Copyright is more important than privacy, says top EU court advisor

We recently wrote about the preliminary decision of Advocate General Szpunar, an advisor to the EU’s Court of Justice of the European Union (CJEU), concerning geoblocks. The same Advocate General (AG) has come out with another opinion, this time concerning important questions of copyright and privacy. The basic issue is whether EU Member States can require Internet Service Providers to allow copyright companies to access information about the IP addresses of users. As the digital rights organisation EDRi writes in a post on Szpunar’s latest opinion:

retention of traffic data constitutes a serious interference with fundamental rights. For traffic data and location data in general, only targeted data retention is allowed for the objective of combatting serious crime. [Previously] the CJEU clarified that the IP address assigned to the source of an internet connection can be retained for a limited time for all users.

The CJEU’s rationale for this is twofold: the source IP address is less sensitive than other traffic data, and access to retained IP address data might be the only means of investigations for some crimes committed online. However, in light of the seriousness of the interference, only serious crimes can justify the general and indiscriminate retention of source IP addresses.

That would seem to rule out giving access to IP addresses for copyright infringement, which is not a “serious crime”. The EDRI post explains:

The AG rightfully notes that infringements of intellectual property rights cannot amount to a serious crime (point 74). Therefore, access to IP addresses retained for the purpose of fighting serious crimes in order to sanction copyright violations is contrary to EU law as it currently stands.

However, this conclusion is “unsatisfactory” for the AG as he fears “systemic impunity for offences committed exclusively online” such as the unauthorised distribution of movies via file sharing or online defamation. AG Szpunar believes EU law should not go against national measures that force the mass retention of IP addresses to combat any type of offences, even very minor ones.

The only condition for retention of source IP addresses should be that investigation and prosecution of the alleged offence is not possible by other means than access to this data.

That is, Szpunar admits that copyright infringements are not serious crimes, but nonetheless goes on to ignore that pertinent fact, and to recommend that privacy should be trampled upon simply because it is supposedly not possible to identify people any other way. Leaving aside the fact that the last part is probably not true – it is extremely hard to hide your identity completely when you go online – there is a larger point here.

As this blog has noted many times, it is easy to copy digital artefacts, and the Internet functions by making multiple copies as it sends data around the world. It is not surprising that it is impossible to stop people from making copies and sharing them online. Instead of accepting this as a fact of digital life, copyright companies have succeeded in convincing politicians that copyright laws must be made even more harsh in a forlorn attempt to stamp out unauthorised copies. As this latest opinion from Szpunar shows, this logic implies that if all other approaches fail, even privacy must be sacrificed on the altar of copyright maximalism.

For the moment, this insane prioritisation of copyright over fundamental human rights is only a recommendation. We have to hope that the full CJEU recognises how unbalanced this is and ignores it in its final judgment, which will be handed down in due course.

Featured image by Laurent Verdier.

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