Last year’s Digital Economy Act 2010 created a power (s.17) for a court to order a service provider to prevent access to a “location on the Internet” if that location was being used, or likely to be used, to infringe copyright. That power has not been brought into force and last January Ofcom were asked to report to the Government on whether such blocking could be effective. In the past week there have been two, apparently contradictory, developments.
First, in the case of Twentieth Century Fox and others v British Telecom [2011] EWHC 1981 Ch, the High Court decided that it already had the power, under s.97A of the Copyrights, Designs and Patents Act 1988, to order BT to “prevent its services being used by users and operators of the website known as NEWZBIN and NEWZBIN2 to infringe copyright”. Newzbin had been found by an earlier case to infringe the copyrights of film studios; shortly after that judgment that site closed and the similar Newzbin2 site appeared. The judge made the order recognising that “prevention” is impossible and that users would find ways around any technical block but nonetheless considered that “the order would be justified even if it only prevented access to Newzbin2 by a minority of users” (para 198).
However a press release today from the Department for Business, Innovation and Skills seems to reach the opposite conclusion: that “the [section 17] provisions as they stand would not be effective and so the Government will not bring forward the Act’s site-blocking provisions at this time”. This is based on Ofcom’s report, which has also been published. In fact Ofcom’s conclusions on the technical efficacy of blocking seem similar (if anything, more positive) to those of the judge:
Although imperfect and technically challenging, site blocking could nevertheless raise the costs and undermine the viability of at least some infringing sites, while also introducing barriers for users wishing to infringe. Site blocking is likely to deter casual and unintentional infringers and by requiring some degree of active circumvention raise the threshold even for determined infringers.
Instead their concern appears to be that the DEA’s injunction process may be too slow to be effective for rightsholders (real-time streaming of sporting events is identified as a problem), insufficiently clear for ISPs (what must be blocked, for how long, and who bears responsibility for any challenge), and perceived as unfair and/or an invasion of privacy by users, thus providing an additional incentive to circumvent the blocks. Ofcom conclude that addressing these issues would require a much broader package of changes than is provided by the Digital Economy Act.
Both the Ofcom report and the court case consider what technology might be used to implement a block. Ofcom discuss four possibilities: IP routing, DNS resolution, URL blocking and deep packet inspection (DPI). As in my discussions with them, they conclude that none of these is ideal: both IP and DNS risk significant over-blocking, URL blocking is expensive and limited to web traffic, and DPI is very expensive and could affect network integrity. In the short term they seem to prefer modifications to DNS resolvers, perhaps combined with the more expensive techniques, while noting that this will cause increasing problems as DNSSEC is deployed “over the next three to five years”. The court case was originally asked to require URL blocking, using BT’s existing system for blocking URLs on the Internet Watch Foundation’s Child Abuse Image list, however the judge appears to conclude in para 201 that the proportion of non-infringing material on the Newzbin sites is sufficiently low that requiring the studios to provide a full list of those URLs that do infringe would be disproportionate. A hearing on the exact approach to be taken is expected in the autumn, but the judge’s comments seem to suggest that either IP or DNS blocking will be adopted, given the limited over-blocking it will involve on this particular site. Interestingly, the Ofcom paper has some technical details redacted in an apparent recognition (as I have been pointing out to them for some time) that using the same system for both copyright material and child abuse imagery would risk making it easier to circumvent both types of block.
So is this a step forward or a step back for website blocking? At least it seems clear that for now the Copyright, Designs and Patents Act 1988 will be the relevant law. The judge seems to envisage a series of further cases to order other service providers to block access to Newzbin, with perhaps a few more expensive cases to consider whether any other sites are sufficiently serious infringers for blocking injunctions to be made. However commentators have expressed concern that the lack of clarity on who would pay the costs in those cases might mean that a threat of litigation is enough for an ISP to take a commercial decision to block “voluntarily” without insisting on an injunction.
