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England and Wales: blocking website sets bad international precedent · Article 19

ARTICLE 19: 01 Aug 2011

The High Court’s decision requiring British Telecom to block access to the file-indexing website, Newzbin.com sets a worrying international precedent against the right to freedom of expression.

The decision sets too low the threshold for ordering blocking, fails to properly balance the right to property with the right to freedom of expression, and shows no consideration for the chilling effect such a decision would have. Ordering the blocking of an entire domain name, as opposed to specific webpages, is also likely to breach the requirement for necessity in international law.

Although ARTICLE 19 supports development of clear standards related to online copyright infringement, the judgment of the English High Court on 28 July 2011 sets a worrying precedent which could have a dramatic chilling effect on legitimate online content. It is also highly likely to breach international standards of freedom of expression.

In a landmark ruling, given on 28 July 2011, an English High Court judge held that British Telecom (BT), the UK’s biggest internet service provider (ISP), must block access to Newzbin.com which provided links to pirated movies. The decision to block access to the site was made following an application by several Hollywood studios, who argued that it was the only way they could combat online copyright infringements by Newzbin2.

The judge held that a ‘website blocking’ injunction was available on the basis that BT knew that the users and operators of Newzbin.com ‘infringe copyright on a large scale and in particular infringe the copyrights of the studios in large numbers of their films and TV programmes’. The judge also found that BT subscribers were among those using Newzbin.com to receive pirated copies of the studios’ films and TV shows.

ARTICLE 19 notes with concern that the judge granted the ‘website blocking’ injunction not only in relation to the studios’ own films but also those of third parties who were not involved in the case, on the basis that there was no reason to believe that they would not support it. The judge accepted that the order would also prevent BT subscribers from making use of Newzbin.com for legitimate purposes, but considered that there was little evidence that the site was being used in this way.

The court concluded that the intellectual property rights of the rights holders ‘clearly outweighed’ the freedom of expression rights of the users of Newzbin.com, and ‘even more clearly’ those of the operators of Newzbin.com. The free speech rights of BT and its subscribers were also outweighed by the property interests of the studios.

BT had argued that, instead of blocking the entire site, it would be more proportionate for the studios to provide a list of specific URLs (webpages) to be blocked. However, the judge rejected this argument.

ARTICLE 19 believes that the high court order is very likely to breach international standards for the protection of freedom of expression, in particular the principle that any restriction on freedom of expression for a legitimate aim must be proportionate. Today’s ruling gives short shrift to this well-established principle as follows:

In its judgment, the high court failed to carry out a proper balancing exercise between freedom of expression and the right to property. In particular, the judge provided very little reasoning for his conclusion that the intellectual property rights of the studios ‘clearly outweighed’ the free speech rights of BT and its many UK users;

The threshold for granting such a ‘website blocking’ order was set very low, despite its obviously far-reaching consequences. In particular, the studios simply had to show that BT knew that one or more persons were using its service to infringe copyright, and that was sufficient to justify an order blocking the entire site;

Moreover, little or no consideration was given to the chilling effect that the order is highly likely to have on freedom of expression and the free flow of information on the Internet, especially legitimate online content. This is borne out by the overly broad terms of the order sought, which is directed to the website’s domains and sub domains rather than specific URLs deemed illegitimate. In ARTICLE 19’s view, any order seeking to block access to domain names as a whole rather than specific URLs is very likely to breach the requirement of necessity under international law. In this respect, ARTICLE 19 also points out to a July 2011 report by the OSCE Special Representative for Freedom of the Media said that ‘Arguably, the practice of banning access to entire websites, and the future publication of articles thereof (whose content is unknown at the time of access blocking)goes beyond ‘any notion of ‘necessary’ restraint in a democratic society and, instead, amounts to censorship’.

ARTICLE 19 urges the establishment of clear legislative standards in this area in order to strike a fairer balance between the interests of rights holders and Internet users and better protect freedom of expression on the Internet.

