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By Joe Kirwin
Dec. 2 --European Union-based internet service providers (ISPs) can be required to block its customers from accessing a website that is infringing EU copyright law, according to the CJEU Advocate General.
In case C-314/12, which could have major ramifications in the controversial debate about whether ISPs are liable for its illegally downloading subscribers, Advocate General Pedro Cruz Villalon said that a court injunction could be granted. However, the Advocate General added that it must be “specific and achieve an appropriate balance between the opposing interests that are protected by fundamental rights.”
The legal dispute being litigated in the Court of Justice involves an Austrian ISP UPC Telekabel Wien and an Austrian film production company. An Austrian court granted the film company an injunction forcing the ISP to block its subscribers from accessing a website where movies can be illegally downloaded.
The Advocate General stated that an ISP used by a subscriber to access a website that infringes copyright “is also to be regarded as an intermediary whose services are used by a third party -- that is the operator of the website -- to infringe copyright and therefore also as a person against whom an injunction can be granted.”
“That is apparent from the wording, context, spirit and purpose of the provision of EU law,” AG Cruz Villalon said.
However the Advocate General added that it is incompatible with the fundamental rights of both parties to force an ISP to impose restrictions that do not include specific measures. He added that this principle also applies where an ISP has taken all “reasonable steps to comply with the prohibition”.
In the case of a specific blocking measure relating to a specific website imposed on an ISP, AG Cruz Villalon said it is not “in principle” disproportionate even if it is expensive and can easily “be circumvented without any special technical knowledge”.
The Advocate General added it was up to the national courts to weigh the fundamental rights of ISPs and copyright holders.
The CJEU, which usually tends to the Advocate General's Opinion in eight out of ten cases, is expected to issue its ruling in the next two to four months.
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The full text of the Advocate General Opinion is available at http://curia.europa.eu/juris/celex.jsf?celex=62012CC0314&lang1=en&type=NOT&ancre=
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