On Feb. 9, 2007 the Civil Court of Rome, under the Italian enforcement of the EU 2004/48 directive, issued a preliminary ruling (technically speaking, in Italian, “ordinanza cautelare”) ordering Telecom Italia to disclose the identity of about 3.000 people allegedly committing the “infamous” crime of exchanging copyrighted material through P2P network. The Court order was “backed” by a statement from the plaintiff – a German based recording label – claiming that a private cyber-investigation revealed that Telecom Italia’s users were involved in such illegal behaviour.
Apart from the merit of the claim it is important to remark some issues of broader interest.
- Why did the Court issued the order against an ISP. Law 633/41’s Sect. 156 bis (Italian Copyright Law), drafted as enforcement of the EU 2004/48 directive, allows a justice to issue a disclosing order upon “serious elements” (“seri elementi”) of infringment. But the EU directive never used sych wording. English text uses the word “evidence”, while the French text uses the word “preuve” that is a more strict requirement then the “serious element”. The misleading consequences of the wrong Italian translation, unfortunately with no results, have been raised in Italy by ALCEI. The Italian copyright lobbies mocked these concerns as mere “philosophical musing”, but current facts shows that the “error” in translating the directive, allows copyright lobbies to obtain broader powers.
- More on the “serious elements”. It seems that these “serious elements” – the private cyber-investigation – have not been collected using any computer forensics standard. Nevertheless they have been granted the status of “serious element” in Court.
- The definition of “intermediation”. To back the enforcement of Sec. 156 bis L. 633/41, the Court of Rome claimed that an ISP “intermediates” between users that infringe the law. This is, technically speaking, a nonsense. Any P2P protocol is transparent for the ISP (there are studies to implement “obfuscation techniques”, to make the P2P traffic avoiding traffic shaping), nor the ISP is involved in providing support for these protocols. Furthermore, neither an ISP offers P2P softwares nor a P2P-oriented access service. There is no way, then, to consider an ISP as “intermediator” between users, because the ISP is not consciously involved in the transaction.
- ISP liability. The hidden danger. It is hardly believable that the plaintiff are asking the ISP its user’s data, to suit the latter. The real damage – from the plaintiff perspective – comes from the ISP. Then it is the ISP the true target of the action, together with the law that forbids any preemptive control on user’s activity.
It’s clear that the current trial is a reharsal of a major strike that is on the way. Italian politicians (especially Francesco Rutelli, vice Premier and Minister of cultural assests) proactively support the “thought approach” against users, thus – de facto – allowing the fallback on ISP’s shoulder. This would be a deadly blow to the Italian ICT business and is more and more clear that investing in Italian TLC market is becoming more dangerous than trading chinese-based startup stocks.
It is probably still possible to appeal the ruling to the court, and request the ECJ to clarify this situation.
Is it possible to appeal the decision?
In theory, Corte di cassazione (Supreme Court) might reverse the decision; as for the ECJ I don’t have positive feelings. Copyright lobbies are really strong and they succeeded in drafting the EU directive following their needs. How could the ECJ think different?
The point is to check the translation of the original english text.
Any italian citizen can ask the Commission to at least check if Italy has correctly transposed the directive.
This is not a substance issue, but a translation/compliance issue.
The translation check has already been done by ALCEI and the error is clear. I think you got a point in suggesting to ask the Commission to verify the issue. Thank you for your help!