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Belgium judge orders ISP to clean up network

'Common Carrier' claim melts away

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A Belgian legal victory by authors and composers means that the country's third-largest ISP has six months to clean up its networks of copyright infringing material distributed by P2P.

The long-running case was brought by the Belgian Society of Authors, Composers and Publishers (SABAM) against ISP Scarlet, formerly Tiscali and the third largest operator in Belgium.

In 2004, SABAM obtained an intermediary injunction against Tiscali, leading to the court appointing an expert. The expert recommended 11 techniques the ISP could use to identify P2P material, including Audible Magic's filtering software. This week a judge agreed that these were acceptable, and gave Scarlet six months to get cracking.

Commenting on the case, SABAM stresses that the ISP is not obliged to monitor its network.

"The solutions identified by the expert are 'technical instruments' that limit themselves to blocking or filtering certain information transmitted on the network of TISCALI (SCARLET). They do not constitute a general obligation to monitor the network. Moreover, the court considers that filtering and blocking software are not dealing as such with any personal data and that a blocking measure has a purely technical and automatic character, as the ISP is not playing any active role in the blocking or filtering (sic)," SABAM said in a statement.

ISPs once balked at the implications of policing their networks, and sought to extend the "common carrier" defence developed for the first circuit-switched telephone networks. However, the argument was not recognized outside the United States, and could not be made when the carrier knew of the offence. In 2005 the FCC formally excused phone and cable companies from the common carrier obligations.

In addition, ISPs argued that the obligations were onerous and intrusive. Modern techniques such as deep packet inspection, and content filtering also make such claims hard to justify. Audio filtering can identify a song accurately from a small number of short samples, for example. In other words, identifying potentially infringing material is now easy and cheap.

Seeing the tide turning, a fortnight ago AT&T agreed to start monitoring its network for copyright infringement.

The group that represents the international recording business, the IPFI, has hailed the decision as a landmark.

"This is an extremely significant ruling which bears out exactly what we have been saying for the last two years - that the internet’s gatekeepers, the ISPs, have a responsibility to help control copyright-infringing traffic on their networks," said IFPI chief executive John Kennedy in a statement.

"This confirms what we’ve been saying all along: the record industry wants to abolish postal secrets and freedom of the press in order to maintain their crumbling monopolies," Rick Falkvinge founder of the Swedish "Pirate Party" told TorrentFreak. The party notched up 0.6 per cent of the popular vote in last year's Swedish general election.

ISPs are left in a quandary. No one is more aware of the public's unquenchable desire to exchange music, as this constitutes a significant portion of the networks' demand. But the recording business (in a sharp contrast to publishing and performance rights societies) has refused to allow them to turn this into a legitimate business, and withheld licenses that permit them to create legal P2P services.

Playlouder MSP, the ISP which has snagged some major label support for a service that permits subscribers to share music, may offer a template for both ISPs and recording rights holders to move forward. ®

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