NOTES TO EDITORS:

For more information please contact: Gabrielle Guillemin, Legal Officer, gabrielle@article19.org or +44 20 7324 2513
The full text of the judgment can be found at http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/twentieth-century-fox-film-corp-others-v-bt.pdf
For the report of the OSCE Special Representative for Freedom of the Media on Freedom of Expression and Internet, see http://www.osce.org/fom/80723

BT on site-blocking: Every case will need a court order: “

Pick on our freetards over our cold dead corpse

BT’s head of retail Simon Milner came out swinging after the legal setback over web-blocking. While admitting the company is ‘not deliriously happy’, it welcomes a clarification. And BT won’t be appealing the decision.…

Free Whitepaper: Implementing Energy Efficient Data Centers

“

(Via The Register – Comms.)

Hollywood Wins Court Case – ISP Ordered to Block NewzBin2: “

While major entertainment corporations are working hard at censoring the internet in the United States through the PROTECT IP Act, it corporate sponsored censorship has already become a reality in the UK thanks to what some have referred to as a landmark court case.

Legally speaking, the internet got a little more censored recently. The Telegraph is reporting that Hollywood has won a major court case in which they are now, for now, able to compel ISPs to block access to, really, any website they pick and choose in the name of combating copyright infringement. At stake was general access to a website known as NewzBin2.

NewzBin2 is a website that offers an index of NZB files. NZB indexing sites are generally simply a list of small files that are merely metadata. The NZB files points to a file made available on one of the oldest known file-sharing networks that is still used quite a lot – UseNet. The file is a bit like a .torrent file, only the file is on a server – or maybe several servers – instead of on other people’s computers. The actual downloading typically doesn’t happen on the NZB indexing site nor is the NZB indexing site keeping track of any data flowing to and from the user.

An NZB file may be convenient, but it simply isn’t necessary for downloading anything on UseNet (access to UseNet providers, sure, but not the NZB file)

So, knowing this, the only thing the court ruling really does is enable Hollywood to censor the internet in the UK. Blocking NewzBin2 will amount to nothing in the end except maybe a temporary minor inconvenience for some people. Many already point to the fact that an encrypted connection will circumvent whatever the ISP throws down against its own users – and if you’re using UseNet regularly, there’s a good chance you’d know about how to hide your connection from ISP level censorship anyway, I think.

What is a little disconcerting is what the judge said in his ruling. From the report:

‘In my judgment it follows that BT has actual knowledge of other persons using its service to infringe copyright: it knows that the users and operators of Newbin2 infringe copyright on a large scale, and in particular infringe the copyrights of the Studios in large numbers of their films and television programmes,’ said Justice Arnold.

In opposing the order, BT had argued that Newzbin2 also links to lawful content, but the court said it was far outweighed by pirated material and that ‘BT’s best shot was to point to a reference to the 1891 Lancashire census’.

If the judge is suggesting that ISPs know what everyone on their network is doing, then isn’t that like saying that the operators of a major subway network know exactly where everyone in the network is going? Sure, whoever is controlling the network might be able to track a handful of individuals, but trying to track every person is way too demanding as the amount of man hours to make sure it knows the movements of every user is simply impractical.

Even scarier is the suggestion that lawful content is no excuse to stop the blocking of a website. It’s very difficult to really know where to begin with that. How much content has to be infringing in order for the website to be blocked? Will it have to be more than 50% infringing content? 25% infringing content? One song that happens to have three notes that are similar to another song? Where’s the bar set here? That point is not reflected in the report and if the judgement doesn’t specify what the level is, it’s not completely illogical to suggest that Hollywood can really block every website in existence. How many websites have at least a reference to copyrighted material (i.e. a message on a forum saying ‘Listening to Kiss right now.’)?

The amusing part is the fact that the censorship of NewzBin2 will be put in place in the Fall. No doubt this will give NewzBin2 plenty of time to figure out how to bi-pass this measure for it’s UK users. Even better is the fact that this only affects BT currently and similar motions will be brought to other ISPs. I don’t see how NewzBin2 simply changing it’s website to another name for its British users won’t defeat this in any way. Call the site ‘Fuzzybunniesjumpinginthefield.com’ and allow access to the NewzBin2 services. If you plan on finding ways to circumvent British censorship in order to download the entire Adbobe Suites in the future, you only have until the end of the Summer holidays to figure it out!

In the end, this will do little more than damage the internet infrastructure as more methods to circumvent censorship measures will be developed. Activities like this will probably have an affect on users wanting to use the internet for legitimate purposes, but it’s unlikely that this will even come close to putting a dent on file-sharing.

Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.”

(Via ZeroPaid.com.)

High court forces BT to block file-sharing website | Technology | guardian.co.uk

Win for Hollywood studios as UK high court rules BT must block access to Newzbin2

Mark Sweney and Josh Halliday
guardian.co.uk, Thursday 28 July 2011 10.58 BST

Hollywood film studios won a landmark UK high court ruling on Thursday forcing BT to block access to an illegal file-sharing website accused of operating ‘on a grand scale’.

The Motion Picture Association, the trade body whose members include Warner Bros, Fox, Disney and Paramount Pictures, has been granted an order requiring BT — the UK’s biggest internet service provider — to block its customers’ access to the website Newzbin2.

Thursday’s verdict will be viewed by the creative industries as a landmark that could set a precedent for the widespread blocking of illegal filesharing websites by ISPs, helping to stem the flow of digital piracy in the UK.

‘In my judgment it follows that BT has actual knowledge of other persons using its service to infringe copyright: it knows that the users and operators of Newzbin2 infringe copyright on a large scale, and in particular infringe the copyrights of the studios in large numbers of their films and television programmes,’ said Justice Arnold in his ruling at the high court in London.

‘[BT] knows that the users of Newzbin2 include BT subscribers, and it knows those users use its service to receive infringing copies of copyright works made available to them by Newzbin2,’ Arnold added.

BT had argued that forcing it to ban its 6 million UK customers from accessing a website would usher in a new wave of online censorship.

However, the creative industries claim website blocking could save them hundreds of millions of pounds in illegal downloads.

The MPA said that Newzbin2 makes unlawful copies of television programmes and films, and receives in excess of £1m a year from its 700,000 users.

‘This ruling from Justice Arnold is a victory for millions of people working in the UK creative industries and demonstrates that the law of the land must apply online,’ said Chris Marcich, MPA managing director for Europe, the Middle East and Africa. ‘This court action was never an attack on ISPs, but we do need their cooperation to deal with the Newzbin site, which continually tries to evade the law and judicial sanction.’

The film industry’s fight to block Newzbin stretches back to March last year, when the high court ordered the site to take down all of its pirated material and pay damages to the studios.

The three men behind the Newzbin Ltd – Chris Elsworth, Thomas Hurst and Lee Skillen – sold all of their shares in the company to David Harris shortly before the trial. Newzbin Ltd went into administration shortly after the ruling and avoided the huge payouts.

Months later a clone site appeared operating anonymously from Sweden. Rights holders said they had no choice but to force BT to block UK users’ access to the website, saying all other legal avenues had been exhausted.

Simon Milner, director of group industry policy at BT, said the latest judgment means rights holders will now have to prove in court that a website infringes copyright before it is blocked.

Milner added that the judgment puts the Digital Economy Act voluntary blocking scheme, drawn up at industry roundtable meetings earlier this year with Ed Vaizey, the culture minister, in an uncertain position.

‘[The judgment] is actually helpful and we welcome it because it clarifies a complex area of law and shows that rights holders can use the copyright laws in this country. It means they have to prove a site is infringing before [a] court and get a court order,’ he said.

Milner declined to reveal how much it will cost ISPs such as BT to block infringing websites.

Review into viability of website blocking rules to be announced soon, Government says: “A report into a whether website blocking measures are viable is to be published shortly, the Culture Minister has said.“

(Via OUT-LAW News.)

Foreign Office to hold talks on whether internet access is a human right – 14 Jul 2011 – Computing News

by Gareth Morgan
14 Jul 2011

The Foreign and Commonwealth Office will host a multidisciplinary meeting next week exploring the UK’s policy towards freedom of expression on the internet.

The first meeting, which will be led by Jeremy Browne, minister for state at the FCO, takes place on 20 July. It will include representatives from human rights campaigners.

Internet access has become a defining feature of the Arab Spring protests – a wave of revolutions and protests in the Arab world – with several regimes blocking citizens’ internet access in an effort to quell protests.

That has resulted in widespread calls from human rights campaigners for governments to acknowledge the critical role the internet plays in people’s lives.

In early July 2011, the UN-affiliated Organization for Security and Co-operation in Europe (OSCE) called for internet access to be treated as a fundamental human right.

