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EU Court of Justice: Censorship in Name of Copyright Violates Fundamental Rights (laquadrature.net)
216 points by yogsototh on Nov 24, 2011 | hide | past | web | favorite | 49 comments

This is, for once, an amazingly common sense decision, striking a good balance between IP protection, sensible business environment for the ISP, and personal freedom.

From the official press release[1]:

"The Court finds that, in adopting the injunction requiring Scarlet to install such a filtering system, the national court would not be respecting the requirement that a fair balance be struck between the right to intellectual property, on the one hand, and the freedom to conduct business, the right to protection of personal data and the right to receive or impart information, on the other."

I understand this isn't exactly revolutionary but amidst ACTA, SOPA, bailouts, and similar lunacy, this is a breath of fresh air and a glimmer of hope.

[1]: http://curia.europa.eu/jcms/upload/docs/application/pdf/2011...

EDIT: Formatting.

I totally disagree with you.

This is an unelected body making sweeping decisions without any accountability on a set of laws no-one voted for and a 'nation' that no-one voted for.

It may be positive for us, but in terms of democracy it highlights how ridiculous the EU and its unaccountable mechanisms have become.

I also believe my country, the UK, is trying to wriggle itself out of the human rights laws of the EU as they're too strong and (apparently) being abused, so expect other countries to follow suit and this judgement to be worthless in the long run.

After all this is in direct contradiction with explicitly passed laws in this country. Seriously worrying that an EU judge thinks he should start making these claims in direct contradiction to an elected body passing laws.

"Seriously worrying that an EU judge thinks he should start making these claims in direct contradiction to an elected body passing laws."

That is very much within the scope of what judges are for in many countries, including the various legal systems of the UK:


Checks and balances....

Read the ruling, it's very fuzzy, there were choices and the end decision was to declare primacy over national laws.

My point is the ramifications of this ruling are huge even though member states are presently passing laws in direct contradiction with this ruling.

Let's be clear here, I hate the Digital Economy Act. But I want my parliament to repeal it.

As much as I hate the idea of SOPA, as much as I hate the digital economy act, as much as I love privacy and vehemently argue for it, this is a very, very worrying ruling for anyone who values democracy.

As Switch says in the Matrix, "Not like this... not like this".

Perhaps (quite obviously from the d/vs) I didn't say it right or this is not the place to say it or perhaps you think I'm misunderstanding complex laws that I am definitely not even a novice in, but this is how I feel.

I value my liberties more than I value any democractic institution.

This is something I find very interesting. A non-elected official provides something interesting, they are not fighting to be re-elected every year. If they are not worrying about re-election they are able to pass unpopular laws and they aren't worrying about raising money for election campaigns. If we give them the benefit of the doubt (wisely or not) that they want the best for the country then there are clear positives to the very fact they aren't elected. I find it funny that in the UK there is much more vocal opposition to the EU making laws than to the power The House of Lords has (this is my own personal experience with no evidence whatsoever). And even funnier that I find myself agreeing with the vast majority of the contributions these two non-elected entities provide.


The fact that they are unelected and capable of overturning, reversing, or arbitrarily altering legislative decisions is exactly the point of judicial entities. Democracy is good because it's better at protecting rights than other forms of government - but if judges can do a better job, let them.

Disclaimer: American writing here. On this side of the pond, the courts are the only thing keeping us from racing into an uncontrolled police state.

So would you have been happy if this had been overturned by a local national judge rather than an EU one?

> the UK, is trying to wriggle itself out of the human rights laws of the EU as they're too strong and (apparently) being abused

It's worth pointing out again that the European Convention on and European Court of Human Rights are entirely and completely distinct from the EU and any federalisation coming from Brussels.

Not that this decision from the European Court of Justice (which is an EU institution) has anything to do with Human Rights anyway (other than perhaps insofar as the ECHR already stipulates the right of privacy).

As far as I understand it it's far more complicated than you make out:


Also they did rule that this was incompatible with the fundamental right to privacy (final sentence, rest preserved for context):

the Court finds that the injunction in question would require Scarlet to actively monitor all the data relating to each of its customers in order to prevent any infringement of intellectual-property rights. It follows that the injunction would impose general monitoring, something which is incompatible with the E-Commerce Directive. Moreover, such an injunction would not respect the applicable fundamental rights.

I live in the UK as well.

Clearly there is a "democratic deficit" in the current structure of the EU. This is a problem that will have to be righted one way or another.

In the long run I am optimistic and pro Europe, I don't have a problem with a certain level of federalisation and a supreme court in the style of America.

Of course I also completely agree with this judgement, but my views on Europe have not changed in the last few years. Despite what you may think at the moment, the things that unite European countries (compared to the rest of the world) far outweigh the things that divide us.

I strongly disagree that there's a "democratic deficit".

1. The EU court of justice's judges are appointed by the national governments (one judge per country). Each country has its say on who the court's judges are.

2. The EU court of justice's rulings are about EU law, but EU law is not national law. The highest court remains the national court, although typically national courts defer to the judgement of the EU court.

