EU Court Rules File-Sharers Must Remain Faceless

In a blow to the music industry’s worldwide campaign to crack down on copyright infringement, a European court has ruled that Internet service providers cannot turn over the identities of alleged file-sharers.

The European Court of Justice in Luxembourg found that existing European Union laws do not allow for such a forced disclosure of information that could lead to the identities of file-sharers being discovered. In the past, the music industry has used such information to file lawsuits against those it believes are swapping copyright-protected music files without authorization.

“Community law does not require the member states, in order to ensure the effective protection of copyright, to lay down an obligation to disclose personal data in the context of civil proceedings,” the court writes in its decision.

The case involved a request from Promusicae, a Spanish nonprofit that represents musical and video producers, which asked courts in Spain to order national telecommunications carrier Telefnica to disclose the identities and physical addresses of certain persons whom it provided with Internet access services.

The group was seeking identities of subscribers it claimed were using the Kazaa file exchange program to swap music on which it held copyrights. Promusicae planned to use the information it gained to file civil suits against the alleged swappers.

Raising Questions

The court essentially sided with the EU’s Advocate General, who last year came out in favor of protecting users’ personal data privacy rights over the demands of copyright holders in civil cases — as opposed to criminal cases, where the need to pursue illegal activity is seen as readily outweighing privacy concerns.

Still, the court acknowledges that EU member countries must balance “the right to respect for private life on the one hand and the rights to protection of property and to an effective remedy on the other.” In fact, it left the door open for countries to put rules in place to allow for such records to be subpoenaed as long as those rules balance the need for privacy.

“Member States must, when transposing the directives on intellectual property and the protection of personal data, rely on an interpretation of those directives which allows a fair balance to be struck,” the ruling states.

The ruling deals a setback to the music industry as it seeks to stem the tide of file-sharing in Europe by using the same tactics their U.S. counterparts — notably, the Recording Industry Association of America — have used to cut down on swapping, said JupiterResearch analyst Mark Mulligan.

“The music industry in Europe was hoping to get the ISPs to be their allies and do some of their work for them,” Mulligan told the E-Commerce Times. In fact, the industry convinced a Belgium court to allow ISPs in that country to install filters to stop infringing works from being shared.

Backing Privacy

Still, even if the courts were on their side, the labels are fighting a losing battle because users continue to seek new ways to swap music, Mulligan added. “The new peer-to-peer landscape is so fractured that enforcement through lawsuits is going to lose whatever effectiveness it had.”

The European equivalent of the RIAA, the International Federation of the Phonographic Industry, said labels would continue to battle piracy with whatever legal tools they have at their disposal.

“Copyright theft on the Internet is the single biggest obstacle to the growth of the music business today,” said IFPI CEO John Kennedy. He said the court “sent out a clear signal that [countries] have to get the right balance between privacy and enforcement of intellectual property rights.”

The industry continues to file lawsuits and has won some high-profile battles — it won the first file-sharing case to go to trial in the U.S. last fall — but continues to lose the larger war, Eric Garland, the CEO of P2P tracking firm BigChampagne, told the E-Commerce Times.

“The lawsuits bring headlines that may have some impact on people who are on the fence about file-sharing,” Garland said. “But people who have made up their mind to share their music and download music from others are going to keep doing so. The lawsuits have to really be scary to alter that behavior. It hasn’t happened yet.”

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