I would like to share SAVAM vs. Scarlet (Belgium) with you since it is believed to be the first decision to force an ISP( Internet Service Provider) to block a broad class of copyright infringing materials and its influence is worldwide. I don’t think any court in the U.S. ruled that ISPs is liable, although they are considering liability on P2P or other service providers. It seems that Belgian court had already taken a further step in favor of copyright owners. This Belgian decision resulted in an endless argument on indirect infringement and might be a reference for Viacom v. Google. I have attached news reports including comments.
Since this case was decided six months ago, I am wondering if there is any similar decision in other countries and any further comments from the U.S.
Zhe Peng (Amy)
Injunctions against ISPs - The SABAM/Scarlet ruling 23-10-07
Laurent Masson
The President of the Brussels Court of First Instance (the ‘President’) ruled on 29 June 2007 that an Internet Service Provider (ISP) active in the Belgian market, must implement technical measures to prevent illegal peer-to-peer music file exchanges………..
http://www.twobirds.com/english/publications/articles/SABAM_Scarlet_Ruling.cfm
Court Orders ISP to Filter Content - SABAM v SA Scarlet
13 July 2007 Clintons
A Belgian court has ordered an internet service provider to use filtering technology on its systems to root out copyright-infringing content. In SCRL Societe Belge Des Auteurs v SA Scarlet (No. 04/8975/A) the ISP Scarlet (formerlyTiscali) was found liable in 2004 for the unauthorised exchange of music files through its service and, in a judgment made available this week, the Belgian Court of First Instance has ordered Scarlet to put into place blocking and filtering mechanisms to stop its users sending or receiving music throughpeer-to-peerapplications…………….
http://www.legalday.com/commentaries/clintons/SA_Scarlet_Internet_Sharing.html
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4 comments:
Is this not the same scenario under US copyright Law where ISP are enjoined to install devices to prevent infringements of peoples work online,and is it not similar to the policy behind the safe harbour rule in US laws only that the sanctions for not applying these rule could result in being liable to infringement whether contributory or otherwise.I think we (US) have similar copyright jurisprudence.
What is interesting here is that under the safe harbor provisions of the DMCA, we have somewhat contradictory language.
§512(m) specifically provides that the safe harbors are not conditioned on “a service provider
monitoring its service.” However, to maintain its safe harbor under §512(c) & (d), an ISP must lack “actual knowledge” or awareness “of facts or circumstances from which infringing activity is apparent."
Two DMCA cases, Hendrickson and ALS Scan, suggest that blanket DMCA notices may give "actual knowledge", triggering a duty to monitor to prevent further acts of infringement.
Of course, these are all in determinations of liability, as Sam suggests, and not injunctive relief.
However, the question still stands... do we read Grokster to require monitoring to avoid contributory liability? And how does this interact with the DMCA safe harbor?
Samuel, thanks for comments. I agree that the safe harbor statuses are similar. ISPs was believed to be more intermediary than websites and less vulnerable under copyright law,but SABAM said it is not true. The interesting thing is whether SABAM went beyond the line of E-commerce directive safe harbor(E.U. 2000), by requiring adopting an expensive technique measure which will also block non-infringing use.
Nice synthesis, David~~~When the United States Congress was working on the DMCA, one of the congressional committees “a service provider would have no obligation to seek out copyright infringement, but it would not qualify for the same harbor if it turned a blind eye to “red flags” of obvious infringement.” (United States Senate Judiciary Committee Report 105-190 at 48.) Is it really an aid for the contradictory language of DMCA? I doubt.
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