This has been hailed as a step forward in the fight against content piracy on the Internet.
The ruling was based on the interpretation of the European Union’s Information Society Directive, often called the E.U. Copyright Directive, by the Belgian court.
In 2004, SABAM obtained an intermediary injunction against the company under its prior name Tiscali and the court appointed an expert who recommended 11 techniques the ISP could use to identify P2P material. This week a judge agreed that these were acceptable, and gave Scarlet six months to comply.
"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)," SABAM said in a press release. "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."
The London-based International Federation of the Phonographic Industry approved the Belgian court's decision.
"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," IFPI chief executive John Kennedy said.
Not all observers are pleased.
Struan Robertson, a technology lawyer and editor of the legal website Out-law.com, has said the copyright directive is not supposed to supersede the terms of an earlier E.U. directive, the E-Commerce Directive, which includes a "mere conduit" defense that shields ISPs from responsibility for what happens on their networks.
"These laws were designed to complement each other, but there was always a risk of a collision like this," Robertson said. "The copyright directive says copyright owners should be able to get a court order against intermediaries whose services are used for piracy, but it also says its provisions should not prejudice the E-Commerce Directive.
"I haven't seen the judgment, but if this court really has ordered an ISP to monitor all traffic for any transfer of pirated music, that will surely send shockwaves through the industry."
