Last week’s landmark ruling compelling a Swedish ISP to block The Pirate Bay won’t spread quickly, despite copyright holders’ wishes. Telecoms giant Telia says that the ruling does not apply to them, so connectivity to the site will continue unless a court orders otherwise. Copyright holders are assessing their options.
Torrentfreak » “We Won’t Block Pirate Bay,” Swedish Telecoms Giant Says »
A new study from Sweden has found that just over half of all young people admit to obtaining movies and TV shows from the Internet without paying, a figure that rockets to 70% among young men. With The Pirate Bay about to be blocked by one ISP with more to follow, can piracy rates be controlled?
TorrentFreak » Study: 70% of Young Swedish Men Are Video Pirates »
A central principle in EU Internet-related legislation is the so-called mere conduit rule.
Under the mere conduit principle of the EU E-Commerce Regulations of 2002,[1] network operators have no legal liability for the consequences of traffic delivered via their networks.
Who an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a) does not initiate the transmission; (b) does not select the receiver of the transmission; and (c) does not select or modify the information contained in the transmission. The acts of transmission and of provision of access include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
Today’s Swedish court ruling (and earlier European court rulings) to block The Pirate Bay is in direct conflict with this principle, as stated in the EU eCommerce directive.
The grounds for this seems to be the EU InfoSoc directive. The argument is that mere conduit does not apply when it concerns traffic to sites that do not adhere to notifications to remove content that is deemed illegal, e.g. when it comes to copyright infringements and intellectual property.
But this doesn’t make sense.
You cannot have a rule stating that ISP:s have no legal liability for the consequences of traffic relayed via their networks – unless illegal. That is the same as saying that ISP:s do have legal liability for the consequences of traffic relayed via their networks. And this is the opposite of what is stated in the eCommerce directive.
And even though the ISP in question have not been charged with any criminal offense – it is to be considered liable, as the verdict states that it will have to pay a hefty fine unless blocking The Pirate Bay. (The ISP also had to pay the copyright owners legal fees.)
I would say that we have a clear case of conflicting laws. And as the blocking verdict is only an interpretation of the InfoSoc directive, while the eCommerce directive states a very clear principle – the latter shall apply.
But I´m no lawyer. Reactions, opinions, and feedback are welcome in the comments below.
/ HAX
A Swedish appeals court (the court for market and patent related issues) today ruled that the Internet service provider Bredbandsbolaget must block the Pirate Bay and the streaming service Swefilmer.
By definition, this is censorship.
Also, it is a ruling in direct conflict with the EU the eCommerce-directives principle of »mere conduit« stating that net operators can not be held liable for what users are doing in their cables.
However, this is in line with court rulings in other European countries. And the court claims that the decision is based on EU law.
To confuse things further, the ISP has not been subject to any criminal charges or accusations of illegal activities. Nevertheless, the court seems to refer to a general »responsibilty« to stem illegal activities.
Where all of this leave the »mere conduit« principle (in the EU eCommerce directive) is unclear. Apparently, there are two conflicting sets of rules.
To abolish »mere conduit« is like holding the Post Office responsible for what is written and sent by mail. Or to hold road operators responsible for the intentions and actions of people traveling in cars using their infrastructure.
This is not reasonable. The ruling will open up for more censorship and surveillance.
And to top things of, no matter what, this form of blocking is not very effective and quite easy to circumvent.
/ HAX
Torrentfreak: The Pirate Bay Must Be Blocked in Sweden, Court of Appeal Rules »
Authorities in Sweden are mulling new measures to deal with evolving ‘pirate’ sites. As part of a legislative review, the government wants to assess potential legal tools, including categorizing large-scale infringement as organized crime, tougher sentences, domain seizures, and site-blocking.
TorrentFreak: Swedish Govt. Mulls Tougher Punishments to Tackle Pirate Sites »
These proposals will cause major collateral damage – making many everyday habits on the web and many services you regularly use downright illegal, subject to fees or, at the very least, mired in legal uncertainty.
Julia Reda, Pirate MEP: 10 everyday things on the web the EU Commission wants to make illegal »
Google removed over 900 million pirate site URLs from its search results in 2016. The staggering number is an increase of nearly 100% compared to the year before. While Google has taken some steps to make pirate sites less visible, it continues to disagree with rightsholders on how to move forward.
TorrentFreak: Google Removed Over 900 Million ‘Pirate’ Links in 2016 »
The European Commission’s proposal on copyright attempts something very ambitious — two different measures that would restrict free speech, squeezed into a single article of a legislative proposal. (…)
1) Requires internet companies to install filtering technology to prevent the upload of content that has been “identified by rightsholders”. (…)
2) Seeks to make internet providers responsible for their users’ uploads. (…)
3) Gives internet users no meaningful protection from unfair deletion of their creations.
Medium: EU Copyright Directive — privatised censorship and filtering of free speech »
“It is a dangerous path to go down, which forces Internet providers to monitor and evaluate content on the Internet and block websites with illegal content in order to avoid becoming accomplices,” the companies write in a joint statement.
Torrentfreak » ISPs: Blocking The Pirate Bay is Dangerous Censorship »
Some months ago the Swedish anti-piracy initiative Spridningskollen was launched by a few entertainment companies, a debt collecting agency, and a PR firm. The idea was to threaten illegal file shares with economic claims – and if they do not pay, with legal actions.
This raised quite some noise. In the frontline of the protests stood Bahnhof, a very privacy-oriented Internet service provider.
After intense media coverage and public outcry, today Spridningskollen announced that it will fold its operations and that no economic claims for illegal file sharing will be sent out in its name.
Hopefully, this will lead to Swedish copyright holders and entertainment companies working with providing their fans and customers with better services instead of threatening them.
/ HAX