‘Some governments already recognise access to the internet as a human right. This trend should be supported as a crucial element of media freedom in the 21st century,’ said Dunja Mijatovic, an OSCE’s spokesman.

The UK government has recognised the increasing importance of internet access, even if it lacks a formal stance on whether it counts as a human right.

In a parliamentary written answer, Foreign Secretary William Hague said the government were committed to supporting people’s right to access – and express their views on – the internet.

‘[We] will continue to encourage states that restrict access to online media to uphold their international human rights commitments,’ he said.

BBC News: UK looks to US on piracy blocking

5 July 2011 Last updated at 15:21 GMT
UK looks to US on piracy blocking
Footballs, AFP/Getty Ways to stop websites illegally streaming sports matches should be investigated, said Ed Vaizey

Websites hosting pirated material could be blocked in the UK if the US introduces a similar system, according to culture minister Ed Vaizey.

He told a conference in London that internet providers in the States were ‘rumoured’ to be considering a voluntary filtering.

Such an agreement would be a ‘game changer’ elsewhere, said Mr Vaizey.

There have been no official announcements from the US to substantiate the minister’s claim.

To date, UK ISPs have resisted pressure from rights holders to police their users.
Odd attitude

Mr Vaizey struck a bullish note on the subject of copyright during his keynote speech at the Intellect Consumer Electronics conference.

‘If people are streaming live football without permission we should look at ways we can stop them,’ he said. ‘People have the right to earn money from content they create.’

However, he remained tight-lipped on what came out of last week’s meeting between UK ISPs and content providers to discuss website blocking.

Mr Vaizey’s suggestion that similar talks were taking place in the US was clearly intended to move forward the debate at home.

‘A voluntary agreement may come out of the US and if that does happen it could be a game-changer,’ he said.

In a dig at ISPs, he said he found ‘their attitude odd’, especially BT and TalkTalk’s failed legal challenge to the Digital Economy Act (DEA).

The DEA is aimed mainly at preventing piracy via peer-to-peer file-sharing but as people move away from that route, it also makes provision to block access to some websites.

It allows content providers to apply for an injunction against ISPs that do not restrict access to illegal streaming sites.

The Motion Picture Association has done just that, taking BT, the UK’s largest consumer ISP, to court over linking to members-only index site Newzbin.

The MPA wants BT to block Newzbin with the same system that stops access to sites hosting child sex abuse images.

The members-only website aggregates a large amount of the illegally copied material found on Usenet discussion forums.

The case is due to be heard next week.
Free speech
Mulberry handbag, Getty Few would complain about sites peddling fake handbags, said Mr Vaizey

Another conference speaker Neil Berkett, the chief executive of Virgin Media, said there was no current agreement between UK content providers and ISPs.

‘We still have a way to go to create an environment where the two sides see eye-to-eye,’ he said.

‘How do you ensure that content is protected in an age where a whole generation thinks that stealing is just fine?’ he asked.

‘Beating them over the head with a stick is not a good start. What is needed is models that encourage people to change their behaviour, subscriptions that are cheap enough so that people think ‘I’m better off getting a full array of quality music’ ‘, he said.

The US government has pledged to pursue those who link to illegal streaming sites, including extraditing individuals from other countries.

The issue has attracted some high-profile critics, such as Google chairman Eric Schmidt.

He vowed that the search engine would fight any attempts at web blocking. He warned that putting blocking measures into legislation would set a dangerous precedent for censorious governments around the world who might be tempted to use it as a political tool.

Mr Vaizey said that critics of website blocking displayed a degree of hypocrisy.

‘They [the US government] have been tough but if they took down a website linking to fake handbags no-one would bat an eyebrow,’ he said. ‘As soon as it is a site sharing music it becomes an issue about freedom of speech.’

Film piracy battle heads to court | guardian.co.uk

Motion Picture Association heads to high court seeking to block website that allegedly distributes pirated material

Josh Halliday
guardian.co.uk, Monday 27 June 2011 11.11 BST

Colin Firth and Geoffrey Rush in The King’s Speech – there are said to be more than 70 pirate versions available online. Photograph: Weinstein/Everett /Rex Features

Hollywood film studios will take their battle against illicit downloading to the high court in London on Tuesday in an attempt to force Britain’s largest internet service provider, BT, to block access to a website that allegedly distributes pirated material.

