UK Court Orders BT To Block Access To Usenet Site Hollywood Hates

from the this-won't-end-well dept

It’s been quite a week for UK copyright law, hasn’t it? Today alone we’ve reported on UK courts deciding that they’re qualified to rule on US copyright law and that merely clicking a link to open a web page can be infringement. To top it all off, the UK high court ruled that BT must block access to Usenet service provider Newzbin2. This is an incredibly questionable decision that plunges the UK into blatant government censorship. And, of course, the entertainment industry (who you would think would know better than to celebrate censorship) is thrilled beyond belief.

The ruling itself is quite troubling:

“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.

There are many problems with this. First of all, an ISP should never be responsible for the actions of its users, and yet that’s what the court is saying here. Furthermore, Usenet, which has been around for ages (and, of course, predates the web) does have non-infringing uses as well. Sure, many people do now use it to infringe, but it’s pretty ridiculous to blame BT for allowing access to one service that provides access to Newzbin2, because some of its users infringe on copyrights. Furthermore, it’s not even “Newzbin” that is making this content available, as the judge wrote. It’s users who are making the content available.

Considering the sites that the entertainment industry has declared infringing — including the Internet Archive, Vimeo, SoundCloud, Vibe.com and tons of blogs and forums, this is a very worrying sign indeed. Basically, if the entertainment industry is scared of your online site or service, and too clueless to figure out how to use it, you can be booted off the internet in the UK. Scary stuff.

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Companies: bt, mpa, mpaa, newzbin

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Comments on “UK Court Orders BT To Block Access To Usenet Site Hollywood Hates”

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104 Comments
blaktron (profile) says:

Re: Re:

Newzbin isnt ‘used’ for anything other than access to Usenet. Maybe you could say Usenet is used primarily to infringe, but then that sounds a lot sillier, since its just a message board right?

The big problem with cutting off access to sites like Newzbin, TPB, torrentreactor etc. is that they dont host the content. Now that might sound like a silly apology to a copyright maximalitist, however its an important technical point, and if you are looking at it as a legal loophole then you are completely missing the point. The point is that by removing those sites you have removed exactly 0% of infringing content out there. And in doing so you used more than 0% of the amount of finite resources you have to combat infringement. See where I’m going? If you use 100% of your resources to combat infringement taking down ‘rogue sites’ then you have STILL only removed 0% of the content, which is nothing.

The better approach would be to dismantle usenet itself, which there are plenty of legitimate arguments for. Of course this ignores the fact that they already did this, and private citizens replicated the data, and rehosted the service like it was never lost. Usenet is actually a good lesson of why these attempts to remove access to infringing content is pointless, because they tried with usenet (the proper way) and failed miserably.

Anonymous Coward says:

Re: Re: Re:

Of course attempts to dismantle Usenet failed: we designed it precisely to resist such approaches.

Usenet was (and remains) the largest and most successful experiment in mass communication ever. (This is not to say that it doesn’t have issues — clearly, it is, and the largest of these is abuse, particularly spam.) And there are quite a few services which index it, search it, collate it, archive it — including Google. It will be interesting to see if this ruling is extended to them.

But in the end, it won’t matter. We simply won’t allow Usenet to be shut down. If necessary, we’ll tunnel it, encrypt it, whatever it takes to sustain no matter what any mere court says. Usenet is far more important than the entire content industry combined, and is certainly run by far more intelligent and clever people. We will always win in the end.

So if the entertainment industry wants to pointlessly expend its resources in this failure: by all means. It will reduce those available to take on other targets.

Anonymous Coward says:

Re: Re: Re:2 Re:

I am sure that many hopelessly ignorant people such as yourself believe that — but you’re all completely wrong, of course. There are tens of thousands of vibrant newsgroups discussing everything from Java programming to bicycle components to Isaac Aismov to economic theory.

But I’m sure you’re far too busy licking the boots of your masters to notice that.

el_segfaulto (profile) says:

Re: Re: Re:2 Re:

This is what you should take home…the people that administer Usenet servers are smarter than you, do not have corporate masters that they are beholden to, and to put it quite frankly are far more capable of adapting to change than you. Usenet will not be going away, the more you try to squelch it, the deeper underground it will go.

