So, Telcos Not Obliged To Hand Over Swappers Records, But Individual States Can Step In?
The European Court of Justice came out yesterday to rule that telcos cannot be forced to release the identities of file-swappers using their networks. The court upheld a ruling?that said Telefonica could not be forced to hand over records identifying KaZaA file-swappers to Promusicae, a group representing Spanish producers of music and movies. Promusicae had been after the records so that it could kick off a round of civil proceedings against file-swappers.
The court ruled that:
In the light of all the foregoing, the answer to the national court?s question must be that Directives 2000/31, 2001/29, 2004/48 and 2002/58 do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings.
So, the holders of identifying information?are not obliged to pass it?onto entities looking to start civil cases.
However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.
However, on the other hand, EU states can?introduce and intrepret their own laws governing the protection of copyrighted content, but need to do it carefully lest they tread on the privacy of their citizens.
So, cases by rights holders can continue, it’s just that telcos are not obliged to hand over identity information where the?national law of the state does not compel them to do so.
ECJ press release is here?and the judgement details are available here.
January 31st, 2008 at 7:08 pm
Promusicae is asking now to the Spanish Goverment to force Telefonica to give them that data with the help of a groups of judges…Does it make sense to anyone??
The point is that file-swapping is legal in Spain (well, it’s not ilegal) and they can’t take anybody to court at the moment…so they keep threatening…
January 31st, 2008 at 10:51 pm
@Reena: What legal basis do you to support your opinion that the swapping of copyrighted files without the agreement of the rights holdy is lawful? From my investigative work, I find that the Spanish congress banned all peer-to-peer swapping of files almost two years ago. Do you have evidence to support that this situation has been reversed? Has the Spanish Government backpeddled?
Telefonica claimed that they being forced to share personal data with other entities was illegal. That’s a different issue.
February 1st, 2008 at 5:20 am
The Spanish Intellectual Property Law defines the concept of Private Copy as the one you make of the original medium (CD, DVD, mp3 file). You can share that copy while you don’t receive any money for it, in peer-to-peer networks, giving that copy to a neighbour or whichever way you prefer.
If you receive money in exchange, that is called “profitmaking” and you can be taken to court. That is one the problems we have in Spain with people who sell burned CDs in the streets.
Regarding to software, that law stablishes a different concept called Security Copy, and that means you can only make one copy of the CD that can’t be shared in any way.
There is also another big organisation called SGAE (General Society of Spanish Authors, more famous than Promusicae) that is claiming that every person has to pay a “canon” when he or she buys a CD, DVD, computer, printer…as it can be used for making copies of registered works….it’s crazy, because if I buy a new hard drive today, I would pay e12 extra because of this. Everytime you buy a CD or DVD in Spain, you are paying this and it doesn’t matter if you use it for your pictures or College work.
There is a big platform called “Everybody against the canon” that has reached 2 million signatures and they’re taking these to every politician they talk to, as we have elections in March. And also, there are some lawyers that have created a big movement against all this madness in the Internet.
If you speak spanish you can read a book called “Copy this book”, written by one these lawyers:
http://elastico.net/archives/005194.html
Also you can check these people’s blogs:
http://www.filmica.com/david_bravo/
http://www.cortell.net
(Don’t trust on what the Spanish congress do. They change their mind every day…)
February 1st, 2008 at 7:49 am
@Reena Interesting.. That under Spanish copyright law, the rights of private use extend to giving copyrighted material to another without receiving payment in return, while part of the Spanish seat of Government has banned file-swapping. Sounds like legal limbo. Almost Irish, really.
February 1st, 2008 at 8:43 am
Yes, it’s so. How is the situation in Ireland at the moment? I’m living in Limerick and I leave my Bittorrent on the whole day (and night) >:)
February 1st, 2008 at 5:51 pm
@Reena Let’s put this way, I can’t see Irish IP law being as favourable as Spanish law..
But then again I’m not a legal head.
February 1st, 2008 at 7:05 pm
Me neither, I’m an engineer