“BT does not support or condone copyright infringement. We have a strong commercial interest in seeing legitimate content services flourish online. … With respect to your requests, BT requires a Court order to block a service otherwise it would face business exposures, including potential legal liabilities, on a number of fronts. Further, BT cannot commit to take a particular position in court ahead of reviewing the relevant papers and evidence and understanding the full implications for our business.”
“The Defendant shall prevent its services being used by users and operators of the website known as NEWZBIN and NEWZBIN2 to infringe copyright.”
“… in the Review’s four months of evidence gathering, we have failed to find a single UK survey that is demonstrably statistically robust. For many surveys, methodology is not available for peer review.”
“… Certainly … many creative businesses are experiencing turbulence, which translates into fears about the further, future impact of copyright infringement on sales, profitability and sources of investment. However, at the level of the whole economy or even at the level of whole creative business sectors, the measured impacts to date are not as stark as is sometimes suggested by the language used to describe them. That said, copyright infringement is a stubborn fact of the digital landscape which might well get worse and which justifies serious government effort in identifying the right mix of measures to address it. ”
“2. The Defendant shall be restrained (whether acting by its directors, officers, servants, agents or any of them or otherwise howsoever) from infringing copyright in or relating to the following motion pictures and television programmes: (i) Those identified in the lists provided to the Defendant on21 May 2008 ,29 May 2009 and8 April 2010 ; (ii) Those identified in any other written list provided in electronic form to the Defendant or its solicitors hereafter; (iii) Those identified in any list that is made available on-line at any URL of which the Defendant or its solicitors are notified in writing hereafter. 3. The Defendant shall ensure that users of its Newzbin Website or any other service its provides cannot, by use of the said website or service, infringe copyright in or relating to the following motion pictures and television programmes, episodes and series: (i) Those identified in the lists provided to the Defendant on21 May 2008 ,29 May 2009 and8 April 2010 ; (ii) Those identified in any other written list provided in electronic form to the Defendant or its solicitors hereafter; (iii) Those identified in any list that is made available on-line at any URL of which the Defendant or its solicitors are notified in writing hereafter.” (i) Those identified in the lists provided to the Defendant on21 May 2008 ,29 May 2009 and8 April 2010 ; (ii) Those identified in any other written list provided in electronic form to the Defendant or its solicitors hereafter; (iii) Those identified in any list that is made available on-line at any URL of which the Defendant or its solicitors are notified in writing hereafter. (i) Those identified in the lists provided to the Defendant on21 May 2008 ,29 May 2009 and8 April 2010 ; (ii) Those identified in any other written list provided in electronic form to the Defendant or its solicitors hereafter; (iii) Those identified in any list that is made available on-line at any URL of which the Defendant or its solicitors are notified in writing hereafter.”
“Team R Dogs are a small team of digital highwaymen who, thank you, prefer to remain behind their face-masks. … we have no association with WCIS Ltd who own the domain … we sought to buy the domain but in the end we were offered a lease on the name. Nor do we have any association with the Newzbin1 team…” “Newzbin2 is using its own assets which are nothing to do with Newzbin1. The domain is not an asset of Newzbin1 since they sold it to a 3rd party. The code maybe Newzbin's but let the liquidator come after us for that.”
