Courts may order ISPs to block access to...

Courts may order ISPs to block access to copyright-breaching websites under certain conditions, said the European Court of Justice (ECJ) Thursday in a decision one commentator called unsurprising but important. The ruling in UPC Telekabel Wien GmbH v. Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH (http://bit.ly/NYcjur) arose from complaints by the movie companies that their films could be viewed and downloaded from the website kino.to without authorization, the court said. They sought injunctions against ISP UPC Telekabel Wien, which argued that it couldn’t be enjoined because it had no business relationship with kino.to’s operators and there was no proof that its own customers acted unlawfully. The ISP also claimed any possible blocking measures could be circumvented, and some are excessively expensive. The ECJ said the EU copyright directive allows rights-holders to seek injunctions against intermediaries whose services are used by third parties to infringe their rights, and that UPC is such an intermediary. The law doesn’t require a specific relationship between the person carrying out the infringement and the intermediary against whom an injunction is issued, nor is it necessary to prove that an ISP’s customers are actually accessing the material, it said. But fundamental rights recognized by EU law permit injunctions on two conditions, the court said: (1) The ISP’s measure doesn’t unnecessarily deprive users of the ability to lawfully access the information. (2) The blocking or other actions do prevent unauthorized access to the material or at least make it hard to access. Intellectual property rights in such situations conflict with other rights such as the freedom to conduct a business and user’s freedom of information, the ECJ said. Where several basic rights are at issue, EU governments must ensure their national laws strike a fair balance, it said. The ruling isn’t surprising because EU laws implicitly allow such interventions in order to repress piracy, telecom consultant Innocenzo Genna wrote on his radiobruxelleslibera blog (http://bit.ly/1pzl2OJ). Genna, who represents new-entrant, non-incumbent operators, said the decision is “very important” because it’s the first time the ECJ has set out mandatory principles national courts must comply with when they order ISPs to block access to copyright-infringing websites. Under the decision, ISPs can’t be forced to bear significant costs and put in place complex and difficult technical solutions, Genna wrote. The court said Web-blocking must be strictly targeted, particularly when the illicit content is available on sites used for lawful purposes, he said. The decision is “an important clarification that will strengthen the ability of the music and other creative industries to tackle piracy,” said the International Federation for the Phonographic Industry (IFPI). The ruling confirms that “copyright is itself a fundamental right requiring protection,” it said. Europe’s recording industry has more than 230 licensed services but its continued success depends on the legal environment in which it operates, IFPI said. “ISPs’ ability lawfully to prevent access to pirate sites that undermine legitimate music service is critically important.”