Injunctions against ISPs Part II: the CJEU's Judgment in Scarlet
In Injunctions against ISPs I discussed Mr. Justice Arnold's judgment in Twentieth Century Fox Film Corporation & Others v British Telecommunications Plc [2011] EWHC 2714 (Ch) (26 Oct 2011) where he ordered BT to use Cleenfeed to hinder its subscribers from accessing the website known as Newzbin II. That judgment was applauded by those who lobby on behalf of the film, recording, games, publishing and other creative industries though by no means everybody in the industries themselves. I saw such lobbyists at work some years ago during consultations at the Patent Office on the implementation of the enforcement directive. For convenience I refer to them as Big Copyright. Scarlet Less than a month afterwards the Court of Justice of the European Union delivered its judgment in C-70/10 Scarlet Extended SA v SABAM [2011] EUECJ C-70/10 (24 Nov 2011) that a number of Council directives precludes an injunction that compels an ISP to install monitoring software "which is cap...