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Belgium: Scarlet temporarily released from penalty payments to SABAM
06 February 2009
In a recent judgment of the President of the Brussels Court of First Instance on 24 October 2008 in the case Sabam v Scarlet, Scarlet, an internet service provider (ISP) formerly known as Tiscali, obtained its first victory.
The ISP is temporarily released from paying daily penalties for copyright infringement to Sabam, a Belgian collecting society for musical works.
An earlier judgment of 29 June 2007 by the President of the Brussels Court of First Instance had held Scarlet liable for copyright infringement, because Scarlet had allowed its customers to share copyrighted works illegally using internet filesharing services, so called “peer-to-peer”(P2P) networks.
The President had imposed a daily penalty of nearly €2,500 on Scarlet should it fail to meet its obligation to take effective steps to stop copyright infringement through P2P file sharing programs and inform Sabam thereof within six months after receipt of the judgment.
Scarlet appealed against the judgment and the case is to be debated on the merits before the Brussels Court of Appeal, where a hearing is scheduled for October 2009. The main issue in the case on appeal is whether an ISP can be obliged to filter internet traffic in order to stop consumers from performing illegal acts, such as the illegal transfer of copyrighted works over the internet.
Meanwhile, Scarlet started a procedure “in summary proceedings” to have the same President of the Brussels Court of First Instance reappraise the issue of the daily penalty payments. Scarlet contended that it found itself in a position where it was impossible to comply with the initial judgment based on Article 1385quinquies of the Judicial Code. In particular,
Scarlet argued that the theoretically most adequate software application for the filtering of protected files (provided by Audible Magic®), as confirmed by the expert appointed by the President, was in fact unworkable because of incompatibility issues which made it technically impossible and unreasonably expensive for Scarlet to comply with the judgment of 29 June 2007.
Nevertheless, the claimed technical impossibility relates only to the proposed software application and does not exclude other alternatives. Hence, the President only allowed the suspension of the daily penalties for a period of six months following the ending of relations with Audible Magic® in April 2008. During this six month period, Scarlet should find an alternative solution in order to comply with the judgment of 29 June 2007. Thus, if Scarlet does not find an alternative solution, the daily penalties for not complying with the judgment will be due as from 1 November 2008.
This again illustrates the unclear role of ISPs and their potential liability towards copyright owners confronted with the ever expanding problem of illegal file sharing. It remains to be seen what the role of ISPs will be in the future and whether technology can offer a workable solution for the observing of copyright.
Nevertheless, the claimed technical impossibility relates only to the proposed software application and does not exclude other alternatives. Hence, the President only allowed the suspension of the daily penalties for a period of six months following the ending of relations with Audible Magic® in April 2008. During this six month period, Scarlet should find an alternative solution in order to comply with the judgment of 29 June 2007. Thus, if Scarlet does not find an alternative solution, the daily penalties for not complying with the judgment will be due as from 1 November 2008.
This again illustrates the unclear role of ISPs and their potential liability towards copyright owners confronted with the ever expanding problem of illegal file sharing. It remains to be seen what the role of ISPs will be in the future and whether technology can offer a workable solution for the observing of copyright.
This article was written by Belgian law firm Van Bael & Bellis.