“Who we are The IWF has been combating child sexual abuse content on the internet since 1996”
“About the Internet Watch Foundation (IWF) The IWF was established in 1996 by the internet industry to provide the UK internet Hotline for the public and IT professionals to report criminal online content in a secure and confidential way. The Hotline service can be used anonymously to report content within our remit. We work in partnership with the online industry, law enforcement, government, and international partners to minimise the availability of this content, specifically: • child sexual abuse images hosted anywhere in the world • criminally obscene adult content hosted in the UK • non-photographic child sexual abuse images hosted in the UK. Self-regulation We are an independent self-regulatory body, funded by the EU and the wider online industry, including internet service providers, mobile operators and manufacturers, content providers, filtering companies, search providers, trade associations, and the financial sector. Our self-regulatory partnership approach is widely recognised as a model of good practice in combating the abuse of technology for the dissemination of criminal content. Sharing Good Practice We work with UK government to influence initiatives developed to combat online abuse and this dialogue goes beyond the UK and Europe to promote greater awareness of global issues, trends and responsibilities. We work internationally with INHOPE Hotlines and other relevant organisations to encourage united global responses to the problem and wider adoption of good practice in combating child sexual abuse images on the internet. Success We help internet service providers and hosting companies to combat the abuse of their networks through our ‘notice and takedown’ service which alerts them to content within our remit so they can remove it from their networks. We also provide unique data to law enforcement partners in the UK and abroad to assist investigations into the distributors. As a result of this approach the content we deal with has been virtually eradicated from UK networks. As sexually abusive images of children are primarily hosted abroad, we facilitate the industry-led initiative to protect users from inadvertent exposure to this content by blocking access to it through our provision of a dynamic list of child sexual abuse web pages. Tactics There are a number of tactics carried out by the IWF on a national and, where relevant, international basis which minimise the availability of child sexual abuse content online: • Reporting mechanism for the public to report any inadvertent exposure to potentially criminal child sexual abuse content. • ‘Notice and takedown’ system to swiftly remove child sexual abuse content at source in the UK. • Targeted assessment and monitoring system to remove child sexual abuse content in newsgroups. • Provision of a child sexual abuse URL list to internet service providers, mobile operators, search providers and filtering providers to help disrupt access to child sexual abuse content which is hosted outside the UK and not yet taken down. • Working with domain name registries and registrars to deregister domain names dedicated to the distribution of child sexual abuse content.”
“Every URL on the list depicts indecent images of children, advertisements for or links to such content. The list typically contains 500 URLs at any one time and is updated twice a day to ensure all entries are live. As well as making the internet a safer place for everyone, this initiative can help to diminish the re-victimisation of children by restricting opportunities to view their sexual abuse and may disrupt the accessibility and supply of images to those who seek them out. Unfortunately, blocking cannot put an end to offenders abusing children nor can it effectively deny determined criminals who are actively seeking such material.”
“BT says it is blocking up to 20,000 attempts each day to access child porn. … BT said in its first three weeks its new system, which bars access to particular sites, registered nearly 250,000 attempts to view web pages containing images of child pornography. That represents an average of about 10,000 requests each day. Anyone trying to access such a site would be presented with a message ‘Website not found’. … [The chief executive of BT retail] said the company had no way of telling how many users were navigating to such sites by accident. … A BT spokesman added ‘It could be that one dedicated pervert is making hundreds of attempts to get on websites each day’.”
“12.(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. … (3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed. (4) The court must have particular regard to the importance of the Convention right to freedom of expression …”
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
“(7) In order to ensure legal certainty and consumer confidence, this Directive must lay down a clear and general framework to cover certain legal aspects of electronic commerce in the internal market. (8) The objective of this Directive is to create a legal framework to ensure the free movement of information society services between Member States and not to harmonise the field of criminal law as such. …. (17) The definition of information society services already exists in Community law in Directive 98/34/EC of the European Parliament and of the Council of22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services and in Directive 98/84/EC of the European Parliament and of the Council of20 November 1998 on the legal protection of services based on, or consisting of, conditional access; this definition covers any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service; those services referred to in the indicative list in Annex V to Directive 98/34/EC which do not imply data processing and storage are not covered by this definition. … (20) The definition of ‘recipient of a service’ covers all types of usage of information society services, both by persons who provide information on open networks such as the Internet and by persons who seek information on the Internet for private or professional reasons. … (40) Both existing and emerging disparities in Member States' legislation and case-law concerning liability of service providers acting as intermediaries prevent the smooth functioning of the internal market, in particular by impairing the development of cross-border services and producing distortions of competition; service providers have a duty to act, under certain circumstances, with a view to preventing or stopping illegal activities; this Directive should constitute the appropriate basis for the development of rapid and reliable procedures for removing and disabling access to illegal information; such mechanisms could be developed on the basis of voluntary agreements between all parties concerned and should be encouraged by Member States; it is in the interest of all parties involved in the provision of information society services to adopt and implement such procedures; the provisions of this Directive relating to liability should not preclude the development and effective operation, by the different interested parties, of technical systems of protection and identification and of technical surveillance instruments made possible by digital technology within the limits laid down by Directives 95/46/EC and 97/66/EC. …. (42) The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. … (45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it. (46) In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States' possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information. (47) Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation. (48) This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities. … (50) It is important that the proposed directive on the harmonisation of certain aspects of copyright and related rights in the information society and this Directive come into force within a similar time scale with a view to establishing a clear framework of rules relevant to the issue of liability of intermediaries for copyright and relating rights infringements at Community level.”
