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Atlantic (digital) divide - January 29, 2008

Media Wonk spoke Tuesday with Nancy Prager, a Washington, DC-based attorney who has written about EU copyright developments, regarding the European Court of Justice's decision in the Telefonica case. Her take: The court was expressing its unease with the idea that EU member countries could, in the absence of a compelling state need, delegate to private parties the authority to compel disclosure of personal information, such as an ISP subscriber's identity, in a civil lawsuit. Although the court left open the possibility that countries could pass laws giving copyright owners the power to compel disclosure, any such statutes would have to carefully balance consumers' privacy rights against the public's interest in disclosure.

That would seem to put the EU on a very different track from the U.S. with respect to he balance between online privacy and intellectual property rights. Here, the DMCA gives copyright owners the power to issue administrative subpeonas compelling disclosure without the bother of having to convince a judge. That's led to tens of thousands of lawsuits by the RIAA and MPAA against individual subscribers suspected of illegal downloading.

Although the DC Circuit Court of Appeals ruled in a 2003 case that Verizon did not have to disclose subscribers' identities in response to a DMCA subpeona issued by the RIAA, the ruling turned on a technical reading of the statute rather than on a clear assertion of privacy rights. Basically, the court said the subpeonas at issue were invalid because the language of the DMCA subpeona provision did not apply to the particular set of facts in that case. At any rate, the ruling did nothing to slow the pace of litigation by RIAA and MPAA.

If the studios and record labels were hoping for similar leverage in Europe, however, the EU high court's ruling would appear to cast doubt on their prospects.

In a statement issued by its European office in Brussels, the Motion Picture Assn.put as brave a face as it good on the ruling:

Today, the European Court of Justice ruled on the case of Promusicae vs. Telefonica. The judgment is good news for the development of the electronic market place and society as a whole. Although the Court notes that Member States are not required to lay down an obligation to communicate personal data in civil proceedings, the Court insists that there must be a balance between privacy and the various fundamental rights and freedoms of others. The Court reaffirms that copyright (the right of property) is also such a fundamental right.
The judgment is balanced and significant as it does not assert the rights of one interest group over another. It affirms that the legal playing field is a level one and that a fair balance must be struck between the various fundamental rights.

Added Christopher Marcich, managing director of the MPA-Europe, “The Court has provided a welcome reminder that there is a balance in law between the rights to privacy and other fundamental rights."






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