Sunday, 10 July 2011

To block or not to block? That is the Vaizey question

What would you do about infringement? That is the question that Culture Minister Ed Vaizey asked the ORG’s Jim Killock when they discussed website blocking this week. 
The right answer to the Vaizey question is ‘Ensure that the rightsholders have appropriate tools with which to enforce their rights if they choose to do so’. 
What is an appropriate enforcement tool?  That depends critically on who is the target.  Against the wrongdoer the full set of infringement remedies is available: damages, delivery up of infringing items, injunctions to prevent further infringement, and more.  Serious infringement may even attract criminal sanctions, including imprisonment. 
The rights industries say that this is not enough.  They cite numerous difficulties, including identifying infringers on the internet and problems with infringers who locate themselves in countries with less reliable intellectual property regimes. 
So the rights industries have long sought out other targets for enforcement.  Top of their list are ISPs.  The rightsholders have identified ISPs as efficient choke points for enforcement, who should be persuaded or forced to block websites, throttle internet connections and so on.
The rights industries have striven mightily to tar conduit ISPs with the taint of infringement, making it easier to justify enforcement measures against them.  However they have made little headway.  Conduits remain what they have always been – intermediaries who have done no legal wrong, and in particular do not infringe copyright, whatever information people may send through their pipes.    
Asking for enforcement powers against non-infringers is quite different from seeking sanctions against infringers.  There is tension between the apparent convenience of enforcing at a chokepoint and the principle that remedies should be deployed primarily against infringers.  Why should any remedy be available against someone who has done no legal wrong?  Is mere convenience a sufficient justification?
Exceptionally the courts do use their powers against innocent third parties to aid enforcement against a wrongdoer.  Where the law provides such remedies it has always protected the interests of the innocent third party.  It insists that the remedy should go no further than strictly necessary, is highly specific so that the third party knows exactly what is required of it, is minimally invasive of the third party’s rights and that the third party is compensated both for its legal costs and the cost of compliance with the order.  Examples are Norwich Pharmacal orders and freezing injunctions served on banks who hold wrongdoers’ bank accounts. 
In the UK the existing S97A Copyright Designs and Patents Act 1988 permits the court to grant injunctions against service providers who have actual knowledge of another person using their services to infringe copyright.  We will shortly find out, in Newzbin2, whether the English court will grant the movie industry a blocking injunction against BT under these provisions, and if so how targeted an injunction that will be. 
The severe limitations on granting remedies against innocent parties are not matters of mere legal nicety.  They reflect fundamental requirements of justice and proportionality.  An injunction against an innocent third party should, as a matter of law, always be regarded as exceptional and never become routine.
When the target of the injunction is a choke point such as a conduit ISP, there are significant proportionality concerns.  The very effectiveness of applying pressure to an information choke point requires the remedy to be applied with extreme caution, due to the high risk of cutting off legitimate as well as infringing content.  The fundamental rights not just of ISPs, but of the users of the internet generally, come into play.  Both have to be weighed against the interest in enforcing intellectual property rights. 
When we discuss the rights and wrongs of website blocking it also matters, and cannot be dismissed as a point of detail, what form the website blocking takes.   Blocking a whole site is far too blunt an instrument to be regarded as proportionate in any but the most special case.  If the infringement is a proprietary website full of infringing content, which demonstrably cannot be pursued by any direct means, then it might be proportionate to require an ISP to take measures within its technical capability to block access to the whole site, if no other content will be affected by the block.  Even then an injunction should contain proportionality safeguards, such as ensuring that it applies only while the site continues to include the infringing content. 
But as soon as we move away from that exceptional special case, whole-site blocking is, or should be, effectively off the menu.  Could it be proportionate to require blocking of the whole of a site which contains genuinely non-infringing material, or which only contains facilitative, dynamic links to material on other sites?  Could it be proportionate to require blocking of the whole of a hosting platform to which users submit content or links?  
Proportionality suggests that a more targeted, content-specific approach might be appropriate.  But while such a granular approach renders blocking more palatable in minimising collateral damage to legitimate content, it is likely to be technically more complex and so place a greater burden on the ISP.  Proportionality would be a very significant issue if, for instance, an ISP were required to take measures which it does not have the technical capability to implement.  
Targeted blocking also raises issues of scalability.  It is all very well for one rightsowner to demand that a content location be blocked, but what when the hundredth, or the thousandth, asks for other locations to be blocked?  These scalability issues are relevant for all ISPs, but especially so for SMEs.

This may all give the impression that any blocking – blunt instrument or fine - is objectionable.  It does illustrate just what an extraordinary, exceptional and difficult remedy blocking is.  Blocking cannot be an everyday solace for the online ills of the copyright industries.  

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