“(a) ‘information society services’: services within the meaning of Article 1(2) of Directive 98/34/EC as amended by Directive 98/48/EC; (b) ‘service provider’: any natural or legal person providing an information society service; … (d) ‘recipient of the service’: any natural or legal person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible.”
“‘service’: any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. For the purposes of this definition: - ‘at a distance’: means that the service is provided without the parties being simultaneously present, - ‘by electronic means’: means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means, - ‘at the individual request of a recipient of the service’: means that the service is provided through the transmission of data on individual request. ”
“Notice for the purposes of actual knowledge In determining whether a service provider has actual knowledge for the purposes of regulations 18(b)(v) and 19(a)(i), a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, among other things, shall have regard to— (a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c), and (b) the extent to which any notice includes— (i) the full name and address of the sender of the notice; (ii) details of the location of the information in question; and (iii) details of the unlawful nature of the activity or information in question.” (i) the full name and address of the sender of the notice; (ii) details of the location of the information in question; and (iii) details of the unlawful nature of the activity or information in question.”
“(4) A harmonised legal framework on copyright and related rights, through increased legal certainty and while providing for a high level of protection of intellectual property, will foster substantial investment in creativity and innovation, including network infrastructure, and lead in turn to growth and increased competitiveness of European industry, both in the area of content provision and information technology and more generally across a wide range of industrial and cultural sectors. This will safeguard employment and encourage new job creation. … (9) Any harmonisation of copyright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation. Their protection helps to ensure the maintenance and development of creativity in the interests of authors, performers, producers, consumers, culture, industry and the public at large. Intellectual property has therefore been recognised as an integral part of property. (10) If authors or performers are to continue their creative and artistic work, they have to receive an appropriate reward for the use of their work, as must producers in order to be able to finance this work. The investment required to produce products such as phonograms, films or multimedia products, and services such as ‘on-demand’ services, is considerable. Adequate legal protection of intellectual property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment. (11) A rigorous, effective system for the protection of copyright and related rights is one of the main ways of ensuring that European cultural creativity and production receive the necessary resources and of safeguarding the independence and dignity of artistic creators and performers. (12) Adequate protection of copyright works and subject-matter of related rights is also of great importance from a cultural standpoint. Article 151 of the Treaty requires the Community to take cultural aspects into account in its action. (13) A common search for, and consistent application at European level of, technical measures to protect works and other subject-matter and to provide the necessary information on rights are essential insofar as the ultimate aim of these measures is to give effect to the principles and guarantees laid down in law. … (16) Liability for activities in the network environment concerns not only copyright and related rights but also other areas, such as defamation, misleading advertising, or infringement of trademarks, and is addressed horizontally in Directive 2000/31/EC of the European Parliament and of the Council of8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’), which clarifies and harmonises various legal issues relating to information society services including electronic commerce. This Directive should be implemented within a timescale similar to that for the implementation of the Directive on electronic commerce, since that Directive provides a harmonised framework of principles and provisions relevant inter alia to important parts of this Directive. This Directive is without prejudice to provisions relating to liability in that Directive. … (22) The objective of proper support for the dissemination of culture must not be achieved by sacrificing strict protection of rights or by tolerating illegal forms of distribution of counterfeited or pirated works. … (58) Member States should provide for effective sanctions and remedies for infringements of rights and obligations as set out in this Directive. They should take all the measures necessary to ensure that those sanctions and remedies are applied. The sanctions thus provided for should be effective, proportionate and dissuasive and should include the possibility of seeking damages and/or injunctive relief and, where appropriate, of applying for seizure of infringing material. (59) In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore, without prejudice to any other sanctions and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary who carries a third party's infringement of a protected work or other subject-matter in a network. This possibility should be available even where the acts carried out by the intermediary are exempted under Article 5. The conditions and modalities relating to such injunctions should be left to the national law of the Member States. (60) The protection provided under this Directive should be without prejudice to national or Community legal provisions in other areas, such as industrial property, data protection, conditional access, access to public documents, and the rule of media exploitation chronology, which may affect the protection of copyright or related rights.”
