Belgian ISP Forced to Disconnect P2P-Users

EDRI reports that a Brussels court has ruled that a Belgian internet provider has to disconnect customers if they violate copyrights and block the access of all customers to sites that offer file-sharing programs. The Belgian Society of Authors, Composers and Publishers (SABAM) had appealed to consideration 59 of the European Copyright Directive (EUCD), and was heard. No court opinion has been published yet.

Consideration 59 states: "In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore, without prejudice to any other sanctions and remedies available, right-holders should have the possibility of applying for an injunction against an intermediary who carries a third party's infringement of a protected work or other subject-matter in a network."

Consideration 59 EUCD is a fine example of how enforcement of (copyright) law through technical code is placed at a node of control within the network (ISPs). It also reflects how private parties (ISPs) could be used to enforce both public policing functions and represent private interests. It will be interesting to see how the Court has come to its far-reaching conclusion. The disconnection of users to websites offering P2P programs raises some serious freedom of expression issues. Preventive exclusion to programs that have legal uses touches on (privatized) censorship.

It is also questionable how ISPs can be forced to disconnect. Under the regime of the Electronic Commerce Directive ISPs are not liable when they function as mere conduits. If ISPs host infringing content they may fall within the Notice and Take Down (NTD) regime of article 14 of the Directive. This article does not provide a formal NTD procedure, like in the U.S. DMCA. Consequently, SABAM might come with a NTD, and not bound by formal restrictions an ISP may choose the path of the least cost: the potential costs of litigation outweigh the cost of losing a subscriber.
There are many more issues to this subject, but I'll wait for the opinion to surface.

Update: The opinion can be downloaded here (Doc file, Dutch only). The opinion does state that copyright infringement is taking place through p2p software by using the service of the ISP. The legal ground for the ISP to take appropriate measures against the infringments is not clear. However, the opinion also asks for further research to be conducted on the technical possibility and effectiveness of filtering software. This research has to be paid by SABAM, and is expected to be concluded somewhere in 2005.