3. The EU court of justice only rules on EU directives, which are international treaties. In that sense it's similar to WTO rulings, except broader in scope.

4. The EU directives that it rules on are approved by the EU parliament, a body that is directly elected by EU citizens.

5. Directives themselves are not laws but treaties, they have to be turned into law by the national governments. While the EU can impose fines for not doing this in a timely matter, national governments can just choose to leave the EU treaty if they don't like it (participation in the EU is always voluntary).

Where in that whole chain of events is there supposed to be this "democratic deficit"?

national governments can just choose to leave the EU treaty if they don't like it

That's like saying living in a dictatorship is not a "democratic deficit" as long as you are free to emigrate.

Which individual issue can you say a national government would choose to rather leave the EU than acquiesce on? just because the system is not entirely undemocratic does not mean it is perfect. While directives originally had to be agreed upon unanimously by all member countries, this is no longer the case. From http://en.wikipedia.org/wiki/Treaty_of_Lisbon: "Prominent changes included the move from required unanimity to double majority voting in several policy areas in the Council of Ministers."

No, it's rather like you are free to emigrate from a democracy if you aren't happy with the decisions reached by majority vote.

The problem that we have is that the EU has a culture that is not at all federalistic or democratic. France is the main influence of the EU and the are very into centraliced bureaucracy. I don't see away out of this culture without rebuilding the EU from ground up.

I think the EU was "forced" on everybody its not at all a natural grown thing. If we want to walk towards one europe we should open the borders and just let it happen. Why put all the countries in one big systems. A stable System needs to grow and iterate. The countries with diffrent cultures should start by working closer together (for example all german speaking countries). This way we can build a stable europe in the long run. A one size fits all solution will always break down because its imo impossible to let people vote on it (they would recect it).

Isn't the definition of Justice, that it's a 3rd pillar and should not be elected ?

Despite the down-votes, I think you're actually making a thought-provoking point here. As an EU citizen (Finnish) I, too, get the impression that the EU is an opaque entity making decisions that dispute national sovereignty of its member nations.

That said, I do mostly disagree with you in this particular case. As other commenters have pointed out, judiciary bodies are usually selected rather than elected (at least that is the case here in Finland). And I have not seen a single referendum on national legislation either, nor do I feel particularly satisfied with the level of accountability in the government.

So perhaps the shortcomings you raise are endemic in democracy globally, rather than ailments unique to EU?

> This is an unelected body making sweeping decisions without any accountability

I won't argue if the EU Court of Justice is a relevant institution to judge this case, or if it is an independent enough body as it should be, but the fact that it was not elected does not invalidate it.

Sometimes, we vote for people who put other people in charge, or make laws which determine how certain power positions can be reached. We do not have to vote for every individual. Certainly, I don't think I'm qualified enough to make a decision on who is a good judge or not.

The doctor who attends me at the hospital was not elected neither, but I don't think that this is worrying at all in terms of democracy.

"This is an unelected body making sweeping decisions without any accountability on a set of laws no-one voted for"

This is pretty close to how the judiciary operates in many countries, including the UK.

Maybe I just don't know enough, but so far I haven't heard of judges ever being elected by the people. AFAIK, they are nominated by the representatives elected by the people.

In England and Wales there is a separate commission made up of judicial, professional and lay members that selects judges - it most certainly not left up to politicians:


Wouldn't this be an argument in favor of having a non-elected bureaucracy? I mean, if it looks like a duck and quacks like a duck, it's probably a duck. Even if the current ideology is that democratic governments are much better.

If you're trying to say that the EU makes better decisions than the local government I would tell you that it's at best hit and miss. I wouldn't go as far as to call this decision a fluke, but I've generally found the EU to make more bad decisions than good on the whole.

This sort of decision is exactly why an independent judiciary is needed. Copyright is not in any sense a "fundamental" human right. Freedom from prior restraint arguably is.

Politicians will never recognize this fact because the copyright-based media not only contributes heavily to the financing of their campaigns but also brings those campaigns to the electorate. This is why, in the US at least, it's always the court system that saves us from the worst legislative assaults against free speech.

the UK is part of the EU? .. let me double check that

Did you finish double-checking yet? It is.

they are but the point is that they dont want to be but still need the eu more than the eu needs them

>the war on culture sharing

What a powerful concept as an anti-dote to 'war on file-sharing'.

How will if effect decisions like this:


...where BT (big British isp) was told to block sites?

Judging by the Court press release[1], it would seem that the unreasonable cost of filtering all P2P traffic for copyrighted material (yes, they actually asked for that) weighed heavily in the Belgian case. This would likely not be much of a factor when it comes to filtering a single domain, as mentioned in the UK case you linked to.

Still, the injunction by the EU court could well shift the balance even in cases where blocking is more technically feasible. Fingers crossed.

[1]: http://curia.europa.eu/jcms/upload/docs/application/pdf/2011...

