Internet providers can be forced to block access...

in an opinion Tuesday (bit.ly/IfGzP3 not available in English). AG opinions aren’t binding, but the EU high court generally follows them. The case involves a dispute between Austrian Internet provider UPC Telekabel Wien and Constantin Film Verleih and Wega Filmproduktionsgesellschaft, which sought an injunction barring UPC from letting its customers access kinoX.to to download or stream movies without authorization, a court news release said. UPC has no legal relationship with the website operators and didn’t give them Internet access or storage space, it said. However, the Austrian Supreme Court said it was nearly certain that individual UPC customers availed themselves of the illegal site, the ECJ said. The Austrian court asked the EU high court to determine whether an ISP that merely gives access to users of an illegal website can be deemed an intermediary for purposes of copyright injunctions. The AG said ISPs of users of websites that infringe copyright can be regarded as intermediaries whose services are used by third parties -- the website operators -- to breach copyright rules, and therefore are subject to injunctions. But he said it’s incompatible with balancing the parties’ fundamental rights to prohibit ISPs generally, and without the order of specific measures, from allowing customers to access a particular infringing website. Specific blocking measures imposed on ISPs relating to a particular website aren’t in principle disproportionate only because they entail considerable cost to the provider but because they can be easily circumvented without any special technical knowledge, the AG said. It’s up to national courts on a case-by-case basis to strike a fair balance among the various rights, he said. Content owners must, as far as possible, file their infringement claims directly against the operators of the illegal websites or their ISPs, he said. The opinion is expected to heat up the ongoing debate about online piracy, wrote independent telecom consultant Innocenzo Genna on his radiobruxelleslibera blog (http://bit.ly/17QfH1E). The copyright lobby will likely brand the AG position a victory but the reality is different, he said. Web-blocking is widely used in the EU to fight piracy, so the AG is imposing restrictions on the current practice rather than giving the copyright industry new repressive instruments, he said. The conditions for blocking envisaged by the AG are quite strict, and, if approved by the ECJ, will force some national governments to rethink their tolerance of Web-blocking, he said. For example, Genna said, the opinion stressed that blocking is subject to law and should be pursued in and reviewed by courts, so countries that want to delegate blocking to an administrative agency may have to review their plans. Moreover, because blocking involves important rights such as free speech, privacy and freedom of business, some national judges may decide in specific circumstances that blocking is excessive and inadequate. “I believe that DPI (deep packet inspection) will not be tolerated by national courts,” Genna wrote. While libertarians and ISPs must analyze the opinion’s implications, it isn’t very promising for the copyright industry because resort to blocking will be harder than in the past, he said.