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European Court: Internet providers can't be forced to monitor users

The European Court of Justice overturned a Belgian court's injunction in what experts say is a victory for Internet providers and users over proponents of tighter copyright controls online.

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"It's not so much a victory as a confirmation of longstanding principles," says Joe McNamee of European Digital Rights (EDRI), a Brussels-based group which coordinates lobbying and activism on internet issues in all 45 Council of Europe member states, including the 27-member EU.

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Mr. McNamee sees the decision as a vindication of Internet freedom: "Above anything else, we shouldn't be in a situation where our communications are manipulated by private companies operating on a whim."

Practical implications for telecoms

One implication of the judgment is the definition of IP addresses, a number given to every device on the Internet allowing it to be identified in order to send and receive data, as "protected personal data."

Irish telecom company Eircom has been operating a "three strikes and you're out" rule on illegal file-sharing since May 2010 and the ruling has implications for this policy.

"We do not monitor our network [for infringement]," says Eircom head of communications Paul Bradley. "What happens at the moment was [the result of] an out-of-court settlement where [it is] the record companies that go onto file-sharing networks and collate IP addresses, supply them to us and we run then against our customer records and correspond with our customers."

Even this, where no personally identifying information is passed to rights holders, may now be prohibited by the ECJ ruling.  

"We're considering the judgment […] whether or not an IP address is personal data," says Mr. Bradley.

Eircom offers a free legal music streaming service to all of its customers: "There is a balance to be had in all of this," says Mr. Bradley.

Ireland's Data Protection Commissioner confirmed to The Christian Science Monitor it was already investigating the "three strikes" policy but a spokesperson said they could not confirm any details at present.

Sharp contrast with SOPA

The ECJ ruling comes as the US government considers moving in the opposite direction, as the contentious Stop Online Piracy Act [SOPA], which includes similar monitoring requirements, works its way through Congress.  Although proponents of SOPA like Rep. Lamar Smith (R) of Texas argue that the act will target only rogue, foreign websites that infringe copyrights, US Internet rights groups like the Electronic Frontier Foundation call it "the worst piece of IP legislation we’ve seen in the last decade," which would "sabotage the domain name system" and "threaten to effectively eliminate the DMCA safe harbors that, while imperfect, have spurred much economic growth and online creativity."

And European experts warn that SOPA could also affect US-EU relations. "The US exports vast amounts of audio-visual content and needs to get into overseas markets," says Joe McNamee of European Digital Rights (EDRI), a Brussels-based group which coordinates lobbying and activism on internet issues in all 45 Council of Europe member states, including the 27-member EU.

Mr. McNamee argues SOPA could open-up a Pandora's box of international feuding. "Has it considered the dangers of protectionism? What if people [respond to SOPA] saying 'Let's keep American culture out?'"

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