Why the High Court ruling in the Newzbin2 case is such a big deal

News Analysis

Why the High Court ruling in the Newzbin2 case is such a big deal

Warwick Ashford

The creative industries have welcomed the UK High Court ruling that BT must block access to pirated content aggregator site Newzbin2, but why is the ruling seen as such a game changer?

The most obvious reason is that it sets a precedent by being the first time a UK court has ordered an ISP to block a specific website due to concerns about piracy.

The precedent will make it easier for content producers to bring similar proceedings against internet service providers (ISPs) who enable access to copyright infringing sites, and in so doing, marks a change in how copyright infringement battles will be fought in future.

Instead of claiming directly against infringers, rights owners will take the easier route of seeking injunctions against the ISPs, said Robin Fry, copyright partner at commercial law firm Beachcroft.

"Claims for injunctions of this type are likely to go mostly unchallenged in the future. Yes, the rights owner will need to present evidence to the court, but there will be far less risk than with claims against the site owners which can become derailed with lengthy technical arguments," he said.

The case is of great interest as it is a rare UK view on what ISPs can be required to do in relation to infringing content online, said Simon Levine, joint global head of law firm DLA Piper's intellectual property & technology group.

"While they are generally protected from being directly liable themselves, and clearly cannot be expected to patrol the internet exhaustively, ISPs can be required to take certain steps once put on notice of infringing content which they are either hosting or enabling users to access," he said.

In his ruling, Mr Justice Arnold stated: "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 Newzbin2 infringe copyright on a large scale, and in particular infringe the copyrights of the studios in large numbers of their films and television programmes."

He continued: "It knows that the users of Newzbin 2 include BT subscribers, and it knows those users use its service to receive infringing copies of copyright works made available to them by Newzbin2."

But not only does the ruling set an important precedent, said Levine, the case also emphasises the challenges to content owners in the age of the high-speed internet and the cloud.

Ahead of the ruling, one of Newzbin's administrators told the BBC that the site would attempt to keep access open, even if that meant breaking BT's Cleanfeed filter.

If Newzbin2 succeeds with its threatened disabling of BT's blocking system, said Levine, the US Motion Picture Association (MPA), which brought the case on behalf of top Hollywood studios, will be left having to try to force BT to improve its system, but how far that is possible will depend in part on technology not law, or having to pursue Newzbin2, as a moving target, in far-flung jurisdictions where litigation may be slow and difficult.

As Levine points out, the victory for content providers may not be so clear cut. After all, even if Newzbin does not take a shot at disabling the Cleanfeed filter, the MPA and BT still have to return to court in October to work out exactly how the blocking will work.

The enthusiasm for the High Court ruling by the creative sector is also not shared by network operators.

The owner and operator of one of Europe's most advanced and densely connected voice and data networks, Interoute, has described the ruling as disappointing.

"Forcing BT to act as a task force to eradicate copyright infringement websites will not enable the MPA to achieve its ultimate goal of protecting its revenue," said Lee Myall, director at Interoute.

To prevent access to Newzbin2, the injunction will need to be taken to all other UK ISPs, which in itself is a mammoth task, and the injunction will serve only as a temporary fix, he said, as illegitimate sites constantly change IP addresses and hosting providers to avoid being shut down.

"This ruling is a slippery slope for ISPs, which have become fair game for anyone with an issue regarding content on the internet. It won't be long before another tug of war between artists and ISPs takes centre stage. The shortcomings and potential ramifications of this decision will be endless," said Myall.

The MPA, in claiming victory, said its court action was never an attack on ISPs, but that their co-operation was necessary to deal with Newzbin and other similar sites.

"This ruling from Justice Arnold is a victory for millions of people working in the UK creative industries and demonstrates that the law of the land must apply online," said Chris Marcich, president and managing director of the European region for the MPA.

The UK recorded music business association, BPI, said the judgment sends a clear signal that ISPs have a role to play in protecting their customers from rogue websites that exploit and profit from creative work without permission, ignore takedown notices and locate themselves beyond the reach of law enforcement.

While the ruling is being widely welcomed for setting a precedent and putting the onus on ISPs to act on behalf of law enforcement, the devil will be in the detail of enforcing controls.

Perhaps the real big deal will come only in October when the MPA and BT have thrashed out a way of making it all actually work. While there is growing pressure from authorities in the UK, US and elsewhere on ISPs to act as gatekeepers, there is still no clear indication of this could be done in practice.

But even if a practical way is found for ISPs to block access to copyright infringing sites, the odds are that film and music pirates will find a way around it. A longer-term solution, according to Newzbin, is for producers to make content available at prices and in formats that are acceptable to consumers.

 

Photo credit: John Foxx


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