with regard to copyright protection, the Court stressed that a complete cessation of infringements might not be possible or achievable in practice

this does not pose a problem, given that, as previously emphasised in the Court’s case law, there is nothing whatsoever in Article 17(2) of the Charter to suggest that intellectual property is inviolable and must be absolutely protected

According to the Court, internet access providers must make sure that both right-holders and users are kept happy, with no real guidance as to what measures might achieve that effect.

“figuring out what content is legal against what content is infringing is too hard for us poor lawyers and judges!”

the two SABAM cases, which found filtering incompatible with fundamental rights, by confirming that specific (in the sense of “targeted at a clearly indicated website”) blocking injunctions are permissible, as long as they do not unreasonably infringe users’ rights.

act explicitly redirects the balancing exercise to a private enterprise and defers the assessment of its outcome to a later procedure.

SP has no real way of knowing what is and what is not “reasonable” in the eyes of the law.

. It’ll be reasonable, the Court seems to say, as long as it’s not entirely ineffective, or at least tries to not be entirely ineffective, or at least suggests that users shouldn’t do this

. Indeed, in a recent Dutch case, the court of appeal of The Hague overturned an injunction ordering access providers ZIGGO and XS4ALL to block the well-known torrenting site The Pirate Bay, after studies confirmed no effect at all on the number of downloads from illegal sources.

nsisting that a symbolic “do something” gesture must be made to establish that the intermediary is opposed to piracy, even if it cannot achieve real results.

UK’s Justice Arnold in EMI Records v British Sky Broadcasting

guidelines assessing the proportionality of blocking measures be laid down by the CJEU – that would have been welcome indeed!

The Appeal Court based its decision on the fact that right holders' unions and societies were financially unable to cover the costs of injunctions, whilst ISP/IBPs were.

he appeal decision went further by stressing that their order was also justified by fact that the defendants generated profits from internet users accessing the infringing websites. As a result, the Court breached ISP/IBPs' freedom to conduct business (as protected by Articles 16 and 52(2) of the Charter of Fundamental Rights of the European Union).

Nevertheless, the Supreme Court insisted that the judiciary had jurisdiction to require of ISP/IBPs to perform any necessary measures against copyright infringement on the internet, thanks to the 2000 Directive on electronic commerce and the 2001 InfoSoc Directive (tranposed into national law under Article 6-1-8 of the 2004 'LCEN' Act). The Court held that the dispositions provided a lawful basis to have the costs of injunctions charged against ISP/IBPs. This is because as "technical intermediaries" ISP/IBPs are  "best placed to bring such infringing activities to an end", the Court say, quoting the words of the InfoSoc Directive (Recital 59) directly. 

. First, it confirmed that neither ISPs nor IBPs were liable for secondary infringement so long as they had no knowledge of the infringing activities or that they acted sufficiently promptly to put an end to the known illegal acts upon notification by right holders. Second, the Supreme Court reasserted that ISP/IBPs were under no statutory obligation to undertake surveillance work of internet users.

The Supreme Court judges see nothing under EU law that would prevent national courts from attributing all costs to intermediaries.

"despite their non-liability, access and hosting providers are legally bound to contribute to the fight against illicit material and, more specifically, against the infringement of authors' and neighboring rights" ; "...[O]n the basis of the pure point of law, the decision of the Court of Appeal was legally justified". 

on the other hand, that neither ISPs nor IBPs demonstrated that the performance of the measures would represent an unbearable sacrifice, or that their costs would endanger their economic viability

It is very interesting to see French Courts give so much weight to the financial situation of the parties and the (alleged or potential) revenues generated by ISP/IBPs from infringing websites, in their application of liability rules. Indeed, the latter are usually framed as pure questions of law, disconnected from economic realities.

We will have to wait to see whether the position of the French court catches on in other jurisdictions, or not.

The European Commission is well aware that Article 15 of the E-Commerce Directive explicitly prohibits Member States from imposing “a general obligation on providers … to monitor the information which they transmit or store, [or] a general obligation actively to seek facts or circumstances indicating illegal activity.

does indeed involve a “general obligation” on those companies to filter all uploads for a vast range of “illegal content”

That lack of good faith makes the Commission’s stubborn insistence on a non-existent technical solution to a non-existent problem even more frustrating. If it had the courage to admit the truth about the unproblematic nature of unauthorised sharing of copyright materials, it wouldn’t need to come up with unhelpful approaches like upload filters that are certain to cause immense harm to both the online world and to the EU’s Digital Single Market.