Why Site Blocking Orders Need To Be Challenged In Court
from the two-sides-to-every-story dept
There is an extremely dangerous trend to remove proper judicial review from cases involving alleged copyright infringement. Sometimes that means "voluntary" actions by ISPs -- the SOPA and ACTA approach. Sometimes, it means appearances before tribunals by members of the public without adequate legal representation, as is happening under New Zealand's "three strikes" law. And sometimes it might involve a judge, but consist of the latter simply agreeing to requests from the copyright industry, without anyone challenging the grounds for doing so.
That was the case for the most recent action by the British Phonographic Industry (BPI), which represents the recording industry in the UK, as reported by Techdirt last week. Now Andres Guadamuz on his TechnoLlama blog has dug a little deeper into the judge's reasoning for granting these orders, and discovered the following remarkable section:
the evidence indicates that blocking orders are reasonably effective. The effect of the order made in Italy with regard to TPB [The Pirate Bay] referred to in 20C Fox v BT at  was a 73% reduction in audience accessing TPB in Italy and a 96% reduction in page views. The blocking order made in Italy in relation to KAT has had a similar effect. As for the effect of the orders made in England in relation to TPB, as at 19 December 2011, TPB was ranked by Alexa as number 43 in the UK, while as at 21 November 2012, its UK ranking had dropped to number 293.
As Guadamuz notes:
I had to look for the source of such astounding information, but I was not able to obtain any reliable resources, and I suspect that it is a figure given by the BPI, which may have been pulled out of the nether regions of their institutional anatomy. On the contrary, I found a report from Torrent Freak claiming the opposite, but this claim should be taken with a pinch of salt.
The use of Alexa is also rather surprising, since it is very rarely quoted these days:
Alexa works by measuring the behaviour of users who have installed a toolbar in their browser. This gives a snapshot of a very narrow demographic, that of Alexa toolbar users. Needless to say, people who are more likely to share files online are less likely to have any sort of toolbar installed on their browsers, particularly one that tracks online behaviour. Similarly, there are studies that prove that Alexa's rankings tend to be wrong for both small and big websites, as they tend to produce some serious mismatches with reality.
And Guadamuz goes on to point out:
In the end, the best way to try to ascertain the effect of ISP blocking orders is to ask the people who are engaged in the practice. This is precisely what was done by Dutch researchers Joost Poort and Jorna Leenheer. They conducted a survey of thousands of Dutch residents about their downloading behaviour. While more than 75% of respondents claimed that they never downloaded any illegal content, those who engaged in the practice replied that they were not affected whatsoever by the blocking of TPB in the Netherlands. Only 3.6% claimed that they are downloading less, and only 1.9% admitted that they had stopped downloading entirely. This seems like a huge failure of blocking orders.
But none of this information was presented in court. Instead, the judge used his own -- or maybe the BPI's -- figures to justify his blocking orders. That's why it's regrettable the ISPs involved did not mount any kind of challenge where they could have offered an alternative view on how effective such orders really are, so that the judge could form a more balanced view of the situation. More generally, this episode shows the dangers of moving to systems where the other side of the copyright story is not fully and fairly presented.