“Sanctions and remedies 1. Member States shall provide appropriate sanctions and remedies in respect of infringements of the rights and obligations set out in this Directive and shall take all the measures necessary to ensure that those sanctions and remedies are applied. The sanctions thus provided for shall be effective, proportionate and dissuasive. 2. Each Member State shall take the measures necessary to ensure that rightholders whose interests are affected by an infringing activity carried out on its territory can bring an action for damages and/or apply for an injunction and, where appropriate, for the seizure of infringing material as well as of devices, products or components referred to in Article 6(2). 3. Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.”
“(22) It is also essential to provide for provisional measures for the immediate termination of infringements, without awaiting a decision on the substance of the case, while observing the rights of the defence, ensuring the proportionality of the provisional measures as appropriate to the characteristics of the case in question and providing the guarantees needed to cover the costs and the injury caused to the defendant by an unjustified request. Such measures are particularly justified where any delay would cause irreparable harm to the holder of an intellectual property right. (23) Without prejudice to any other measures, procedures and remedies available, rightholders should have the possibility of applying for an injunction against an intermediary whose services are being used by a third party to infringe the rightholder’s industrial property right. The conditions and procedures relating to such injunctions should be left to the national law of the Member States. As far as infringements of copyright and related rights are concerned, a comprehensive level of harmonisation is already provided for in Directive 2001/29/EC. Article 8(3) of Directive 2001/29/EC should therefore not be affected by this Directive. (24) Depending on the particular case, and if justified by the circumstances, the measures, procedures and remedies to be provided for should include prohibitory measures aimed at preventing further infringements of intellectual property rights. Moreover there should be corrective measures, where appropriate at the expense of the infringer, such as the recall and definitive removal from the channels of commerce, or destruction, of the infringing goods and, in appropriate cases, of the materials and implements principally used in the creation or manufacture of these goods. These corrective measures should take account of the interests of third parties including, in particular, consumers and private parties acting in good faith.”
“This Directive shall not affect: (a) the Community provisions governing the substantive law on intellectual property, Directive 95/46/EC, Directive 1999/93/EC or Directive 2000/31/EC, in general, and Articles 12 to 15 of Directive 2000/31/EC in particular; …”
“General obligation 1. Member States shall provide for the measures, procedures and remedies necessary to ensure the enforcement of the intellectual property rights covered by this Directive. Those measures, procedures and remedies shall be fair and equitable and shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays. 2. Those measures, procedures and remedies shall also be effective, proportionate and dissuasive and shall be applied in such a manner as to avoid the creation of barriers to legitimate trade and to provide for safeguards against their abuse.”
“Injunctions Member States shall ensure that, where a judicial decision is taken finding an infringement of an intellectual property right, the judicial authorities may issue against the infringer an injunction aimed at prohibiting the continuation of the infringement. Where provided for by national law, non-compliance with an injunction shall, where appropriate, be subject to a recurring penalty payment, with a view to ensuring compliance. Member States shall also ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right, without prejudice to Article 8(3) of Directive 2001/29/EC.”
“(1) The Secretary of State may by regulations make provision about the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright. (2) ‘Blocking injunction’ means an injunction that requires a service provider to prevent its service being used to gain access to the location.”
“Is the term ‘intermediary’ in Article 5(1)(a) and Article 8(3) of Directive [2001/29] to be interpreted as including an access provider who merely provides a user with access to the network by allocating him a dynamic IP address but does not himself provide him with any services such as email, FTP or file-sharing services and does not exercise any control, whether de iure or de facto, over the services which the user makes use of?”
“Tele2 maintains, inter alia, that intermediaries must be in a position to bring copyright infringements to an end. Internet access providers, on the other hand, in as much as they exercise no control, whether de iure or de facto, over the services accessed by the user, are not capable of bringing such infringements to an end and, accordingly, are not ‘intermediaries’ within the meaning of Directive 2001/29.”