Anonymous Coward says:

Re: Re: Re:3 Re:

All true, of course: we ARE smarter than them. By a huge margin. And we also anticipated, decades ago, that there would come a day when we might find ourselves momentarily inconvenienced by these lesser people, or by totalitarian regimes, or nuclear war. So we designed and built Usenet to resist tampering, obstruction, blocking, censorship, and other annoyances. (And you’ll find that it’s quite resistant to spam these days as well. We do not look kindly on those pissing on our work.)

I think I will find it most amusing to watch the puppets dance, as they struggle with the effort to cut off hundreds of thousands of independent sites located all over the world, any of which can of course reconnect with any others at will, any of which can be replaced at will, any of which can refresh content to any of the others, any of which can be taken down and put up elsewhere. I wonder if any of them will ever sense, even dimly, that they’ve undertaken a fight that they can’t possibly win? Or that — by doing so — they will simply encourage us to build still more fault tolerance into the network? (Which we’ve already been doing, by the way, over the past few years.)

“Bring it”, indeed.

btr1701 (profile) says:

Re: Re: Re:2 Re:

> That’s some amusing spin, but the reality is that nobody uses
> Usenet these days for anything but spam and infringement.

Utter bullshit.

The group I read and participate in regularly (rec.arts.tv) has no spam and since it’s a text-only discussion group, there’s no infringing works posted whatsoever and it’s as vibrant today as it was ten years ago. And it’s far from the only group that fits that criteria.

DannyB (profile) says:

Re: Re:

> The rare instance of legal activity means zip.

Usenet was around long before the web. It was used almost exclusively for non infringing activity. At one point exclusively for non infringing activity.

Bit Torrent was invented for non infringing purposes. It was used that way for awhile. Because it was good at distributing large (non-infringing) files, the infringers use it.

If you have been using and are using a technology for non infringing use, and infringers come along, then to you, the instances of non infringing legal activity mean a whole lot more than zip.

Anonymous Coward says:

Re: Re: Re:

I’m not disagreeing with this comment, not at all. The comment just put an idea in my head that I’m sure has been stated before, but I’m too lazy to find a link: By this logic, the entities that build and maintain interstate highways should be held responsible for any drug trafficking, weapons or people smuggling, speeding, fatalities from car accidents, and destruction of the economies of small towns suddenly bypassed by the interstate system. By this logic, every single town or city that was negatively impacted by the interstate system, or was injured or lost a loved one in an auto accident has a very valid and lucrative legal claim against the DOT and the estate of Dwight D. Eisenhower. That highway “took arr jerrbss!”

America used to be smart, wtf happened? (Or maybe it never was smart, and everything I learned in school was false propaganda.) I’m beginning to believe that if Fox News aired a major story about how 1+1 = 67, most of the country would buy it and demand major changes to the “godless” public school system. (off topic – If you want God in your child’s classroom, enroll him in private school — ever hear of “Separation of Church and State”?

Rich says:

Re: Re: Re:2 Re:

I find it ironic when religious people argue this (assuming that you are). It was the CHURCHES, not the atheists, that push hard for “separation of church and state” when the constitution was being written. They were concerned about the government sticking its nose into church affairs.

Anonymous Coward says:

Re: Re: Re:3 Re:

I find it ironic when religious people argue this (assuming that you are). It was the CHURCHES, not the atheists, that push hard for “separation of church and state” when the constitution was being written. They were concerned about the government sticking its nose into church affairs.

I’m religious and I agree with you. It was especially the Baptists that really wanted the separation of church and state, but that was before they became such a large denomination. Now, most of them seem to want the opposite. They’re like, “separation of church and state is good, unless it’s *my* church.” Funny how that changed.

Hephaestus (profile) says:

Re: Re:

I have to say, I really enjoy your posts. If you know anything about history, you would realize the record labels are doomed. Watching you and the other anonymous cowards flounder, strike out, and generally be dicks is fun.

Now for some fun. HADOPI, the US six strikes, and the UK’s DEA will cause a backlash. When you criminalize 50% of a population, you should be ready for it. You just do not realize how bad pissing off half the internet using population of the planet is going to be.

I have been studying the i-mobs that have been forming for a couple years now. They attack wrong doers, they fight oppression, and I believe, very soon, the cross hairs will be pointed at you. It should frighten you to your very core. 10,000 of you verses some percentage of 2.2 billion pissed off people.

It really is going to be fun to watch … by the way what is that guy from HBGary doing for a living now?

Hephaestus (profile) says:

Re: Re: Re: Re:

LOL. These days, nothing gets a person branded “clueless” quicker than this ancient meme. Try to keep up there, gramps.

I am locked in the past, I study history for fun. The record labels problem is they are monopolies that have never had to compete. The labels are stagnant and unchanging, all of their lobbying has done nothing to protect them. Every thing they have lobbied for has failed, it has only made them more bureaucratic and less capable of competing. The labels have only two things going for them, their back catalogs, and their ability to promote. Their ability to promote will face greater and greater competition over the next few years. More and more indie artists will hit the top 100 with out the labels help.

The numbers are so against the record labels it is unbelievable. No amount of shutting down competition through accusation will save them. The same will happen to the TV and Movie studios as video and sound editing software become standard on tablets.

Welcome to the wonderful world of competition.

Anonymous Coward says:

Re: Re:

LOTS of people kill with knives, guns, and cars. Should we make them illegal? Should we hold Oneida, Winchester, and Ford responsible for what the customers do with their product?

Oh, but this is different, ‘cuz PIRACY!!!

Moron. (Look! I’m the first person to spell “moron” right on the web!)

We need to repeal the bull**** law expert skier, Sonny Bono (Rest In Pieces), got passed years ago. (Too soon?) Even before he died, ALL of his music was more than 14 years old, and he was known as a joke in the music communtiy. Wonder why he fought for that law? He had Cher, he said that’s all he needed in that song (which should be in public domain by now, btw).

David Muir (profile) says:

Re: Re: Re:

Just to clarify… the Copyright Term Extension Act is known as the Sonny Bono Act as a “tribute” to Sonny Bono who fought to have a similar act put in place.

Here’s what Mary Bono said at the time of the Act’s passing (and after Sonny’s “passing”): “Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. … As you know, there is also [then-MPAA president] Jack Valenti’s proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.”

The scariness of someone being able to stand up in front of a US government body and say that with a straight face. It really distresses me. “Well, we can’t actually tear up the Constitution but we can do our best to bend it to the breaking point.”

http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act

Richard (profile) says:

Re: Re: Re: Re:

As you know, there is also [then-MPAA president] Jack Valenti’s proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.”

OK lets run with that forever less one day is still forever so wil have to subtract another day. That is still forever so we have to subtract yet another day. This process continues forever – so forever minus one day inveitably becomes forever-forever. Now forever-forever will either still be forever (which would violate the constitution) OR zero. So the only sound interpretation of forever minus one day is a copyright term of zer0. I’ll vote for that.

Anonymous Coward says:

Re: Re: Re:

Oh, and btw – I am a content creator. I have a whole host of music and art that will be (technically) going public domain in 2 years. I will not fight it. I had my time, people liked the tunes, but I couldn’t market them successfully. Not the public’s fault – MY FAULT. If I were the CEO of a publicly traded company, I could save my job by saying that it’s piracy’s fault, but I have this condition that is extremely rare in the US — honesty and responsibility. I made my own bed, it turned out no one thought it was worth paying to sleep in it. I guess I could make better content and packaging, but that’s much harder than suing. Rebecca Black, Justine Bieber, and T-Pain?!? Does anyone in the industry really believe this is good content???? No, it’s just easy to slap together and market at a minimal investment, and it sounds vaguely like something that was popular 2 years ago, and if it isn’t selling well enough, it must be piracy. It is amazing that the RIAA and the MPAA still think we’re going to pay for the mass-produced, polished turds they keep churning out. Companies used to get in trouble for paying radio stations to play their “hits’ (see the payola laws), now they’re demanding radio stations PAY THEM for the right to play their garbage?!?! How does this make sense to anyone with a brain and a memory?

Zot-Sindi says:

Re: Re:

then again, who knows, maybe they are but they didn’t mean entertainment through content

watching them mexican hat dance around the business model failing issue shooting in all direction anything that doesn’t go their way has in itself been ten million times more entertaining than the vast majority of the garbage they’ve passed out for years

Duke (profile) says:

This isn’t government censorship. It is court censorship at the request of Hollywood.

From my reading of the judgment and the commentary, I think the main flaw was that the judge assumed Newzbin2 was substantially the same as Newzbin1, which was found to be actively infringing copyright last year. From there, it was a simple application of the (very broad) law to get it blocked. There wasn’t much room for debate.

But yes, it’s an annoying judgment, and no doubt the MPA, BPI etc. will go running to the government waving this as a permission slip, and be able to get a “voluntary” web-blocking scheme set up for copyright infringement. That said, this ruling might be a good thing as the ISPs will turn around and say that they don’t need a new agreement as the law works just fine as it is, and copyright owners will have to go through a fairly expensive court process to get sites blocked. But that may just be wishful thinking.

G Thompson (profile) says:

Re: Re: Re:

Actually Mike courts are only acting as part of the Government when dealing with Statute Laws (Criminal or Civil cases covered by Acts of Parliament)

They are acting as arbitrators for most other cases and base their actions on precedents, previous similar cases and/or letters of law that have come before. It’s why a Law Degree is called an LLB (Bachelor of Legal Letters) its all based on documents that were written before by supposedly informed and unbiased arbitrators of law.

I know it’s pedantic in some ways, but courts do not always work in the best interest of the government, or in the best interest of the people, but in the best interests of the law as known (or shown) and argued to the case before them. Equity comes afterwards….maybe!

In civil cases, truth is barely visible most times, and common sense is thrown out the window, it all comes down to whom has the more persuasive argument based on previous cases. Oh and whether the Judge/magistrate/Arbitrator got lucky last night..

This judgement, though worrying in most respects, also has good news for other cases now and in the future (read my long comment analysis below). Remember though, it is only a Judgement based on One arbitrators opinion based on the information presented and argued before them. And it can still be appealed

Duke (profile) says:

Re: Re: Re:

Ah, fair enough. The lawyer in me was thinking government in terms of executive, with government censorship being more along the lines of ICE domain name seizures, the police shutting down websites, or the Home Secretary forcing ISPs to implement filtering of child abuse images. All of these are instances where there is direct governmental censorship without direct legal or democratic input.

That said, the law being used here (s97A) is vague enough that it needs a lot of interpretation from the judge and lawyers to make a case. A different judge, with different lawyers could have come to a different conclusion (as Kitchin J did last year in the Newzbin1 case; same site, more or less, same law, same principles, but different ruling).

DannyB (profile) says:

How to get any technology or service banned!

Use it for infringement.

Usenet.
BitTorrent.

Even if the technologies were invented for legitimate purposes. If people later come along and use them for infringement, then the technologies must be banned, made illegal, or at least blocked by ISPs.

So maybe we can get other technologies or websites blocked by ISPs?

Email
FTP
SSH

blaktron (profile) says:

Re: How to get any technology or service banned!

BBS
floppy disks
ZIP disks
Hard drives
Usenet
CIFS
CDs
IRC (DDC / FTP)
P2P (napster, gnutella, bittorrent)

These are all technologies that I have used to share content (copywritten or not) on, in roughly chronological order. Each one still in use is easily encrypted and many are widely used to infringe with, or easily could be again.

There has not been a single reliable technology created yet to prevent any of it. All the enforcement to date has been of the inefficient, analog variety. Meaning police work, human intervention and the courts. [Also, according to chrome spellcheck ‘analog’ isn’t a word. And neither is ‘spellcheck’.] If anyone thinks this is a battle they can win, they cant. The only reason any of these methods have been abandoned is because something better came along (or the courts shut a single, large provider down and then everyone else found something better ala napster to bearshare to limewire to various bittorrent sites).

Andrew (profile) says:

“First of all, an ISP should never be responsible for the actions of its users, and yet that’s what the court is saying here.”

I’m not sure that’s quite correct. If the ISP has actual knowledge (i.e. ignoring issues of filtering, retaining and analysing traffic) – why shouldn’t it be liable?

The ISP’s usual defence is that it *doesn’t know* about the piracy and shouldn’t be expected to try and find out because that would be wrong. That is a good defence.

But once it knows of actual and specific infringement – which is implied in the excerpt from the judgment – its defence is undermined.

blaktron (profile) says:

Re: Re:

The problem with this argument is that in order to determine what is infringing or not they need to look at ALL of their customer’s data, which is an inherent privacy violation and needlessly expensive to boot. Why should they do that when they dont have to? You can tell them a domain name hosts infringing content, or an IP address, or a range, but if you understand how IP traffic works then you know you need to actually look at the packet to find exactly where it came from and not just the header/footer info and determine, packet by packet, if you should allow it or deprioritize it or what. I understand that the ISPs do this anyway, but the more they are forced to the more expensive it becomes, so they dont want to unless it actually saves them money by keeping their upgrade costs down. Deep packet inspection firewalls are EXPENSIVE.

blaktron (profile) says:

Re: Re: Re: Re:

Yes, so they know that the website http://www.newzbin2.org or whatever is a search engine that leads to infringing content. Short of blocking web access to that site arbitrarily there is nothing they can do. None of the content comes from that IP address, so they would have to look at every single packet that they serve to find out if somewhere in there it references a usenet address (which it rarely will) and then start blocking on that IP. And they have to do this 10s of thousands of times, and this has to be looked at constantly by network engineers or the countless false positives would destroy their network.

Anonymous Coward says:

Re: Re: Re: Re:

Again, nobody anywhere is unaware that highways and the interstate system are used for illegal purposes, in much the same proportion that the internet is used for illegal purposes, so why should we hold responsible those who build and maintain the highways? They are AWARE that illegal activity happens on their system, so they are liable, right?

blaktron (profile) says:

Re: Re: Re:2 Re:

Are you saying then that half of crime is done on the internet, period? That’s preposterous. The entire entertainment industry is what, 10 billion bucks? 12? Maybe 30 if you count porn (which is mostly doing fine offering free crap on the internet). Look at the annual figures on drug smuggling in the US. Or what is the cost of a human life (rape and murder). If you’re saying that “nobody anywhere is unaware that highways and the interstate system are used for illegal purposes, in much the same proportion that the internet is used for illegal purposes”. I think you’re blowing this piracy thing a little out of proportion……. Or you’re not being serious, but I know someone, somewhere thinks this and its insane and insensitive to those victimized by real crime.

Andrew (profile) says:

Re: Re: Re:2 Re:

Well with that analogy – bear in mind that it’s the police who have the delegated responsibility of enforcing the legal use of roads. If the police see you acting illegally on the road, they stop you and you might get fined or jailed.

If it was a private road that I built on my own property and I saw you doing something illegal on it (maybe you start selling weed from a stall), I would probably stop you immediately. I certainly wouldn’t object to a court order telling me to deny thoroughfare to people who come to buy weed from you.

But this all assumes actual knowledge of a specific infringement. I doubt the ISP in this case had that – it seems to suggest the ISP only had general knowledge that “lots of infringement happened via the site”. Ideally it should be:

actual infringement, proven in court by a rightsholder -> that specific infringement being blocked by the ISP.

Here it seems to be

some infringement -> extensive and wider blocking than just the specific infringement

That’s not right.

ethorad (profile) says:

Re: Re: Re: Re:

Only because phone companies don’t care about children! And puppies!

They should follow the lead of ISPs and listen in on everyone’s phone calls using Deluded Phonecall Interception (DPI). That way if they catch someone infringing copyright by explaining the plot of a movie, describing a sports game/result or making a call with music playing in the background they can block any further calls being made to/from the two people involved.

Only then will our children be safe

(unless they talk to their friends about what they saw on TV last night)

Anonymous Coward says:

Re: Re: Re:

The same reason the phone company isn’t liable for people who use their telephones to harass, stalk, threaten or terrorize.

That’s not a very good reason because they should be. It should be the responsibility of the phone companies to monitor and record what is being said on their systems so as to prevent criminals, especially child molesters, form using the phone system to commit their crimes.

PaulT (profile) says:

Re: Re: Re: Re:

I was going to let this lunacy slide, but it’s a slow morning. You’re literally advocating for private corporation to be required to monitor every private communication on the off-chance that a crime is being committed. Of course, being an utter moron, you also jump straight to the “think of the children!” reasoning, even though it’s vanishingly unlikely that any child predators would use a telephone as their primary means of abuse.

What next? Mandatory 24 hour home surveillance, since statistically the people most likely to abuse children are members of their own family? Re-read Orwell – 1984 was a warning, not an instruction manual.

Anonymous Coward says:

Re: Re: Re:2 Re:

You’re literally advocating for private corporation to be required to monitor every private communication on the off-chance that a crime is being committed.

Hows that so much different from the upcoming laws requiring them to monitor communications on the internet? In many cases it’s even the very same company since many phone companies also provide internet service over the lines or airwaves. If it’s okay to do that, then monitoring calls really isn’t much different.

Of course, being an utter moron, you also jump straight to the “think of the children!” reasoning, even though it’s vanishingly unlikely that any child predators would use a telephone as their primary means of abuse.

If it saves just one child, isn’t it worth it?

What next? Mandatory 24 hour home surveillance…

There are those in government and law enforcement (for example, the Chief of Police of Houston) who have proposed just exactly that.

…statistically the people most likely to abuse children are members of their own family…

See? But of course you’re against monitoring like all the other child molesters/pirates.

Mike Masnick (profile) says:

Re: Re:

I’m not sure that’s quite correct. If the ISP has actual knowledge (i.e. ignoring issues of filtering, retaining and analysing traffic) – why shouldn’t it be liable?

But BT doesn’t have actual knowledge. It has general knowledge that *some* users of Newzbin likely use it to infringe. But BT is not a court of law, and has no way to hold a full hearing on whether or not infringement actually happened.

The ISP’s usual defence is that it *doesn’t know* about the piracy and shouldn’t be expected to try and find out because that would be wrong. That is a good defence.

No, it’s much more complex and important than that. It’s that even if they know some infringement is going on, it is not their position, nor their expertise, to determine what actions are infringing. Determining whether or not something is actually infringing involves a full legal process. Asking BT to handle that is a mistake.

btr1701 (profile) says:

Gross Overreaction

> Furthermore, Usenet, which has been around for ages
> (and, of course, predates the web) does have non-infringing
> uses as well.

That’s actually a bit of an understatement. There are 50,000+ newsgroups on Usenet, the overwhelming majority of which are nothing but text-based discussion of everything from politics to basket-weaving and have absolutely nothing to do with infringement.

To block all of Usenet because of a few infringing groups/users is essentially the equivalent of blocking the entire world wide web because of a few infringing web sites.

G Thompson (profile) says:

Re: Gross Overreaction

To block all of Usenet because of a few infringing groups/users is essentially the equivalent of blocking the entire world wide web because of a few infringing web sites.

Actually seeing that Usenet is drawn from the original FidoNet system which was pre-internet, and used on BBS’s for you youngens ๐Ÿ˜‰ the more correct analogy would be

To block all of Usenet because of a few infringing groups/users is essentially the equivalent of blocking the entire international Delivery and Postage services because of a very few parcels that might of contained infringing DVD’s/CD’s

Anonymous Coward says:

Re: Re: Gross Overreaction

Actually, that’s wrong. Usenet (1979) predates, and is vastly more sophisticated than Fidonet (1984). As history has clearly shown, the inherent technical superiority of Usenet is substantial: that’s why it’s still around 30+ years later, while Fidonet had a brief and unimportant surge of popularity in the mid-80’s before fading into well-deserved obscurity.

md1500 (profile) says:

But what has this achieved?

Because of this ruling, Newzbin was a trending Twitter topic today.

Suddenly, far more people are aware of the website.
The site isn’t being blocked until October.

They might as well put up a giant neon sign saying “GET YOUR FREE MOVIES AND MUSIC HERE!”

Also, once the site is blocked, details of how to get round it will spread like Ryan Giggs’ identity.

mike allen (profile) says:

I wonder how lon it will take to find a way round this block I notice MAFIAAfire updated when I came on line so maybe they already have.
2nd BT are back in court in october to explain how they intend to do it.
3rd and even more worrying the court said that most infringer’s are using streaming and web lockers these days so guess what’s next for the block in the UK

G Thompson (profile) says:

Judgment might be a problem for future actions by Mafiaa

The actual judgement for those interested (and not the very biased media release) can be found via BAILii at http://www.bailii.org/ew/cases/EWHC/Ch/2011/1981.html

From first reading it looks worrying and it seems that the recent UK decision of L’Oreal v eBay (C-324/09) has been used here as well. Very worrying.

[at 199] “A point which underlies some of the submissions made by counsel for BT, although it was not relied upon by him as a free-standing ground of objection to the proposed order, is the question of proportionality. As set out above, counsel for the Studios accepted that the proposed order engaged the Article 10 ECHR rights of BT’s subscribers, and accordingly that it was incumbent on the Studios to satisfy the court that the interference with those rights was proportionate having regard to the Studios’ rights protected by Article 1 of the First Protocol. The requirement for proportionality is also laid down by the judgments of the Court of Justice in Promusicae and L’Or?al v eBay. [emphasis added]

200. In general, I am satisfied that the order sought by the Studios is a proportionate one. It is necessary and appropriate to protect the Article 1 First Protocol rights of the Studios and other copyright owners. Those interests clearly outweigh the Article 10 where rights of the users of Newzbin2, and even more clearly outweigh the Article 10 rights of the operators of Newzbin2. They also outweigh BT’s own Article 10 rights to the extent that they are engaged. The order is a narrow and targeted one, and it contains safeguards in the event of any change of circumstances. The cost of implementation to BT would be modest and proportionate.”[emphasis added]
[Note: Article 10 is the freedom of expression under the European Convention on Human Rights]

Interestingly the TD community might like to look at paragraph 20 entitled Factual Background

The Studios relied on two recent studies of the scale of the problem so far as the film and television industries are concerned. A study by Ipsos MediaCAT dated April 2010 analysing the scale of film and television piracy in the UK in 2009 estimated the overall loss from film piracy at ?477 million and the overall loss from television piracy at ?58 million. A study by Tera Consultants dated March 2010 concluded that in 2008 the audio and audiovisual industries in the UK lost almost 670 million euros in revenues to physical and digital piracy, with the larger proportion of that lost revenue attributable to digital piracy.

Before we all go off and state, that study was totally bogus and why didn’t BT make this statement the next paragraph at 21:

This evidence has not been challenged by BT. Nevertheless, I cannot ignore the analysis of Professor Ian Hargreaves in his recent report commissioned by the Prime Minister, Digital Opportunity: A Review of Intellectual Property and Growth (May 2011). In paragraph 8.9 he stated that:

“? in the Review’s four months of evidence gathering, we have failed to find a single UK survey that is demonstrably statistically robust. For many surveys, methodology is not available for peer review.” [emphasis added]

As he explained, there are a number of problems with trying to quantify the scale of online copyright infringement. He went on to summarise the findings of a considerable number of studies both in the UK and elsewhere, and to describe the problems with them. In paragraph 8.17, he attempted to quantify the scale of copyright infringement expressed as a percentage of the economy as a whole using industry estimates, and concluded that “copyright infringement appears to account for just under 0.1 per cent of economic activity”. In paragraph 8.19 he considered a study by Business Action to Stop Counterfeiting and Piracy that estimated the losses from piracy as equivalent to 1.24% of the contribution made by the core copyright industries to the UK economy, and concluded that 1.24% was “at the upper end of probability”. His overall conclusion at paragraph 8.23 was as follows:

“? Certainly ? many creative businesses are experiencing turbulence, which translates into fears about the further, future impact of copyright infringement on sales, profitability and sources of investment. However, at the level of the whole economy or even at the level of whole creative business sectors, the measured impacts to date are not as stark as is sometimes suggested by the language used to describe them. That said, copyright infringement is a stubborn fact of the digital landscape which might well get worse and which justifies serious government effort in identifying the right mix of measures to address it. “

This means the next paragraph of the judgement will make the MAFIAA extremely worried where evidence is not clear and robust, similar to what the court stated as obiter in AFACT v iiNet (2010)

I accept that online copyright infringement is a serious problem for copyright owners such as the Studios and the other rightholders who support this application, but in general it is one whose impact is difficult to quantify with any confidence. As will appear, however, in the present case there is fairly good evidence of the scale of the wrongdoing.[emphasis added]

It seems therefore, and this is only a VERY quick analysis and read through by myself, that the court had sufficient quantifiable and robust evidence to proceed with this Specific order in this case and this case alone with regard to newsbin2. Other cases will not be so easy against other entities even similar to Newsbin based on that paragraph 21.

Anonymous Coward says:

Re: Re:

Curious and appropriate that would mention that. Overnight, news arrived that several mirrors of existing (search) sites are quietly being constructed in countries with court systems that aren’t the lapdogs of entertainment industry lawyers. They will be operational and accessible over secure channels in a week or two. So while (eventually) access to one will be removed, another half dozen will take its place. This process will be repeated at will every time another foolish, ignorant court feebly tries in vain to shut down an important resource. We win. Again.

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