Telefónica gains edge in Promusicae reference

The Opinion of European Court of Justice Advocate General Juliane Kokott in Case C-257/06 Productores de Música de España v Telefónica de España SAU was posted today on the Curia website. This is a reference for a preliminary ruling from the Juzgado de lo Mercantil No 5 (Commercial Court No 5 Madrid on this somewhat tortuous question:

"Does Community law, in particular Articles 15(2) and 18 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market; Article 8(1) and (2) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society; Article 8 of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights; and Articles 17(2) and 47 of the Charter of Fundamental Rights of the European Union, permit Member States to limit the duty of operators of electronic communications networks and services, providers of telecommunications network access and providers of data storage services to retain and make available connection and traffic information generated during the supply of an information society service to where it is required in connection with a criminal investigation or the need to protect public safety and national defence, thus excluding civil proceedings?"

The Opinion is posted in the Danish, German, Estonian, Finnish, French, Italian, Portuguese, Slovene, Spanish and Swedish - but NOT IN ENGLISH. The Advocate General is advising the Court as follows:

"128. Eu égard aux observations qui précèdent, je propose à la Cour de répondre comme suit à la question préjudicielle:

Il est compatible avec le droit communautaire que des États membres excluent la communication de données à caractère personnel relatives au trafic lorsque celle-ci est sollicitée en vue de permettre la poursuite de violations du droit d’auteur en droit civil".

According to Babelfish, as edited by the IPKat, this translates as:

"128. Having regard to the preceding observations, I propose at the Court to answer the referred question as follows:

It is compatible with Community legislation for Member States to exclude the communication of personal data with regard to traffic information when this has been requested in order to allow the pursuit of infringements of copyright in civil law".

The IPKat has gleaned some valuable insights on this otherwise incomprehensible collection of words from a Reuters release some two and a half hours ago: an action was brought by rights-owners' organisation Promusicae after telecoms provider Telefonica refused to hand over the names and addresses of internet subscribers suspected of KaZaA file-sharing. Wishing to sue them for copyright infringement, Promusicae first had to identify those subscribers. The Advocate General considers it compatible with EU law for European countries to exclude communication of personal data in the context of a civil, as distinct from criminal, action.

Right: before you get to tangle with KaZaA file-sharers you have to learn the ropes ...

Merpel says, if the European Charter isn't binding law yet, what is it doing in this reference, and indeed in others?

Wikipedia article on KaZaA awaiting approbation of its neutrality here