP Scarlet Extended SA to adopt one of eleven technical measures put forward by a court-appointed expert in order to prevent its customers from illegally downloading copyrighted music.A year later the ISP reported that it was practically impossible to stop illegal P2P. SABAM had demanded that it block all P2P traffic, but Scarlet refused since it would ultimately affect legitimate P2P traffic as well as the infringing type. Instead it first tried throttling P2P traffic, but all that did was lead to customer complaints. Illegal files were still widely available. It then tried to filter copyrighted material using software from Audible Magic, however, according to Scarlet, the software didn’t actually work and failed to filter illegal files.Thus, Scarlet decided to appeal the ruling to the Court of Appeal, Brussels which, in turn, sought a ruling from the Court of Justice on whether European Union law and, in particular, the fundamental rights guaranteed by the Charter of Fundamental Rights, permit a national court to order an ISP to filter data electronic communications.It is Villalón’s role as Advocate General to offer an opinion, though not binding on the Court of Justice, that provides a legal solution in “complete independence” of cases they are asked to adjudicate.He says 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.”In his opinion, ISPs cannot filter the Internet of copyrighted material without likely violating the Charter of Fundamental Rights, and he asks that the Court of Justice declare that EU law disallows a national court to order ISPs to filter copyrighted material.He adds:Consequently, the Advocate General proposes that the Court of Justice should declare that EU law precludes a national court from making an order, on the basis of the Belgian statutory provision, requiring an internet service provider to install, in respect of all its customers, in abstracto and as a preventive measure, entirely at the expense of the internet service provider and for an unlimited period, a system for filtering all electronic communications passing via its services (in particular, those involving the use of peer-to-peer software) in order to identify on its network the sharing of electronic files containing a musical, cinematographic or audio-visual work in respect of which a third party claims rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at the point at which they are sent.Judges of the Court of Justice are now beginning their deliberations in this case, and their ruling will be given at an unspecified later date.Hopefully they at least realize the futility of trying to filter data transmitted on the Internet and the likely violation of privacy that ensues. How else can one determine if a home movie as actually a copyrighted motion picture?
