Both sides claim victory in Rome court's privacy ruling

Both sides claimed victory Monday after a Rome judge took a minimalist view of the responsibilities of telecom carriers for stamping out online piracy in a court battle pitting copyright defenders against Internet distributors and privacy interests.

Judge Antonella Izzo rejected a request from the Audiovisual Antipiracy Federation (FAPAV) that Telecom Italia identify customers responsible for copyright violations and report them to the justice authorities, block their access to peer-to-peer Web sites where they were illegally downloading copyright material, and inform them that they had been breaking the law.

Judge Izzo, whose ruling was made public Friday, also turned down FAPAV's request that Telecom Italia be fined €10,000 (US $13,000) for every day that passed without it acceding to the antipiracy body's demands.

The court battle, which has important implications for the policing of the Internet in Italy, saw FAPAV supported by the Italian Authors and Publishers' Society (SIAE), while Telecom Italia was backed by the telecom operators' association Assotelecomunicazioni, the Italian Association of Internet Providers (AIIP) and the national Privacy Authority.

"We are very pleased because the judge has turned down all of FAPAV's principal requests and established that Telecom Italia is absolutely not responsible for the material carried over its network," a Telecom Italia source said in a telephone interview Monday. All of Italy's Internet service providers greeted the ruling with relief, because they would all have been forced to comply with FAPAV's demands if the judge had found that Telecom Italia had been at fault.

"The only part that went in FAPAV's favor was where the judge ruled that we are obliged to pass on a complaint of copyright infringement from a third party to the local prosecutor and the Communications Ministry," the Telecom Italia source said. "It's a matter more of form than of substance, since the company making the complaint can take it straight to the justice authorities itself."

Judge Izzo ruled that it would be wrong for Telecom Italia to suspend its service to alleged copyright violators, as it was "not responsible for information transmitted" and "contractually bound to provide the service." When forwarding complaints to the justice authorities, Izzo ruled, Telecom Italia was obliged to add other relevant information in its possession but not the identities of its customers.

Telecom Italia argued that it already cooperates with investigative authorities on a daily basis.

Perhaps less convincingly, FAPAV also welcomed the judgment as a victory, noting in a prepared statement Monday that the judge had ordered Telecom Italia to pass on its complaint to the judiciary. "The Federation is delighted that the Rome court has incontestably recognized that the activity of unauthorized downloading and/or streaming constitutes a crime and has asked for the complaint to be passed on to the prosecutor's office for appropriate action," the statement said.

It also welcomed the fact that the judge had found nothing wrong with an investigation it commissioned from the French company CoPeerRightAgency into the extent of piracy over the Telecom Italia network. The French investigators reportedly established that hundreds of thousands of Telecom customers accessed 13 Web sites suspected of providing unauthorized copyright material some 2.2 million times between September 2008 and March 2009.

The investigators avoided collecting the full IP (Internet Protocol) addresses of alleged violators so as not to breach Italy's privacy law, concern over which prompted the Privacy Authority to join the legal fray.

"FAPAV notes with satisfaction that the Rome court recognized the perfect legality of the data produced by FAPAV and the absence of any privacy violations," the organization said. "In conclusion, this ruling establishes the principle that Internet access providers (like Telecom Italia) are obliged to cooperate in the battle against piracy without hiding behind the screen of supposed non-responsibility and, even worse, a misunderstood protection of privacy."

For Guido Scorza, the president of the Institute for Innovation Policies, the real winner in the dispute was Telecom Italia. "It's clear that the Antipiracy Federation finds itself empty-handed at the end of an investigation that lasted months and must have cost several hundred thousand euros," Scorza wrote in an article published by the online magazine www.punto-informatico.it Monday. "Was it really necessary to make such a fuss and flex its muscles so much to arrive at this conclusion?"

Judge Izzo's clarification of current Italian law could be superseded if Italy signs up to new, more rigorous Internet rules currently being negotiated in the context of the Anticounterfeiting Trade Agreement (ACTA). Some countries participating in the talks are pressing for ISPs to be made liable for the content distributed over their networks.