Wednesday 26 October 2011

Web blocking gets real as court orders BT to implement

Today the details of the implementation of the Newzbin2 ruling were handed down. BT has been told that it must block the site within 14 days and pay all of the implementation costs (estimated at £5000 for initial implementation and £100 for each subsequent notification). You may remember that the outcome was left hanging in the balance of the justice system as the High Court reserved judgment based on a last minute intervention from a BT and Newzbin2 user (see this post from Torrent Freak:

The judgment (up very quickly as always on the excellent BAILII site) is not particularly favourable to BT. Written submissions on behalf of other ISPs have been given limited weight due to their late arrival to the case; Mr Justice Arnold stated that this evidence should have been filed prior to the July hearing. Furthermore, Studios have effectively been given carte blanche to notify BT of additional IP addresses and/or URLs "whose sole or predominant purpose is to enable or facilitate access to the Newzbin [2] website". BT had an issue with the words "or predominant", but the Studios and the judge agreed that an injunction limited to "sole purpose" would be too easily circumvented (this follows the news from last month where Newzbin2 declared it had created a client to circumvent the web blocking order). Amazingly, Studios do not have to return to court to seek an order for every URL and IP address that Newzbin2 operators use, and it is the Studios' reponsibility to accurately identify IP addresses and URLs. Even the judge admitted that "innocent" IP addresses and URLs may inadvertently get caught up in this action.

Another significant element is that of competition. BT raised the point that the Studios are not currently seeking injunctions against their competitors, despite the fact that the Studios (apparently) intend to obtain equivalent orders against other ISPs. Mr Justice Arnold stated that the Studios "are entitled to decide against whom to seek the remedy", and that if their decision "gives rise to competition law issues, that will be a matter to be addressed elsewhere." Given the recent ruling in the ECJ on territorial licensing issues, perhaps the ECJ would be the most appropriate forum for this matter?

Small consolations for Internet users and ISPs are:

1. BT's Cleanfeed system will be used to re-route IP addresses rather than blocking them altogether. The Studios accepted that IP address blocking could lead to 'overblocking' of sites or pages which did not infringe. Anyone who has been subject to local web blocking software will breathe a (small) sigh of relief that some common sense has been shown here.

2. ISPs do not and have not committed any legal wrong against rights holders and therefore should not be directly liable for copyright infringement. However, they do have a duty to assist rights holders affected by infringement. Measures under Article 11 of the Enforcement Directive and Article 8(3) of the Information Society Directive must be "fair and proportionate", according to Mr Justice Arnold and the relevant body of case law (Norwich Pharmacal, L'Oreal v eBay).

According to reporters on the scene, BT's statement on the Newzbin2 ruling was fairly resigned, stating "it is helpful to have the order now and the clarity that it brings." (thanks to @tim and @JoshHalliday for tweeting updates).

Image from Flickr: 'Stop Sign' by ladybeames, used under a CC-BY-NC licence


Steve said...

I'm an internet user I'm delighted to see this ruling.

If ISPs were actively promoted legal services that pay creators instead of defending scumbag looters like Newsbinz, they could save themselves a fortune.

No sympathy for them whining about costs - when they've spent a million pounds defending thieves.

Anonymous said...

@ Steve

I think you forget that BT has its own content service, BT Vision. Is it not the duty of copyright owners to promote their legal services? Or bring them online in the first place. And BT did not defend Newzbin, they questioned whether they are by law required to block Newzbin.