BUSINESS AND FINANCE


CONDUITS TO CENSORSHIP SAFE HARBOUR LAW


Recent legal activity shows ISPs of all sizes could find themselves shouldering the bur- den of enforcing copyright. By David Meyer


show that Internet service providers - fixed and mobile, large and small - could not only find themselves embroiled in legal battles, but also footing the bill for blocking access to certain types of content. The UK has become the latest country


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to force ISPs to block Websites used for unlawful file-sharing, and it looks like the US will not be far behind. The courts took the lead in the UK this


summer with a landmark ruling forcing BT to block its retail customers’ access to Newzbin2, an aggregator of copyright- infringing content. In November, the film studios began encouraging all the country’s large ISPs to follow suit. In the US, similar court orders would be enabled by legislation, known as the PROTECT IP Act or SOPA, that is wending its way through the lawmaking process.


uthorities in many countries are cracking down on illegal file- sharing and recent developments


compiles a list of sites that are known to contain this illegal content. ISPs then use that blacklist to automatically filter out the offending sites, employing technolo- gies such as BT’s Cleanfeed to do so. It is one thing to block content that


almost everyone agrees should be blocked. However, rights holders from the film, music, software and gaming industries have long lobbied for a similar system to tackle copyright infringement. According to ISPA policy manager Andrew Kernahan, “child abuse content is a black- and-white issue but this is much greyer”. Getting ISPs to agree to copyright-based Web blocking was never going to be easy. For the European branch of the Motion


Picture Association (MPA), victory came in July when the UK High Court ruled that BT must use Cleanfeed to block access to Newzbin2. An earlier judge- ment had forced the site to shut down its hosting in the UK. However, it had then


Copyright-based censorship of the Internet puts ISPs, as the most effective potential censors, in the thick of it


Even without taking into account coun-


tries that block all sorts of content on political or social grounds, the phenom- enon is not new. Courts in France, Denmark and Italy


ordered ISPs to block sites on copyright grounds before 2011, and this year has seen similar orders go through in Finland and Malaysia. Nonetheless, the copy- right-based censorship of the Internet is a rapidly growing trend that puts ISPs, as the most effective potential censors, in the thick of it. In the UK, as elsewhere, most ISPs


already voluntarily block access to sites that feature images of child sexual abuse. The Internet Watch Foundation, an inde- pendent non-profit organisation,


December 2011/January 2012 www.totaltele.com


set up shop in the Seychelles, well outside of UK jurisdiction. The Newzbin2 judge- ment solved that problem for the MPA, as it was designed to ensure that customers of BT Retail would no longer be able to visit the Website, wherever it was situated. The Newzbin2 judgement also let the


UK’s coalition government off the hook. Around the same time, the government was advised by the telecoms regulator Ofcom that it would be unworkable to institute the Web-blocking reserve powers in the Digital Economy Act, which also contains other powers, such as sanctions against people caught sharing copyrighted material online. Within days of the Newzbin2 judgement, the


government announced it would not be using the Web-blocking powers, but at that point it hardly made a difference: the courts had done the government’s work for it. The court orders envisaged under the


US’s PROTECT IP/SOPA legislation would be similar but more wide-ranging, covering not only ISPs but also financial transaction firms and online advertisers, forbidding all of them to have dealings with the targeted site. Even links to that site would be outlawed, leading some to protest against the act in the name of free speech. The UK High Court ordered the


Newzbin2 block under section 97a of the Copyright, Designs and Patents Act (CDPA) 1988. This lets a court force an ISP to institute Web-blocking “where that service provider has actual knowl- edge of another person using their service to infringe copyright”. According to Strathclyde University


Internet law professor Lilian Edwards, the sheer audacity of Newzbin2’s proprie- tors, who were making money out of clear infringement, gave rights


holders a


chance to try their hand at enforcing the section. “Section 97a has been on the books for


ages,” Edwards says. “It’s just that rights holders hadn’t gone to court on it until now because they feared having a weak case and setting a bad precedent. The Newzbin2 case was about as safe a case to win as you could get.”


Taking responsibility ISPs have a certain amount of protection under EU law. The E-Commerce Directive (ECD) states that an ISP is usually a “mere conduit” for its custom- ers’ traffic, and is not liable for what goes on over its network. However, the direc- tive also makes ISPs responsible for stopping copyright


infringement


they know is going on over their networks.


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