Wednesday, 26 October 2011 was an interesting day for ISPs and the protection of content online.
On that day, Mr Justice Arnold gave his supplementary judgment in the Newzbin2 case in London, granting an injunction to require British Telecom to use IP address re-routing and DPI-based URL blocking to prevent access to the Newzbin2 pirate facilitator site. BT would have to cover the rather limited cost of implementation (£5,000, plus £100 for each revision of the black-list).
On the same day, the District Court in Helsinki ordered ISP Elisa to block access to the notorious BitTorrent file-sharing site, the Piratebay. It appears that the court directed Elisa to use both URL and IP-number blocking from 18 November, on pain of a 100,000 euro fine. Elisa says it will appeal. (The Court of Appeal in Antwerp also granted a blocking order (DNS blocking only) against the two leading Belgian ISPs on 26 September 2011.)
And in the US, Rep. Lamar Smith introduced his Stopping Online Piracy Act (H.R. 3261) in the House. Like its counterpart in the Senate (the PROTECT IP Act (RS. 968), the Act would allow the US Attorney General to bring an action against the registrant of a domain name relating to a foreign pirate site or the owner or operator of that site for an injunction to prevent the infringing activity. If served with that order, an ISP would have to "take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site".
Similarly, search engines would have to take "technically feasible and reasonable measures... designed to prevent the foreign infringing site that is subject to the order, or a portion of such site specified in the order, from being served as a direct hypertext link". Online advertising agencies or online payment processors would have to cease providing services to such sites. Right holders will be able to bring such actions against payment processors and advertising agencies, but not against ISPs and search engines.
None of these measures implements the Graduated Response as such, which tends to support the view that right holders have decided that site-blocking is a more appropriate or more pressing legislative intervention. As previously mentioned, in the US right holders have been able to agree a voluntary GR scheme with the major ISPs, something that has hitherto proved impossible elsewhere. At the same time, the rise of non-peer to peer sources of piracy such as Rapidshare and Megaupload has perhaps given site-blocking greater relevance.
One direct link to the GR, however, is an interesting aside by Mr Justice Arnold in his judgment of 26 October. Following the recent (and dubious) fashion for informal attempts by non-parties to influence proceedings in English courts, various people (including ISP TalkTalk) sent communications to the judge following BT's defeat. One, an alleged BT subscriber, applied to be sought to be joined as a respondent in the proceedings.
That applicant made various submissions, including that "a form of order that is more targeted at infringers should be adopted". He proposed "a system of warning notices to subscribers inspired by the Digital Economy Act 2010 and Ofcom's draft Initial Obligations Code." Arnold J said: "I doubt that an order in that form would comply with the United Kingdom's obligations under Article 8(3). In any event, BT has not suggested that such an order should be made in preference to the order sought by the Studios and I have already decided to make an order substantially in the form sought by the Studios."
The judge's remark that a GR system would not rise to the level of the relief to which a right holder is entitled under Article 8(3) of the 2001 Directive is interesting. It suggests that even if ISPs cooperate in the much-delayed implementation of the UK's the Digital Economy Act, they will still find themselves hauled into court to block pirate sites. Perhaps this will be an incentive to them to craft a voluntary scheme in cooperation with right holders that represents a commercial settlement of all aspects of the content protection issue. However, UK ISPs had the opportunity to agree a system of Graduated Response back in 2007-8 when the Motion Picture Association reached out to them. Ultimately, they preferred conflict to compromise. TalkTalk's attempt to intervene (without intervening) in the Newzbin2 case suggests that that remains their preference.