In two postings (a heavier legal one and a summary) I have claimed that Denmark breaks EU law when they make network operators directly responsible for copyright infringement through just transporting data. This clearly nullifies Article 5.1 in the Infosoc Directive, the purpose of which is to absolve network operators from such liabilities and guarantee that telecoms and ISPs can act as neutral carriers of data between third parties. (To my Swedish readers: I will blog in Swedish again, but these postings are in English since I am on an international mission in this specific question).
I cited the Swedish government when they very specifically claimed that a Danish implementation would break EU law. Their opinion was signed on March 10, 2005.
This opinion has been confirmed on Sep 3, 2007 by Cecilia Renfors, a Swedish judge and special governmental investigator who had the assignment to propose new legislation to combat unauthorized file-sharing. She produced a 379 page report, downloadable in Swedish as a PDF, called (translated) Music and film on the Internet - threat or opportunity
Her main mission was indeed to nail the network operators since former Minister of Justice Thomas Bodström and she saw this as a smoother way to combat file-sharing than going after the file-sharers themselves. Broadband providers are, as we know, regularly called "thieves" by the recording companies in Ifpi and RIAA.
Renfors investigated how she legally could force broadband providers to cut the lines for their own subscribers in line with Article 8.3 in the Infosoc Directive (that Denmark refers to in order to justify its rulings).
In order to propose how this could be legally done in Sweden she looked at Norway, Finland, Denmark, UK and Germany. Denmark was the only country that considers network operators committing copyright infringement from just transporting unlicensed information.
Renfors discussed this and of course came to the conclusion that it would be much easier to achieve what she wished if she could do what Denmark is doing. But would that be possible? On p. 349-350 she answers this with an affirmative NO! She cannot propose such legislation.
She refers to the former opinion by the Swedish government and reconfirms that a Danish model would NOT be compatible with Article 5.1 in the Infosoc Directive. She also repeats the opinion that the Danish way actually nullifies the whole purpose of that Article.
I am not used to cite Renfors in positive ways, since I certainly do not approve of her suggested procedures through which an ISP could be forced to cut the lines of their own subscribers. But the argument for that proposal is not that the ISP commits copyright infringement.
Additionally, Renfors never suggested blocking web sites outside the ISPs own network. Denmark does this. Such proposals would most likely break a number of Swedish laws (and Danish?), including the constitution which prohibits state censorship. It seems to me that the ability for Denmark to block access to sites outside an ISP's own network is directly related to their (unlawful) claim that a network operator commits copyright infringement in their routers.
This is clearly an occasion when copyright will undermine freedom of speech, information and communication if the carrier does no challenge the Danish law in the EC Court of Justice.
I will point to one case and leave it to the reader to think more:
There is a movement against electronic voting machines in many countries because ultimately what comes out from the "black box" depends on the software in it, making it virtually impossible to know if elections are manipulated. In the U.S. internal documents from Diebold Election Systems, a producer of these machines, found its way out on the Internet. Flaws in the design were discussed. College students started publishing the documents on their web sites and were immediately served "Cease and Desist" letters from Diebold's law firm, claiming copyright infringement with threats of lawsuits and damages. To stop facts and information from spreading. Eventually the process was unstoppable. The more legal threats, the more the documents replicated. They started appearing on file-sharing networks like Freenet och Torrent sites.
You can read the New York Times story about Diebold in an article called File Sharing Pits Copyright Against Free Speech or Chapter 7 in professor Yochai Benkler's book The Wealth of Networks: How Social Production Transforms Markets and Freedom. (The book is freely downloadable, but we who like it and need it will find it very worthwile to buy the printed book of course. My picture of Benkler at a Stanford conference is found here).
Would it not have been easier for Diebold to send its cease and desist letters to ISPs to make them shut down access to certain web sites, torrent sites and so forth? Yes! And this is of course the whole purpose of the Danish (illegal) actions: To pepper ISPs with all these rulings so that anyone who wants to block someone from reading or seeing something eventually just have to use a lawyer who sends a letter to the ISP. Since the ISP knows that a judge would order them to do it anyway. Pirate Bay was the second instance and after the third and fourth and fifth the message would be clear. Obey lawyers!
But this danger is also the reason that EU prohibits copyright legislation or interpretation like the Danish. It is utterly important that Tele2 now appeals that court order and claims that it violates Article 5.1 in that EU Directive. The court then has to freeze the decision while it refers the case to the EC Court, the Court of Justice of The European Communities, in Luxemburg. Tele2 has talked about not wishing to take a stand between two parties, Ifpi and The Pirate Bay.
That is a completely wrong line of reasoning. I prove it in a very powerful way in an article that I wrote after we in Sweden managed to combat the Danish pest from spreading over Öresund. The background is that a Swedish ISP announced that they would "voluntarily" follow the Danish court order from September 2006 and block Russian downloading site AllofMP3.com. A campaign among site owners to block access from customers of that wishy-washy Telecom/ISP ensued. Led by The Pirate Bay! As a result of this activism from The Pirate Bay, from The Pirate Bureau, from bloggers, from me and of course from a rebellion among their own customers the ISP was forced to back down and replace its Chairman of the Board of Directors. Read it, please! (English!) It almost makes me teary-eyed, sob sob ... Tele2 now HAS TO TAKE A STAND for its own business model. And the future. Act up!