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.

Thursday 28 July 2011

The long arm of digital copyright

[Note significant changes as a result of the Supreme Court judgment and CJEU judgment in NLA v Meltwater, discussed here, which reverse the judgment of the Court of Appeal described here. (9 June 2014)]

The NLA v Meltwater case decided yesterday by the English Court of Appeal illustrates how, as an accidental by-product of digital technology, the reach of copyright is significantly greater online than it ever was in the hard copy world. 

The Court of Appeal found that public relations agency recipients of Meltwater’s e-mail and online news clippings service would not be protected from copyright infringement by a licence from the Newspaper Licensing Agency that covered Meltwater’s scraping and distribution activities. 

The agencies themselves, when receiving and reading the e-mails or accessing Meltwater’s website, engaged in a separate activity restricted by copyright, so would require their own licence.  The same applied when they followed links from the e-mails so as to access newspaper websites, since the newspaper websites’ terms and conditions permitted only personal and/or non-commercial use.

The appeal was brought by the Public Relations Consultants Association, which had intervened in proceedings brought by the NLA against Meltwater.  The PRCA’s detailed defences were emphatically rejected by the Court of Appeal.  But the PRCA also ran a more fundamental argument that goes to the heart of the increasingly apparent problems with the scope of digital copyright. 

The PRCA argued in effect that copyright online should be functionally equivalent to copyright offline: 
“[PRCA’s] starting point is the press clippings agency; whilst the agency requires a licence from the Publishers to make the 'hard' copies they supply to their clients, the latter do not require a licence to receive and read them. PRCA contend that in an online environment a licence to the provider of a service, Meltwater, must encompass the inevitable copies which will be made when that service is received and read by the end-user. In other words the provision and receipt of the service are but opposite sides of the same coin. They accept that one must be licensed but deny the right of the Publishers to insist that both are licensed.”

This ‘double licensing’ argument was rejected by the Court of Appeal, which analysed the copies made by a recipient of a Meltwater e-mail and concluded that they were separate activities, not two sides of the same coin:
“The copies created on the end-user's computer are the consequence of the end-user opening the email containing Meltwater News, searching the Meltwater website or accessing the Publisher's website by clicking on the link provided by Meltwater . They are not the same copies as those sent by Meltwater. PRCA admitted as much in its defence and the agreed statement of facts. For these reasons I consider that the double licensing contention is unmaintainable.”
This conclusion illustrates a general difference between digital and pre-digital copyright. 

In the pre-digital environment no potentially infringing act was committed by reading a book or a newspaper, by opening a letter, or by listening to music on a vinyl record.  These activities were beyond the reach of copyright, since no copy was generated by doing so.  So no licence was required to do them and they were outside the control of the rightsholder.
Things are different in the digital world.  Once it became accepted that the transient copies created in the RAM of a computer count as copies for copyright purposes (a theory developed to enable a copyright owner to control the running of a computer program), then the very act of reading, opening, viewing or listening to anything on a computer automatically fell within the scope of copyright and became something that the copyright owner could control.  This position has been reinforced by the more recent acceptance that images on a computer screen also count as copies for copyright purposes.

None of these extensions in scope was envisaged by the original legislatures.  They happened without any change in the law.  They are a by-product of the fact that it is to all intents and purposes impossible to do anything in a digital environment without creating copies.  The law remained the same, but its effective scope in the digital environment was extended by the change in technology. 
This accidental extension of the reach of copyright has since become entrenched in later legislation such as the EU Copyright in the Information Society Directive.  This has two consequences.  One is that appeals to functional equivalence between digital and pre-digital copyright may fall on stony ground when measured against the words of the legislation. 

The second consequence is growing hostility to copyright, as the full ramifications of its extended digital reach have become apparent.  Most recently the Hargreaves Review concluded that copyright has overreached to a degree that brings it into disrepute and threatens its legitimacy. 
Whatever the ultimate result of the Meltwater litigation, it serves as a valuable reminder of the long arm of digital copyright.

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.  

Saturday 9 July 2011

Universal access to the internet a human right? Not so, Mr Special Rapporteur

Rarely can there have been such a clear example of the muddled state of human rights thinking as the UN Report on freedom of expression on the internet. 

Most of the Report, by Special Rapporteur Frank la Rue and submitted to the UN Human Rights Council, is an incisive, indeed inspiring, manifesto for protection of the internet from censorship and other interference from the state.  Point by point it targets arbitrary blocking and filtering of content by the state, criminalisation of legitimate expression (such as locking up bloggers), imposition of intermediary liability, internet disconnection and three strikes rules, government-initiated cyber-attacks and State violations of privacy.  Truly excellent stuff.

But in Part V the report morphs into a plea for a government-sponsored universal entitlement to be provided with access to the internet.  The Rapporteur is quite candid about this: 

“…the Special Rapporteur would like to underscore that access to the Internet has two dimensions: access to online content, without any restrictions except in a few limited cases permitted under international human rights law; and the availability of the necessary infrastructure and information communication technologies, such as cables, modems, computers and software, to access the Internet in the first place.”
The second dimension is paraded under the banner of human rights.  In truth it is not a human right at all. It is a claim that I, someone who would like an internet connection, can via the coercive agency of the state compel other people to sacrifice the fruits of their labour to satisfy my desire.  

Many will argue, on myriad grounds related to social justice, general welfare and the like, that that is a reasonable claim that the state should enforce.  But a human right it is not.  It is the opposite: a claim that the state can justifiably abrogate human rights in the name of a greater good. 

To pretend that forced redistribution of wealth in what the state deems to be a good cause is an expression of human rights (so-called ‘positive’ human rights), rather than an interference with them, dilutes and tarnishes the really important human rights addressed in most of the Report: the rights that entrench protection from actions of the state.

So 10 out of 10, Mr Special Rapporteur, for most of your Report.  Minus infinity for Part V.