Nov 222011
 November 22, 2011  Posted by  Business, Court, Featured News, Non-U.S., Online

TJ McIntyre calls our attention to an important opinion:

This time last year I blogged about Bonnier Audio v. Perfect Communication, the Swedish case which questioned whether data retained under the Data Retention Directive could be used in litigation to identify users accused of infringing copyright. In that case five audiobook companies brought an action against Perfect Communication, an ISP, seeking the details of a user who was said to be sharing many popular audiobooks. The ISP, however, resisted the application and argued (in essence) that data retained under the Data Retention Directive could only be used for the purposes of that Directive and not for unrelated purposes such as civil litigation. In a preliminary reference, the Swedish court asked the ECJ the following questions:

* Whether the Data Retention Directive prevents the application of a national rule based on the EU IP Rights Enforcement Directive (2004/48/EC), which provides that an ISP in a civil case can be ordered to provide a copyright owner or a rights holder with information on which subscriber holds a specific IP address assigned by the ISP, from which address the infringement is alleged to have taken place.

* Whether the answer to the first question is affected by the fact that the state has not yet implemented the Data Retention Directive, although the deadline for implementation has passed.

As I said at the time, this has the potential to be a very important case – one in which a ruling against the copyright plaintiffs might well force a revision of the entire approach which Irish and English law takes to identifying internet users. I am surprised therefore that there hasn’t yet been much reaction to the Advocate General’s opinion, issued last Thursday, which comes down largely on the side of the ISP.

Read more about the opinion on IT Law in Ireland.  With the caution that there is not yet an official translation of the opinion, the following statement from para 62 is a blockbuster:

There is no reason to favor the owners of intellectual property rights by allowing them to use personal data that have been lawfully obtained or retained for purposes unrelated to the protection of their rights.

Wow. Could that throw a monkey wrench into a lot of copyright and IP infringement cases where plaintiffs want to compel ISPs to disclose user identity information.

Kudos to Perfect Communication for not just turning over the data and trying to protect the privacy or its customers’ data.

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