Website Blocking Injunctions under EU and US Copyright Law

Transcription

1 Website Blocking Injunctions under EU and US Copyright Law Slow Death of the Global Internet or Emergence of the Rule of National Copyright Law? Lukas Feiler, Ph.D., SSCP Stanford-Vienna Transatlantic Technology Law Forum (TTLF) Fellow Associate at Wolf Theiss Attorneys at Law Website Blocking Injunctions under EU and U.S. Copyright Law 1

2 1) Technical background: open architecture of the Internet & blocking 2) Website blocking injunctions statutory basis and case law 3) Framing the discussion on website blocking injunctions Website Blocking Injunctions under EU and U.S. Copyright Law 2

3 The open architecture of the Internet Website Blocking Injunctions under EU and U.S. Copyright Law 3

4 Implementing Website Blocking Injunctions DNS Blocking Website Blocking Injunctions under EU and U.S. Copyright Law 4

5 Implementing Website Blocking Injunctions IP Blocking IP blocking via remote-triggered black hole filtering 1. Configuration of Triggering Router: routing all packets to blocked IP address into the void 2. Distribution of the routing information to all Edge Routers Website Blocking Injunctions under EU and U.S. Copyright Law 5

6 Implementing Website Blocking Injunctions Implications Costs of IP/DNS blocking are low Circumvention possible Overbreadth One IP address may be used to host multiple unrelated websites Operators of websites not party to the proceedings Example of enforcement through intermediaries: Website Blocking Injunctions under EU and U.S. Copyright Law 6

7 Injunctions Against ISPs Liability: Access Providers are not liable even if they have actual knowledge of infringing content EU E-Commerce Directive art. 12 U.S. Copyright Act 512(a) Injunctive relief: liability exemptions do not apply E-Commerce Directive art. 12(3): shall not affect the possibility for a court [ ] of requiring the service provider to terminate or prevent an infringement Injunctive relief is therefore possible against access providers Website Blocking Injunctions under EU and U.S. Copyright Law 7

8 Website Blocking Injunctions under EU Copyright Law Copyright Directive (2001/29/EC) art. 8(3) provides Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright Case C-324/09, L Oréal SA v. ebay: injunctions are not limited to measures which contribute to bringing infringements to an end but may also cover measures which contribute to preventing further infringements of that kind. Website Blocking Injunctions under EU and U.S. Copyright Law 8

9 Website Blocking Injunctions under EU Copyright Law Possible Issues Are Internet access providers intermediaries? Case C-557/07, LSG v. Tele2: Yes! Are the Internet access services used by a third party to infringe a copyright? subscribers access provider infringing website Subscribers use services but do they infringe? Website operator infringes but does it use the access provider s services? Website Blocking Injunctions under EU and U.S. Copyright Law 9

10 Website Blocking Injunctions under U.S. Law U.S. Copyright Act 512(j)(1)(B)(ii): A court may grant injunctive relief in the following form: An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States. So far, only a single case: Arista Records, Inc. v. AT&T Broadband Corp., No. 1:02CV06554, 2002 WL (S.D.N.Y. Aug. 16, 2002) Plaintiffs sought an injunction against Internet backbone operators to block the Chinese website Listen4Ever Complaint was voluntarily withdrawn Website Blocking Injunctions under EU and U.S. Copyright Law 10

11 Website Blocking Injunctions under EU Copyright Law ECJ Case Law Case C-70/10, Scarlet Extended v. SABAM: injunction that requires active monitoring of all data relating to each customer would violate the fundamental rights of the ISP concerned to conduct its business; of users to receive or impart information; and of users to protection of personal data Is a website blocking injunction a similarly severe interference with fundamental rights? Website Blocking Injunctions under EU and U.S. Copyright Law 11

12 Website Blocking Injunctions under EU Copyright Law Nat l Case Law Injunctions issued Austria Belgium Denmark Finland Italy Netherlands U.K. Injunctions denied Germany Ireland Norway (Non-EU-MS) Website Blocking Injunctions under EU and U.S. Copyright Law 12

13 Framing the debate over the future of the open Internet Option #1: Whether to enforce copyright law via intermediaries All or nothing Current legal situation: no protection from injunctions Based on Internet exceptionalism Option #2: Discussing the substance of copyright law Acknowledges that national laws fully apply to the Internet Nuanced approach Website Blocking Injunctions under EU and U.S. Copyright Law 13

14 Thank you! Website Blocking Injunctions under EU and U.S. Copyright Law 14

15 Contact Details Lukas Feiler, Ph.D., SSCP Wolf Theiss Attorneys at Law Schubertring 6, 1010 Vienna Tel: (+ 43 1) Fax: (+ 43 1) Website Blocking Injunctions under EU and U.S. Copyright Law 15