I think that legally there is a large difference between them a) blocking one site for all users, and b) monitoring a users actions.

In theory you could do the former without ever recording which users attempted to reach the site in question.

I wonder what consequences this will have on three strike laws.

This is unrelated to 3-strike. This is more about DPI filtering.

Well, the French 3-strikes law mandates that to ensure you won't be attacked in court for downloading, you have to install a monitoring software on your computer. So I think in this case, it could apply.

Of course, in such a case, the devil is in the details so maybe it does not apply because it's not asked to the ISPs to do that.

The French 3-strikes law does not mandate anything like that. It only says that you should make sure your access is not used for downloading illegaly, but does not specify how. (And no decree was published, afaik).

Your analysis is right, but unfortunately the decree has been published last year. The first few third-strokes were struck in the past few months.

(FR) http://www.legifrance.gouv.fr/affichCodeArticle.do;?cidTexte...

There are still no formal definition of what securing your access means ("moyen de sécurisation").

Ah, yeah, true. And fortunately, they are not that dumb as to hurry up and make things worse than they already are... or are they?

Orange (major French ISP) tried to monetize a securization solution based on a 2€/month contract that would block P2P traffic from unauthorized WLAN clients directly on the box. The solution was hacked within days (hours? not sure), simply by grabbing plain-text IP adresses of all the users with a simple /status http query to the webserver of the service provider, and injecting them on random P2P networks using IPFuck (sic), de facto forcing all customers to break the law.

Orange retired their solution from the market and decided to never again try to take on that subject.

Right now the only official stance from HADOPI (3-strikes organization) is a recommandation to use WPA2 instead of WEP. Still no means of securization, so if you get caught, you're to blame for not doing something nobody knows how to do.

The cynic in me tells me that this is more about providing a huge competitive advantage over countries with SOPA like laws than it is about protecting human rights.

But as they say, one should not look a gift horse in the mouth.

What happens with a decision like this is that countries with SOPA like laws will be where you want to be as part of the publishing industry whereas the EU now is the place where you want to be (or at least where you want your hardware to be) if you are a content hoster like youtube.

That's fine.

Of course this might end up with content only being available in countries with SOPA like laws, but looking at what is available for purchase here in Switzerland, I'd say that this is already the case.

As such, I'm really happy about this decision and I have in fact printed it out with the intention to hang it on the office wall.

Countries within the EU have all sorts of nasty laws that favour business over their populations, and have a habit of pushing through populist laws without thinking about the repercussions. The European courts are one of those aspects of Europe that is actually a good thing; they tend to protect people from the more cut-throat decisions. So, although the EU can be a dodgy entity at times, I don't think this is one of those conspiracy issues.

The EU has lead to some very consumer friendly laws IMO. The Distance Selling and Data Protection provisions are two that come to mind immediately.

About which directive are you talking about? The original link is about a decision from the European Court of Justice.

The parent comment doesn't directly mention a directive, but the press release makes a reference to a directive according to which:

"[National] authorities must not adopt measures which would require an internet service provider to carry out general monitoring of the information that it transmits on its network."

Who'da thunk? Color me impressed.

But the most important thing is not the directive, but the fact that monitoring would by contrary to the Charter of Fundamental Rights.

The directive could be amended much more easily than the charter.

> but looking at what is available for purchase here in Switzerland

can you explain what you mean by that for those not familiar with switzerland?

Most of what people take for granted in the US is not available in Europe. Here in Switzerland, the only way to reliably and legally get a Movie in its original language is buying a physical DVD or BluRay.

There are no TV shows in iTunes, we have no iTunes Match, there are only localized movies in iTunes; until very recently, there were only Gutenberg books in iBooks.

Until last week, there was no Spotify (or any other legal music streaming service).

There's no Netflix, no Hulu and TV stations are showing episodes of TV series that aired around three years earlier in the US. Aside of iTunes, there's no legal video on demand service.

Heck, I can't even buy most of the audiobooks I want on Audible or anywhere else. They still want me to buy them on CDs (and I will not buy 48 hours of Peter F. Hamilton on CDs and then rip them myself).

And then they wonder why people pirate content :/

I'm not in Switzerland but I'm a Frenchman in the Netherlands, and I believe the situation is the same.

Basically, there is plenty of content with geographic limitations. Something that might be less visible from the US but that can be pretty annoying once outside.

And that's without counting missing services such as Hulu or Netflix, for the same reasons.

Yeah, I've got the same experiences in both Netherlands and the UK (I'm an Englishman living in the Netherlands, and working for a French multinational - just up the road in Ede).

Sure, we can use VPNs to access Hulu or BBC iPlayer, but that's an extra expense and adds an extra layer of complexity to it.

Take, for example, my BoxeeBox: it works great for local files, but it misses all of the cool streaming features that American users can enjoy.

Some exclusive video content about imitation cuckoo clocks, knock-off Swiss army knives and synthetic polyester lederhosen is blocked in Switzerland, because it can generate dangerous increases in blood pressure, especially among the elderly living at higher altitudes.

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