An ISP which was ordered by a court to stop illegal file-sharing on its network, says it simply can not. The Belgian ISP Scarlet says the court's verdict is unworkable and after trying to slow traffic and also filter it, it says it's not possible to stop the flow of illicit files since Audible Magic doesn't work.

In mid-2007, after a battle with copyright group SABAM, a court in Belgium ruled that Internet Service Providers can be forced to block and/or filter copyright infringing files on P2P networks. Although most people familiar with the technical hurdles recognized that this was a massive if not impossible task, the judge in the case ruled that ISPs are indeed capable of blocking infringing content and gave Scarlet six months to comply.

Scarlet said right from the start that it believed that if it complied with the court order it would be breaking the law. The ISP claimed that Belgian law forbids it from spying on its customers so it lodged an appeal against the ruling, with managing director Gert Post saying: “This measure is nothing else than playing Big Brother on the Internet. If we don’t challenge it today, we leave the door open to permanent, and invisible and illegal, checks of personal data.”

Now, over a year later, Scarlet’s lawyers argued in court that the company simply cannot stop the flow of illicit files, which is a serious situation since the ISP has to pay compensation of 2,500 Euros for each day it fails to do so. According to a report, Scarlet has tried different techniques to try to comply with the ruling but has had no success.

First of all, Scarlet slowed down P2P traffic with the help of some Cisco technology. All this led to was complaints from the customers, and it did nothing to stop the availability of the illicit files. A lawyer for Scarlet, Christoph Preter said: “We have actually received complaints that P2P traffic was slower, but it remained possible. It is only a deterrent measure.”

The ISP quite rightly refused to block all P2P traffic, since it said it would be blocking legitimate traffic too. However, copyright group SABAM said this was not a valid excuse. “The argument put forward by Scarlet,” said SABAM’s lawyer, “is not about the impossibility of blocking, but about the consequences.” SABAM clearly doesn’t care who is affected, as long as it gets its way, stating that Scarlet simply hasn’t tried hard enough to comply with the court.

The second solution, the filtering of illicit files, was a solution put forward last year by SABAM itself. On the advice of an appointed P2P ‘expert’, the court ruled that Scarlet must use the content filtering technology offered by Audible Magic. However, Scarlet tried this system and it didn’t work when scanning for files on their network. During last year’s court case it was claimed that Audible Magic had experience with filtering in the US with Verizon and in Asia with another ISP. However, Scarlet made inquiries with Verizon about the partnership but was told that no such deal exists and Audible Magic refused to reveal who the Asian ISP is.

“We have misled the court,” said SABAM’s lawyer. “But SABAM followed the expert in the choice of Audible Magic, so we were acting in good faith.”

A ruling in the case is not expected until 2010.