Provider Tiscali in Belgium forced to disconnect P2P-users

A Brussels court of first instance has ruled on 30 November 2004 that internet provider Tiscali should disconnect customers if they violate copyrights, and block the access for all customers to websites offering file-sharing programs. The case was instituted by the Belgian Society of Authors, Composers and Publishers (SABAM) on 24 June 2004 with an appeal to consideration 59 of the European Copyright directive (2001/29/EC).

This consideration states: “In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore, without prejudice to any other sanctions and remedies available, right-holders should have the possibility of applying for an injunction against an intermediary who carries a third party’s infringement of a protected work or other subject-matter in a network.”

Sabam argued that it might well be possible that P2P-software is used for legitimate purposes, but most often to infringe on copyrights. Tiscali wasn’t just aware of the fact that infringements were committed on its network, said Sabam, but also gained serious profits from the infringements, since the customer-base had significantly grown since the advent of filesharing networks.

The Court apparently followed this line of reasoning, but ordered technical research into the possibility of blocking access. The verdict is not public yet. It is completely unclear how Tiscali should detect possible unlawful behaviour from their customers. The verdict seems to contradict the provider liability provisions in the e-Commerce directive (2000/31/EC). This directive decrees that providers that provide mere conduit to their customers, such as access providers do, cannot be held liable for any illegal or unlawful conduct from their customers if they are not ware of the origin of the content, don’t influence the destination and doesn’t select or modify the information.

Sabam announced in an earlier press release they would apply the outcomes of the verdict to all Belgian access providers, claiming should block access to any P2P software and take technical measures to cripple the working of the already downloaded P2P software.

La SABAM obtient raison (01.12.2004)
http://www.lalibre.be/article.phtml?id=3&subid=85&art_id=195335

La Sabam poursuit Tiscali pour atteinte au droit d’auteur (25.11.2004)
http://www.droitbelge.be/news_detail.asp?id=197

Press release SABAM (Word doc in English, 24.06.2004)
http://www.sabam.be/website/data/tiscaliangl.doc