Italian Pirate Bay ruling gets mixed review

Lawyers hail policies as in line with Europe, though some ISPs are critical

Italian antipiracy campaigners have hailed a recent ruling by Italy's highest appeal court as a "landmark" in the international battle against copyright theft, though service providers appear uneasy.

The Court of Cassation ruled at the end of September 2009 that a judge in the northern city of Bergamo was justified in ordering Italian ISPs (Internet service providers) to block the access of their clients to the Swedish BitTorrent tracker The Pirate Bay. The legal arguments adopted by the Court of Cassation, however, were just made public at the end of December, and have been welcomed by campaigners as strengthening the hand of magistrates and industry associations in their struggle to stamp out Internet piracy.The highest court overturned an earlier ruling by the Bergamo appeal court that unblocked the access of Italian Internet users to The Pirate Bay site on the grounds that the laws invoked applied only to child pornography and unauthorized gambling.

The Court of Cassation said Italian law allowed the sequestration of an Internet site, despite its immaterial nature. "An Internet site in general (and this site in particular) can be considered to have a physical nature, or a material and concrete dimension," the court said.The Pirate Bay was not a neutral instrument of peer-to-peer communication, the court said, because it assisted clients in their copyright violations by providing an index of content and a search engine. The Swedish file-sharing site was neither a generalist search engine nor a neutral social network, the Court of Cassation's written verdict declared.It was therefore lawful for an Italian judge to instruct Italian ISPs to cut off access to the site "for the limited purpose of preventing the illicit distribution of such (copyright) works."

Enzo Mazza, the president of the Italian Music Industry Federation (FIMI), said the ruling was all that his members had been hoping for. "At a time when there is much discussion of self-regulation for the Web, the judiciary has shown clearly how we must act to combat online illegality: by applying the laws that exist in the real world also to the world of Internet, without surrendering to demagogic claims that Internet is a place without rules where the law can be flouted with impunity," Mazza said in a prepared statement.

Luigi Manna, a lawyer for Studio LGV, the Milan legal partnership that assisted FIMI in registering a complaint against The Pirate Bay with the Bergamo court, described the verdict as a seminal ruling on the legal protection of copyright works that helped Italy to recover lost ground in relation to other European countries that have been more energetic in prosecuting copyright violators.The court clarified the existence of legal remedies based on Italy's adoption of the European Union's year 2000 directive on electronic commerce, Manna said. "The Bergamo appeal court had said there is no legislation available that is capable of blocking access to a foreign site such as The Pirate Bay. The Court of Cassation has said that there is," he said.

The verdict clarified that uploading copyright material to the Internet was a crime under Italian law and that indexing that content amounted to complicity in the principal crime of uploading, Manna said. "This is a landmark sentence that acts as a lighthouse, illuminating the way ahead for lawyers, prosecutors and judges," he said.

The ruling was also welcomed by Tullio Camiglieri, the coordinator of the Rome-based Research Institute for the Protection of Authors' Rights and Freedom of Information, who predicted that a long list of other sites involved in copyright violations could soon be obscured.Camiglieri estimates that piracy now costs Italy's culture and entertainment industry more than euros 1 billion (US$1.4 billion) a year. "We trust that a new season has begun for the protection of our cultural industry," he said in a prepared statement. The verdict was less well-received by the Association of Italian Internet Providers (AIIP), which questioned the court's interpretation of the law and warned that the imposition of access filters could be illegal and was certainly ineffective.

In an online blog, the association accused the court of confusing hosting with the ISP's role as an irresponsible content conduit, and suggested the correct remedy was an international rogatory seeking closure of the offending site by its foreign host, rather than an order to Italian ISPs to block their clients' access."This puts citizens' privacy at risk, provokes an increase in the cost of Internet services, restricts the free expression of thought on Internet -- raising an important constitutional question, reduces band speed because of the need to filter content, acts as a disincentive to investment in the telecom sector and, finally, reduces the competitiveness of Italian operators in relation to their foreign competitors," the blog said.

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