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Belgian judge reverses moon-on-stick music copyright ruling

Audible Magic meets network realities

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A Belgian judge who slapped a €2,500 per day fine on an ISP until it filtered its network for music copyright infringements has reversed the decision after music lawyers conceded it wasn't technically possible.

The successful appeal by provider Scarlet last week overturns a ruling made in July last year. The final skirmish in Scarlet's battle with royalties collection society SABAM is now scheduled for October 2009.

SABAM had persuaded the judge that Scarlet could block all copyright-infringing music files passing through its network by using software from Audible Magic. The decision was seen as a potential landmark in European internet law by observers, as it made ISPs liable for the copyright status of traffic they carry.

In its appeal, Scarlet said it could not comply with the order because Audible Magic was ineffective. SABAM's lawyers admitted they had misled the court about the software's powers.

Last year SABAM played down the significance of its victory, saying: "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."

Experts were surprised by the judge's position however, arguing that it drove a tank through ISPs' cherished "common carrier" immunity on copyright, which is mandated by the EU's E-Commerce Directive. The final appeal next year will decide whether Scarlet has any liability for copyright infringement.

In the UK ISPs have agreed to work with the record industry on a voluntary basis to discourage unlicensed music sharing. ®

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