“42. … under Article 8(3) of Directive 2001/29, Member States are to ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right. 43. Access providers who merely enable clients to access the Internet, even without offering other services or exercising any control, whether de iure or de facto, over the services which users make use of, provide a service capable of being used by a third party to infringe a copyright or related right, inasmuch as those access providers supply the user with the connection enabling him to infringe such rights. 44. Moreover, according to Recital 59 in the preamble to Directive 2001/29, rightholders should have the possibility of applying for an injunction against an intermediary who ‘carries a third party’s infringement of a protected work or other subject-matter in a network’. It is common ground that access providers, in granting access to the Internet, make it possible for such unauthorised material to be transmitted between a subscriber to that service and a third party. 45. That interpretation is borne out by the aim of Directive 2001/29 which, as is apparent in particular from Article 1(1) thereof, seeks to ensure the legal protection of copyright and related rights in the framework of the internal market. The protection sought by Directive 2001/29 would be substantially diminished if ‘intermediaries’, within the meaning of Article 8(3) of that directive, were to be construed as not covering access providers, which alone are in possession of the data making it possible to identify the users who have infringed those rights. 46 In view of the foregoing, the answer to the first question is that access providers which merely provide users with Internet access, without offering other services such as email, FTP or file-sharing services or exercising any control, whether de iure or de facto, over the services which users make use of, must be regarded as ‘intermediaries’ within the meaning of Article 8(3) of Directive 2001/29.”
“In the light of these provisions it is submitted by [counsel for BT] that the requirements of regulation 6(1)(c) are satisfied, since the claimant was able to send an e-mail to BT on1 May 2005 . Also, his purported notice would fail to satisfy the factors identified in regulation 22(1)(b)(ii) and (iii) for the reasons considered above. None of that information was included. As I have already observed, in order to be able to characterise something as ‘unlawful’ a person would need to know something of the strength or weakness of available defences.”
“In the digital environment … the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore … rightholders should have the possibility of applying for an injunction against an intermediary who carries a third party's infringement of a protected work or other subject-matter in a network.”
“… I do not believe it would be appropriate to grant an injunction of the breadth sought by the claimants for a number of reasons. First, it is apparent from the terms of Directive 2001/29/EC that it is contemplating the grant of an injunction upon the application of rights holders, yet the claimants are seeking an injunction to restrain activities in relation to all binary and all text materials in respect of which they own no rights and about which I have heard little or no evidence. Second, I do not accept that the defendant has actual knowledge of other persons using its service to infringe all such rights. Therefore I am not persuaded I have the jurisdiction to grant such an injunction in any event. Third, the rights of all other rights holders are wholly undefined and consequently the scope of the injunction would be very uncertain. In my judgment the scope of any injunction under section 97A(2) [sic] should extend no further than that to which I have already concluded the claimants are entitled, namely an injunction to restrain the defendant from infringing the claimants' copyrights in relation to their repertoire of films.”
“Where the services of an intermediary such as an operator of a website have been used by a third party to infringe a registered trade mark, does Article 11 of European Parliament and Council Directive 2004/48 of29 April 2004 on the enforcement of intellectual property rights (“the Enforcement Directive”) require Member States to ensure that the trade mark proprietor can obtain an injunction against the intermediary to prevent further infringements of the said trade mark, as opposed to continuation of that specific act of infringement, and if so what is the scope of the injunction that shall be made available?”
“139. First, it follows from Article 15(1) of Directive 2000/31, in conjunction with Article 2(3) of Directive 2004/48, that the measures required of the online service provider concerned cannot consist in an active monitoring of all the data of each of its customers in order to prevent any future infringement of intellectual property rights via that provider’s website. Furthermore, a general monitoring obligation would be incompatible with Article 3 of Directive 2004/48, which states that the measures referred to by the directive must be fair and proportionate and must not be excessively costly. 140. Second, as is also clear from Article 3 of Directive 2004/48, the court issuing the injunction must ensure that the measures laid down do not create barriers to legitimate trade. That implies that, in a case such as that before the referring court, which concerns possible infringements of trade marks in the context of a service provided by the operator of an online marketplace, the injunction obtained against that operator cannot have as its object or effect a general and permanent prohibition on the selling, on that marketplace, of goods bearing those trade marks. 141. Despite the limitations described in the preceding paragraphs, injunctions which are both effective and proportionate may be issued against providers such as operators of online marketplaces. As the Advocate General stated at point 182 of his Opinion, if the operator of the online marketplace does not decide, on its own initiative, to suspend the perpetrator of the infringement of intellectual property rights in order to prevent further infringements of that kind by the same seller in respect of the same trade marks, it may be ordered, by means of an injunction, to do so. 142. Furthermore, in order to ensure that there is a right to an effective remedy against persons who have used an online service to infringe intellectual property rights, the operator of an online marketplace may be ordered to take measures to make it easier to identify its customer-sellers. In that regard, as L’Oréal has rightly submitted in its written observations and as follows from Article 6 of Directive 2000/31, although it is certainly necessary to respect the protection of personal data, the fact remains that when the infringer is operating in the course of trade and not in a private matter, that person must be clearly identifiable. 143. The measures that are described (non-exhaustively) in the preceding paragraphs, as well as any other measure which may be imposed in the form of an injunction under the third sentence of Article 11 of Directive 2004/48, must strike a fair balance between the various rights and interests mentioned above (see, by analogy, Promusicae, paragraphs 65 to 68). 144. In view of the foregoing, the answer to the tenth question is that the third sentence of Article 11 of Directive 2004/48 must be interpreted as requiring the Member States to ensure that the national courts with jurisdiction in relation to the protection of intellectual property rights are able to order the operator of an online marketplace to take measures which contribute, not only to bringing to an end infringements of those rights by users of that marketplace, but also to preventing further infringements of that kind. Those injunctions must be effective, proportionate, dissuasive and must not create barriers to legitimate trade.”
