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The verdict in the case between the MPA (Motion Picture Association) and BT has been announced. The High Court has ruled that BT will be forced to block access to the Newzbin2 website which provides links to pirated content.

Darren Farnden, Head of Marketing

Darren Farnden, Head of Marketing

The entertainment industry are hailing this as a victory and describing this first battle as a “test case which has set legal precedent”. They now intend to take other major ISPs down the same legal path.

The presiding judge, Justice Arnold,  said the following on the ruling:

“In my judgment it follows that BT has actual knowledge of other persons using its service to infringe copyright: it knows that the users and operators of Newbin2 infringe copyright on a large scale, and in particular infringe the copyrights of the Studios in large numbers of their films and television programmes, it knows that the users of Newzbin2 include BT subscribers, and it knows those users use its service to receive infringing copies of copyright works made available to them by Newzbin2.

In general, I am satisfied that the order sought by the Studios is a proportionate one. It is necessary and appropriate to protect the Article 1 First Protocol rights of the Studios and other copyright owners. Those interests clearly outweigh the Article 10 rights of the users of Newzbin2, and even more clearly outweigh the Article 10 rights of the operators of Newzbin2. They also outweigh BT’s own Article 10 rights to the extent that they are engaged.

The order is a narrow and targeted one, and it contains safeguards in the event of any change of circumstances. The cost of implementation to BT would be modest and proportionate.”

This ruling is an obvious blow to BT and other ISPs who, like Entanet, have continuously argued that they are mere conduits and should not be required to police the Internet. Entanet also believes that the blocking of websites is an inefficient method of tackling copyright infringement. Firstly the blocks can be easily circumnavigated by more tech savvy users and secondly such blocks will lead to legal and harmless content also being blocked. This view is echoed by Consumer Focus who stated: “Website blocking only treats the symptoms, not the cause of why consumers infringe copyright. Blocking access to Newzbin2 is short-sighted and will not reduce demand for Hollywood movies. Consumers will seek out other sources and the only long term solution is more and better legal alternatives.”

The ruling has also been met with unsurprising criticism from the Open Rights Organisation (ORG). Peter Bradwell from ORG said: “Website blocking is pointless and dangerous. These judgements won’t work to stop infringement or boost creative industries. And there are serious risks of legitimate content being blocked and service slowdown. If the goal is boosting creators’ ability to make money from their work then we need to abandon these technologically naive measures, focus on genuine market reforms, and satisfy unmet consumer demand.”

Whilst we disagree with the principle of website blocking if it is to be enforced as a measure to tackle copyright infringement then we are at least happier that this is now likely to be managed by court rulings as opposed to the previously suggested voluntary system which would have relied more heavily on the entertainment industries’ opinion. At least this way each website block will be independently judged in court to assess whether or not it should be executed by the ISP, also providing the ISP with protection that they are simply following court orders and not intentionally adversely affecting the level of service provided to their customers. ISPA (Internet Service Providers’ Association) agrees with us on this point stating: “ISPA has long maintained that this is an issue that rights holders should seek to address in court, rather than through voluntary means, and today’s ruling should go some way to offering clarity on what is a complex area.

However, concerns about over-blocking, ease of circumvention and increased encryption are widely-recognised, which means that blocking is not a silver bullet to stop online copyright infringement. Rather, as the Government-commissioned Hargreaves Review recently found, there should be more focus on offering innovative, fully-licensed content services to give consumers what they are clearly demanding.”

We completely agree. The real way to target copyright infringement is to modernise the entertainment industry’s business models by embracing new technologies and providing reasonably priced legal alternatives. As stated in our recent opinion article “Surely it’s time for change!”, a PRS (Performing Rights Society for Music) report last year suggested that, while the UK music industry’s retail recorded music sales remained flat at £1.36bn (itself a reversal of the previous 5 year decline), one of the contributing factors was the phenomenal increase in sales of legal licensed digital music services of 72.7% to £30.4m. A further report from media law firm Wiggin also showed that website blocking and threats would make little difference to most downloaders’ habits but over 25% would pay £14.50 per month for a legal file sharing service.

The MPA has vowed to pursue other major ISPs through the courts to force them to also block the Newzbin2 website and if or when they are successful I am sure other entertainment industry bodies will pursue similar claims for other ‘offending’ websites. This is likely to be just the start in a long line of court orders. Whether or not these blocks will be successful in the fight against copyright infringement still remains to be seen.

Have your say!

What are your thoughts about this court ruling and its effect on copyright infringement? Do you think website blocking will help to tackle this issue or do you think the entertainment industry need to adopt new business models to truly fight copyright infringement? Let us know your thoughts by leaving us a comment below.

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One Response to “ISPs lose first court battle against website blocking”

  1. As I see it, the MPA have attacked what they see as the easiest target rather than the correct one, indeed their justification for taking BT to the High Court would seem to be inherently wrong based upon ‘common carrier’ precedents.

    Newzbin2, we are told, hosts links to content which the MPA would like blocked. However Newzbin2 is not hosted by BT, nor (as I understand it) is Newzbin2 the major ‘offender’ of this type.

    Should one sincerely wish to block Newzbin2 then the right place to do so would be with its ISP, blocking the servers at source. Alternatively, blocking within the transit between there and the UK would block the site for the whole UK (as one would think the MPA desires), A quick traceroute shows a route via the USA (New York-SanFrancisco-SanJose-SantaClara) on Global Crossing and hosting with Savvis in their Santa Clara facility. Given how the MPA and MPAA work closely together — and much of the disputed content is almost certainly of USA origin — then one would have thought those targets easier to block.

    *But instead the MPA chooses to block a porportion of UK customers.*

    Then there is the issue of the volume of links on Newzbin2. Wikipedia tells me that Newzbin are not a public site; access being restricted to invitees only. And it is a matter of general knowledge that the largest linkfarm in the world — Google, Inc — has massive numbers of download links for torrents of all types.

    *But instead the MPA chooses to go for a private, closed service.*

    One might almost think that the MPA were not really interested in solving what they see as a problem.

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