BUSINESS AND FINANCE


“The ECD still allows injured parties


to seek an injunction preventing future damage - even though ISPs still keep their immunities from liability,” Edwards says. “So ISPs aren’t losing their protection as mere conduits, but they may still find themselves compelled to do things to protect copyright interests.” Crucially, rights holders still need to get a court order each time they want a


copyright. Rights holders should be spending their time and effort creating compelling legal alternatives, which will help stop piracy.” Despite the potential costs involved


with insisting on a court order for each site, TalkTalk says it would resist any automation of the process that did away with the need for an order. “You might have a slick system, but you need a court


ISPs shouldn’t have to spend any money on this. They are there to provide services, not to enforce copyright.


particular site blocked. The MPA, along with fellow lobby groups the BPI, the Musician’s Union, the Publishers’ Association and Pact, followed up the judgement with a less formal request to BT that the ISP block The Pirate Bay as well. BT said it would not do so without another court order, and other large ISPs have suggested they will demand the same if they are to be forced to filter out Newzbin2, The Pirate Bay or any other copyright-infringing site. “Our position is we will only block if a


UK judge decides the site infringes copy- right and decides that a block is an appropriate remedy to address that. You’ve got to get a judge to tell us to do it,” says TalkTalk regulatory chief Andrew Heaney.


Paying the price The cost of instituting the blocks is another sticking point. Even without taking into account the legal fees associ- ated with fighting the court order, BT’s filtering of Newzbin2 cost the ISP an esti- mated £5,000. Blocking the many copyright-infringe-


ment sites out there could turn out to be an expensive business, and some ISPs intend to fight to make sure rights-hold- ers are the ones who pay to see their products protected. “ISPs shouldn’t have to spend any


money on this,” ISPA’s Kernahan says. “ISPs are there to provide services to serve customers, not to enforce


12


decision at the centre of it to tell us to do it,” Heaney says. “The decision needs to remain absolutely with the judge. It can’t be a process that subverts the rule of law.” However, TalkTalk is one of the biggest


ISPs in the UK. Smaller providers would find it more burdensome to absorb the costs of Web blocking – at least, they would if the rights-holders went after them. “The costs would be disproportionate


for small ISPs,” says Kernahan. “I don’t think it would be fair at all.” So far, the MPA and its fellow content


industry groups have targeted only the largest providers, but smaller players could find themselves in the firing line in future. Smaller ISPs have been understandably


reluctant to talk about their position, but their larger rivals have noted the dispar- ity, which they suggest could lead infringers to switch to suppliers that are off the MPA’s radar. According to Heaney, if blocking is not done widely across the ISP industry “it will distort the market and mean the blocking will be even less effective”. “There’s no reason not to go after the


small ones. From the rights-holders’ perspective, they probably want to pick up the low-hanging fruit,” Heaney says. The MPA says it is keeping its options


open, but Kernahan thinks the group is some way off going after the small fry. “Most small ISPs are business ISPs with


quite a small consumer offering,” he says. “I don’t think rights holders have any particular appetite to go after small ISPs just yet.” Even mobile operators could be in the


firing line as, despite not traditionally being seen as such, their services make them ISPs. Again, the operators have been unwill- ing to openly discuss the issue, but


a


source at one UK mobile operator, who asked not to be named, says conversa- tions are going on internally. One thing the mobile operators have in


their favour here is something that usually puts them at a disadvantage to their fixed-line rivals: the relatively limited data caps imposed on mobile broadband services make them a less- than-obvious choice for someone wanting to download vast quantities of pirated material. The irony of the situation is that,


according to many experts, the blocks that ISPs are being told to institute do not work, at least not for anyone who seri- ously wants to unlawfully download albums, games and DVDs. The blocks only apply to the Web addresses of the sites – use a VPN or a proxy service, and you’re in. According to University of Cambridge


security expert Richard Clayton, most young people learned how to use these tools a while ago. “Schools have systems blocking access to MySpace and Facebook and your average schoolkid knows how to get round those,” he explains. “That said, at the moment the easiest way of getting round the BT block is to type ‘https’ rather than ‘http’ [at the beginning of the site’s URL].” Clayton has performed extensive anal-


ysis of Cleanfeed, and he says the problems inherent in the system showed up on its original mission. “Nobody pretends it has any effect in


stopping people who are determined to view child sex abuse images from doing so,” he says. “It puts off the accidental or the casual viewer and that’s about it. “In the case of the movie studios, every-


body who wants to view Newzbin or The Pirate Bay is motivated to do so.” n


www.totaltele.com December 2011/January 2012


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