Backed by studios including Warner Bros, Fox, Disney and Paramount Pictures, the Motion Picture Association (MPA) – the international arm of the US film trade body, the MPAA – is trying to get BT to cut off access to Newzbin2, a website that allegedly links to hundreds of pirated movies and music.

Tuesday’s high court case will be the first in Britain where an attempt is being made to force internet providers to block sites under the Copyright, Design and Patents Act. If successful, the ruling will pave the way for more music and film companies to go to the courts seeking the controversial blocking orders.

Spyro Markesinis, the vice president of legal affairs for Momentum Pictures, the distributor of The King’s Speech, said there were 75 different versions of the Colin Firth movie on Newzbin2.

‘The survival of our business depends on the revenues we receive for our content,’ he said. ‘Our recent film, The King’s Speech, is available on the Newzbin2 website without our consent. Neither we, nor the filmmakers, receive anything for this.

‘Lost revenues not only threaten our business and our employees’ jobs but also mean we have less money to invest in new films, so the whole industry – and particularly the independent film business – is at risk. That’s why we fully support this action against Newzbin.’

The film industry’s fight against Newzbin stretches back to March last year, when the high court ordered the site to remove all of its pirated material and pay damages to the studios. The firm behind the website, Newzbin Ltd, went into administration shortly after the ruling. However, a clone site soon appeared operated anonymously from Sweden.

Chris Marcich – the MPA president for Europe, the Middle East and Africa – said the group had ‘no option’ but to take its fight against Newzbin to the courts.

‘Newzbin has no regard for UK law and it is unacceptable that it continues to infringe copyright on a massive and commercial scale when it has been ordered to stop by the high court,’ he said.

Separately, the communications minister, Ed Vaizey, is leading a series of discussions with rights holders about setting up a voluntary web blocking body to curb illicit filesharing. Under the plans, ISPs would block access to websites such as The Pirate Bay on a list drawn up by copyright owners.

BT declined to comment.

Film studios want BT to block website offering The King’s Speech | guardian.co.uk

Newzbin2 claimed to be ‘infringing copyright on an enormous scale’

Josh Halliday
guardian.co.uk, Tuesday 28 June 2011 14.16 BST
Article history

The website Newzbin2 is claimed to have 75 illicit versions of The King’s Speech. Photograph: Allstar/Sportsphoto

Colin Firth’s box office hit The King’s Speech is at the heart of a landmark court battle over online piracy between Hollywood film giants and Britain’s largest internet service provider, BT.

Major film studios, including Paramount Pictures and Disney, asked the high court in London on Tuesday to force BT to block access to the website Newzbin2, which they claim is ‘infringing copyright on an enormous scale’ – including 75 illicit versions of The King’s Speech.

The case is the first of its kind in Britain and could pave the way for the biggest clampdown on online piracy yet.

Hollywood studios argued in court that illicit filesharing was a ‘very significant social evil’ and is responsible for ’several hundreds of millions of pounds a year’ in lost revenue. The studios – represented by their international trade body, the Motion Picture Association (MPA) – want BT to cut off access to Newzbin2 for UK internet users in the same way that it blocks child abuse websites on the Internet Watch Foundation (IWF) list.

However, BT claims that such a blocking order would be the ‘thin end of the wedge’ and there would be ‘nothing to stop countless other’ rights holders demanding that hundreds of other contentious websites are banned.

In its skeleton argument, BT claimed in the high court that rights groups would like to see about ‘400 sites a year’ blocked by internet providers. ‘Rights holders in the music and movie industries have already identified 100 copyright infringing websites which they would like to see blocked,’ the ISP said. ‘Claimants would seek orders blocking access to websites alleged to contain defamatory allegations or private and confidential information.’

Richard Spearman QC, acting on behalf of the film studios, told the court that if a blocking order is granted, they will demand that other UK ISPs, including TalkTalk and Virgin Media, also blacklist the website or face court action.

He told the court that there was now ‘no other way of impeding the infringement of copyright’ than to obtain a court order. ‘[Newzbin2] allows repeat and mammoth-scale copyright infringement,’ Spearman said. ‘If BT could not see that happening then they have to be the biggest ostrich in history.’