“Order [Scarlet] to stop the copyrights found in the26 November 2004 judgment by making impossible any form of sending or receipt by its clients, by means of ‘peer to peer’ software, of electronic files containing musical works that are part of the SABAM repertoire, under penalty of euros 2,500 per day where Scarlet does not respect this judgment after a 6 month deadline from notification.”
“1. Do Directives 2001/29 and 2004/48, in conjunction with Directives 95/46, 2000/31 and 2002/58, construed in particular in the light of Articles 8 and 10 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, permit Member States to authorise a national court, before which substantive proceedings have been brought and on the basis merely of a statutory provision stating that: 'They [the national courts]may also issue an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right', to order an Internet Service Provider (ISP) to introduce, for all its customers, in abstracto and as a preventive measure, exclusively at the cost of that ISP and for an unlimited period, a system for filtering all electronic communications, both incoming and outgoing, passing via its services, in particular those involving the use of peer-to-peer software, in order to identify on its network the sharing of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold rights, and subsequently to block the transfer of such files, either at the point at which they are requested or at which they are sent? 2. If the answer to the question in paragraph 1 is in the affirmative, do those directives require a national court, called upon to give a ruling on an application for an injunction against an intermediary whose services are used by a third party to infringe a copyright, to apply the principle of proportionality when deciding on the effectiveness and dissuasive effect of the measure sought?”
“In the circumstances, I have no doubt but that the plaintiffs have established in this case that they are entitled to the protection of an injunction. Counsel, however, has sought on the plaintiffs' behalf an injunction of a very great breadth. He has sought an injunction restraining the defendants from knowingly infringing copyright in any film for the time belonging to any of the plaintiffs (meaning any member of the MPAA besides the named plaintiffs) or in respect of which any of them is for the time being the exclusive licensee. It would be impossible for the defendants to know what films were covered by an injunction in that form. In my judgment it would be wrong in principle to grant an injunction the scope of which the defendants subject to it could not know and could not discover. Experience in this litigation has underlined the very great difficulty that is often experienced in ascertaining in whom copyright or exclusive rights in a particular film are for the time being vested. I am prepared to grant an injunction protecting the copyright or exclusive rights of any of the present plaintiffs in the films in respect of which their respective titles have been established in this action. I am not prepared to extend this protection to companies who are not plaintiffs, that is to say to future MPAA members. Nor am I prepared to extend this protection to cover other films. I am, however, willing to give the present plaintiffs or any of them liberty to apply from time to time on notice to the defendants to extend the injunction to other films. In order to obtain that extension, I contemplate that the applicant would have to satisfy the court, first, that it had copyright or exclusive rights in the film or films in question and, second, either that it had applied to the defendants for suitable undertakings which had not been given, or that for some reason undertakings by the defendants would not be sufficient. The costs of any such application would of course depend on the circumstances of that application.”
“It is not disputed that technical means of avoiding detection are available, for those knowledgeable and skilful enough to employ them. However, the central difficulty of this argument is that it rests upon assumptions about human behaviour. Experts can seek to establish a profile of those who engage in P2P file sharing, and their various reasons for doing so, and may then attempt to predict how these users may be likely to respond if confronted with the kind of regime that the DEA enacts. In theory, some may cease or substantially curtail their unlawful activities, substituting or not, for example, lawful downloading of music; others may simply seek other means to continue their unlawful activities, using whatever technical means are open. The final outcome is uncertain because it is notoriously difficult accurately to predict human behaviour…”