British Court Orders ISP To Block Filesharing Website In Potential Landmark Ruling

The issues of censorship, net neutrality, and file sharing will be kicking for years to come, and the necessity of making the relevant laws agree internationally will be by no means a small part of the conflict. But those laws have to be reasonable and scalable to begin with. Today brings a development from the UK, where a judge has determined that BT must use its Cleanfeed censorship technology, intended for blocking child pornography, to prevent its subscribers from accessing the file sharing website Newzbin2.

It seems that even the Pirate Bay defense (moving your servers to a secret cave) will be ineffective in this case. As I wrote before regarding the need for an alternative DNS: when lobbyists and short-sighted legislators start cutting off certain sources at whatever choke point seems convenient, that’s nothing short of a slippery slope.

The very nature of the suit is suspect to begin with. In the introduction to the ruling, it is stated:

In these circumstances, the Studios contend that the only way in which they can obtain effective relief to prevent, or at least reduce the scale of, these infringements of their copyrights is by means of an order against BT (and thereafter the other ISPs) of the kind now sought.

While this is likely boilerplate in part, the idea that this is the only way they can “obtain effective relief” is only acceptable to the laziest of investigators. It’s a sign of the times that such a large and influential organization can not only contend that with a straight face, but have it pass without comment in a judge’s written opinion.

The abuse of a tool made for a very specific and justified purpose shows just how unscrupulous the MPA is in their actions. Cleanfeed, administrated by the Internet Watch Foundation, works to “minimise the availability of… child sexual abuse images hosted anywhere in the world” — it’s a scalpel, not a mallet. But The MPA specifically requests it be used as a means to prevent access to content of their choosing. If they were serious about doing things right, they would be reaching across the aisle, or whatever it is you reach across in the UK (the gap?), to come up with long-lasting and correct adjustments to law and enforcement capabilities. Of course, the legislation we’ve seen on our side of the pond isn’t exactly promising — but at least they haven’t started lobbying for pirates to be entrapped on “To Catch A Predator.”

Anxious to please the court, the MPA also magnanimously acknowledged the existence of DNS, IP, and DPI based methods of detecting and intercepting these rogue packets.

Even if the websites they ask to be blocked could be proven to be in violation of law (a fine point considering the nature of NZBs, which, like torrents, do not and cannot in themselves contain copyrighted material), why is it left to monolithic private entities like the MPA to make that determination?

The goal of this lawsuit is ostensibly to reduce losses from piracy. The MPA (Europe, America, or other) maybe stupid, but it’s not that stupid. They know as soon as they cut off one head, two more will appear to take its place. They know that even if they were to shut down the top 20 providers of quasi-illegal content like torrents, it wouldn’t affect the numbers one iota. This operation, like most of their legal operations, is to determine the extent to which they can turn private grievances into public ones. They’re just flexing their muscles.

I don’t want to seem unduly harsh on the judge, one Honorable Mr Justice Arnold; his opinion is quite thoroughly researched and a great number of precedents and existing European law are cited. Unfortunately his judgment simply leans in the direction of the plaintiffs. For instance, on the important but subtle issue of whether it is Newzbin2 or the BT subscriber who is doing the infringement, he simply rejects the idea that the subscribers are the first and final infringers. It’s not an ignorant conclusion (like a few we’ve seen stateside), just an unfortunate one that increases overall liability and muddies the issue:

Once it is concluded, as I have, that the users are using BT’s service to infringe copyright, then it follows that the operators [of Newzbin2] are too… The operators make the works available in such a way that users can access them over BT’s network (among others). In my judgment that is sufficient to constitute use of BT’s service to infringe.

In other words, according to this judgment, every ISP is liable for the actions of every website or service accessed by their subscribers. Apparently it is sufficient to show that a user is using a service in a way that is illegal. Certainly there’s the aspect of the issue that the vast majority of the content on Newzbin2 is copyrighted material. But it’d be incredibly easy for them to upload 10 public domain items for every copyrighted one, immediately invalidating the statistical analysis cited by the MPA. “If users prefer copyrighted files, what business is that of ours?” Newzbin2 might reasonably ask. “We provide a service that tracks these files, that’s all, and charge for the oversight of our editors, who are not concerned with the nature of the content they organize.”

BT actually objects on grounds like these, first with the objection that if the judge grants this injunction, the plaintiffs will immediately seek duplicate injunctions against other ISPs and other sites. To this the judge says that while that may be the case, it’s not material to this case. Hard to argue with that, strictly speaking, as this guy is clearly guided by the letter of the law here, but a lack of concern for precedent is partially what got us into this mess in the first place.

BT also contends that the block will be ineffective, saying the users will easily circumvent the Cleanfeed block or whatever is put in place. The judge acknowledges that the tools and expertise to circumvent the system are readily available, but says: “Even assuming that they all have the ability to acquire such expertise, it does not follow that they will all wish to expend the time and effort required.”

Really, now. That’s a bit optimistic, in my opinion. The objection is substantial: the injunction sought would be ineffective. Dismissing it by saying these technically proficient people won’t bother with that trivial changes necessary to get around these restrictions is just pigheaded, and he drinks the plaintiffs’ expert kool-aid in accepting that the shutdown of The Pirate Bay was an effective measure. The evidence supporting this position is of the flimsiest quality, while the burden of proving that all the infringers have the ability, desire, and time to circumvent the measures weighs heavily on BT.

BT and the MPA will reconvene in court in October to work out how the nuts and bolts of how blocking will work. Newzbin2 has responded to the ruling, but they don’t really bring anything new to the case. BT is not appealing the decision, and who can blame them?

The comments of Peter Bradwell, from digital rights organization Open Rights Group, ring disturbingly utopian in this age of lowered expectations from the powers that be:

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.

He continued: “You may say I’m a dreamer, but I’m not the only one. I hope someday you’ll join us – and the world will live as one.”

Here is the full ruling: