Brodies TechBlog

A recent English High Court decision, issued on 30 April 2012, has ordered several major Internet Service Providers (ISP’s) to block access to the file sharing website Pirate Bay.  The order was made following the decision of Mr Justice Arnold in February this year which held that The Pirate Bay had infringed the copyright of various music recordings (you can read the decision here) following an application by some of the biggest record companies in the UK, including Polydor, Sony and Virgin Records.  Although the details of the case and decision have not yet been fully reported (and may not be), it may be that the extent of the infringement which was being committed and facilitated by The Pirate Bay website was so great that the ISP’s voluntarily consented to the granting of the Court order rather than opposing it at a contested hearing.  A hearing had been provisionally scheduled for June to determine precisely what technical measures would be required to be implement to give effect to a blocking order.  The one exception to this was BT who requested further time to consider its position.

 Some surprise has been expressed about the ISP’s in this case apparently willingly agreeing to comply with a Court order of this nature and implementing technical restrictions to block access to a website which could in principle be used legitimately to share non-infringing material online (albeit following the earlier February ruling it was decided that significant amounts of infringing material was available on the site).  The order is a powerful measure and raises questions about balancing the rights of copyright holders and the freedom of expression of internet users under Article 10 of the European Convention of Human Rights.  Such an order also forces ISP’s to incur the cost of implementing the measures effectively and a failure to do so properly could put them in breach of the Court order.

Why have the ISP’s agreed to implement the Court order?

There could be a number of reasons for the ISP’s in question adopting this position. Firstly, Mr Justice Arnold’s decision in The Pirate Bay case echoes the decisions in the recent high profile Newzbin and Newzbin 2 cases (which can be found here and here) in which BT was ordered to implement similar technical restrictions to block access to file sharing websites.  In other words, there was a precedent for the Court to follow through on issuing an order requiring an ISP to put the technical restrictions in place, particularly where there is clear evidence of wide scale infringement.

Secondly, the Court issued an unequivocal decision on The Pirate Bay’s activity in February where Mr Justice Arnold stated:

“In my judgment, the operators of [The Pirate Bay] do authorise its users’ infringing acts of copying and communication to the public. They go far beyond merely enabling or assisting.  On any view, they “sanction, approve and countenance” the infringements of copyright committed by its users. But in my view they also purport to grant users the right to do the acts complained of.”

Thirdly, Mr Justice Arnold went on to say that in his view, The Pirate Bay case was a stronger case of infringement than the Newzbin decision.

With all that in mind, it seems that the ISP’s have taken a pragmatic approach and rather than incur any further costs disputing the Court’s decision, they have accepted it and focussed their resources on complying with the order.

Is this the end of the matter?

The Pirate Bay decision shows that the UK Courts are prepared to tackle the problem of illegal file sharing head on by issuing these types of website blocking orders.  However, that is unlikely to be the end to the matter.  It is likely that there will always be a ‘work around’ to access the blocked website and it is unlikely that the Court’s decision will by any means dissuade those who are intent on accessing and using The Pirate Bay and infringing material anyway.  In addition, the Court order only applies to particular ISP’s, and those ISP’s that are not named are not required to put the blocking measures in place – albeit those caught by the order are the major UK players.

For the time being at least the copyright holders can claim to have won the battle and ‘captured the pirates’.  However, this may not be an end to these types of disputes.  Several  rulings in Europe have questioned the extent to which such blocking orders can be granted and enforced, particularly when ISP’s are required to monitor and prevent  infringing activity.