The offshore-based Newzbin2 has about 700,000 members, with annual turnover of more than £1m, according to the rights holders.

According to the rights holders, Newzbin2 currently helps distribute about 115,000 illegal versions of films and 320,000 TV shows.

The film industry’s fight against Newzbin stretches back to March last year, when the high court ordered the offshore-based site to remove all of its pirated material and pay damages to the studios.

However, the company behind the site, Newzbin Ltd, went into administration shortly after the ruling and avoided compensating the studios. Within weeks, clone site Newzbin2 appeared hosting similar material. The rights holders claim Newzbin2 has about 700,000 members, with an annual turnover of more than £1m.

Chris Marcich, the MPAA president for Europe, the Middle East and Africa, said: ‘Newzbin has no regard for UK law and it is unacceptable that it continues to infringe copyright on a massive and commercial scale when it has been ordered to stop by the high court.’

The case continues and the high court is expected to make a ruling this week.

Leaked Document: Copyright Industry Wants a Great Firewall of Britain: “

Website blocking has certainly been discussed in the US with the PROTECT IP act first propsed last month. While the senate has approved the bill, it seems that the US isn’t going to be the only country debating the prospects of filtering the internet.

A document labelled confidential was recently sent to James Firth’s blog and ultimately posted on Open Rights Group detailing a proposal by some industry interests to pressure British ISPs to participate in a ‘voluntary’ site blocking system.The documents describe this system as an ‘approach to inhibiting access to websites that are substantially focused upon infringement of copyright.’There’s plenty of reason to be concerned and one of the main reason to be concerned is that public policy is being decided behind closed doors. This isn’t too dissimilar to when copyright organizations tried pushing for many controversial provisions in the Anti-counterfeiting Trade Agreement. Everything about it was being planned behind closed doors. The only reason anyone heard about it early on was because Wikileaks blew the lid off of the secrecy surrounding ACTA back in 2008. This led to a major outcry from individuals and human rights groups alike to question the bill.It seems this ‘voluntary’ Great Firewall of Britain won’t be any different. Many of the criticisms directed at ACTA could be directed at this proposal including, ‘Was the proposal so bad that they had to hide it to avoid any kind of scrutiny?’There are other reasons to be concerned besides the questionable action of keeping this secret. Firth provided the following quote and response:

‘Evidence should also be submitted to show the urgency with which the measures are sought to inform any balance that needs to be struck by the expert body and the Court between the need for swift action and the need for sufficient evidence.’

This is very worrying indeed. Whilst the document talks about evidence gathering, ‘prior notification and liberty;’ it also talks about a turn-around time quick enough for ‘live events’ and a balance between swift action and evidence.The language used reads like copyright protection is being sold as more important than due process under law. In any case, I can’t imagine a technical solution that would allow ISPs to implement an effective block within the time scale of a ‘live event’, irrespective of the time it takes a court to act.So it’s not surprising that digital rights champions the Open Rights Group were locked out, despite hearing of the meeting in advance and putting in a request to attend

The Open Rights Group also expressed deep concern for this proposal:

The documents, sent to James Firth’s blog, set out a dangerous voluntary scheme that would involve ‘expedited court procedures’ and a ‘balance’ between evidence and speed of action. Definitions of what content is to be judged blockable is scarce. References to exactly how such blocking would work, and the consequences, are non-existent. The case for blocking is left unmade, with no analysis about the effects of such measures. There is cursory reference to the rule of law and proper oversight. The proposal, if it is the genuine proposal, adds up to a dangerous revocation of the rule of law where lobby groups would decide what you are allowed to see and read.

The Open Rights Group then referenced a recent Rapporteur which sounded an ‘alarm’ over such measures. They also encouraged British citizens to contact their MP to get them to ’sign EDM 1913, which calls for the government to take on board what the UN have said and reconsider the Digital Economy Act and its many proposed website blocking schemes.’The full document is currently being hosted by the Open Rights Group for those interested in reading the proposal.I doubt that an ISP could ever prevent every user from accessing a blocked website. All it really takes it the right proxy to access it.Do you think website blocking will ever be fully possible or is it a bad idea?Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.”

(Via ZeroPaid.com.)