No subject

Fri Mar 11 16:33:04 GMT 2011

38      In that regard, it is common ground that implementation of
that filtering system would require
        - first, that the ISP *identify, within all of the electronic
communications of all its customers*, the files relating to
peer-to-peer traffic;
        - secondly, that it identify, within that traffic, the files
containing works in respect of which holders of intellectual-property
rights claim to hold rights;
        - thirdly, that it determine which of those files are being
shared unlawfully; and
        - fourthly, that it block file sharing that it considers to be unlawful.

39      Preventive monitoring of this kind would thus require *active
observation of all electronic communications* conducted on the network
of the ISP concerned and, consequently, would *encompass all
information* to be transmitted and *all customers using that network*.

40      In the light of the foregoing, it must be held that the
injunction imposed on the ISP concerned requiring it to install the
contested filtering system would oblige it to actively monitor all the
data relating to each of its customers in order to prevent any future
infringement of intellectual-property rights. It follows that that
injunction would require the ISP to carry out general monitoring,
something which is prohibited by Article 15(1) of Directive 2000/31.

I read that to mean that the mere act of identifying the traffic (the
first step in [38]) that needs to be processed further (as in
application layer analysis of P2P) is enough. So to me, even if you
(the ISP) decide that the packet doesn't warrant further filtering
because it is, for example, not P2P traffic, you are still caught by
[39,40] because you took a positive action to decide whether the
packet needs processing---certainly it can't be argued that ECJ
thought that all of Scarlet's customers were in fact using P2P and
sharing files. Presumably you can argue that Cleanfeed is only applied
to a subset of BT's customers but that again seems to prejudice BT for
providing services to, for example, the police and the banks and
allowing them to opt out of the filtering...


Igor M.

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