French & German Courts Disagree Whether Internet Companies Need To Filter

from the still-not-clear dept

Fri, Jul 20th 2012 1:30pm — Glyn Moody

Recently, Techdirt reported on the ruling by a German court on the issue of filtering -- whether Internet sites have a responsibility to block files continually if they have been notified about infringing materials once, sometimes called "Notice and Stay Down". The German court basically said they do, but the highest French court has taken a different view (French original.)

The Court of Appeal in Paris had ruled that Google had a duty to make sure that an unauthorized copy of a film was not re-posted to YouTube after it had been removed following a complaint. However, the Court of Cassation, the court of final appeal for civil and criminal matters in France, struck down this judgment. Its logic was as follows: if a Web site were expected to take down every future copy of a file that had been removed following a complaint, but without being told exactly where the new copies were located, the only way it could achieve that was by constantly monitoring all users to check that they were not uploading that file. That, the Court of Cassation ruled, was not proportionate and, furthermore, forbidden by European law (presumably a reference to the SABAM ruling from earlier this year.)

That's the good news. The bad news is that HADOPI threatens to rear its ugly head here. According to the same post on the French PC Inpact site, Article L336-2 of the HADOPI law introduced an extremely broad duty to do everything possible to stop copyright infringement. Quite what that means in practice has never been tested, but following the Court of Cassation's rejection of filtering, it seems likely that we shall find out soon enough.

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Filed Under: copyright, filters, france, germany

9 Comments

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anon, 20 Jul 2012 @ 2:35pm

Man the Battlestations
Ok lets see who has more power to get the government to do what they want, let the Hollywood craptolists do what they want and let the isp's do what they want , oh damn the Hollywood craptolists cannot do anything as the isp's have cut there link to the internet . Hollywood fail...ummm get the idea Hollywood...
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Anonymous Coward, 20 Jul 2012 @ 2:44pm

and i guess the French will find out just how much of a reduction of Hadopi president Hollande will implement, as per his pre-election pledge
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The Great Semaj, 20 Jul 2012 @ 4:02pm

The French
Don't worry, they are French. They will roll over soon.
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Bergman (profile), 20 Jul 2012 @ 5:14pm

Re: The French
Cheese-eating surrender monkeys!
---Groundskeeper Willie, The Simpsons
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Anonymous Coward, 20 Jul 2012 @ 5:56pm

Censorship Not Filtering
It is censorship not filtering. Filtering and censorship are the same thing except for the identity of the person in control. Filtering is when the end user controls what is to be filtered or not. Censorship is filtering with control wrested away from the end user and exercised by somebody else. Filtering is morally acceptable. Censorship is not.

Telling the difference between censorship and filtering is simple, just ask yourself the question, "Who has control?"
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Anonymous Coward, 20 Jul 2012 @ 6:28pm

The risk here is that this leads to a sort of legal dead end, where the only possible outcome is to ban user uploads unless the user is properly identified in a manner that allows them to take personal responsibility for what they upload.

The "Court of Cassation" ruling basically strike it down without providing for a real alternative. It leaves things at loggerheads, where the requirements on one side and legal obligations are up against the court ruling saying you cannot do it - yet they must.
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Anonymous Coward, 21 Jul 2012 @ 11:47am

Re:
The problems with HADOPI in France are known all around Europe and even conservative politicians are calling it strict and potentially problematic according to fundamental human rights. HADOPI is so overreaching that it has actually hurt the case for stricter IPR enforcement on the internet. It is becoming more and more clear that the people of France do not like it either and this ruling does a lot to widen the gap. Germany is quite strict on copyright from the political side. The court is holding the extremism down a notch like in a lot of other countries.

HADOPI is poison legislation and anyone touching it will either get burned by several huge conglamorates with Vivendi at the front if they try to tone it down or they will get hit extremely hard by the public if they try to tone it up. I do not think that even Hollande dares to touch the abomination without european court-orders pointing at inconsistencies with EU aquis.

France is lost and I fear for their future competitiveness with these heavyhanded restrictions.
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ike, 23 Jul 2012 @ 4:03pm

Broad duty to stop infringement
According to the same post on the French PC Inpact site, Article L336-2 of the HADOPI law introduced an extremely broad duty to do everything possible to stop copyright infringement.
The most effective means of doing that would be to abolish Copyright...
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Jonathan (profile), 20 Sep 2012 @ 3:26pm

Germans are known to be very strict about copyright infringement laws. I wasn't aware that French laws are equally strict about this matter
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