Friday, 29 July 2011

Ten essential points from Newzbin2

Mr Justice Arnold decided yesterday to order BT to block access to the Newzbin2 website, in a case brought by the major Hollywood film studios. Now that the immediate hullaballoo has subsided, here are 10 key takeaways from his typically thorough 204 paragraph judgment.

1. Legal context. The EU Copyright in the Information Society Directive specifically requires Member States to enable rightsowners to apply for injunctions against intermediaries to terminate or prevent a copyright infringement. So notwithstanding all the arguments about whether the court had power to make a blocking order, what is meant by ‘actual knowledge’ of a person using an ISP’s service to infringe copyright, and who is a user of the service, the debate was perhaps always more likely to end up being about whether the court should, on the particular facts of the case, exercise its discretion to grant an injunction and, if so, what the scope of the injunction should be.

2. Factual context. The Studios had already taken their case against Newzbin1 to trial, proved ‘massive’ copyright infringement and obtained a judgment and an injunction against the operators of Newzbin1. The injunction had proved to be ineffective, since the new Newzbin2 site was doing its best to avoid the reach of the English courts.

3. No non-infringing use. The judge found that while an injunction would prevent BT subscribers from making use of Newzbin2 for non-infringing uses, the incidence of such uses was de minimis. Against this background the judge held that the protection of the property rights of the rightsowners outweighed the freedom of expression rights of the users of Newzbin2, and an injunction blocking the whole of the Newzbin site was justified. On the particular facts as found by the judge any arguments based on preventing access to legitimate content on the Newzbin2 site were effectively a non-starter. Whether that will apply in future cases will depend on their particular facts.

4. Does this open the door to more blocking orders? The judge accepted that rightsholders would be likely to seek similar orders against ISPs in relation to other websites. He pointed out that even though the studios had already obtained judgment against Newszbin1, the studios had had to put before the court a substantial quantity of further evidence to support the Newzbin2 application. Future applicants for blocking orders against other sites would have to prove things that in this case the studios had already established in Newzbin1. The judge’s view was that rightsholders would not undertake future applications lightly and would probably concentrate their resources on seeking relief in respect of the more egregious infringers. He therefore did not anticipate a flood of applications. The effect on the ISPs or their networks of multiple orders could be addressed in evidence as and when they are applied for, in the light of experience gained as a result of the present order.

5. Will blocking orders become routine? In addition to the reasons given by the judge for not anticipating a flood of orders, there is a self-limiting aspect to this. If rightsholders try to obtain blocking orders in cases where the extent of infringement is more limited and there is substantial non-infringing content, then questions of proportionality and impeding access to legitimate content will come to the fore, which were not an issue in this case. That is likely to act as a brake, tending to ensure that the site blocking order remains the exceptional remedy that (given that it is an injunction against a non-infringing third party) it should be.

However, what start out as exceptional remedies can become routine and open to abuse, as happened with the ‘Anton Piller’ search and seize order. In the case of site blocking orders there is a particular risk of this, if ISPs adopt a similar neutral stance as they did with Norwich Pharmacal orders. There may need to be a procedure to ensure that the target site itself is notified of the application for a blocking order and given an opportunity to put in evidence and make representations to the court, at least if the rightsholder could have (but has not) taken infringement proceedings against the target site.

6. Will this apply to defamation and privacy cases? The judge recognised that these raised separate issues as well as common ones. He said that it does not automatically follow that applications in respect of such websites would succeed.

7. Does this open the door to content filtering injunctions against online intermediaries? No. The legality of content filtering injunctions is being considered by the EU Court of Justice in the SABAM v Scarlet and SABAM v Netlog cases. Mr Justice Arnold specifically distinguished the blocking injunction sought by the studios on the basis that it was clear, precise and merely required BT to implement an existing technical solution which it already employed for a different purpose.

8. What can an ISP be required to do? At a general level the court held, applying the recent CJEU decision in L’Oreal v eBay, that an injunction can require a service provider not only to take steps to prevent the continuation or repetition of infringements of which the service provider has actual knowledge, but to take measures which contribute to preventing further infringements of that kind.

Specifically the court decided that BT should be required to use its Cleanfeed system to block the whole Newzbin2 site on the basis of IP addresses and/or URLs, as notified by the studios to BT going forward. However the full details have yet to be worked out and will be the subject of a further hearing in October. The outcome of the October hearing may prove to be just as interesting as the main decision, as the court and the parties grapple more closely with the technical issues involved in site blocking. Significantly, the judge stated that if Newzbin2 had had a substantial proportion of non-infringing content, then it might have been appropriate to require the rightsowners to supply ongoing daily lists of URLs corresponding to specific infringing items, rather than IP addresses and/or URLs for the whole site.

9. Will the same apply to other ISPs? The studios have said that they will seek orders against other ISPs to block Newzbin2. Any arguments in those cases are likely to focus on whether the ISP in question has the technical capability to implement blocking.

10. Who pays? So far that is unclear. The normal practice when issuing injunctions against third parties who are not wrongdoers, such as in Norwich Pharmacal cases, is that the applicant pays both the legal and compliance costs of the third party. The judge hinted at similarities with Norwich Pharmacal orders. The question of who pays will be determined at the resumed hearing in October.

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