Alexander Tsoutsanis, DLA Piper en IViR, Privacy and piracy in cyberspace: justice for all.
"You can only protect your intellectual property if you know who infringes it. Our legal system, both criminal and civil, is based on this premise, with anonymity giving way to accountability. Being able to put a face to a name is the only way justice can run its course. This is so self-evident that the place where the defendant is domiciled is considered the principal place for a court to assume jurisdiction.6 Now go figure and apply that online — for example to IP address 24.13.086.791, which could be used for anything not-sohonourable on the web: for infringing copyright, jailbreaking PayTV or identity theft on social media. If you can’t put a face to this IP address and get the real name, whom to sue? And where? [...]
If those three decisions from Europe’s highest court tell us anything, it must be that privacy is not king. Privacy is merely one of the factors for local courts to consider when determining whether a particular request to an ISP to disclose its customer is justified and proportionate, striking a fair balance between all (conflicting) interests involved. This follows from the Bonnier ruling: privacy laws do not preclude that IP legislation, ‘in order to identify an internet subscriber or user, permits an internet service provider in civil proceedings to be ordered to give a copyright holder or its representative information on the subscriber to whom the internet service provider provided an IP address which was allegedly used in an infringement.’ In short, piracy cannot always hide behind privacy—at least, not in theory. [...]
Practice, however, is different. In practice, getting ISPs to identify their customers often involves much uncertainty, high cost and significant delays for everybody involved. [...]
‘How’ ISPs can be obliged to disclose personal data is primarily a question of efficiency. Efficiency matters. It’s hard to explain why we can file complex legal briefs before the CJEU completely electronically on iPad, but we don’t have an efficient, electronic system for clearing legitimate disclosure requests to identify ISP customers, in full accordance with the rule of law. For too long, the privacy versus piracy debate has been clouded by theory alone. Yet theory alone will not save the day. Effective remedies matter. Without effective remedies, sticks and stones, the rule of law turns to dust and bones.
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Privacy and piracy in cyberspace: justice for all
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